STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATIE PIEROLA AND GREG )

GERALDSON, )

)

Petitioners, )

)

vs. ) Case No. 11-0009GM

) MANATEE COUNTY AND DEPARTMENT ) OF COMMUNITY AFFAIRS, )

)

Respondents, )

)

and )

) ROBINSON FARMS, INC., AND BOCHI ) PROPERTIES, LLC, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, D. R. Alexander, on February 14, 2011, in Bradenton, Florida.

APPEARANCES

For Petitioners: Thomas W. Reese, Esquire

2951 61st Avenue South

St. Petersburg, Florida 33712-4539

For Respondent: James A. Minix, Esquire (County) Sarah A. Schenk, Esquire

Office of the Manatee County Attorney Post Office Box 1000

Bradenton, Florida 34206-1000

For Respondent: David L. Jordan, Esquire (Department) Department of Community Affairs

2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

For Intervenors: Edward Vogler, II, Esquire

Vogler Ashton, PLLC

2411-A Manatee Avenue West Bradenton, Florida 34205-4948

William C. Robinson, Jr., Esquire Blalock Walters P.A.

802 11th Street West Bradenton, Florida 34205-7734

STATEMENT OF THE ISSUE

The issue is whether the plan amendment adopted by Manatee County (County) by Ordinance No. 10-02 on October 12, 2010, is in compliance.

PRELIMINARY STATEMENT

Ordinance No. 10-02 changed the Future Land Use Map (FLUM) designation for a 28-acre tract of property from Residential 1 (RES-1) to Residential 3 (RES-3). The property is owned by Intervenors, Robinson Farms, Inc., and Bochi Properties, LLC.

On December 3, 2010, the Department of Community Affairs (Department) found the amendment to be in compliance, and notice of this action was published on December 6, 2010.

On December 27, 2010, Petitioners, Katie Pierola, Len Sirotzki, and Greg Geraldson, filed a petition for evidentiary administrative hearing with the Department

contesting the proposed land use change. (Mr. Sirotzki later

filed a notice of voluntary dismissal.) The matter was referred by the Department to the Division of Administrative Hearings on January 4, 2011, with a request that an administrative law judge be assigned to conduct a formal hearing. By Order dated January 13, 2011, Intervenors were authorized to intervene in support of the challenged amendment. After obtaining counsel, Petitioners were authorized to file an amended petition for hearing on January 24, 2011.

By Notice of Hearing dated January 12, 2011, a final hearing was scheduled on February 14 and 15, 2011, in Bradenton, Florida.

Separate pre-hearing stipulations were filed by Petitioners and jointly by Respondents and Intervenors on February 9, 2011. At final hearing, Petitioners presented the testimony of

John Osborne, Director of the County Planning Department and accepted as an expert; Betti C. Johnson, Emergency Management Planner with the Tampa Bay Regional Planning Council (TBRPC); and Laurie Feagans, County Emergency Management Chief. Also, they offered Petitioners' Exhibits 1-10, which were received in evidence. Intervenors presented the testimony of John Osborne; Elizabeth Benac, a certified planner with Wilson-Miller Stantec and accepted as an expert; and John A. Neal, president of

John Neal Homes, who will be the home builder if the new land

use is approved. Also, they offered Intervenors' Exhibits A-G, which were received in evidence. The County and Department did not present any witnesses. However, Respondents and Intervenors jointly offered their Joint Exhibits 1-23, which were received in evidence.

The Transcript of the hearing was filed on March 3, 2011. Proposed findings of fact and conclusions of law were filed by Petitioners and jointly by Respondents and Intervenors on April 4, 2011, and they have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Parties

   
   

   1. The County is a governmental entity and has the responsibility of administering its Comprehensive Plan (Plan). It adopted the amendment being challenged.

   2. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County.

   3. The parties have stipulated that Petitioners own real property in the County in close proximity to the property whose land use is being changed and that they submitted oral or written comments to the County during the adoption process.

      
      

   4. Intervenors own the subject property, which consists of two adjoining parcels located northwest of Bradenton in an unincorporated part of the County between 17th Avenue Northwest and 9th Avenue Northwest, approximately 600 feet east of 99th Street Northwest, and just south of the Manatee River. The site is more commonly known as the Robinson Farms. The parties have stipulated to the facts necessary to establish that Intervenors are affected persons.

2. Background

   
   

   1. In 1981, the County adopted its first comprehensive plan, which assigned a land use on the subject property allowing

      4.5 dwelling units per acre. In 1989, the County updated its original plan and designated the property RES-1, which allows a density of one dwelling unit per acre. The RES-1 land use has remained in effect since that time. In 1997 an application by the prior owners to change the land use to RES-3 was denied. See Joint Ex. 8.

   2. The northern part of the property is currently vacant, while the southern part is vacant except for an existing single- family residence and barn. The land is used for agricultural purposes. It lies just west of, and adjacent to, several other residential subdivisions. The property to the west of the site

      
      

      has land uses of Agriculture, RES-1, or Conservation. Compatibility is not an issue in this case.

   3. On September 11, 2009, Intervenors filed an application with the County Planning Department seeking a change in the land use of their approximately 49-acre tract of property from RES-1 to RES-3. The proposed change would allow an increase in density on the property from one to three dwelling units per acre. The application was numbered PA-10-02 and was assigned Ordinance No. 10-02.

   4. A public hearing on the proposed change was conducted by the County Planning Commission on March 11, 2010. By a 5-2 vote, that entity recommended that the amendment be forwarded to the Board of County Commissioners (Board) for its consideration. See Joint Ex. 10, p. MC 001126.

   5. On March 16, 2010, the Board conducted a hearing on the proposed amendment and voted 5-1 to transmit the amendment to the Department, along with other 2010 Cycle 1 amendments. Id. at p. MC 001120.

   6. Shortly after the amendment was transmitted to the Department, the TBRPC completed its preliminary work on the preparation of a new Storm Tide Atlas (Atlas). The Atlas is a multi-volume public safety planning tool used to assist with hurricane evacuation planning in a four-county region in the

      
      

      Tampa Bay area, including Manatee County. Among other things, it reflects storm surge data (i.e., water heights) based upon the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) model developed by the National Oceanic and Atmospheric Administration National Weather Service. The information in the Atlas is vital to public safety since it predicts storm surge heights during hurricanes. Based on data from the SLOSH, the TBRPC prepares, and includes in the Atlas, storm tide zone maps for the Tampa Bay area, which depict the landward extent of anticipated storm surge for each of the five categories of storm events. The Atlas does not, however, depict the Coastal High Hazard Area (CHHA) or hurricane evacuation maps prepared by each local government.1

   7. The data underlying the storm tide zone maps are used by local governments to assist them in preparing the CHHA, Coastal Evacuation Area (CEA), and Coastal Planning Area (CPA) maps in their comprehensive plans. The CHHA and CEA maps generally, but not always, encompass the same areas and for all practical purposes are the same. This is because the Plan definition of a CEA refers to the statute that defines the CHHA. See Joint Ex. 1, Vol. 1, p. MC 00053. Also, Future Land Use Element (FLUE) policy 2.2.2.4.1 defines the CEA in relevant part

      
      

      as "the geographic area which lies within the evacuation area for a Category 1 hurricane." Id. at p. 000140.

   8. The CPA is defined as "[t]hose portions of Manatee County which lie within the Hurricane Vulnerability Area (evacuation levels A, B, and C), as periodically updated." Id. See also Fla. Admin. Code R. 9J-5.003(57). Based on SLOSH data in the Atlas, hurricane evacuation maps (showing evacuation levels A, B, and C) are prepared by the County's Emergency Management Division (Division) to depict the geographic areas impacted by the five categories of hurricanes, with Evacuation Zone A being the area first evacuated during a category 1 hurricane. Based upon the 2009 SLOSH data, in late 2009, the Division prepared "carefully defined" Evacuation Zone maps, last updated in 2003, and presented them to the Board in April 2010. However, neither the existing CPA map (based on evacuation levels A, B, and C) nor the CEA map (based on the Zone A map) has been updated through the plan amendment process. Even so, the Division's latest Zone A map, given to the County planning staff in April 2010, represents a reasonably accurate depiction of the geographic boundaries of the CEA and evacuation level A of the CPA, based upon the latest and best available data at that time.

      
      

   9. The Atlas is updated from time to time, in this case because a new SLOSH model was developed in 2009. According to a TBRPC planner, the last SLOSH model for the Tampa Bay Area was developed around 1990. Like the CPA, the Plan requires that the County also update the CHHA and CEA maps "on a periodic basis." However, new information provided by the TBRPC is not automatically incorporated into the County's Plan. Rather, any changes in the maps must go through the large-scale amendment process so that members of the public, and affected landowners, have an opportunity to provide input before adoption. According to the County Planning Director, the new maps should be adopted in 2011 Cycle I or II. See Joint Ex. 10, p. MC 001065.

      However, in preparation for adoption hearings in June and October 2010 concerning this amendment, the staff prepared "proposed" CHHA and CEA maps based upon the new data provided by the TBRPC and Division, which are a reasonably accurate depiction of the geographic boundaries of those areas.

   10. The new Atlas was not adopted by the TBRPC until August 10, 2010; it was formally presented to the public at a meeting on August 26, 2010. However, the underlying data were given to the County and other local governments at a meeting in April 2010. At that time, the staff knew that new evacuation

       
       

       maps were being developed, but did not know the precise impact these changes would have on Petitioners' property.

   11. Based upon proposed maps prepared by staff, which in turn are based on information in the new Atlas, except for 4.68 acres in the northeastern portion of the site, the remainder of Petitioners' property would be within the predicted storm surge for a category 1 storm event (the CHHA), while the entire site would be within the Evacuation A and evacuation level A areas of the CEA and the CPA. See Joint Ex. 9; Petitioners' Ex. 10.

   12. On May 21, 2010, the Department submitted its Objections, Recommendations, and Comments (ORC) report to the County. See Petitioners' Ex. 4; Joint Ex. 4. The ORC noted that 21.4 acres of the site were within the CHHA and would result in an increase of 43 dwelling units in the CHHA. This observation was made using the current CHHA map in the Plan, rather than a revised CHHA not yet adopted by the County. The ORC noted that this increase in density would be inconsistent with Florida Administrative Code Rule 9J-5.012(3)(b)6., which requires that the Plan "direct population concentrations away from known or predicted [CHHAs]," and internally inconsistent with Coastal Element Objective 4.3.1, which requires that the County "[d]irect population concentrations away from the Coastal Evacuation Area (CEA)." The ORC also stated that the County had

       
       

       failed to demonstrate that the adopted hurricane evacuation time of 16 hours for a category storm 5 could be maintained. It recommended that the amendment not be adopted, or that the change in land use be restricted to that portion of the site outside the CHHA. Id. at p. 5.

   13. The TBRPC also reviewed the amendment and found it to be consistent with its Strategic Regional Policy Plan. See Joint Ex. 4. Although the TBRPC staff report was prepared on April 13, 2010, and considered at a meeting on May 10, 2010, it did not make reference to the data being used in the new Atlas but rather relied upon the current CHHA in the Plan. Id.

   14. Following the County's receipt of the ORC, Intervenors revised their application by removing the 21 acres within the CHHA and reducing from 49 to 28 the number of acres being changed to RES-3. This would allow a maximum of 105 dwelling units on the 28 acres (as opposed to 147 units if the land use was changed on the entire tract).

   15. Notwithstanding this revision, and the fact that new maps had not yet been adopted in the Plan, the County staff report dated June 17, 2010, "took [a] more conservative approach than DCA" and recommended denial of the application on the grounds the new Atlas data showed "the entire proposed site within the [CHHA]," the new mapping information constituted the

       
       

       best available data, and the application should be re-evaluated in light of the new data. See Intervenors' Ex. D. Except for this, the staff concluded that the amendment met all other criteria.

   16. On June 17, 2010, the Board conducted a public hearing on the revised application and due to a 3-3 vote, the application was deemed denied. See Joint Ex. 10, p. MC 001104. However, the Board voted to continue its deliberations at another hearing on June 21, 2010, when all seven Commissioners would be present to vote. Id. Because only six Commissioners were present at the June 21, 2010, meeting, the original 3-3 vote was allowed to stand. Id. at p. MC 001095.

   17. Pursuant to section 163.3181(4), Intervenors requested a mediation conference in which the County, Intervenors, and two members of neighboring subdivisions participated. That process culminated in an agreement for the applicants to submit additional data and analysis in support of the amendment and for the County to have another public hearing to consider the application. See Joint Ex. 19. Additional information supporting the amendment was submitted by the applicants on September 3, 2010. See Joint Ex. 13. On September 14, 2010, the Board approved the mediation agreement and scheduled a hearing to consider the matter on October 12, 2010, along with

       
       

       the 2010 Cycle 2 amendments which by then were awaiting approval. See Joint Ex. 10, p. MC 001073.

   18. At the October 12, 2010, meeting, the staff continued to recommend that the Board deny the amendment based upon the new Atlas data and the staff's proposed CHHA and CEA maps, which show that only 4.68 acres of the site are outside the CHHA, while the entire site is within the CEA (Hurricane Evacuation A). See Petitioners' Ex. 7. By a 4-3 vote, the Board initially denied the application. See Joint Ex. 10, p. MC 001067. Later in the meeting, after one Board member changed her position on the theory that the new Atlas data should not be considered, the Board voted to reconsider its earlier decision, and by a 4-3 vote, approved the map change. Id. at pp. MC 001071-1072.

   19. One of the Cycle 2 amendments considered at the October 12, 2010, meeting was CPA 10-18, also known as the McClure amendment, which sought a change in the land use on the McClure property from RES-1 to RES-3. In its ORC dated September 10, 2010, which was directed to that amendment (and other Cycle 2 amendments), the Department noted that a part of the site appeared to be in the CHHA and recommended that the "County should evaluate whether the subject site is within the CHHA based on the latest, best available data and analysis used in the Storm Tide Atlas for Manatee County released by the

       
       

       [TBRPC] on August 26, 2010." Petitioners' Ex. 5, ORC, p. 5. The ORC further recommended that if "a part of the site is within the CHHA, based on the most recent storm tide atlas information, the amendment should not result in any increase in density in that area in order to ensure that population

       concentrations be directed away from the CHHA." Id. The record is silent as to why the Department opted to use the later data on that amendment, but not amendment 10-02. In any event, following the issuance of the ORC, the County staff evaluated the amendment using the latest TBRPC data, and by a 4-3 vote, the Board adopted the McClure amendment. See Joint Ex. 10, p.

       MC 001069. However, the final version of the McClure amendment is unknown.

   20. The Robinson Farms amendment adoption package was transmitted to the Department for its review. On December 3, 2010, the Department notified the County of its Notice of Intent to find the amendment in compliance. The Notice of Intent was advertised in the Bradenton Herald on December 6, 2010. According to Department counsel, the Department's finding was based on two considerations: the applicants had revised their application as recommended by the ORC; and the County should continue to rely on the existing CHHA map until a new map is adopted in the next major plan amendment cycle.

       
       

   21. At the adoption hearing, the Board also considered data that show that between now and the year 2015, there will be no hurricane shelter deficit in the County. In addition, if the land use on 28 acres is changed, the plan amendment will only result in an increase of 56 units over what could be built under the existing RES-1 land use. There was no evidence that 56 additional units, occupied by 129 persons (at 2.30 persons per household unit), would adversely impact the hurricane evacuation clearance times for that area of the County or affect public shelter demand. Finally, the area in which the site is located, Subarea 11, is projected to increase by 10,000 persons between 2015 and 2035. The staff report reflects that the amendment will not affect the overall population projections or housing needs for the subarea.

   22. The site is located within the Urban Core Area.

       
       

       Policy 2.1.1.3 of the FLUE encourages residential density increases (or infill development) within that area in order to avoid urban sprawl.

   23. Finally, the entire area west of 75th Street, West, and north of Manatee Avenue West (in which the subject site is located) consists of 1,927 acres. Since 2006, 580 acres in that area have been changed from RES-1 to Agriculture and

       
       

       Conservation, thus reducing the amount of land available for 580 dwelling units.

3. Petitioners' Objections

   
   

   1. Petitioners contend generally that the amendment does not react in an appropriate and proper manner to the latest and best available data and analysis because it allows an increase in residential density on land within the CHHA, CEA, and CPA; that there are no data and analysis of need for additional residential development on the property; that the amendment contravenes rule 9J-5.012(2)(e) because there is no inventory and analysis of the projected maximum population density designated on the current FLUM within the Hurricane Vulnerability Zone; that the amendment fails to restrict development in evacuation zone A to protect human life and avoid public expenditures, as intended by section 163.3178(1); and that the amendment is internally inconsistent with FLUE policy

      2.2.2.4.5 and Coastal Element policies 4.3.1 and 4.3.1.1, which require that the County prohibit increases in allowable residential density on sites within the CEA and direct population concentrations away from the CEA and CHHA. These allegations generally, but in greater detail, track the objections raised in the ORC and the County's staff report.

      
      

   2. A plan amendment must be based on relevant and appropriate data. "To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of the adoption of the . . . plan amendment at issue." Fla. Admin. Code R. 9J-5.005(2)(a). As noted above, new and more accurate storm surge data were in existence and available to the County before the amendment was adopted in October 2010. Due to major improvements in technology since the last SLOSH model was prepared, the 2009 model has higher resolution basin data and grid configurations, which means that the predicted storm surge data are far more accurate than data in earlier models. Thus, the new TBRPC data and staff-proposed maps were the best available data on storm surge and coastal flooding at the adoption hearing. While the County and Intervenors are correct that there is no automatic incorporation of TBRPC data into the Plan, when more current and reliable data on the subject are in existence and readily accessible, as they were here, they should be used to evaluate proposed land use changes which would increase density in areas subject to coastal flooding. The Board reacted to the data in an inappropriate manner by assuming that only 21 acres of the property was in the CHHA and that none was located in the CEA. This reaction is not supported by the

      
      

      data. Therefore, the plan amendment is not based upon relevant and appropriate data and analysis as required by rule 9J- 5.005(2). Paradoxically, at the same meeting when the vote on Amendment 10-02 was taken, the Board evaluated the FLUM map change for the McClure property using the latest TBRPC data.

   3. All of the Robinson Farms property lies within the predicted CEA. Policy 2.2.2.4.5(a) of the FLUE applies to all development activity within the CEA Overlay District, which is an overlay based upon the CEA boundaries. It "[p]rohibit[s] any amendment in the [FLUM] which would result in an increase in allowable residential density on sites within the [CEA]." It is beyond fair debate that the plan amendment is internally inconsistent with this policy since the amendment would result in allowable residential density on a site within the CEA.

   4. Except for 4.68 acres, the entire site lies within the predicted CHHA, while the entire site is within evacuation level A of the CPA. Coastal Element policy 4.3.1 requires in part that the County "[l]imit development type, density and intensity within the [CPA]." It is beyond fair debate that the amendment is internally inconsistent with this policy since it does not limit development type and density within the CPA.

   5. Coastal Element policy 4.3.1 requires that the County "direct population and development to areas outside the [CHHA]

      
      

      to mitigate the potential negative impacts of natural hazards in this area." Also, Coastal Element policy 4.3.1.1 requires that the County direct population concentrations away from the CEA. Although not relied upon by Petitioners, but cited in the ORC, these two policies track rule 9J-5.012(3)(b)6., which requires that the local government "[d]irect population concentrations away from known or predicted coastal high-hazard areas." Here, the plan amendment would allow an increase of 56 dwelling units in the CHHA and CEA that would be occupied by 129 additional residents. Whether these increases in population and development trigger rule 9J-5.012(3)(b)6., or bring into play the two policies in the Coastal Element, was not fully addressed by the parties. However, the Department's ORC indicates that if

      43 dwelling units are added to the CHHA, these provisions would be applicable. See Petitioners' Ex. 4, ORC, p. 5. Because the CHHA and CEA are designed to minimize development in areas subject to coastal flooding in order to protect lives and property, thus implicating vital safety concerns, the proposed increase in development (56 additional units) and population (129 persons) within the CHHA and CEA is the type of development and population concentration contemplated by the rule and policies. Because the amendment fails to follow the dictates of those provisions, it is beyond fair debate that the amendment is

      
      

      internally inconsistent with these two policies. (Had rule 9J- 5.012(3)(b)6. been relied upon by Petitioners, a finding of inconsistency with the rule would also be appropriate.)

   6. The County's policy is to encourage infill development within the Urban Core Area so as to avoid urban sprawl. See FLUE policy 2.1.1.3. The subject property lies within the Urban Core Area. The proponents of the plan amendment contend that when this policy is weighed against the conflicting policies directing population concentrations away from the CHHA and CEA, the County has the flexibility to consider the Plan as a whole and approve an increase in density in the RES-1 and RES-3 areas located in the Urban Core Area, even if that property lies within the CHHA or CEA. See Joint Ex. 1, Vol. I, § C.2.1.2, pp. MC 000018-000019. Given the significant risk to life and property that arises during natural disasters such as hurricanes, however, the infill policy should not trump conflicting Plan provisions that limit development and population in these high-risk areas.

   7. Petitioners also contend that the plan amendment is inconsistent with rule 9J-5.012(2)(e), which requires that the County make an inventory and analysis of the projected maximum population density on the current FLUM within the Hurricane Vulnerability Zones of the County. The Atlas contains an

      
      

      inventory and analysis of population in the County by evacuation level for the years 2010 and 2015. See Joint Ex. 3, Exec.

      Summary, p. 9. No evidence was submitted to show that this information in the Atlas is inaccurate or otherwise fails to satisfy the purpose of the rule, simply because it was prepared by the TBRPC, rather than the County. It is fairly debatable that the plan amendment is consistent with the rule.

   8. Petitioners also assert that the plan amendment violates section 163.3178(1) because it increases residential density within the CHHA and Hurricane Vulnerability Zone, a result which does not protect human life and coastal resources, or limit public expenditures in areas subject to destruction by natural disaster. Subsection (1) expresses the legislative intent of the entire statute. It is doubtful that an expression of intent, as opposed to specific requirements in other portions of the statute, would serve as a basis to find an amendment not in compliance. In any event, there is insufficient evidence to support a finding that it is beyond fair debate that the proposed development would "damage or destroy coastal resources." Also, the property is within the Urban Core Area, which is already served by existing infrastructure. If further infrastructure is needed for development purposes, Intervenors' planner represented at hearing that the owners would be

      
      

      responsible for those costs. It is fairly debatable that the plan amendment is consistent with the statute.

   9. Finally, Petitioners contend that there are no data and analysis of need for additional increases in residential density, as required by rule 9J-5.006(2)(c)2. and 3. The two subparagraphs require that there be an analysis of the amount of land needed to accommodate the projected population, including "the estimated gross acreage needed by category," and "a description of the methodology used." A revised analysis of impact on population projections to meet housing needs was incorporated into the staff report presented at the adoption hearing in October 2010. See Joint Ex. 9, p. MC 00974. The analysis generally reflected that based on land development approvals and development patterns within Subarea 11 (where the subject property is located), the Subarea can easily accommodate the estimated increase in population between the years 2015 and 2035. Although the analysis is brief, it is sufficient to support a finding that it is fairly debatable that the amendment is consistent with rule 9J-5.006(2)(c)2. and 3.

      CONCLUSIONS OF LAW

      
      

   10. In order to have standing to challenge a plan amendment, a challenger must be an affected person as defined in section 163.3184(1)(a). The parties have stipulated to the

       
       

       facts necessary to establish that Petitioners and Intervenors are affected persons.

   11. Once the Department renders a notice of intent to find a plan amendment in compliance, as it did here, that plan provision "shall be determined to be in compliance if the local government's determination of compliance is fairly debatable."

       § 163.3184(9)(a), Fla. Stat. Therefore, Petitioners bear the burden of proving beyond fair debate that the challenged plan amendment is not in compliance. This means that "if reasonable persons could differ as to its propriety," a plan amendment must be upheld. Martin Cnty. v. Yusem, 690 So. 2d 1288, 1295 (Fla.

       1997). Where there is "evidence in support of both sides of a comprehensive plan amendment, it is difficult to determine that the County's decision was anything but 'fairly debatable.'" Martin Cnty. v. Section 28 Partnership, Ltd., 772 So. 2d 616, 621 (Fla. 4th DCA 2000).

   12. For the reasons given in the Findings of Fact, Petitioners have established beyond fair debate that the plan amendment is not based on the latest and best available data and analysis, as required by rule 9J-5.005(2); and that the amendment is internally inconsistent with FLUE policy 2.2.2.4.5(a) and Coastal Element policies 4.3.1 and 4.3.1.1.

   
   

   Therefore, the plan amendment adopted by Ordinance No. 10-02 on October 12, 2010, is not in compliance.

   RECOMMENDATION

   
   

   Based on the foregoing Findings of Fact and Conclusions of Law, it is

   RECOMMENDED that the Department of Community Affairs enter a Determination of Non-Compliance regarding Plan Amendment 10-02 adopted by Ordinance No. 10-02 on October 12, 2010.

   DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida.

   S

4. R. ALEXANDER Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2011.

ENDNOTE

1/ In 2006, the Legislature amended section 163.3178(2)(h), Florida Statutes, by changing the definition of the CHHA from the category 1 evacuation zone to the area defined by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) model to be inundated from a category 1 hurricane. See also Fla. Admin. Code R. 9J- 5.003(17), which defines CHHA. The new law also required that, no later than July 1, 2008, each local government in a coastal

zone amend its FLUM and coastal management element to include the new definition of CHHA and to depict the CHHA on the FLUM. To comply with the statute, effective October 10, 2008, the County adopted a provision depicting the boundaries of the CHHA. See Joint Ex. 1, Vol. II, p. MC 000383. The Plan also defines the CHHA, which mirrors the statutory definition, but also includes "those portions of Manatee County located seaward of the 5 foot Mean Sea Level topographic contour, including all areas of known coastal flooding." See Joint Ex. 1, Vol. I, p. MC 000053.

COPIES FURNISHED:

William A. Buzzett, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Deborah K. Kearney, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Thomas W. Reese, Esquire 2951 61st Avenue South

St. Petersburg, Florida 33712-4539

James A. Minix, Esquire Chief Deputy County Attorney Post Office Box 1000

Bradenton, Florida 34206-1000

David L. Jordan, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Edward Vogler, II, Esquire Vogler Ashton, LLLC

2411-A Manatee Avenue West Bradenton, Florida 34205-4948

James L. Robinson, Jr., Esquire Blaylock Walters P.A.

802 11th Street West Bradenton, Florida 34205-7734

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.

Docket for Case No: 11-000009GM

Orders for Case No: 11-000009GM