Z lan FINAL ORDER No. DEO-12-021 STATE OF FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY BARBARA HERRIN AND EDGEWATER CITIZENS ALLIANCE FOR RESPONSIBLE DEVELOPMENT, INC., Petitioners, v. DOAH Case No. 10-2419GM VOLUSIA COUNTY, MIAMI CORPORATION AND VOLUSIA GROWTH MANAGEMENT COMMISSION, Respondents. SIERRA CLUB INC., AND BARBARA HERRIN, Petitioners, v. DOAH Case No. 11-2527GM VOLUSIA COUNTY, Respondent, and MIAMI CORPORATION AND VOLUSIA GROWTH MANAGEMENT COMMISSION, Intervenors. / FINAL ORDER This matter was considered by the Interim Executive Director of the Department of Economic Opportunity following receipt of a Recommended Order issued by an Administrative Filed April 10, 2012 3:04 PM Division of Administrative Hearings FINAL ORDER No. DEO-12-021 Law Judge (“ALJ”) of the Division of Administrative Hearings (“DOAH”) on January 24, 2012.! Background and Summary of Proceedings The Volusia County Council adopted the Farmton Local Plan (“FLP”) 10-1 Amendment to the Volusia County Comprehensive Plan by Ordinance No. 2009-34. The FLP applies to 46,597 acres in southern Volusia County. The Volusia Farmton Site is rural and much of it is classified as wetlands. No services or public facilities currently exist on the site which contains abundant habitat for both upland and wetland dependent species. The Department of Community Affairs issued a Statement of Intent that initially determined the FLP was not “in compliance” as that term was defined in Section 163.3184(1)(b), Florida Statutes (2010). The Department filed a petition at DOAH that commenced formal administrative proceedings required for the FLP to be determined to be not “in compliance” consistent with the Department’s initial determination. DOAH assigned the petition Case No. 10-2419, After the 2010 Hearing, the Department, the County, and Miami Corporation filed a motion to place the case in abeyance so that the parties could pursue a settlement agreement. The motion was granted over the objections of Intervenors Herrin and Edgewater Citizens Alliance for Responsible Development, Inc. (“ECARD”). Pursuant to a stipulated settlement agreement among the parties that sought the placement of the case in abeyance, the Volusia County Council adopted Remedial Amendments by Ordinance No. 2011-10 to meet the compliance concerns raised by the Department. After review of the Remedial Amendments, the ' The Recommended Order was submitted to the Department of Economic Opportunity. Most of the powers, duties and functions of the Department of Community Affairs, including the state land planning agency powers and duties at issue in this case, were transferred to the Department of Economic Opportunity on October 1, 2011. Chapter 2011-142, Laws of Florida. 2 FINAL ORDER No. DEO-12-021 Department issued a Cumulative Notice of Intent on April 25, 2011, that found the FLP as remediated to be “in compliance.” Sierra Club and Ms. Herrin filed a petition on May 26, 2011, with the Department challenging the Cumulative Notice of Intent and seeking to have the FLP determined to be “not in compliance.” The petition was forwarded to DOAH and assigned Case No. 11-2527. The case was consolidated” with Case No. 10-2419 and set for hearing in September 2011. In the meantime, the Legislature enacted Chapter 2011-139, Laws of Florida (the “New Law”). The New Law made significant amendments to provisions of the Local Government Comprehensive Planning and Land Development Regulation Act found in Chapter 163, including the definition of “in compliance” in Section 163.31 84(1)(b), Florida Statutes, the law governing the proceeding. Upon motion by the County, following an earlier motion by Miami Corporation, the ALJ issued an Order determining that the New Law would apply to the proceeding both procedurally and substantively. On June 28, 2011, the Department moved for dismissal from the case as a party based upon the changes to Chapter 163, Florida Statutes, made by the New Law. The motion was granted. The consolidated cases proceeded to hearing in September 2011. Evidence admitted during the 2010 Hearing that was no longer relevant under the New Law was excluded from the evidentiary record. The evidentiary record, therefore, consists of evidence admitted at the 2010 Hearing that is relevant under the New Law and evidence admitted at the 2011 Hearing. * The ALJ’s Recommended Order contains a detailed procedural history of the two hearings and proceeding starting with the Introduction on pages 4 — 6; the Preliminary Statement on pages 6 — 12; and the Significant Events on pages 15 — 17. 3 FINAL ORDER No. DEO-12-021 ROLE OF THE DEPARTMENT The Interim Executive Director of the Department must either determine that the Amendments are in compliance and enter a Final Order to that effect, or determine that the Amendments are not in compliance and submit the Recommended Order to the Administration Commission for final agency action. § 163.3184(5)(e), Fla. Stat. (2011). After review of the Recommended Order and the Record, the Interim Executive Director accepts the recommendation of the ALJ and determines that the Farmton Local Plan incorporated into the Volusia County Comprehensive Plan through amendments adopted by Ordinance Nos. 2009-34 and 2011-10, is “in compliance.” STANDARD OF REVIEW OF RECOMMENDED ORDER The Administrative Procedure Act contemplates that an agency will adopt the ALJ’s Recommended Order as the agency’s Final Order in most proceedings. To this end, the agency has been granted only limited authority to reject or modify findings of fact in a Recommended Order. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. § 120.57(1)(, Fla. Stat. Absent a demonstration that the underlying administrative proceeding departed from essential requirements of law, “[a]n ALJ’s findings cannot be rejected unless there is no competent, substantial evidence from which the findings could reasonably be inferred.” Prysi v. Department of Health, 823 So.2d 823, 825 (Fla. Ist DCA 2002)(citations omitted). In determining whether challenged findings are supported by the record in accord with this 4 FINAL ORDER No. DEO-12-021 standard, the agency may not reweigh the evidence or judge the credibility of witnesses, both tasks being within the sole province of the ALJ as the finder of fact. See Heifetz v. Department of Bus, Reg., 475 So.2d 1277, 1281-83 (Fla. 1st DCA 1985). The Administrative Procedure Act also specifies the manner in which the agency is to address conclusions of law in a Recommended Order. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. §120.57(1)(D, Fla. Stat. See also, DeWitt v. School Board of Sarasota County, 799 So.2d 322 (Fla. 2nd DCA 2001). The label assigned a statement is not dispositive as to whether it is a finding of fact or conclusion of law. Kinney v. Dept. of State, 501 So.2d 1277 (Fla. 5th DCA 1987); and Goin v. Comm. on Ethics, 658 So. 2d 1131 (Fla. 1st DCA 1995). Conclusions of law labeled as findings of fact, and findings labeled as conclusions, will be considered as a conclusion or finding based upon the statement itself and not the label assigned. RULINGS ON EXCEPTIONS Exception No. 1 — Internal Inconsistency and Proximity to Existing Urban Development Petitioners take exception to Findings of Fact 15 - 17 and allege legal error with respect to Conclusion of Law 317 and ask the Department to overturn or clarify the ALJ’s Findings of Fact and legal interpretation that the presence of the planned urban area in the form of the approved but undeveloped 11,000 acre Brevard County Farmton area immediately to the south and contiguous to the Volusia Farmton large rural parcel no longer causes the FLP to be a remote, rural area outside of urban areas. FINAL ORDER No. DEO-12-021 In Paragraph 15, the ALJ’s Finding of Fact stated: “Prior to the Brevard County amendments taking effect, the Department regarded the Volusia portion of the Farmton Site as isolated and removed from other urban areas. Once the Brevard County Comprehensive amendments allowing urban development were determined to be in compliance and became effective, the Volusia portion of the Farmton Site became adjacent to “an urban area that is its match to the south.” Petitioners’ Ex. 6, Deposition of Michael McDaniel, at 14. In Paragraph 317, the ALJ’s Conclusion of Law stated: “Much of the Petitioners claim of internal inconsistency is based on the premise that the FLP is in a remote, rural area outside of urban areas. Whatever validity the claim may have had prior to the final adoption of the Farmton amendments to the Brevard County Comprehensive Plan, with the adoption the premise is no longer valid.” Petitioners did not cite to the record and identify competent, substantial evidence supporting their position that Findings of Fact 15 — 17, are legal error. The ALJ’s finding with respect to Findings of Fact 15 and 16 are supported by competent, substantial evidence by the direct and deposition testimony of Department Bureau Chief Mike McDaniel who testified that the adopted Brevard County Farmton site is an urban area and a match to the Volusia Farmton site which is now no longer remote or urban sprawl. (Tr. 228-229; Pet. Ex. 6, pp. 12-13) The ALJ’s finding that the FLP site is rural in Finding of Fact 17 is supported by competent, substantial evidence. (Pelham, Tr. IT. 220; Hoctor, Tr. IL. 196) Petitioners argue that the ALJ’s finding in Conclusion of Law 317 leads to a conclusion that there can be no area in the state that can be accurately referred to as “rural, remote, or far away from an urban area.” The ALJ’s conclusion makes no such finding from a statewide prospective. Conclusions of Law 315 - 316 cite to the definition of internal consistency in Section 163.3177(2), Florida Statutes, and state that a plan amendment is not required to further every goal, objective, and policy in the plan; and that the plan amendment should be compatible 6 FINAL ORDER No. DEO-12-021 with or not in conflict with other goals, objectives, and policies in the plan. The ALJ’s Conclusion of Law 317 rejecting the validity of Petitioners’ claim that the FLP is not compatible because it is a remote, rural area outside of urban areas, due to the prior final adoption of the Farmton amendments to the Brevard County Comprehensive Plan is more reasonable than that advanced by the Petitioner. Exception 1 is DENIED. Exception No. 2 — Urban Sprawl and Protection of the Environment Petitioners appear to take exception only to Finding of Fact 137 where the ALJ determined that the amendments did not trigger the statutes’ first indicator of urban sprawl — “promoting, allowing or designating for development substantial areas of the Jurisdiction to develop as low-intensity, low-density, or single-use development or uses.” Petitioners point out that the Plan being amended was previously found by the state land planning agency to be “in compliance” with the Act. Petitioners allege, as a matter of law, that the ALJ cannot make a determination now that the existing County Plan being amended fails to protect the environment and allows an inefficient land use pattern, thus violating the principles of administrative stare decisis. The ALJ made no such determination. In Paragraph 141, the ALJ’s Finding of Fact stated: “In comparison to the ranchette style of development, however, the FLP calls for a mixed-use development much more concentrated than a ranchette type of development and, on balance, more protective of natural resources. (Emphasis added) For purposes of comparing the existing and proposed land uses when determining whether urban sprawl criteria are implicated, the ALJ “compares” the ranchette style of development to the FLP and finds the FLP to be more protective of natural resources, not that the existing land use patterns for the subject property allowing densities of one unit per 10 to 25 acres are in violation of the existing County Plan or are adverse and inconsistent with the Act. 7 FINAL ORDER No. DEO-12-021 The issue in the instant proceeding is whether a particular amendment, not the underlying County Plan, is “in compliance.” No party in the instant proceeding has requested the Department to depart from its earlier determination that the Plan is “in compliance.” Because the ALJ made no finding that the land uses allowed under the existing Volusia County Plan are adverse and inconsistent with Chapter 163, the principles of administrative stare decisis are not implicated. Additionally, the adoption of a comprehensive plan or amendment is a legislative act and the plan is not intended to be a static document, rather it is subject to a continual and dynamic amendment process to address the long range planning horizon. The ALJ’s comparison of the protection of natural resources under the existing and proposed Plans is supported by competent substantial evidence in the record. (Ivey, Tr. 1807) Exception 2 is DENIED. Exception No. 3 — Urban Sprawl and Preservation of Agricultural Areas Petitioners take exception to Findings of Fact 181 and 312 and whether the FLP amendments discouraged the proliferation of urban sprawl and are consistent with Section 163.3177(6)(a)9.b., Florida Statutes. Petitioners do not allege that the ALJ’s Findings of Fact are mislabeled conclusions of law or are not supported by competent, substantial evidence. Rather, Petitioners allege legal error and dispute the notion that the comprehensive plan “preserves” a certain resource as long as it allows a landowner to choose to preserve the resource, but does not actually require the preservation. In Paragraphs 181 and 312, the ALJ’s Findings of Fact state: “The fifth development pattern is present if the word ‘preserve’ is interpreted to allow agricultural and silviculture activities to continue, rather than mandate that they continue. Policy FG 2.2 allows agriculture activities to continue, but does not require or guarantee that they will continue in perpetuity. Id. Policies 2.2, 2.5a, 2.11g, 2.12f, 2.23, and 3.13 ensure that agriculture may continue. The timberland soils in GreenKey and MRBOS will be preserved.” ae FINAL ORDER No. DEO-12-021 “[T]he FLP is determined to discourage the proliferation of urban sprawl since it incorporates a development pattern or urban form that achieves seven of the eight factors listed in Section 163.3177(6)(a)9.b.” The ALJ’s Finding of Fact 181 does not specifically interpret “preserve” either as allowing agriculture and silviculture activities to continue or as requiring that they continue. Section ]63.3177(6)(a)9.b.(V), Florida Statutes, identifies the fifth development pattern that discourages urban spraw] as: “Preserves agricultural areas and activities, including silviculture, and dormant, unique, and prime farmlands and soils.” In addition to Finding of Fact 312 finding seven of the eight development patterns present, other portions of the Recommended Order show that the ALJ did not find that the FLP preserves agricultural areas. In Findings of Fact 175 through 184, the ALJ found the remaining seven of eight development patterns present that discourage urban sprawl as identified in Section 163.3177(6)(a)9.b., Florida Statutes. A minimum of four are needed to demonstrate that the FLP discourages urban sprawl. Finding of Fact 181 is supported by competent, substantial evidence; Miami Corporation’s planning expert Ken Metcalf testified that he could not envision a situation in which a plan would make a guarantee or mandate that agricultural activities continue. (Metcalf, Tr. 864-866) Finding of Fact 181 also cites to Policies 2.2, 2.5a, 2.11g, 2.124, 2.23, and 3.13 that ensure agricultural uses may continue. The ALJ’s Findings of Fact 181 and 312 are supported by competent substantial evidence in the record. Exception 3 is DENIED. Exception No. 4 —Water Supply Availability Petitioners quote Findings of Fact 259-267 and argue that these findings are insufficient to support the conclusion that adequate potable water resources will be “available” to serve the development authorized by the FLP amendments. Petitioners argue that because the ALJ makes 9 FINAL ORDER No. DEO-12-021 no findings that this water can be withdrawn from the Upper Floridan Aquifer feasibly (from an economic standpoint), without causing environmental harm or impacting existing legal users and that such use has not been permitted by the appropriate authority, the conclusion is erroneous as a matter of law. Section 163.3177(6)(a), Florida Statutes, requires only that the FLP future land use plan and plan amendments “shal! be based upon surveys, studies, and data regarding the area, as applicable, including . . . The availability of water supplies, public facilities, and services.” The findings quoted by the Petitioners present just such information and are supported by competent substantial evidence. The interpretation that the foregoing language requires that a developer obtain a consumptive use permit prior to seeking an amendment to the comprehensive plan is unreasonable and is not supported by competent, substantial evidence. Finding of Fact 261 recites the requirement in Section 163.3177(6)(a), Florida Statutes, and does not require a permitted source of water, only a demonstration that there is an adequate potable water supply. Competent, substantial evidence supports Finding of Fact 261. (Ivey, Tr. 1804-1805) Findings of Fact 259, 260 and 262 find that the potable water analysis demonstrates that the on-site groundwater source will provide more than enough potable water for development under the FLP and are supported by competent, substantial evidence. (Seereeram, Tr. 1928- 1938, 1943-1944; Dowst Tr. 1908-1909; Joint Ex. 5, Tabs 4, and 7) Findings of Fact 263 — 267 reference the County’s Water Supply Facilities Work Plan, the timing of and coordination of the County’s updates to the SIRWMD regional water supply plan, comprehensive plan potable water requirements found in Section 163.31 771(6)(c), Florida Statutes, and are supported by competent, substantial evidence and the Comprehensive Plan 10 FINAL ORDER No. DEO-12-021 Policies cited therein. (P. Brown, Tr. 678-679, 704, 734, 738; McLane, Tr. II 522, 535; Ivey Tr. 1807) Exception 4 is DENIED. ORDER IT IS THEREFORE ORDERED as follows: 1. The findings of fact and conclusions of law are ADOPTED. 2. The Administrative Law Judge’s recommendation is ACCEPTED. 3. The Farmton Local Plan incorporated into the Volusia County Comprehensive Plan through amendments adopted by Ordinance Nos. 2009-34 and 2011-10 is determined to be “4n compliance” as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ORDERED in Tallahassee, Florida. Gat) e Director DEPARTMENT OF ECONOMYT€- OPPORTUNITY NOTICE OF RIGHTS ANY PARTY TO THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW OF THE ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)C. AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. 11 FINAL ORDER No. DEO-12-021 YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL, MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE 1 HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this day of March, 2012. AB Lp Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY Caldwell Building 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail and Electronic Mail: Jamie Seaman Paul H. Chipok Bruce Page Gray, Harris, Robinson, P.A. Deputy County Attorney 301 East Pine St., Suite 1400 Volusia County Orlando, FL 32801 123 West Indiana Ave. Deland, FL 32720-4613 Marcy LaHart 4804 SW 45" St. Gainesville, FL 32609 Linda Loomis Shelley Karen Brodeen Henry Lee Morgenstern Fowler White Boggs, P.A. P.O. Box 337 P.O. Box 11240 Seville, Florida 32190 Tallahassee, FL 32302 12

Docket for Case No: 11-002527GM

Orders for Case No: 11-002527GM