The Issue As a result of a request by Petitioner, Respondent determined that it had dredge and fill jurisdiction over certain property, and Petitioner timely requested a formal hearing regarding that determination. Accordingly, the issue in this proceeding is whether the Department of Environmental Regulation has dredge and fill jurisdiction over all or part of Petitioner's property.
Findings Of Fact Petitioner Maurice Fox owns certain real estate (hereinafter sometimes "the Fox property") located in central Palm Beach County consisting of all of Sections 12 and 13 and the easterly 3/4 of Section 24, (less certain rights of way) in Township 43 South, Range 41 East. Over a period of years, dikes have been constructed around the Fox property. The result is that the property is and has been enclosed by dikes. Larry O'Donnell, Respondent's dredge and fill supervisor in its West Palm Beach office, visited the Fox property on two occasions in 1978 after receiving a request from the Treasure Coast Regional Planning Council to determine whether the Department of Environmental Regulation (hereinafter "DER") would have dredge and fill jurisdiction over the property. After his first visit on February 24, 1978, he determined that it was questionable whether DER had dredge and fill jurisdiction over the property due to the lack of any noticeable direct connection to waters of the state. He returned to the Fox property on March 12, 1978, specifically to look for a connection between the property and waters of the state. He discovered a breach in the dike on the east side of the property approximately l/2 to 3/4 of a mile north of Okeechobee Boulevard. He observed water flowing from the west side of the dike through the breach to a ditch located just east of the dike, then south to Okeechobee Boulevard, then easterly and parallel to Okeechobee Boulevard approximately 25 yards, then under a culvert at Okeechobee Boulevard to a canal which ultimately drained into Canal C-51, which discharges into Lake Worth (the sole natural waterbody in the route), which discharges into the Atlantic Ocean. Based upon his observations, O'Donnell determined that DER did have dredge and fill jurisdiction over the Fox property due to a hydrological connection between the property and waters of the state. Until approximately five years ago there were "stop lock risers" at the culvert on the north side of Okeechobee Boulevard that prevented water from flowing through the culvert and were only opened when the Lake Worth Drainage District determined that opening the risers would not have an adverse effect on property south of Okeechobee Boulevard. Those "stop Lock risers" were removed so as to allow a constant flow. There is also a control structure at the C-51 Canal on Lake Worth that is sometimes closed preventing flow into Lake Worth and sometimes open. On May 16, 1984, Petitioner wrote DER requesting a determination as to whether DER maintained its position that it had jurisdiction over any proposed dredge and fill activities on the Fox property and the extent to which that jurisdiction extends over the subject property, citing some changes in circumstances since DER's 1978 determination. On August 29,1984, Petitioner again wrote DER, noting that DER had not yet indicated when a jurisdictional determination would be made, and citing several projects with allegedly similar characteristics to the Fox property over which DER had determined it had no jurisdiction. On November 9, 1984, Petitioner again wrote DER, noting that DER had still not made a jurisdictional determination and had not yet indicated when such determination would be made. On January 29, 1985, several DER employees, including a hydrologist and a botanist, visited the Fox property. Upon inspecting the dike to the east of that property, they discovered a breach with water flowing from the west through the breach into the ditch on the east side of the dike. The hydrologist followed the water as far as the culvert under Okeechobee Boulevard at which point the water was not backing up but was still flowing. It was therefore believed that the site is connected hydrologically and hydraulically to other waters of the state. On February 27, l9S5, DER responded to the May 16,_1984 request for determination of jurisdiction and the extent of any jurisdiction. DER advised Petitioner that it does have a dredge and fill jurisdiction for the majority of the "wetlands" located within the property boundaries and further advised Petitioner that any construction activities performed on, in, or over the "wetlands" will require a dredge and fill permit from DER prior to commencement of construction. Petitioner's request for a formal hearing followed receipt of that letter. Pursuant to a verbal agreement with the adjoining landowner to the east, on March 26, 1985, Petitioner filled the breach in the dike by excavating fill from the ditch on the east side of the dike in an area approximately opposite the breach. When DER personnel again visited the site on April 29 and 30, 1985, there was no breach, and no surface water was flowing over or through the dike. Accordingly, there was no hydrological connection on that date. Although Petitioner failed to obtain a permit for the excavation of the ditch to the east of the dike to obtain fill material for the breach, and although the issue of whether a permit was required for that activity was initially raised during the final hearing in this cause, DER changed its position during the hearing and decided that the fact that the fill may have come from the ditch was not relevant to the question of jurisdiction in this proceeding although that issue may be raised elsewhere. Since there is a fall from the Fox property east toward the historic Loxahatchee Slough, the dike to the east of the Fox property was constructed in 1965 to impound that overland flow and prevent it from flowing onto Petitioner's neighbor's property to the east. Although the dike was described at various times during the final hearing in this cause as being adjacent to the Fox property or next to the Fox property, the parties agree that the dike is not located on the Fox property but rather is located on property to the east of the Fox property. No evidence was offered to show the distance between the dike and the eastern boundary of the Fox property however, an aerial photograph admitted in evidence without objection clearly shows that the dike is not adjacent to the boundary of the Fox property although it is near the eastern boundary. That aerial photograph clearly indicates that the property east of the Fox property continues for a distance west of the dike where it is then abutted by the right of way for State Road No. 7. Repairs have been made to the east dike on several occasions, starting in the mid-70's. The breach which existed on January 29, 1985, was caused by a combination of factors. First, there is a substantial amount of all-terrain vehicular traffic crossing the dike at that point, causing the dike to wear down and weaken. Second, the hydrostatic head increases pressure against the weakening dike. Lastly, the repairs may not be properly done as was the case for the March, 1985 repair where the placed fill was not compacted and was porous. With such a combination of factors, the dike is likely to fail again. When the breach was filled in March of 1985, a ramp was constructed approximately 60 feet north of the site of the breach. Since the breached location was in a depressed area which was very wet on both sides, the ramp was designed to provide a crossing for off-road vehicles at a drier point. Other than constructing the ramp, Petitioner has taken no steps to discourage vehicular traffic from utilizing his property or driving over the dikes. No signs have been posted, and no fences have been built. Petitioner has never obtained a permit from DER prior to effectuating any repairs to the dike, and no DER personnel had ever advised that such a permit would be required. Before the breach in the east dike was filled in March of 1985, it measured no less than 20 and no more than 50 feet wide. The dike in question is approximately 1 mile long and connects to another dike which is approximately 2 miles long. Needed repairs to the dike are not always effectuated immediately. During extended periods of time, particularly during wet periods, the necessary equipment is unable to reach the specific locations requiring repair. Therefore, there are occasions when the dike is open during wet periods for long periods of time. At the time of the hearing, the parties stipulated that there was presently no water flowing off of or on to the Fox property. Witnesses for both parties agreed that, even when the dike was breached, water did not always flow through the breach. In hydrological terms, the flow of water through the dike when it was breached can be characterized as "intermittent." Under DER's rules, an intermittent stream is one that flows only immediately after rainfall. No data was offered as to the amount or recency of rainfall in the area prior to the two observations by DER personnel of water flowing through a breach in March 1978 and January 1985. One of DER's witnesses admitted that he did not have sufficient information to determine whether the flow of water when a breach exists would be considered intermittent under the Department's rules. The parties further agree that a breach in the dike does not have the effect of draining the Fox property. During such times, wetlands and impounded areas still exist due to the elevations within the Fox property boundaries. While the area of the breach itself was bare of vegetation, those plants that surrounded the breach were on the Department's list of transitional indicator species. As stipulated by the parties, there is one area along the east dike where a strip of cladium jamaicensis (saw grass) is growing over the dike north of the breached area. The parties further agree that the saw grass is the dominant species in the ground cover stratum at that particular point and that cladium jamaicensis is an indicator species listed in the submerged lands vegetative index for fresh waters in Florida under DER's rules. Witnesses for both parties further agree that there are a number of non-indicator species present in the area where the saw grass grows across the dike. In fact, of the plants identified, only the saw grass is on DER's indicator species list. Looking at the area in its entirety, non- indicator species are dominant. Where the saw grass crosses the dike, the dike is three feet high and shows no evidence of water inundating the area or flowing over the top of the dike. It appears that the dike in that area included within it bits of muck and saw grass, which explains why the saw grass could be growing there despite not being inundated by water. DER's witness admits that saw grass can grow in an area not regularly inundated with water. The presence of the saw grass alone, therefore, does not establish a vegetative connection between the waters of the state in the excavated ditch on the east side of the dike and the wetlands on the west side of the dike even though saw grass is among other wetland indicator species growing in the ditch to the east of the dike and is further present on the west side of the dike.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered determining that DER has failed to prove that it has dredge and fill jurisdiction over the Fox property. DONE and RECOMMENDED this 26th day of September, 1985, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1985.
Findings Of Fact That those facts alleged by Petitioner in the Petition to Determine the Invalidity [sic] of A Proposed Rule supporting the Petitioner's standing to bring a Chapter 120.54(4), Florida Statutes, rule challenge are correct and are sufficient to establish such standing. The notice of the proposed rule and the rule itself, first published at 11 Florida Administrative Weekly 1866, on May 3, 1985, are stipulated into evidence as forming the basis of the matter in controversy in this cause. The issues set forth in the Petition to Determine the Invalidity [sic] of A Proposed Rule as to whether the Respondent has the authority to promulgate the rule in question form the sole basis of this controversy. Respondent and Petitioners have agreed to submit simultaneous Memoranda of Law in support of their respective positions. The memoranda shall be filed on or before October 11, 1985. Petitioners and Respondent will file rebuttal memoranda on or before October 21, 1985. The Hearing Officer shall then have thirty (30) days in which to render his final order in this cause. Petitioners and Respondent have agreed to stipulate to all facts necessary to maintain this cause, other than those facts which may have arisen during the deposition of Howard Rasmussen, Director, Division of Alcoholic Beverages and Tobacco, which was scheduled and subsequently held on September 11, 1985. A transcript of that deposition was received by DOAH on October 11, 1985. Because the Director, Division of Alcoholic Beverages and Tobacco (Rasmussen), in discussions with the Secretary of the Department of Business Regulation and the General Counsel thereof, concluded confusion exists regarding the current interpretation of the words "Seminole Indian Tribe, or members thereof" in Section 210.05(5), Florida Statutes, he instigated Proposed Rule 7A-10.26 to clarify the meaning of these words. The "enrolled member" language in the proposed rule was included because the state maintains records regarding the enrolled membership of the Seminole Indian Tribe. Such enrollment clearly establishes membership in the Seminole Indian Tribe and is a form of registration of Seminole Indians with the state. The Economic Impact Statement (EIS) accompanying the proposed rule states the cost to the agency is essentially limited to the cost of promulgation of the proposed rule. The EIS further states the sale of tax-free cigarettes on Seminole Indian Reservations produced approximately $10 million in income during fiscal year 1983; of that, only about $3.5 million was received by the Seminole Indian Tribe as income. The rule will have a significant impact on the current beneficiaries of the $6.5 million profit not received by the Seminole Indian Tribe. The need for the proposed rule and some of the information appearing in the EIS appeared during legislative committee proceedings considering proposed legislation to limit the retail sale of tax-free cigarettes on Seminole Indian Reservations to members of the Seminole Indian Tribe instead of to the general public, as the law allows.
Findings Of Fact The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
Conclusions This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto. RULING ON EXCEPTIONS FILED BY PROCACCI In this proceeding the parties stipulated that the issues to be decided were: one, whether the department's decision to reject all bids was improper and; two, if rejection was improper, which bidder should be awarded the lease contract. (See Recommended Order, page 3 and 28.) In his exceptions, Procacci now seeks to disregard the second prong of the stipulation and asserts that only a review of the record - basis of the initial rejection decision is appropriate. This view is inconsistent with the nature of a Section 120.57, Florida Statutes, proceeding, a de novo, evidentiary hearing, which gives all substantially affected persons the opportunity to change the agency's mind.1 Capeletti brothers vs. State, 432 So. 2d 1359 (Fla. 1st DCA 1983). This bid protest proceeding commenced in June 1990, and by law the solicitation process was stopped. Section 120.53(5)(c), Florida Statutes. Competent, substantial evidence supports the Hearing Officer's recommendation that the Lima proposal be accepted. The exceptions are rejected.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the factual stipulations of the parties, the following relevant facts are found: Petitioner Pahokee Farms, Inc., is a Florida corporation which, since 1960, has been a lessee of state- owned agricultural lands in the Everglades Agricultural Area (EAA) in Palm Beach County. Its present lease expires December 31, 1985. Leases of state-owned lands within the EAA are presently governed by existing Rule 16Q-15.07(3), Florida Administrative Code This Rule provides that the Board of Trustees of the Internal Improvement Trust Fund (Board) may offer to lease lands in the EAA "by negotiation or competitive bidding." The actual practice and policy for extending leases in the EAA has, in fact, been one of negotiation rather than competitive bidding. Land has generally been released to existing leaseholders through a process of negotiation, providing the existing leaseholder paid its rent in a timely manner, properly cared for the land and was willing to pay an increased rental fee based on the current appraisal of the land. In June of 1982, Pahokee Farms, Inc., requested two five-year extensions of its agricultural lease in the EAA. The matter was deferred from the October 18, 1983, meeting of the Board of Trustees and rescheduled for the November 1, 1983, meeting. At the November 1, 1983, meeting of the Governor and Cabinet, sitting as the Board of Trustees, several members of the Board, as well as the Executive Director of the Department of Natural Resources, expressed an interest in reexamining the policy regarding agricultural leases in the EAA. For this reason, as well as the fact that several members of the Board were not present, the agenda item regarding the Pahokee Farms lease extension was deferred again to the November 17, 1983, meeting. At the November 17th meeting, the Board of Trustees directed the DNR staff, in consultation with the State Lands Management Committee, to formulate "policy recommendations" for the leasing of state-owned lands in the EAA for submission to the Board in February of 1984. The Board voted to establish its policy at that time and to then apply that policy to Pahokee Farm's request for extensions of its lease. As a result of the Board of Trustee's directions to develop policy recommendations, DNR, through the Division of State Lands, prepared a report to the Governor and Cabinet on policies for leasing state-owned lands in the EAA The report, dated March 20, 1984, set forth four options for leasing such lands, but ultimately recommended a competitive bid process through the request for proposals for leases. The report, after being deferred from the March 20, 1984, meeting, was agenda for the April 19, 1984, meeting of the Board of Trustees. The agenda item recommends "acceptance of the report and approval of recommendations." At the April 19, 1984, meeting of the Governor and Cabinet, sitting as the Board of Trustees, there was extensive discussion as to what the State's policy should be with respect to state-owned lands in the EAA. After directing the staff to develop a specific plan of action, with the Board's approval, to sell or exchange state-owned lands leased for agricultural purpose in order to acquire other valuable lands, the Board then turned to the leasing issue Governor Graham offered an amendment to the DNR report's recommended option of competitive bidding through the use of requests for proposals. The Governor's amendment to the DNR's recommendation was a two-step bidding process, calling for an initial qualification of bidders procedure and then the bid itself to be based upon both appraised value and a percentage of profits from the parcel leased. The qualified applicant offering the highest payment to the State was to be awarded the lease. Vacating lessees were to be compensated by the new lessee for ratoon or other crops based on an appraisal performed by an independent appraiser. The Governor's amendment also deleted the DNR's recommendation to provide a first right to renegotiate with existing lessees whose lease expires within four years. Prior to the Board's adoption of the Governor's amendment on April 19, 1984, a question was raised as to whether this "amendment" should he promulgated as a rule and subject to the Adinistrative Procedure Act. Governor Graham responded: "...Well, what we're doing, Mr. -- we're accepting a report. That's what we're doing at this point. We're not in a rulemaking posture." (DNR's Exhibit 9, page 209, lines 8-11). Attorney General Smith remarked that the staff would have to "do their developing toward inventing a rule here. That will have to come back through the process." (DNR's Exhibit 9, page 205, lines 16-18). Mr. Smith reiterates that "We routinely develop the policy direction and the staff goes out and makes that into a rule and comes back to us through that process, and I would contemplate that that would be done here." (DNR's Exhibit 9, page 206, lines 1-4). Governor Graham again expressed the opinion that what the Board was doing was, under its agenda item, "accepting the report which has been amended." (DNR's Exhibit 9, page 207, lines 5 and 6). Mr. Turlington stated: "...when we're voting this, we're just voting, you know, to kind of indicate to people how we're heading, and that we can handle things in a flexible, legal manner in the days ahead in order to take care of legal entanglements that some may care to inject at some future point, and I just want to be on record to make that clear..." (DNR's Exhibit 9, page 208, lines 6-12). The DNR staff thereafter drafted and the DNR Executive Director directed publication of what appears in the March 1, 1985, edition of the Florida Administrative Weekly as "proposed rules" 16Q-15.01 and 16Q-15.07. The published material differs in some respects from the Governor's amendment approved by the Board. For example, where the approved amendment provides that the participation rent factor be based upon a "percentage of the profits," the DNR's published material requires that the participation rent factor be "2 percent of the gross income." The compensation to vacating lessees for ratoon or other residual crops under the Governor's amendment was to be based upon an appraisal by an independent appraiser. DNR's published material requires compensation based upon "the remaining portion of unamortized planting costs." The published material also provides for a discretionary exemption from the qualification procedure for parcels less than 100 acres or where the annual rental value is estimated to be less than $10,000. The Board's amendment contains no such exemption. The two DNR persons most involved with the preparation and drafting of the published "proposed rules" each felt that the Governor's amendment adopted by the Board of Trustees was a policy statement direction and that it was their duty to develop a rule based upon that direction. Each felt that they were charged with the responsibility of drafting a rule and bringing it back to the Governor and Cabinet for their concurrence, their approval and their adoption. Mr. MacFarland, Director of the Division of State Lands, referred to certain portions of the published material, at least where it is different than the Board's amendment, as a "staff recommendation." (Transcript, Vol. III, page 89, line 19; also see page 27, line 25). Mr. Merriam, the Assistant Chief of the Bureau of State Lands Management, refers to the published material as a "draft rule." (Transcript, Vol. I, page 172, line 20). The material published in the Florida Administrative Weekly on March 1, 1985, has never been presented to the Governor and Cabinet sitting as the Board of Trustees. While the published notice did state that a hearing would be held by the Department of Natural Resources and the Board of Trustees on March 19, 1985, this meeting never occurred.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Relinquishing Jurisdiction and Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL 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, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, 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. 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. FINAL ORDER NO. DCA 11-GM-145 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this day of » 2011. By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Catherine D. Reischmann, Esq. Debra S. Babb-Nutcher, Esq. Gregg A. Johnson, Esq. Brown, Garganese, Weiss & D’agresta, P.A. 111 N. Orange Ave., Ste. 2000 Orlando, Florida 32802 creischmann@orlandolaw.net dbabb@orlandolaw.net gjohnson@orlandolaw.net Reginald L. Bouthillier, Jr., Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301-7742 bouthillierr@gtlaw.com \ Paula Ford tga Agency Clerk Department of Community Affairs 2555 Shumard Oak Blvd Tallahassee Florida 32399-2100 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 twreeseesq@aol.com Marcia Parker Tjoflat, Esq. Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Ave., Ste. 400 Jacksonville, Florida 32202 mpt@papmet.com M. Lynn Pappas, Esq. Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Ave., Ste. 400 Jacksonville, Florida 32202 Ipappas@papmet.com Linda Loomis Shelley, Esq. Fowler White Boggs & Banker, PA. P.O. Box 11240 Tallahassee, Florida 32302 Ishelley@fowlerwhite.com Lynette Nort, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Lynette.Norr@dca.state.fl.us FINAL ORDER NO. DCA 11-GM-145
Findings Of Fact Seminole County adopted amendments to its land development regulations on February 14, 1989, and to its comprehensive plan on February 28, 1989. As amended, the Seminole County comprehensive plan shall be referred to as the "Plan." As required by the Wekiva River Protection Act, Chapter 369, Part II, Florida Statutes (1989) (the "Act"), Seminole County submitted the Plan to the Department of Community Affairs ("DCA") for review and a determination of compliance under the Act. DCA received the amendments on March 9, 1989. On April 7, 1989, DCA filed a petition with the Florida Land and Water Adjudicatory Commission (the "Commission"). The petition requests the Commission to confirm DCA's determination that the amendments are in compliance with the Act with one exception. The exception concerns five acres of undeveloped land designated Commercial on the Future Land Use Map. The land includes a 1.55-acre parcel located on the southwest corner of State Road 46 and Longwood-Markham Road owned by Miller Enterprises, Inc. ("Miller" and "Miller Parcel") and a 1.5-acre parcel located on the southeast corner of State Road 46 and Longwood-Markham Road owned by Messrs. Katz and Brechner ("Katz" and "Katz Parcel"). A third parcel of about two acres abuts the Miller Parcel and is owned by Rainbow Construction Company of Central Florida, Inc. However, this parcel has been included in land that has already been platted as part of an adjacent residential subdivision and would not likely be reassembled with the Miller Parcel for commercial purposes. Although the land adjoining the Katz Parcel is under common ownership, the land is designated Suburban Estates and could, as discussed in Paragraph 13 below, be reassembled for only limited nonresidential uses without an amendment to the Plan. DCA's petition requests the Commission to order Seminole County to amend the Plan to change the designation of the Katz and Miller Parcels from Commercial to Suburban Estates, General Rural, Conservation, or other low- density compatible designation. The Plan designates land for various uses throughout the County. Relevant designations are Commercial, Low Density Residential, Suburban Estates, General Rural, and Conservation. The specific uses permitted within each land use area are set forth in the Seminole County Land Development Code ("Code"). The Plan incorporates the zoning districts contained in the Code. The Commercial designation permits the following commercial uses (CN, CS, C-1, and C-2): artist studio, barber shop, newsstand, clinic (except animal), ice cream store, dance or music studio, drug store, fire station, florist, gift shop, hobby shop, interior decorating, jewelry store, laundry pick-up location, library, locksmith, luggage shop, business or professional office, photography studio, physical fitness studio, retail paint store, post office, retail sporting goods, school, shoe repair shop, tailoring shop, tobacco shop, toy store, watch repair, clothing store, convenience market with self- service gasoline pumps, delicatessen, grocery store, self-service laundry, amusement and commercial within an enclosed building, appliance store, bakery, bank, church, day-care center, employment agency, funeral home, furniture store, hardware store, laundromat, pet store, plant nursery, private club, quick print shop, broadcasting studio without tower, electronics store, restaurant, theater, building and plumbing supplies, car wash, furniture warehouse, hotel or motel, marine sales and service, mobile home sales, outdoor advertising signs, parking garage, book printing shop, automobile sales, veterinary hospital and kennel, alcoholic beverage establishment, public utility structure, living quarters in conjunction with commercial use, hospital, nursing home, contractor's establishment without outside storage, open-air flea market, lumber yard, mechanical garage, paint and body shop, service station, and adult entertainment. In addition, the Commercial designation allows Planned Commercial Development District (PCD), which permits any nonresidential use, including industrial and office, if approved by the Board of County Commissioners. The Commercial designation permits the following office uses (OP): dental and medical clinic; general office building; financial, real-estate, and professional business; telephone business; post office; public park or playground; fire station; administrative public building; church; day-care center; and similar uses approved by the Planning and Zoning Commission. The Commercial designation permits the utilization of residences for professional uses (RP) and planned unit developments (PUD). The PUD district permits the following uses: residential, church, school, and nonresidential uses (including commercial, retail, industrial, office, and professional) if certain criteria are met, such as a minimum area of 20 acres. The Commercial designation permits the following agricultural uses (AC and A-1): grove and farm for the cultivation of citrus, vegetables, fruits, grass sod, and trees; pasture and grassland for the cultivation of livestock (excluding swine); wholesale plant nursery and greenhouse; poultry production; dairy farm; fish hatchery; bait production; publicly operated park; accessory agricultural structures such as stables, barns, silos, sheds, and windmills; home occupation, single-family dwelling with customary accessory structures; guest house; cemetery; kennel; sawmill; public utility and service structure; borrow operation; golf club or sporting club if at least 10 acres; riding stable if at least 10 acres; commercial swine operation; mobile home and customary accessory structures; adult congregate living facility and group home; truck farm; grazing and pasturing of animals; roadside stand; government-operated building; timber production; apiculture; church; private school or college; temporary asphalt plant; state-chartered fraternal club; private recreational activity open to the public; heliport; sewage disposal plant; antenna farm; off-street parking; and livestock slaughtering. Last, the Commercial designation permits public uses under the public lands and institutions district (PLI), which allows such diverse uses as a zoo, cultural exhibit, or landfill. The General Rural designation permits the uses allowed under the AC, A-1, PLI, and RM-3 districts. The last zoning district allows transient vehicular and tent camping; associated recreational buildings, laundries, toilets, and showers; service store for campers; recreational facilities, such as golf, swimming, and tennis; utility or storage building; sewer and water plants when necessary; and one house or mobile home for office and residential uses for the operator. To the extent that residential uses are allowed in the General Rural area, the maximum density is one unit per acre (1:1). The Suburban Estates designation permits the uses allowed under the AC, A-1, PLI, and RC-1 zoning districts. The last district allows single-family residential and customary accessory uses, citrus cultivation, guest cottage, home occupation, riding stable for personal use, private or public school, church with attendant facilities and parking, publicly operated park, and adult congregate living facility and group home. The maximum density for residential uses is one unit per acre (1:1). The Conservation designation permits the uses allowed under the AC and A-1 zoning districts. Otherwise, according to the Plan, the designation if intended for "wetland areas" with the following permitted uses: publicly owned open space and recreation and water management areas, public and private game preserves, private development open space and recreation and water management areas, and livestock grazing and short-term crop production. These uses are subject to the Floodprone Overlay Zoning District and Wetlands Overlay Zoning District in the Code. Because neither of these sets of provisions appears applicable to the subject parcels, the Conservation designation is inappropriate to these parcels. The Low Density Residential designation permits the uses allowed under the AC, A-1, RC-1, PLI, and PUD zoning districts, as well as five single-family residential zoning districts. The maximum residential density is four units per acre (4:1). One provision of the Plan overrides all of the designations and approved land uses. The Future Land Use element of the Plan provides: Regardless of the land use designation or zoning classification assigned to any parcel of property located within the Wekiva River Protection Area as defined in Section 369.303(9), Florida Statutes (1988 Supplement), or its successor provisions, no development may be approved upon parcels so located unless the proposed development conforms to the provisions of the Wekiva River Protection Act [citations omitted] or its successor provisions and the provisions of this Comprehensive Plan adopted to conform to said Act. Plan, p. VI-A8. The Katz and Miller Parcels are located in the Wekiva River Protection Area in Seminole County. They are just over four miles west of the Interstate 4/State Road 46 interchange, which is about four miles west of Sanford. The parcels are about 4100 feet east of the Wekiva River, which divides Seminole and Lake Counties. The Wekiva River, which flows in a northerly direction, passes under State Road 46 about five miles before it empties into the St. Johns River. The Wekiva River begins at the confluence of Rock Springs Run and Wekiva Springs Run. Rock Springs Run begins at Rock Springs, which is located in Kelly Park. Kelly Park is a 200-acre park owned by Orange County. After leaving the park, the run flows about nine miles in a generally southward direction until it reaches Wekiva Springs Run, which begins about one-half mile to the southwest at Wekiva Springs. The spring is located in the southeast corner of Wekiva Springs State Park, which is a 6400-acre park located in Orange County. The lower half of the Rock Springs Run divides Wekiva Springs State Park on the west and Rock Springs Run State Preserve on the east. Rock Springs Run State Preserve occupies about 8500 acres and extends northward, with Wekiva Springs State Park, to the vicinity of the Lake County line. The northern extent of the 14,900 acres of state holdings represented by Rock Springs Run State Preserve and Wekiva Springs State Park are separated from State Road 46 by the BMK Ranch. The ranch constitutes 5850 acres of land. The ranch is on the CARL list for state acquisition, and at least part of it is close to being purchased, if it has not been purchased already. The northeast corner of the BMK Ranch is between two and two and one-half miles west of the Wekiva River on the south side of State Road 46. Directly to the north of the BMK Ranch is the Seminole Springs tract, which consists of 9200 acres. Seminole Springs is also on the CARL list, but acquisition has not been going smoothly. The northernmost point of the Wekiva River Protection Area is slightly east of the mouth of the Wekiva River. The eastern boundary of the protection area measures about 12 miles north-to-south. Proceeding due south past State Road 46 in the vicinity of Orange Boulevard, the line turns over one mile due west and then runs south along Markham Woods Road to a point just north of the interchange of State Road 434 and Interstate 4, capturing the broad, lower portion of the Little Wekiva River before it joins the Wekiva River. The southern boundary of the Wekiva River Protection Area is formed by a line running east-west between the Interstate 4/State Road 434 corner to the Orange County line. The southern boundary runs north of Lake Brantley and captures much of Wekiva Springs Road, including one parcel designated on the Future Land Use Map as Commercial and at least one parcel designated as Office. The Wekiva River Protection Area includes a smaller area known as the Wekiva River Protection Zone. The eastern boundary of the protection zone crosses State Road 46 about one-quarter of a mile west of the two parcels. To the east of the Wekiva River, the northern portion of the protection zone averages roughly one-half mile in width until it reaches Heathrow West, which is a large planned development located between Markham Woods Road and the Wekiva River directly west of the intersection of Lake Mary Boulevard and Markham Woods Road. At this point, the protection zone turns to the east and runs east of the Little Wekiva River until the zone terminates at the southeast corner of the protection area. The land to the north of the Katz and Miller Parcels on the Seminole County side of the Wekiva River is largely undeveloped, with much of it owned by the state or Seminole County. Most of this land is within the Wekiva River Protection Area, whose eastern boundary crosses State Road 46 about two and one- half miles east of the parcels. A thin strip of development lies on the east bank of the Wekiva River. The development, which penetrates about one mile north off State Road 46, consists of low density residential and a 55-dwelling unit marina. The area is designated on the Future Land Use Map as General Rural. Directly east of this strip of development is the Lower Wekiva River State Preserve. The Preserve consists of 4636 acres of land, divided about one- third in Seminole County and two-thirds in Lake County. The Lake County portion of the Preserve abuts the northeast corner of the Seminole Springs tract. The Seminole County portion lies adjacent to the Wekiva River between State Road 46 and the confluence of the St. Johns and Wekiva Rivers. Overall, the Preserve includes four and one-half miles of the Wekiva River, one mile of the St. Johns River, and 3.8 miles of Black Water Creek, which runs north of State Road 46 in Lake County and merges with the Wekiva River just upstream from the river's mouth. Much of the Wekiva River and Black Water Creek, as well as Rock Springs Run, are designated as Outstanding Florida Waters, and a primary purpose for the state purchase of the above-described lands has been to protect these waters. The Lower Wekiva River State Preserve contains habitats ranging from uplands to wetlands near the rivers. These habitats include sand hill, scrubby flatwoods, pine flatwoods, sand pine scrub, cypress dome, and bayhead communities. The sand pine scrub is itself very rare. The substantial sand hill habitat is important for gopher tortoises and indigo snakes. The scrubbier habitats are used by the Florida scrub jay and Florida black bear. The Department of Natural Resources manages the Preserve to replicate conditions at the time of the arrival of the first Europeans around 1513. The Preserve is available for passive recreation, such as hiking and horseback riding. A portion of the Florida Trail passes through the Preserve. The Preserve offers no recreational facilities because its primary function is to protect viable resources. One of the most critical management tools toward protecting resources is prescribed burning. Artificial suppression of fires leads to the replacement of the existing habitats by climax communities, such as hammocks, which are less suitable for certain endangered wildlife. The presence of nearby development interferes with the prescribed- burning program. However, State Road 46 is already a major arterial highway with an average daily traffic count between the Wekiva River and Orange Boulevard of 10,211 vehicles. Exacerbating the situation, vehicles on this portion of the highway, which is only two-lanes and unlighted, routinely exceed the posted speed limit of 55 miles per hour, and the Seminole County Sheriff's Office and Florida Highway Patrol claim that they lack the resources to provide effective enforcement of the speed limit. Consequently, the Department of Natural Resources already conducts its prescribed burning program in the Preserve in a manner to avoid allowing smoke to drift over the highway to the best extent possible. The easternmost boundary of the Preserve along State Road 46 is slightly east of the Katz and Miller Parcels. Separated from these parcels by only the 200-foot right-of-way of State Road 46, the small unpaved parking area and unimproved pedestrian and equestrian entrance to the fenced-in Preserve are directly across from the subject parcels. The 4636-acre Preserve is staffed by a total of four persons, who are also responsible for supervising the 8500-acre Rock Springs Run Preserve. Supervision of human activity in the Preserve is therefore minimal. To the east of the Lower Wekiva River State Preserve and extending for about one mile to the east of the subject parcels is the Yankee Lake tract owned by Seminole County. Among other uses projected for this land is a 2600-acre regional wastewater treatment facility. Like the adjoining Preserve, the Seminole County land contains viable habitat for various wildlife, including the bear. Scattered development exists to the east of the Yankee Lake tract, including a 30-acre mixed-use planned development. Roads have been built in this area, most of which is designated on the Future Land Use Map as General Rural with a density of one unit per acre (1:1). A strip running on both sides of State Road 46 a short distance east of Orange Boulevard is designated Medium Density Residential. A convenience store, which is located at Orange Boulevard and State Road 46, is the closest source of food and gasoline east of the subject parcels. However, most of the one and one-half miles of frontage east of Orange Boulevard to Interstate 4 is designated Conservation. The area to the west of the Katz and Miller Parcels in Lake County is sparsely developed and generally under less development pressure than the land on the Seminole County side of the river, although the development of certain large parcels could materially change this situation. Located on the west bank of the Wekiva River just south of State Road 46 is Wekiva Falls Resort Campground, which is a high density mobile home park with a recreational vehicle campground and marina. Presently, the resort contains 789 dwelling units. Absent state acquisition, two tracts totalling almost 6000 acres of land north and south of the Wekiva Falls Resort Campground are available for development. As of May, 1988, these tracts were proposed for development comprising over 2600 residential units, two golf courses, a 150,000 square foot commercial area, and other uses. Mt. Plymouth, which is about seven miles west of the subject parcels, is the closest source of food and gasoline west of the subject parcels. Much of the future development activity in the vicinity of the Preserve and the Katz and Miller Parcels will take place to the south on the Seminole County side of the river. This area is already characterized by large residential developments. Between the Wekiva and Little Wekiva Rivers, for instance, approximately 4000 to 4500 dwelling units have been approved. To the north and east of these dwelling units, near Lake Mary Boulevard and Markham Woods Road, one development contains 3500 dwelling units. The Plantation planned development (formerly known as Amcor) contains about 400 dwelling units and abuts the Wekiva River south of the intersection of Markham Road and Longwood-Markham Road. Most of the development south of the subject parcels is at a density of one unit per acre (1:1), which, under the subject facts, is the maximum density for low density residential within the meaning of the Act. At present, the closest source of groceries south of the Katz and Miller Parcels is a major grocery store at Interstate 4 and Lake Mary Boulevard, which is over six miles from the two parcels. A limited-access, four- to six-lane expressway, known as the western extension of the Orlando Beltway, is planned to be constructed in an east-west direction from Interstate 4 south of the subject parcels. As it proceeds west from Interstate 4, the expressway will be located about one and one-half miles south of State Road 46 at its closest point to the Katz and Miller Parcels and as it crosses the Wekiva River. After crossing the river, the expressway will turn to the northwest until it reaches State Road 46 at the northeast corner of the BMK Ranch. The expressway will then run roughly parallel to the road until it reaches Mt. Plymouth, which will be the cite of the first interchange west of Interstate 4. A viable population of Florida black bear occupies the Ocala National Forest, which is about 16 miles northwest of the Lower Wekiva River State Preserve. The southern terminus of this population is the portion of the Wekiva River basin south of State Road 46. The basin actually extends south of State Road 436 to the west Orlando area. However, the estimated population of perhaps 20 bears south of State Road 46 is in all likelihood largely restricted to Wekiva Springs State Park, Rock Springs Run State Preserve, and Kelly Park. Whatever the actual number of bears south of State Road 46, they clearly are not so great in number as to form a viable, self-sustaining population. The continued survival of these bears is dependent upon their ability to maintain a connection to the larger bear population north of State Road 46. At one time occurring throughout Florida, black bears are now largely found only in and around large tracts of public land. A self-sustaining population of black bears requires over 400,000 acres of contiguous forests. Each bear in the Ocala National Forest requires a home range of between 12 square miles for females to 40 square miles for males. The effect of loss of habitat is accentuated by the low reproductive rate of the bear. In Florida, the female black bear becomes sexually mature at three to four years and can produce cubs every two years. A litter is normally two to three cubs, which remain with their mother until they attain about one and one-half years. Young females tend to remain in the range of their mothers, but young males disperse to establish their own home range. The movement of bears across State Road 46 has led to numerous incidents in which motor vehicles have struck and killed bears. From 1980, when records were first kept, through 1987, 19 bears were confirmed as killed in the general area. The accidents typically occurred at dusk or during nighttime. In 1988, the rate of confirmed traffic mortalities increased dramatically to 11. Apart from two of the traffic mortalities which occurred north and south of State Road 46 in Lake and Orange Counties, respectively, eight of the accidents occurred on State Road 46 and one within a mile south of the road. All of these incidents took place within a stretch of about three and one-half miles. Six of these incidents were within one mile of the intersection of State Road 46, County Road 433 on the south, and County Road 46A on the north, which actually joins State Road 46 slightly west of County Road 433. A seventh death occurred about one mile east of this intersection, which is about two and three-quarters miles west of the Wekiva River. Of the remaining two incidents, one took place on the bridge over the river, and the easternmost killing took place about a half mile east of the river, which is a little over one-quarter mile west of the Katz and Miller Parcels. As a result of these bear mortalities, the Department of Natural Resources caused bear warning signs to be placed along a six-mile stretch of State Road 46, extending to a point about one-half mile east of the subject parcels. As a practical matter, no viable bear habitat remains south and east of the Katz and Miller Parcels. As long as records have been kept, no bear has been killed on Longwood-Markham Road, although one was killed in recent years on Interstate 4 in the vicinity of State Road 46. The western extension of the Orlando Beltway will further impede bear movement south of State Road 46. Although bears pass along the eastern side of the Wekiva River, the eastern extent of the bear-movement corridor is already largely restricted to the river and its floodplain. The primary bear-movement route in this area is on the west side of the river, notwithstanding the obstruction posed by the Wekiva Falls Resort Campground.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a Final Order determining that the Plan is in compliance with the Act. ENTERED this 6th day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1990. APPENDIX Treatment Accorded the Proposed Findings of Petitioner 1-3: adopted. and 6: rejected as irrelevant. and 7-10: adopted. 11 and 12: rejected as irrelevant. 13-15: adopted in substance. 16-18: adopted. 19-20: rejected as irrelevant. 21-22: adopted in substance. 23: first two sentences reject as irrelevant. Remainder adopted in substance. 24: adopted. 25: first two sentence adopted in substance. Third sentence rejected as legal argument. Remainder rejected as irrelevant. 26: rejected as legal argument. 27: adopted. 28: first two sentences adopted. Third sentence rejected as legal argument and against the greater weight of the evidence. 29: first sentence rejected as legal argument. Remainder adopted. 30-31: rejected as irrelevant. 32: first two sentences rejected as legal argument. Remainder rejected as subordinate, although surrounding land uses are relevant. 33: rejected as subordinate, although comparative land use intensities are relevant. 34: rejected as subordinate, irrelevant, and recitation of testimony. 35: rejected as irrelevant. 36-37: rejected as recitation of testimony and irrelevant. 38: rejected as irrelevant. 39-40: adopted in substance. However, the death of the bear on Interstate 4 was not during 1988. Also, the subject land is located within the six-mile bear travel corridor, but not within the narrower range in which nearly all of the kills took place during 1988. Lastly, the death on the bridge cannot be attributed either to Seminole or Lake County. 41: adopted in substance, except that, given recent traffic mortality trends, State Road 46 presently represents a barrier to bear movement, although the bears still attempt to cross it. 42: rejected as unsupported by the greater weight of the evidence. 43: rejected as legal argument. 44-45: adopted. 46: rejected as unsupported by the greater weight of the evidence. 47: first three sentences rejected as unsupported by the greater weight of the evidence. Remainder rejected as irrelevant insofar as the greater weight of the evidence does not support the inference that any commercial use of the subject land will necessarily result in such problems. 48: first six sentences adopted. Remainder rejected as irrelevant. The present level of traffic on State Road 46 already demands that DNR take every possible precaution in executing prescribed burns. Even if the Commercial designation were to result in more traffic, which is not necessarily the case, the impact on the prescribed burning program would be insignificant given the existing constraints. Treatment Accorded Proposed Findings of Seminole County (in view of the absence of numbered paragraphs, rulings are by page number) 9-12: rejected as legal argument or otherwise not finding of fact. 13-14: rejected as irrelevant and subordinate. 15: adopted in substance. 16: first paragraph adopted. Second paragraph rejected as irrelevant. 17: first paragraph rejected as irrelevant. Remainder adopted. 18: adopted in substance, although the Preserve is not the southern tip of the bear habitat for the Ocala National Forest bear population. 19: rejected as subordinate and irrelevant. 20: adopted, except that the Preserve is not the southern tip of bear habitat and the area south of State Road 46 is not marginal bear habitat to the west of the subject land. 21: rejected as subordinate, except that traffic travels too fast on State Road 46 and the traffic count is 10,211 vehicles per day. 22: first paragraph adopted in substance. Second paragraph rejected as irrelevant and subordinate. Third paragraph adopted. 23: adopted in substance. 24: adopted as to designation. Remainder rejected as irrelevant and subordinate. 25: rejected as irrelevant, except for possibility of variety of land uses under Commercial designation. 26: rejected as irrelevant, except that Miller Parcel has no wetlands and is not within any floodplain. 27: first paragraph rejected as irrelevant, except that Katz and Miller Parcels are undeveloped and Katz Parcel has not wetlands and is not within any floodplains. Remainder adopted. 28: first incomplete paragraph adopted in substance. Remainder rejected as irrelevant. 29: rejected as irrelevant and subordinate. 30-33: rejected as cumulative, subordinate, and irrelevant. 34: rejected as cumulative, subordinate, and irrelevant, except that commercial development could have less impact on natural resources than residential development. 35: rejected as cumulative, subordinate, and irrelevant, except that last incomplete paragraph is adopted in substance. 36: rejected as not finding of fact. Treatment Accorded Proposed Findings of Katz 1-9: adopted or adopted in substance. 10: second and third sentences adopted. First sentence rejected as irrelevant. Remainder rejected as recitation of testimony. 11-13: rejected as irrelevant. 14-18: adopted. 19: rejected as irrelevant. 20: adopted. 21: rejected as irrelevant. 22: rejected as against the greater weight of the evidence. 23: rejected as irrelevant and subordinate. 24: adopted in substance, except for recitations of evidence, which are rejected. 25: adopted in substance. 26: adopted in substance, except for recitation of evidence, which are rejected. 27: rejected as subordinate. 28: rejected as irrelevant. 29: adopted in substance to extent not recitation of testimony or legal argument. 30: rejected as recitation of testimony. Treatment Accorded Proposed Findings of Miller 1-26: adopted or adopted in substance except that the distance in Paragraph 18 is about 4100 feet, not 4200 feet. 27-33: rejected as irrelevant. 35: adopted in substance. 36-37 and 39: rejected as subordinate. 38: adopted. 40: rejected as unsupported by the greater weight of the evidence. 41: adopted in substance. 42: adopted in substance, although it is not clear: 1) exactly what properties the state is actually going to acquire and 2) whether the properties finally acquired, in view of what development ultimately takes place on surrounding properties, will provide sufficient habitat for bear travel across State Road 46. 43: rejected as subordinate. 44-46: adopted or adopted in substance. 47-48: rejected as irrelevant or subordinate. 49-50: rejected as irrelevant. and 53: adopted in substance. and 54: rejected as irrelevant. 55-60: adopted or adopted in substance. 61-70: rejected as irrelevant. 71-74: adopted or adopted in substance. 75-82: rejected as irrelevant. In this proceeding, the proper emphasis is on whether acceptable impacts could result from any Commercial use, not whether acceptable impacts necessarily would result from any such use. The latter inquiry is limited to the process in which a development order is issued. 83-84: adopted. 85-88: rejected as subordinate or irrelevant. 89-91: adopted or adopted in substance. COPIES FURNISHED: David L. Jordan, Senior Attorney Jeffrey N. Steinsnyder, Senior Attorney Department of Community Affairs 2740 Centerview Drive, Suite 138 Tallahassee, FL 32399-2100 Miranda Franks Fitzgerald Maguire, Voorhis & Wells, P.A. P.O. Box 633 Orlando, FL 32802 Robert A. McMillan County Attorney Seminole County Services Building 1101 East First Street Sanford, FL 32771 David C. Brennan Trickel & Leigh 39 West Pine Street Orlando, FL 32801 Patty Woodworth Director Planning and Budgeting Executive Office of the Director The Capitol, PL-05 Tallahassee, FL 32399-0001
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 205 acres of land located in Clay County, Florida. The subject property is known as "Station Pond (Oak Forest Extension)." Station Pond was subdivided into 40 lots by an unrecorded subdivision plat. The lots range in size from approximately three to fifteen or twenty acres. Roads, which are unpaved, surrounding Station Pond, and drainage for Station Pond, are privately owned. The roads and drainage were completed prior to December of 1978. A boundary survey of Station Pond was prepared and contains a surveyor's certification of January 8, 1980. Pre-1985 Subdivision Regulations of Clay County. Prior to September of 1985 Clay County did not require platting of subdivisions such as Station Pond. In September of 1985, Clay County adopted Ordinance 85-68 creating three types of subdivisions and providing for the regulation thereof. An exception to these requirements, however, was included in Ordinance 85-68: subdivisions shown on a certified survey prior to September of 1985 with lots and roads laid out would continue to not be subject to regulation so long as the lots continue to comport with the survey. Government Action Relied Upon Before the Applicant's Sale of the Property. The Applicant was aware that it could develop Station Pond as an unrecorded subdivision in Clay County. The development of Station Pond comes within the exception to Ordinance 85-58. In a letter dated December 15, 1978 the Clay County Director of Planning and Zoning informed the Applicant that Oak Forest Clay County would "issue building permits in accordance with the uses permitted and lot/building requirements for an Agricultural zoned district, and in accordance with all other local ordinance provisions, state statutes, etc., as enclosed." This representation was based upon the conclusion of Clay County that Oak Forest was not subject to Clay County subdivision ordinances. Similar conclusions were reached by the Clay County Health Department in a letter dated September 8, 1978, and by the Clay County Public Works Director in a letter dated December 18, 1978. The Applicant's Detrimental Reliance. The Applicant's predecessor corporation provided dirt roads around part of Station Pond. The roads were constructed prior to December of 1978. The costs of the roads incurred by the Applicant was approximately $15,000.00. Rights That Will Be Destroyed. If the Applicant must comply with the Clay County comprehensive plan it will be required to pave the roads of the subdivision and provide an approximately 3 mile long paved access road. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
The Issue The issue in this case is whether Leon County's Comprehensive Plan Amendments 2007-1-T-015 ("the Plan Amendments"), which exempt "closed basins" from Lake Jackson Special Development Zone (SDZ) development restrictions, are in compliance as defined by Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact Background The County and City have a joint comprehensive plan in that most provisions are adopted by both local governments, but some provisions are only adopted by one or the other local government. The Plan Amendments at issue in this case were adopted by the County but not the City; they relate to Lake Jackson. Lake Jackson is a 4,000-plus acre water body in the northern portion of the County, north of Interstate 10. When U.S. Highway 27 was built, it crossed the western edge of Lake Jackson, dividing the main body of the lake from the part that became known as Little Lake Jackson. However, Little Lake Jackson remains connected to the main body of Lake Jackson through culverts under Highway 27. Lake Jackson is located within the larger Lake Jackson Drainage Basin, which includes all land from which water drains to Lake Jackson. The boundary of the City intersects the southern and eastern reaches of the Lake Jackson Drainage Basin. Lake Jackson is an important state resource. It has been designated as a Florida Aquatic Preserve, an Outstanding Florida Water, is on the Northwest Florida Water Management District’s Surface Water Improvement and Management Program priority list, and is listed as resource of regional significance under the Northwest Florida Strategic Regional Policy Plan. Significant resources, including roughly 9 million dollars since 1999, have been spent by state, regional, and local entities to manage and restore the lake. Repeatedly throughout and before its recorded history, Lake Jackson has flooded or almost entirely disappeared. The water level of Lake Jackson is mainly controlled by rainfall conditions. The most extreme flood event recorded occurred on June 18, 1966, when the water level of Lake Jackson reached 96.16 NAVD.4 Rainfall conditions are cyclical, and the lake’s disappearance is due to sinkholes on the lake bottom that periodically “unplug” and allow the lake water to drain to the Floridan Aquifer, especially during dry cycles. The local area is now experiencing an extended generally dry cycle. In 1999 Porter Sink unplugged and much of the lake drained. Porter Sink and some of the lake filled somewhat during times of more normal rainfall since 1999, but the lake again drained during the prevailing drier times and was still low at the time of the final hearing. Plan Provisions Relating to Lake Jackson In 1990 the County and the City adopted their joint comprehensive plan. Among other things, it included a future land use element and a conservation element. Goal 2 [C] (designating the Conservation Element) of the Plan was to: "Protect and enhance natural surface water bodies to provide for fishable and swimmable uses." Objective 2.1 [C] addressed Stormwater Management. Objective 2.2 [C] addressed Water Bodies Protection and required the County to "have in place programs and procedures to improve water quality in degraded water bodies" and, "[i]n other natural water bodies, . . . to maintain water quality in order to meet local standards or state standards if no local standards are designated." The comprehensive plan adopted in 1990 also included a separate Objective 2.3 [C] on Lake Jackson, which was to "adopt policies and ordinances [by 1991] that will prevent any further degradation of Lake Jackson and by the year 2000, return water quality in the lake to its condition at the time of Outstanding Florida Waters (OFW) designation." Policy 2.3.1 [C], also adopted in 1990, was to "designate special development zones for Lake Jackson that restrict activities that impact the quality of stormwater.” The comprehensive plan adopted in 1990 also included Policy 2.2.18 [L] (designating the Land Use Element) of the Plan, which created "a protection category that is specific to the well documented scientific concerns regarding the degradation and continuing pollution of Lake Jackson." It limited density and intensity of development in the Lake Protection future land use category. As part of the Lake Protection development limitations, this policy also prohibited clustered residential development in the Lake Jackson SDZs. However, it also included a Mixed Use Lake Protection category for "closed basins." "Closed basin" was defined in the Glossary of the Plan as "[a] naturally depressed portion of the earth's surface for which there is no natural outlet for runoff other than percolation, evaporation, or transpiration." The Department found the comprehensive plan adopted by the City and County in 1990 not to be "in compliance" and recommended remedial action, including elimination of the Lake Protection Mixed Use category and action to protect Lake Jackson, to “include buffer zones, restrictions on development activity, reduced densities and intensities, and environmental design criteria.” [DCA Exhibit 25] During the course of the resulting administrative proceeding, a Stipulated Settlement Agreement was reached in 1991 that required the City and County to adopt remedial action. The remedial action adopted by the City and County included elimination of the Lake Protection Mixed Use category, and the following language was added to Policy 2.2.18 [L]: "Future development will not be subject to the limitations of the Lake Protection land use category if [it] can be demonstrated by competent scientific evidence that the development is located in a closed basin that does not naturally or artificially discharge to the larger Lake Jackson Basin. Closed basins must be certified by a registered engineer to the effect that there are no artificial or natural discharges from it." (Emphasis added.) The policy also provided that future development in the Lake Jackson SDZs had to be Planned Unit Developments (PUDs). In addition, Policy 2.2.12 [C] was adopted in accordance with the 1991 Stipulated Settlement Agreement and established SDZs that limit the amount of disturbance that can occur on properties under certain elevations for several lakes in Leon County, including Bradford Brook Chain of Lakes, Fred George Basin, Lake Iamonia, and Lake Jackson. Specific to Lake Jackson, the Plan established SDZs as follow: Policy 2.2.12: [C] Special development zones with accompanying criteria shall be established and implemented through the LDRs for the following lakes: Lake Jackson – Zone A = below elevation 100 feet NGVD (criteria) 5% or 4,000 sq. ft. may be disturbed Zone B = between 100 feet NGVD and 110 feet NGVD (criteria) 50% of the site must be left natural Preserve shoreline vegetation in its natural state for minimum of 50 linear feet landward of the ordinary high water line. Allow essential access. Government initiated stormwater facilities for retrofit purposes may utilize a greater portion of the SDZ if applicable criteria (Policy 2.1.9[C]) are met. [Joint Exhibit 3 at IV-20] As a result of the Stipulated Settlement Agreement and adopted remedial action, and DCA found the resulting comprehensive plan (the Plan) to be "in compliance." In 2005, the County eliminated the "closed basin" exception from Policy 2.2.18 [L]. However, the 2005 revision provided that PUDs approved prior to January 1, 2005, were vested for all approved uses, intensities, and densities. Arbor's Summerfield development, which is located just southwest of Lake Jackson across U.S. Highway 27, and just southeast of and contiguous to Little Lake Jackson, received a PUD approval under the "closed basin" exception from Policy 2.2.18 [L] prior to January 1, 2005. Arbor's PUD approval was challenged in circuit court by some of the Kowal Intervenors, and others, and in May 2006 it was held in that case that, while the Summerfield PUD was grandfathered under Policy 2.2.18 [L], the Lake Jackson SDZ criteria in Policy 2.2.12 [C] applied. The Plan Amendments at issue in this case ensued. Plan Amendments The Plan Amendments at issue moved the Lake Jackson part of Policy 2.2.12 [C] to Objective 2.3 [C], which addresses Lake Jackson Protection. The rest of Policy 2.2.12 [C] was left intact and now applies only to the Bradford Brook Chain of Lakes, the Fred George Basin, and Lake Iamonia. The Lake Jackson policy was renumbered 2.3.1 [C], replacing existing Policy 2.3.1 [C]. Besides the re-numbering and replacement of existing Policy 2.3.1 [C], the amendment added: "These SDZ criteria shall not apply within closed basins." This language also was added to Policy 2.1.10 [L], which had prohibited cluster residential development in the Lake Jackson SDZs.5 Challenge to the Plan Amendments The Department and the Kowal Intervenors have alleged numerous statutory and rule provisions to support their compliance challenge. Generally, they contend that the Plan, as amended, fails to adequately protect Lake Jackson and natural resources associated with the lake and is therefore inconsistent with Section 163.3177(6)(d), Florida Statutes, which sets forth the requirements of the conservation element.6 They also allege that the Plan Amendments are inconsistent with the following provisions of Florida Administrative Code Rule Chapter 9J-57: 9J-5.003(123) (defining "stormwater"); 9J-5.006(3)(b)4. (requiring protection of natural resources); 9J-5.013(2)(b)3. (requiring protection of minerals, soils and native vegetative communities, including forests); 9J- 5.013(2)(b)4. (requiring protection of fisheries, wildlife and wildlife habitat); 9J-5.013(2)(c)6. and 9J-5.013(3) (requiring protection of the natural functions of wetlands, floodplains, fisheries, wildlife habitats and lakes); and 9J-5.013(2)(c)9. (requiring protection of environmentally sensitive lands). DCA and the Kowal Intervenors also challenge the Plan Amendments as not supported by adequate data and analysis and therefore inconsistent with Sections 163.3177(8) and (10), Florida Statutes. See also Rule 9J-5.005(2) (data and analysis requirements) and Rule 9J-5.006(2) (land use analysis requirements). DCA and the Kowal Intervenors also contend that the Plan Amendments render the Plan internally inconsistent and therefore violate Section 163.3177(2), Florida Statutes, (requiring that "the several elements of the comprehensive plan shall be consistent . . . ."). See also Rule 9J-5.005(5) (requiring internal consistency). DCA and the Kowal Intervenors have identified numerous plan provisions to support this claim, most of which deal with protection of area lakes and natural resources. Numerous provisions of the state comprehensive plan have been raised in opposition to the Plan Amendments, as follows: Section 187.201(7)(b)8. (preservation of hydrologically significant wetlands and other natural floodplain features); Section 187.201(7)(b)10. (protection of surface and groundwater quality and quantity); Section 187.201(7)(b)12. (elimination of inadequately treated wastewater and stormwater discharge into the waters of the State); Section 187.201(9)(a) (protection of unique natural habitats and ecological systems); Section 187.201(9)(b)1. (conservation of forests, wetlands, fish, marine life, and wildlife); Section 187.201(9)(b)7. (protection of wetlands systems); Section 187.201(9)(b)10. (acquisition and maintenance of ecologically intact systems) Section 187.201(15)(a) (requiring development to be directed to areas with resources to accommodate growth in an environmentally acceptable manner; Section 187.201(15)(b)6. (requiring consideration in land use planning of the impact on water quality and quantity, natural resources, and the potential for flooding). The Plan Amendments also are alleged to be inconsistent with the Strategic Regional Policy Plan, and specifically Policy NR 1.2.10, which provides for restoration of water quality in Lake Jackson to standards established by Florida Department of Environmental Protection (DEP) and Rule Chapter 62-302. More Than Mere Clarification In response to the challenge, the County and Arbor first take the position that the Plan Amendments merely clarify that the Lake Jackson SDZs never applied to closed basins. However, the County and Arbor are estopped from taking that position in this case because of the circuit court ruling against the County and Arbor on that precise point. As a matter of law, that the County may not have applied the Lake Jackson SDZ criteria in certain "closed basins" means only that the County did not follow its Plan on those occasions. As a matter of law, the Plan Amendments actually do have the effect of exempting closed basins from the Lake Jackson SDZ criteria. Glossary Definition At one point in their PRO, the County and Arbor argue that the Plan Glossary's definition of "closed basin" ensures that the Plan Amendments will not affect Lake Jackson because it does not allow any surface water discharge from a "closed basin." (A similar argument was made to the circuit court, that "common sense and logic support the conclusion that these [SDZ] restrictions do not apply to a development within a closed basin because stormwater from a closed basin by definition never reaches the lake." [DCA Exhibit 13, p.4]) But the Glossary definition allows percolation into the groundwater, which could subsequently enter the lake or emerge from the ground and become surface flow outside the closed basin. In addition, as indicated, supra, the Glossary definition does not mention artificial outlets for runoff from a "closed basin." Policy 2.2.18 [L], as it existed prior to 2005, included that concept in its definition for purposes of the Lake Protection future land use category exception, but that language has been eliminated from the Plan. Even setting aside the possibility for groundwater to reach the lake, and assuming that the Glossary definition included, or should be interpreted to include, the concept of no artificial outlet for runoff, the County and Arbor also argue, inconsistently, that surface water in "closed basins" can overtop and flow into the Lake Jackson Drainage Basin in certain rainfall conditions. Indeed, the County found the Summerfield development to include all or part of two exempt closed basins for purposes of both Policy 2.1.18 [L] and Policy 2.2.12 [C] because the basins would not discharge surface water in a 100- year, 24-hour storm, not because it would never discharge surface water to the Lake Jackson Drainage Basin. Other Proposed Closed Basin Definitions As indicated, one possible definition of closed basin refers to the capacity to retain surface water resulting from a 100-year, 24-hour storm, which was the definition used for the Summerfield site. For Lake Jackson, 10.9 inches of rain in 24 hours amounts to a 100-year, 24-hour storm event. However, in evaluating the Summerfield site, the County followed the Department of Transportation's conservative practice of assuming 12 inches of rain in a 100-year, 24-hour storm event. However, it was not clear from the evidence whether the Summerfield evaluation assumed build-out of the PUD. This is significant because development reduces the capacity of a basin to retain stormwater runoff. This is because impervious surface would be increased, and cleared lands would be subject to soil compaction which prevents rainfall from soaking into the ground, resulting in increased stormwater volume. Regardless of how it evaluated the Summerfield site, the County has not consistently used any one, standard “normal” rainfall event for determining closed basins. In addition to a 100-year, 24-hour storm event, the County also has used a 50- year, 24-hour storm, and a three-year, 24-hour storm.8 The evidence suggests that the storm event chosen to be used may have depended on the County's purpose in determining the existence of a closed basin--e.g., if the County was determining, on the one hand, whether a Lake Protection future land use category (or SDZ) exemption applied or, on the other hand, whether flooding was a concern under Policies 1.3.2.d [C] and 2.2.5 [C]. When the County deleted the closed basin exception from the Lake Protection land use category in 2005, County staff recommended approval of the amendment at least in part because of the burden placed on developers and County staff to determine whether a development included a closed basin, and the confusion that existed as to how to make that determination. (Another reason given by County staff was that elimination of the exception would promote land use densities and intensities more consistent with the protection of Lake Jackson.) When the County transmitted proposed plan amendments before adopting the Plan Amendments at issue, it proposed to define closed basins for purposes of the Lake Jackson SDZ exemption by reference to a 100-year, 24-hour storm. But when DCA in its ORC report cited the inconsistency with the definition in the Plan's Glossary, the County deleted the definition from the adopted Plan Amendments. It would seem that, without a clear definition of closed basin, the Plan Amendments would result in the same kind of burdens and confusion the County sought to eliminate by removing the Lake Protection land use category exception in 2005. The County now says that it anticipates adopting the 100-year, 24-hour storm definition through its LDRs. But any such definition, if actually adopted in the LDRs, would be subject to change outside the statutory plan amendment process. While adoption of a Plan amendment to define closed basins for purposes of a Lake Jackson SDZ exception by reference to a 100-year, 24-hour storm event would be a clearer and more conservative definition, it would not necessarily be the most appropriate definition because it would not take into account antecedent and subsequent rainfall conditions, or the cumulative effect of smaller events. The evidence was clear that areas meeting a 100-year, 24-hour storm definition of "closed basin" would discharge to the Lake Jackson Drainage Basin and ultimately to Lake Jackson due to the cumulative effect of various combinations of lesser rainfall events. Arbor's own expert witness, Dr. Seereeram, described the importance of determining the antecedent conditions on the ground, as well as antecedent rainfall conditions, and explained that the highest recorded level for Lake Jackson in 1966 was attributable to a 100-year, three-year rainfall event. For this reason, Dr. Seereeram has been preaching to regulators not to use the 100-year, 24-hour storm event for modeling big land-locked lakes like Lake Jackson, but rather what they "need to do is run continuous simulation models." Due to the concerns expressed by Dr. Seereeram and the other experts, if closed basins for purposes of the Lake Jackson SDZ exemption are defined by reference to a 100-year, 24-hour storm event, instead of a continuous simulation model, the definition also should include an appropriate recovery time requirement. For example, there was evidence that the County's LDRs have included a requirement that stormwater retention facilities must be designed so as to recover their volume capacity within 14 days. This would help to account better for antecedent and subsequent rainfall conditions, and the cumulative effect of smaller events. Insufficient Analysis The County and Arbor take the position that the Plan Amendments are supported by data and analysis indicating that only a relatively small area with the Lake Jackson Drainage Basin that would be affected by a closed basin exception. However, the County's analysis was based on a 100-year, 24-hour storm definition. As indicated, the Plan as amended does not include this definition. Also, as indicated, it is not clear whether the analysis assumed build-out of the PUD. Without a clear and appropriate definition of closed basins for purposes of the Lake Jackson SDZ exception, the County's analysis fails to support the Plan Amendments at issue. Even assuming a clear and appropriate closed basin definition in the Plan, the County's analysis would not be complete for two reasons. First, it failed to identify some basins that should have been analyzed. Second, it assumed that groundwater and other data and analysis pertaining to the Summerfield site was a valid proxy for all identified (and unidentified) closed basins in the Lake Jackson SDZs. Closed Basins in Lake Jackson SDZs Ultimately, through the evidence presented at the final hearing, the County attempted to demonstrate the limited number of closed basins in the Lake Jackson SDZs through analysis of Light Detection and Ranging (LIDAR) data, which was used to produce a Digital Elevation Model (DEM). The model results were further analyzed by identifying resulting basins at least two feet deep. The County took the position that, using this analysis, there were 16 "closed basins" within the Lake Jackson Drainage Basin, of which seven were within the Lake Jackson SDZs. Of those seven, the County determined that only three--named Kane, Old Bainbridge Road, and Perkins Road--retain development potential and would not discharge in a 100-year, 24- hour storm. Kane lies entirely within the Summerfield site, while roughly the southwestern half of the Old Bainbridge Road basin (the half southwest of Old Bainbridge Road) is within the Summerfield site. Using this analysis, the County further determined that those three "closed basins" comprised 40.7 of the 2,221 acres of land in the Lake Jackson Zone A SDZ (1.8 percent) and 37.2 of the 1,204 acres of land in the Lake Jackson Zone B SDZ (3.1 percent). Since the Lake Jackson Zone B SDZ allows up to 50 percent disturbance, the County's analysis was that only 18.6 acres of the 1,204 acres of land in Lake Jackson Zone B (1.5 percent) would be affected by the Plan Amendments. Mr. Endries, an expert witness for the Kowal Intervenors, was able to further analyze the LIDAR data using an ArcView program also available to the County and identify numerous closed depressions two or more feet deep not identified or analyzed by the County. One was approximately 272 feet across. Mr. Macmillan, another expert witness for the Kowal Intervenors, identified more closed depressions not analyzed by the County using the U.S. Geological Survey document titled, “Hydrologic Significance of 1966 Flood Levels at Lake Jackson Near Tallahassee, Florida.” At least two of those closed depressions identified by Mr. Macmillan are located within the Lake Jackson SDZs and outside of the floodplain. Mr. Macmillan also testified that existing development is minimal-to-none in most of the closed depressions identified by Mr. Endries north of the lake, which means that development possibly could occur in such areas in the future. For these reasons, to the extent that the closed basin definition used in the County's analysis is not appropriate, more surface water discharges to Lake Jackson than assumed in the County's analysis. In addition, the County's analysis of possible harm to the water quality of Lake Jackson by groundwater flow to Lake Jackson was deficient. Lake Jackson SDZs Not Just For Stormwater The County and Arbor also take the position that, because Policy 2.3.1 [C] designates Lake Jackson SDZs "that restrict activities that impact the quality of stormwater," the Lake Jackson SDZs do not address groundwater or any other comprehensive plan concerns. For several reasons, this position is rejected. First, the location of the Lake Jackson SDZs in Policy 2.2.12 [C] of the 1991 Plan requires that they be read in context with the goal and the objective of the companion policies, which are not limited to stormwater. Second, Rule 9J-5.003(123) defines "stormwater" as "the flow of water which results from a rainfall event." It is clear that some of the runoff from a rainfall event leaves a natural closed basin via percolation into the ground. For this reason, the flow of groundwater beneath a closed basin can be considered part of "the flow of water which results from a rainfall event." Third, contrary to the arguments of Arbor and the County that the sole purpose of the Lake Jackson SDZs is to establish "filter strips" of vegetation around the edges of the lake, restricting development and impervious surface in other parts of the Lake Jackson SDZs not only preserves more of the capacity of the SDZs to hold surface water runoff from rainfall events but also preserves vegetation that helps remove nutrients such as nitrogen and phosphorus--contaminants particularly detrimental to water bodies like Lake Jackson--before they reach the groundwater. The County and Arbor base their argument on Policy 2.3.4 [C], which provides for a vegetated buffer zone around the lake edge. But that policy does not reference either closed basins or SDZs, is not under the same objective as Policy 2.2.12 [C] on SDZs, and does not mean that the SDZs only apply to those areas that are contiguous to Lake Jackson. Finally, there are other ancillary benefits beyond stormwater quality derived from the Lake Jackson SDZs, including the furtherance of policies in the Plan protecting wildlife and groundwater. Summerfield Groundwater Analysis Besides the possibility of a surface water connection during certain rainfall conditions (depending on the closed basin definition used), groundwater also can flow to Lake Jackson from closed basins. As indicated, this could occur either from a direct groundwater discharge to the lake, or when groundwater from a closed basin surfaces outside the closed basin and becomes surface water that can flow to the lake. Under any definition of closed basin, water retained in a closed basin can percolate into the soil and become groundwater. In the vicinity of Lake Jackson, groundwater typically would percolate into the Miccosukee formation, a layer of silty sands and clayey sands overlying the Torreya formation. The Torreya formation consists of very dense clay that acts like a sheet of plastic. It is nearly impermeable when it is intact. Due to the clays in the Miccosukee formation and especially the Torreya formation, horizontal flow of groundwater in the surficial aquifer is faster than vertical flow by approximately an order of magnitude (approximately ten feet per day versus one foot per day). Hydraulic head is an important consideration in determining the direction and rate of groundwater flow. Generally, groundwater flows from higher to lower water levels and moves faster the greater the difference in water levels. Groundwater can flow laterally under a road such as U.S. Highway 27. For these reasons, although a closed basin may not "pop-off," it can be connected via the sand layer to Lake Jackson, either directly or indirectly. Arbor's analysis of groundwater flow to Lake Jackson focused on the Summerfield site. There was some evidence suggesting that groundwater levels in the surficial aquifer on the Summerfield site are lower than the water level of Lake Jackson, which would indicate groundwater flow from Summerfield away from the lake. However, the data available for making such a determination was limited and less-than-ideal--seven core borings on the Summerfield site that were not well-correlated to the water level of Lake Jackson at the time, and a LIDAR map of data from a single day in 2003 or 2004 when the level of the surficial aquifer at the site was below the bottoms of the closed depressions on the site and undetectable. In any event, Arbor's analysis then assumed groundwater flow from the Summerfield site towards Lake Jackson at the conservative rate of 10-12 feet per day. At that rate, groundwater from the two closed depressions on the site, which are approximately 180 feet and 600 feet from the lake, would reach the lake in approximately 18 and 60 days, respectively. The analysis then demonstrated the unlikelihood of contamination of Lake Jackson from any of the likely pollutants from a residential development at Summerfield (mainly hydrocarbon in oil and grease from automobiles, nutrients from fertilizer, pesticides, and some heavy metals) due to the attenuation of the contaminants, which would travel more slowly through the soils than groundwater, before reaching the lake. Arbor's analysis was that it was even less likely that contaminants from the other closed basins identified by the County in its analysis as being in the Lake Jackson SDZs and still potentially developable would reach the lake via direct groundwater flow, since they were farther from the lake. However, this analysis did not expressly address the possibility of groundwater flow from those closed basins emerging from the ground and mingling with surface water. As indicated, the evidence presented by the County and Arbor did not analyze land already developed within the Lake Jackson SDZs. However, since the Lake Jackson SDZ restrictions apply to redevelopment, eliminating them for closed basins would allow redevelopment in closed basins in the Lake Jackson SDZs without regard to the SDZ restrictions. In addition, Arbor's analysis did not address any other potential closed basins around Lake Jackson. The evidence indicated that some ponds around Lake Jackson are higher in elevation than the lake, and groundwater from those closed depressions normally would drain towards the lake. As indicated, the rate of groundwater flow would depend on the hydraulic gradient. During times of increased rainfall, the water level in the ponds surrounding Lake Jackson will be even higher, and the Miccosukee formation will become saturated, leading to a greater hydraulic head and faster migration of groundwater to the lake. The possibility of contamination from groundwater from these other potential closed basins was not analyzed. These questions only can be answered through a complete and thorough analysis of all closed basins and potential closed basins--similar to the way the County analyzed all parcels to be affected by the establishment of SDZs in the Lake Lafayette watershed in 2002. Habitat for Flora and Fauna Other policies under Objective 2.2 [C] cover floodplains, inter-basin transfer of water, wetland and lake function, and other conservation issues. Some of these issues are broad enough to include habitat for flora and fauna--e.g., in connection with protection and conservation of wetland and lake function. The Plan Amendments are to provisions that do not specifically address wildlife and fish and their habitat. However, the Plan Amendments nonetheless could have an impact on fish and wildlife, which in turn can impact water quality in the lake. This was not raised as an issue by DCA, but was addressed in the evidence presented by the Kowal Intervenors, who did raise the issue. Reptiles, amphibians, birds, and mammals, including some listed and endangered species, use Lake Jackson and the wetlands and uplands surrounding it. These include seven species of freshwater turtles, four species of snakes, alligators, and amphibians, including multiple species of frogs. There is much movement of these wildlife species back and forth between and among Lake Jackson and the wetlands and uplands surrounding the lake for a distance of up to two kilometers from the lake. Many of the wetlands and uplands used by Lake Jackson's wildlife species, and the connections between them, are located within the SDZs. The SDZs also include some "fishless" areas where amphibians can breed. For example, turtles are semi-aquatic and leave the water to lay their eggs in the uplands around the lake. Frogs also migrate between these uplands and wetlands and the lake. Leopard frogs, for example, forage in the uplands around the lake and then return to the lake. Parts of the Summerfield site are used for breeding by the barking tree frog and the spadefoot toad. Thousands of tree frogs have migrated off the Summerfield site toward the Lake in a single documented event. The terrestrial connections between the areas used by some of these animals are critical to them because they must use these different habitats either seasonally or at other times for their life-cycle requirements and have to move over land in order to utilize them and for dispersal. If the terrestrial connections are eliminated, and these animals are restricted to just one area of their life-cycle, they cannot survive. All of these animals are important to the function of the Lake Jackson ecosystem because they are part of the overall food web of the lake. A food web is all of the connections between species that feed on each other. All of these animals moving back and forth among the uplands and wetlands around the lake contribute to the biomass of the lake, which is a measure of the food web and productivity of the lake. For example, turtles in the U.S. Highway 27 area of Lake Jackson alone accounted for approximately 12 tons of biomass over a time period of six years. This is an indication that Lake Jackson is a very productive system. If the SDZ disturbance criteria are removed, it could impact the forage, reproduction, and survival of some of the wildlife of Lake Jackson. The loss of wildlife can affect the functioning of the Lake Jackson ecosystem. For example, one species of turtle, the Florida cooter, eats filamentous algae and as a group eat tons of algae, which is a benefit to the Lake. These turtles need the connection between the lake and the uplands to survive, including areas that are SDZs subject to the Plan Amendments. A loss of species diversity would simplify the complex food web of the lake, which could adversely affect the function of wetlands and the Lake. Arbor presented evidence that Summerfield's wildlife habitat is relatively degraded and unimportant due to its history of being used for cattle grazing. However, as indicated, it still is used by Lake Jackson's wildlife. Since the evidence presented by Arbor and the County focused on Summerfield, there was no analysis of other potential closed basins. Plan's Other Lake Jackson Protections And Internal Consistency The County and Arbor take the position that other provisions of the Plan adequately protect Lake Jackson even if the SDZ criteria are not applied in closed basins in the Lake Jackson SDZs. DCA and the Kowal Intervenors take the position that, to the contrary, the Plan Amendments are inconsistent with many of the same Plan provisions. The Plan contains a number of goals, objectives, and policies that function in conjunction with the Lake Jackson SDZs to protect and restore Lake Jackson, in accordance with statutory and rule requirements. The goal of the Conservation Element is to "[p]reserve, protect and conserve the ecological value and diversity of natural resources in Tallahassee and Leon County." Policy 1.1.1 [C] requires that a natural resources inventory be conducted on a site before any development or rezoning occurs. Policy 1.3.2 [C] protects conservation areas such as floodplains, closed basins, significant grades, and active karst features. Policy 1.3.2.d [C] (County Only) allows development in closed basins to the extent that there is sufficient stormwater capacity within the basin. It also states that "[d]evelopment will be permitted reflective of the density allowed by the existing land use category." Policy 1.3.6 [C] protects preservation areas such as wetlands, water bodies, severe grades, and native forests. Wetlands, floodways, and flood plains are also protected by Policy 1.1.1 [SM] (designating the Stormwater Sub-element of the Utilities Element of the Plan), which requires that those features be maintained in their natural state. Objective 2.1 [C] requires the County and City to "coordinate the various elements of their overall stormwater program through a unified plan to ensure the efficient and effective provisions of stormwater regulations, enforcement, planning, maintenance, operations, and capital improvements." Policy 2.2.1 [C] is to: "Protect and conserve the natural function of wetlands by limiting wetland destruction and adverse impacts." Policy 2.2.4 [C] is to: "Require additional restrictions in drainage basins that have been identified through scientific studies as having significant surface water degradation as defined by declining surface water systems, loss of aquatic plant and animal species, and an increase in the level of the parameters that define polluted water." Policy 2.2.5 [C] provides that "development in closed basins will be permitted only to the extent there is sufficient stormwater capacity within the basin." It also addresses the conditions under which inter-basin transfer of water will be permitted. Policy 2.3.4 [C] requires "a natural vegetation zone around the lake edge that severely limits clearing and is sufficient in size to help buffer the lake against runoff and provide aquatic vegetation for habitat." Objective 3.1 [C] is to "[p]rotect and enhance populations of endangered, threatened and species of special concern listed by Leon County and the Florida Game and Fresh Water Fish Commission, and their habitat so there is no loss of wildlife species " Policy 4.2.3 [C] restricts incompatible land uses near active karst features, which not defined in the Plan, and prohibits untreated stormwater from entering those features. It states: "Incompatible land uses are uses that use, produce, or generate as a waste any listed Resource Conservation and Recovery Act material or Environmental Protection Agency priority pollutant." It is found that the foregoing Plan provisions, taken together, do not make the Lake Jackson SDZ criteria redundant or superfluous in closed basins. To the contrary, the Plan provided more protection for Lake Jackson before the Plan Amendments. At the same time, DCA and the Kowal Intervenors did not prove beyond fair debate that the Plan Amendments are inconsistent with any of the foregoing Plan provisions, either individually or taken together. See § 163.3177(2), Fla. Stat.; Fla. Admin. Code R. 9J-5.005(5). Other Statutory and Rule Compliance Criteria Section 163.3177(8), Florida Statutes, states: "All elements of the comprehensive plan . . . shall be based upon data appropriate to the element." The implementing rule states: All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analysis applicable to each element. 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 adoption of the plan or plan amendment at issue. Fla. Admin. Code R. 9J-5.005(2)(a). It is found that, due to the great importance of Lake Jackson as a natural resource, the data and analysis were insufficient to support the Plan Amendments, which do not react appropriately to the data and analysis. More analysis is required before it is can be determined that the benefits of the Lake Jackson SDZs should be eliminated in closed basins. First, as indicated, the definition of closed basin in the Plan's Glossary would include basins with an artificial outlet for runoff into the greater Lake Jackson Drainage Basin. Any other definition of closed basin not in the Plan, including the 100- year, 24-hour storm event definition the County indicates it intends to adopt through its LDRs, would be subject to change outside the statutory plan amendment process. Even assuming that such a definition were in the Plan, the data and analysis suggest that such a definition would not be the most appropriate definition to use in the interest of Lake Jackson's water quality. Rather, the definition should specify that it would be applied post-development and that it should be based on a continuous simulation model, or at least include an appropriate recovery time requirement, to account for antecedent and subsequent rainfall and the cumulative effect of smaller rain events. Until such an appropriate definition is adopted as part of the Plan, and the closed basins identified and evaluated, it cannot be determined that eliminating the SDZs in closed basins will not harm Lake Jackson, including possible harm from effects on groundwater beneath the closed basins and from effects on wildlife using the closed basins. For these reasons, the Plan Amendments do not react appropriately to the data and analysis. State law requires local governments to include a conservation element in their comprehensive plans "for conservation, use, and protection of natural resources in the area, including air, water, water recharge areas, wetlands, waterwells, estuarine marshes, soils, beaches, shores, flood plains, rivers, bays, lakes, harbors, forests, fisheries and wildlife, marine habitat, minerals, and other natural and environmental resources." § 163.3177(6)(d), Fla. Stat. The conservation element must have policies for: "Protection and conservation of the natural functions of existing soils, fisheries, wildlife habitats, rivers, bays, lakes, floodplains, harbors, wetlands including estuarine marshes, freshwater beaches and shores, and marine habitats" Fla. Admin. Code R. 9J-5.013(2)(c)6. Rule Chapter 9J-5 reinforces this requirement by requiring: future land use objectives to "[e]nsure the protection of natural resources” (Fla. Admin. Code R. 9J- 5.006(3)(b)4.); future land use policies for "[p]rotection . . . of environmentally sensitive lands" (Fla. Admin. Code R. 9J- 5.006(3)(b)6.; and conservation element objectives to conserve native vegetative communities, fisheries, and wildlife habitat (Fla. Admin. Code R. 9J-5.013(2)(b)3.- 4.). By a preponderance of the evidence, it is found that the Plan, as amended, would be inconsistent with the foregoing statutes and rules in that the data and analysis were insufficient to determine that the Plan, as amended, would adequately protect Lake Jackson. Given the data and analysis, the Plan Amendments do not react appropriately. Local governments are also required to include in their comprehensive plans a "general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element correlated to principles and guidelines for future land use, indicating ways to provide for future potable water, drainage, sanitary sewer, solid waste, and aquifer recharge protection requirements for the area." § 163.3177(6)(c), Fla. Stat. The future land use element must have policies for: "Provision for drainage and stormwater management . . . ." Fla. Admin. Code R. 9J-5.006(3)(c)4. Furthermore, comprehensive plans must have an element for sanitary sewer, solid waste, stormwater management, potable water and natural groundwater aquifer recharge with objectives that "address protecting the functions of natural groundwater recharge areas and natural drainage features" and policies "[r]egulating land use and development to protect the functions of natural drainage features . . . ." Fla. Admin. Code R. 9J- 5.011(2)(b)5 & (2)(c)4. It was not proven by a preponderance of the evidence that the Plan Amendments would be inconsistent with any of those provisions. The evidence was that the Plan Amendments were inconsistent with the State Comprehensive Plan to the extent that it was inconsistent with other statutory and rule compliance criteria. No evidence was presented to prove inconsistency with the Strategic Regional Policy Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission find the Plan Amendments to be not "in compliance." DONE AND RECOMMENDED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2008.
