The Issue Introduction. 21 The Parties. 21 General Description of Monroe County 22 The Monroe County Year 2010 Comprehensive Plan 24 The Original Comprehensive Plan. 24 The Remedial Comprehensive Plan. 25 Area of Critical State Concern Review 27 The Florida Keys Area of Critical State Concern. 27 Area of Critical State Concern Review of the Remedial Plan. 28 The DCA Proposed Rules 31 Challenges to the DCA Proposed Rules 33 The Administration Commission Proposed Rules . 34 Challenges to the Administration Commission Proposed Rules 36 The Final Order in the DCA and Administration Commission Proposed Rules Challenge Cases. 36 The Department's Review Pursuant to the Act. 38 Section 163.3184, Florida Statutes 38 The Department's Review. 39 Impact of the Area of Critical State Concern Review on the Department's Review Under the Act. 40 Challenge to the Remedial Plan Pursuant to the Act by the Intervenors 41 Carrying Capacity: The Cornerstone of Monroe County Remedial Plan. 42 Carrying Capacity as a Planning Tool 42 Monroe County's Carrying Capacity Analysis 44 The Settlement Agreement's Reference to a Carrying Capacity Analysis 45 Monroe County's Application of the Carrying Capacity Analysis. 46 Hurricane Evacuation Carrying Capacity 47 Environmental Carrying Capacity. 48 The Department's Review of Monroe County's General Acceptance of a Carrying Capacity Approach 49 Monroe County's Environment. 49 The Unique Environmental Character of the Florida Keys 49 General Habitat Types in the Florida Keys. 51 Upland Habitat Types 53 Wetland and Transitional Wetland Habitat Types. 55 Marine Habitat Types 59 The National Marine Sanctuary. 63 The Upper, Middle and Lower Keys 64 Areas of Critical County Concern 66 Ohio Key 67 Coupon Bight 67 Species of Special Concern 68 The Florida Key Deer 68 Marine Turtles 72 The Impacts of Development on the Environment of the Florida Keys. 72 A Brief History of Development in the Florida Keys 72 The Impact of Development on Water Quality and Marine Resources 73 The Impact of Development on Coral Reefs 79 The Impact of Development on Seagrasses. 80 The Impacts of Boating 80 The Impacts of Docks and Marinas 82 The Impacts of Development on Wetlands and Transitional Wetlands. 83 The Impact of Development on Mangroves 85 The Impact of Development on Beach Berm. 85 The Impact of Development on Hammocks. 86 The Impact of Development on Offshore Islands. 87 The Impact of Development on North Key Largo . 88 The Impact of Development on Ohio Key. 88 The Impact of Development on Key Deer and Big Pine Key 89 The Impact of Development on Coupon Bight. 92 The Impact of Development on Marine Turtles. 92 The Florida Keys' Environmental Carrying Capacity 92 Monroe County's Conclusion 92 The Carrying Capacity of the Nearshore Waters and Seagrasses. 94 The Carrying Capacity of the Coral Reefs of the Florida Keys. 98 The Carrying Capacity of Offshore Islands. 98 The Carrying Capacity of North Key Largo, Ohio Key and Coupon Bight. 99 The Carrying Capacity of the Key Deer and Big Pine Key 101 The Need to Maximize Measures to Protect Other Environmental Features of the Florida Keys Environment 103 Sewage Treatment Systems 104 Provisions of the Remedial Plan. 104 The Department's Review Under the Act. 107 Intervenor Challenges. 108 Maintenance vs. Improvement. 109 Delay of the Adoption of the Master Plan 110 The Interim Levels of Service. 112 Cesspool Inspection Program. 117 Disturbed and Undisturbed Wetlands 117 Stormwater Treatment. 118 Provisions of the Remedial Plan. 118 The Department's Review Under the Act. 119 Intervenor Challenges. 119 Delay of the Adoption of the Master Plan 120 Impact on Water Quality. 121 The Interim Levels of Service. 121 Marine Resources 121 Provisions of the Remedial Plan. 121 The Department's Review Under the Plan 124 Intervenor Challenges. 125 Adequacy of Living Marine Resource Protections. 127 Moored/Anchored Vessels, Marinas and Docks. 128 Provisions of the Remedial Plan Impacting Moored/Anchored Vessels. 128 Provisions of the Remedial Plan Impacting Marines. 128 Provisions of the Remedial Plan Impacting Docks. 129 The Department's Review Under the Act. 131 Intervenor Challenges. 133 F Residential Docks. 135 G. Perpendicular Docks. 136 Canals 137 Provisions of the Remedial Plan. 137 The Department's Review Under the Act. 138 Intervenor Challenges. 138 Wetlands. 139 Provisions of the Remedial Plan. 139 The Department's Review Under the Act. 140 Intervenor Challenges. 140 Disturbed Wetlands 141 Setbacks 141 Provisions in the Remedial Plan. 141 The Department's Review Under the Plan 142 Intervenor Challenges. 143 The Justification for Setbacks 143 "No Net Loss" of Wetlands 145 Provisions of the Remedial Plan. 145 The Department's Review Under the Act. 145 Intervenor Challenges. 146 On-Site Mitigation vs. Off-Site Mitigation 147 ACCC: Big Pine Key, North Key Largo and Ohio Key. 148 Provisions of the Remedial Plan. 148 The Department's Review Under the Act. 151 Intervenor Challenges. 152 Big Pine Key; Protection of the Key Deer 154 North Key Largo. 155 Miscellaneous Environmental Provisions. 156 Freshwater Lenses. 156 Open Space Requirements for Hammocks 157 Public Access to Beaches 158 Public Expenditures in the Coastal Zone. 159 Natural Heritage and Park Program. 160 Protection of Upland Vegetation. 161 Clustering 161 Hurricane Evacuation Carrying Capacity. 162 Hurricanes 162 Preparation for Hurricanes 165 The Potential Impacts of Hurricanes on the Florida Keys 167 Evacuation and Refuges of Last Resort 169 Monroe County's Hurricane Evacuation Provisions 172 The Department's Review of Monroe County's Hurricane Evacuation Response in Objective 101.2. . . . . . . . . . . . . . . . . . . . .175 Intervenor Challenges. 177 Alleged Worthlessness of Undeveloped Property and Impact on Taxes. 179 Hurricane Evacuation Clearance Time Calculations 180 The Reasonableness of the Estimated Clearance Time Calculations. 187 Sham Device and Reasonableness of Monroe County's Hurricane Evacuation Goals. 189 Hurricane Shelters 191 The Board of County Commissioner's Meeting of May 4, 1991 198 The Administration Commission's Policy 216.1.19 . . . . . . . . . . . . . . . . . . .198 The Permit Allocation System 200 Monroe County's Decision to Employ a Permit Allocation System. 200 Provisions of the Remedial Plan Adopting the Permit Allocation System 203 Monroe County's Method of Allocating Allowable Growth Under the Permit Allocation System. 205 The Department's Review of the Permit Allocation System Under the Act. 210 The Department's Review of the Point System Under the Act. 210 Intervenor Challenges to the Permit Allocation System. 216 General Challenges to the Point System 216 Intervenor Challenges to Policies 101.5.4 and 101.5.5. 217 The Number of Permits and Subareas 218 The General Challenges to the Permit Allocation System 219 General Challenges to Policies 101.5.4 and 101.5.4. 222 Negative Points for Habitat, Habitat of Critical Concern and Species 222 Protected Species Habitat Map. 228 Coastal High Hazard Areas. 228 Platted Subdivisions 229 Affordable Housing 229 Transportation Levels of Service 229 Commercial Infill, and the Existence of Infrastructure 230 Points for TDRs. 230 Offshore Islands, Conservation Lands and Historic/Archaelogical Resources 232 Transferable Development Rights Program 233 The Current Transferable Development Rights Program. 233 Provisions of the Remedial Plan. 233 The Department's Review Under the Act. 236 D Intervenor Challenges. 238 E. Sender vs. Receiver Sites. 239 Land Use Categories. 242 Provisions of the Remedial Plan. 242 The Department's Review Under the Act. 243 Intervenor Challenges. 247 D. Policies 101.4.1 and 101.4.2 248 Maintenance of Community Character and Protection of Environmental Resources. 248 Residential Medium Land Use Category 249 Mixed Use/Commercial and Mixed Use/Commercial Fishing. 249 Disturbed Wetlands 251 Height Limitation. 251 The Future Land Use Map Series. 252 The Future Land Use Map Series Adopted by Monroe County 252 The Department's Review Under the Act. 252 Intervenor Challenges. 253 Are the Future Land Use Maps in Compliance With the Act 254 Vested Rights. 255 Provisions of the Remedial Plan. 255 The Department's Review Under the Act. 256 Intervenor Challenges. 258 Definition of Vested Rights. 258 Limited Application of Land Development Regulations to Property with Vested Rights 259 Miscellaneous Provisions of the Remedial Plan 260 Non-Residential Development. 260 The Monroe County Land Authority 263 Transient Residential Unit Moratorium. 264 Nonconforming Uses 266 The Coastal High Hazard Area 268 The Post-Disaster Redevelopment Plan 269 Siting Public Facilities 270 Intergovernmental Coordination 272 The County Geographic Information System 275 Public Expenditures for Services and Infrastructure 275 Affordable Housing 276 L. Goal 101 276 Roadway Improvements 277 Solid Waste Level of Service 278 Proposed Widening of U.S. Highway 1 on Big Pine Key 279 Public Participation 280 Capital Improvements 280 Monroe County's Commitment to Funding the Remedial Plan. 282 Monroe County's Determination of the Economic Impact Consequences of the Remedial Plan and Its Response Thereto 282 The Department's Review of Monroe County's Commitment to Funding the Remedial Plan. 284 Intervenor Challenges. 286 Monroe County's Lack of Commitment to Funding the Remedial Plan. 286 The Justification for Funding Assistance 287 Policy 1, as Modified by the Department and Policy 4 as Adopted by the Administration Commission are in Compliance with the Act. 288 Compliance with the State and Regional Plans. 291 The State Comprehensive Plan 291 The South Florida Regional Planning Council Policy Plan. 292 Constitutional Taking. 293
Conclusions For Petitioner, the Department of Community Affairs: Stephanie M. Gehres Assistant General Counsel David J. Russ Assistant General Counsel Department of Community Affairs 2796 Overseas Highway, Suite 212 Marathon, Florida 33050 For Respondent, Monroe County: Robert C. Apgar, Esquire David A. Theriaque, Esquire Apgar, Pelham, Pfeiffer & Theriaque 909 East Park Avenue Tallahassee, Florida 32301 For Intervenor, 1000 Friends of Florida, Inc.: Richard Grosso, Legal Director 1000 Friends of Florida Civil Law Clinic Shepard Broad Law Center NOVA Southeastern University 3305 College Aveneue Ft. Lauderdale, Florida 33314 For Intervenors, Henry Lee Morgenstern and Florida Wildlife Federation: David J. White, Esquire National Wildlife Federation 1401 Peachtree Street, Northeast Suite 240 Atlanta, Georgia 30309 For Intervenor, Friends of the Everglades, Inc.: Nancy Carroll Brown, President Friends of the Everglades, Inc. 9220 Southwest 166th Street Miami, Florida 33157 For Intervenor, Upper Keys Citizens Association: Dagny Johnson, President Upper Keys Citizens Association, Inc. 95,600 Overseas Highway Key Largo, Florida 33037 For Intervenors, George N. Kundtz and Florida Keys Citizens Coalition: Gregg Goldfarb, Esquire 19 West Flagler Street, Suite 707 Miami, Florida 33130 For Intervenor, The Wilderness Society: Debra S. Harrison Florida Keys Coordinator The Wilderness Society 8065 Overseas Highway Marathon, Florida 33050 For Intervenors, George DeCarion, et al.: James S. Mattson, Esquire Andrew M. Tobin, Esquire MATTSON & TOBIN Post Office Box 586 Key Largo, Florida 33037 STATEMENT OF THE ISSUES The issue in these cases is whether the remedial Monroe County Year 2010 Comprehensive Plan is "in compliance", as defined in Section 163.3184(1)(b), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order finding that the Monroe County Year 2010 Comprehensive Plan is not in compliance within the meaning of Section 163.3184(1)(b), Florida Statutes, consistent with this Recommended Order. DONE and ORDERED this 17th day of July, 1995, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1995. APPENDIX A Case Numbers 91-1932GM and 93-3371GM The parties have submitted proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, or the proposed findings of fact of the parties, except 1000 Friends of Florida, George N. Kundtz and the Florida Keys Citizens' Coalition and the Upper Keys' Citizens' Association, have been accepted or rejected in this Appendix A. The Department's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 1, 9-10, 24, 26, 31-34, 43, 60, 67, 73, 75, 78, 87-88, 91, 97-100, 102-103, 107, 160, 192, 224, 231, 237, 248, 256, 282, 288, 294, 300-303, 313, 316, 331, 338, 340, 355, 376 Proposed findings of fact which are rejected in whole or in part: 2 Not a finding of fact. 108 The last sentence is not supported by the weight of the evidence. Monroe County's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 3, Footnote 4, 42, 55, 93-94, 115, 125-127, 130, 173, 178, and 181. Proposed findings of fact which are rejected in whole or in part: 10 The third sentence is not supported by the weight of the evidence. 13 The second sentence to the next to last sentence is not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence and the rest of the proposed finding is not relevant. Not supported by the weight of the evidence. 40 The first sentence is not supported by the weight of the evidence. The first and last sentences are not supported by the weight of the evidence. "DCA" did not amend Policy 1. Not supported by the weight of the evidence and there has been no challenge to the rules that address Policy 1. 48 Not supported by the weight of the evidence and there has been no challenge to the rules that address Policy 1. 58 The last three sentences are not supported by the weight of the evidence. 133 The last sentence is not supported by the weight of the evidence. 138 The first two sentences are not supported by the weight of the evidence. 146 The last three sentences are not relevant. Not supported by the weight of the evidence. Not supported by the weight of the evidence. Although generally true, the proposed finding ignores the fact that the evidence failed to prove that the lack of action by the Service is because the key deer have not reached their carrying capacity, which is the issue in these proceedings. The first two sentences are not supported by the weight of the evidence. The last sentence is not relevant. 157-159 Although generally correct summaries of some testimony, these proposed findings are not relevant. 160-163 These proposed findings are generally accepted. They do not, however, justify failing to recognize that the carrying capacity of the key deer has been exceeded. Not relevant. Not supported by the weight of the evidence. 170 The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The last two sentences are not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The first and last sentences are not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. 189 The last sentence is not supported by the weight of the evidence. 191 The last sentence is not supported by the weight of the evidence. 193 The last sentence is not supported by the weight of the evidence. 195 The first sentence is not supported by the weight of the evidence. The last two sentences are not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. 202 The first and last sentences are not supported by the weight of the evidence. 203 Not supported by the weight of the evidence. 204 Not supported by the weight of the evidence. 205 Not relevant. 205 Not relevant. DeCarion's Proposed Findings of Fact Findings of fact after number 53 have not been numbered in DeCarion's proposed order. They are referred to in this Appendix by the titles of the portion of the proposed order under which they appear. Proposed findings of fact which are hereby accepted in whole or in part: 1, 25-29, 32, 35-38 Proposed findings of fact which are rejected in whole or in part: 1 No evidence to support this proposed finding was presented. Standing was, however, stipulated to. 7-16 Although generally correct, the conclusions reached in these proposed findings are not supported by the weight of the evidence. 19 Not supported by the weight of the evidence. 24 The first sentence is not relevant. 43-44 While these proposed findings are an accurate reflection of some of the testimony in these proceedings, the conclusions suggested by DeCarion are not supported by the weight of the evidence. 46-48 Not supported by the weight of the evidence. 49-50 Not relevant. Not supported by the weight of the evidence. The first three sentences are not supported by the weight of the evidence. The third sentence is not supported by the weight of the evidence. "Five-Year Moratorium on Hotel-Motel Construction": The second paragraph is not supported by the weight of the evidence. "Marina Expansion Restrictions": The second paragraph is not supported by the weight of the evidence. Wilderness Society's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 1, 7, 10, 12, 29, 34, 71-72, 81, 87, 138, 141 Proposed findings of fact which are rejected in whole or in part: 3-6 Not relevant. 73-75 Not relevant. 88-89 Not supported by the weight of the evidence. 102-103 Not relevant. Not relevant. The first paragraph is not supported by the weight of the evidence. 117-130 Not relevant. 147-248 Not relevant. 154 Not supported by the weight of the evidence. 159-161 Not relevant. APPENDIX B ORIGINAL AND REMEDIAL PLAN CHALLENGE CASES: CASE NUMBERS 91-1932GM AND 93-3371GM TABLE OF CONTENTS APPEARANCES. 3
The Issue The issue in this case is whether the Gilchrist County comprehensive plan and subsequent remedial amendments are "in compliance" pursuant to Chapter 163, Part II, Florida Statutes.
Findings Of Fact PARTIES Intervenors Craig Hennis, Jim Moore, and Jean Wonser own property in Gilchrist County, Florida, which is located in or near the area known as the Waccasassa Flats. Hennis, Moore, and Wonser submitted oral and written comments during the review and adoption proceedings. Hennis, Moore, and Wonser are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes. Gilchrist County Gilchrist County is a local government required to adopt a comprehensive plan pursuant to Chapter 163, Part II, Florida Statutes The County is situated in North Central Florida. The County is bordered on the east by Alachua County; on the south by Levy County; on the west by Dixie and Lafayette Counties; and on the north by Suwannee and Columbia Counties. The County seat is the incorporated City of Trenton. The County contains many areas of natural resources including the Santa Fe River in the north, the Suwannee River in the west, numerous fresh water springs, and the Waccasassa Flats. Department The Department is the state land planning agency charged with the responsibility of reviewing local government comprehensive plans pursuant to Chapter 163, Part II, Florida Statutes. Waccasassa Flats The Intervenors' challenge concerns the level of protection afforded the Waccasassa Flats (Flats). The Flats are approximately 56,000 acres in size in Gilchrist County and act as the source of the Waccasassa River, whose headwaters are located in Levy County. The Flats extend from northern Gilchrist County through Levy County to the Gulf of Mexico. The Flats are situated on a high limestone formation between two sand ridges. The Flats are a mosaic of uplands, wetlands, and sandhills composed primarily of commercial pine plantations, hardwood swamps, isolated strands of cypress domes, and shrubs and brush. Approximately 31,000 acres are forested uplands and forested flatwoods; 24,000 acres, forested wetlands and non-forested wetlands; and 1,000 acres, non- forested uplands. The water table in the Flats is generally near or above the surface, and is linked to a surficial aquifer, not the Floridan Aquifer, which is much deeper. The Flats act as a low to moderate water recharge area by collecting water, then slowly releasing it to surrounding areas. The Flats are not unlike many parts of North Central Florida, including northern Columbia County, eastern Alachua County, parts of Baker and Levy Counties, Nassau County, Lafayette County, eastern Hamilton County, western Madison County, Taylor County, and Dixie County. Within Gilchrist County, the Flats are privately owned and historically have been logged in large part by commercial silviculture companies. This activity continues today. A network of logging roads and fire lines have been cut through the Flats. Silviculture activities such as the clearcutting of large tracts of timber, replanting with non-native species of pine, and creating a monoculture pine forest, have degraded the ecosystem, fragmented wildlife habitat, and negatively impacted some species of wildlife and native vegetative communities in the Flats. For example, throughout most of the Flats native longleaf pine communities no longer exist. Many of the native hardwood hammocks have been cut to increase the land available for pine planting and harvesting. In addition, native cypress trees have been cut. While the Flats still function as a natural system, they are not a pristine system because of these past and current silviculture activities. The Division of Forestry in the Florida Department of Agriculture and Consumer Services recommended that 56,050 acres of the Flats be acquired by the State of Florida through the Conservation and Recreation Lands (CARL) program. The Flats have been on the CARL acquisition list since 1988: they were ranked ninth on the list in 1988 and thirty-third in 1993. WACCASASSA FLATS/DENSITY Intervenors assert that the Plan fails to adequately preserve and restore the natural resources associated with the Flats. Specifically, Intervenors claim that a density of one dwelling unit per 160 acres in the area designated Silviculture/Agriculture (S/A) on the County's FLUM does not preserve wildlife, wildlife habitat, native vegetative communities, and groundwater quality, nor restore wetlands in the Flats. Policy I.2.2 of the Plan establishes the densities in the S/A land use category at no more than one dwelling unit per 160 acres and no more than one development unit per 80 acres. The policy defines development units as: [] structures commonly associated with row crops, pasture, hunting or silviculture activities such as barns, outbuildings and sheds, vehicle storage, small mill operations, and small office structures. . . The density established under Policy I.2.2 is a low density. By requiring at least 160 acres before one residence can be built, development in the S/A category is discouraged and directed to other areas of the County where higher densities are permitted. The following uses and activities are established by Policy I.2.2 for lands classified as S/A: Lands classified in Silviculture/Agriculture shall be lands which are predominantly used for silviculture activities conducted in accordance with Policy V.2.16, limited agricultural uses as described below, dwelling units, development units, archery ranges, rifle, shotgun and pistol ranges, and hunting and fishing camps and uses customarily accessory and clearly incidental and subordinate to such uses. Policy I.2.2 describes the limited agricultural activities permitted in the S/A land use classification: Within the Silviculture/Agriculture land use classification, intensive agriculture uses shall be prohibited. Grazing of livestock on pasture lands shall be allowed and row crops planted on a rotational basis between the harvesting of timber and planting of trees as part of silviculture activities shall also be allowed. Row crop activity shall be limited to areas containing soils within hydrological Groups A and B as identified in Soil Survey of the County (U.S. Soil Conservation Service, September 1992) and shall maintain a 50-foot natural buffer around all wetlands. The Plan conserves and protects wetlands. In addition to restricting row crops to drier soils and requiring buffers between row crops and all wetlands (as described above), Policy I.2.2 provides: [] ditching or any other activity which would modify the natural hydrology and environmental character of Silviculture/Agriculture areas shall be prohibited, provided however, that trench irrigation shall be allowed in areas containing soils within hydrological Groups A and B as identified in Soil Survey of the County (U.S. Soil Conservation Service, September 1992) for row crops within Silviculture/Agriculture areas so long as such trench irrigation practices do not result in the conversion of wetlands to uplands. To further protect wetlands, Policy V.2.4 requires a 35-foot natural buffer around all wetlands, within which agricultural and residential uses are prohibited. Additionally, Policy V.2.8 prohibits development which alters the natural functions of wetlands where all structures can be clustered on the non- wetland portion of the site. Where that option does not exist, Policy V.2.8 permits only minimal residential development activity and establishes other limitations on development, including the requirement that walking paths and driveways to residences use permeable fill and allow the uninterrupted flow of water. Wetlands are also protected by Policy V.2.16, which requires silviculture activities to follow the best management practices established in the 1993 Florida Department of Agriculture's "Silviculture Best Management Practices." These identified policies in the Plan conserve and protect wetlands in the Flats. Intervenors assert that development at the rate of one dwelling unit per 160 acres will "fragment" wildlife habitat in the Flats and thereby negatively affect wildlife associated with the Flats. The Flats is not a particularly significant habitat for threatened or endangered species, species of special concern, or rare species. The best available existing data shows that the habitat in the Flats is not used by many, if any, of these types of species. Development at the low density allowed in the S/A land use classification will not adversely impact either the habitat or the wildlife which might use that habitat. Some species may be positively impacted by the limited development activities allowed in the Flats under the Plan. While wading birds at times forage for food in the Flats, development at the low density allowed in the S/A land use category, with the various wetlands protection policies in the Plan, will not adversely affect utilization of the Flats by these bird populations. An individual animal may be negatively impacted by limited development of one dwelling unit per 160 acres, but the wildlife population as a whole will suffer no adverse impacts. Moreover, development at this density could cause less severe fragmentation and fewer negative impacts than are caused by current silviculture practices which have been utilized in the Flats for decades. Policy V.2.8, relating to residential development in wetlands, limits clearing or removal of native vegetation and provides some protection to the Flats. Such clearing or removal may not exceed more than one-half acre per five acres. Requirements of Policy V.3.4 that the County cooperate with other governmental entities, research and interest groups to conserve and protect unique vegetative communities within the County, affords protection to wildlife, wildlife habitat, and native vegetative communities. Also, Policies V.3.4, V.4.1, and V.4.2 require the County to cooperate with the Florida Game and Freshwater Fish Commission in monitoring and inventorying wildlife and wildlife habitats, including cooperating in the application, and compliance with, all federal and state regulations pertaining to endangered and rare species. Policy V.4.3 also requires consultation with the Florida Game and Fresh Water Fish Commission prior to the issuance of a development order where there is an indication that such issuance would result in an adverse impact to any endangered or rare species. The low density permitted in the Flats, in conjunction with wetlands protection and other identified policies in the Plan, will conserve and protect wildlife, wildlife habitat, and existing native vegetative communities, and maintain the overall integrity of the natural resources in the Flats. Intervenors assert that placement of septic tanks within the Flats have the potential to contaminate the underlying groundwater. Contamination from a septic tank from a residential development at a rate of one dwelling unit per 160 acres will have no significant impact on groundwater quality. Scientific studies show that any adverse impact of effluent from a septic tank system, or even a malfunctioning septic tank, is dissipated within 50 feet. As a result, the placement of septic tanks in the Flats at the designated density required by the Plan will not adversely impact the groundwater quality. In addition to the Plan's protection of groundwater quality as a result of the maximum density in the S/A land use classification of one dwelling unit per 160 acres and one development unit per 80 acres, protection also results from the previously-identified policies relating to wetlands protection. A comprehensive approach to conserving and protecting the natural resources associated with the Flats has been established by the County through all the above-referenced policies. The Plan relies on the low density established for the S/A land use classification, as well as various planning controls. These controls limit the type and extent of uses allowed in the S/A land use classification and protect wetlands, and require cooperation with other governmental entities to ensure the conservation and protection of wildlife, wildlife habitat, native vegetative communities, and groundwater quality in the Flats. BOUNDARY DESIGNATIONS FOR SILVICULTURE/AGRICULTURE AND AGRICULTURE-5 LAND USE CLASSIFICATIONS Intervenors assert that the County's designation of the S/A and Agriculture-5 (Ag-5) land use classifications are inappropriate and do not follow the boundaries of the Flats. Although the Flats are approximately 56,000 acres in Gilchrist County, there is no definitive boundary for the Flats. Prior to the 1991 adoption of the County's comprehensive plan, the Flats were zoned Preservation-1 (P-1). The lands zoned P-1 prior to 1991 now are classified by the Plan as S/A. The size of the S/A category is slightly larger than the P-1 zone. The subject of boundaries of the Flats was addressed in Gilchrist Timber Company v. Gilchrist County, Florida, Case No. 88-156-CA (Eighth Judicial Circuit, August 21, 1989). In that case, the circuit court determined that the County did a "commendable and legally defensible task in following section lines, quarter section lines and existing uses in setting the boundaries [of the P-1 zoning category]. These lines must be somewhere and those made in this case are quite reasonable." Much of the land surrounding the Flats was zoned General Flood Plain-1 (GFP-1) or General Flood Plain-2 (GFP-2) prior to the 1991 Plan adoption; the vast majority of that land now is classified by the Plan as Ag-5. In determining the boundaries of the S/A and Ag-5 land use classifications for the FLUM in the adopted Plan, the County reviewed its zoning map, conducted site visits, and utilized updated maps and information prepared by state, federal, and regional agencies. These maps included the Federal Emergency Management Agency's Flood Insurance Rate Map (1988); the U.S. Fish and Wildlife Service's National Wetlands Reconnaissance Survey (1981); the U.S. Department of Agriculture Soil Conservation Service's Soil Associations map (1991); and the Florida Sinkhole Research Institute's Potential for Groundwater Pollution of the Floridan Aquifer (1988). This information was the best available data and analysis which existed at the time the Plan and remedial amendments were adopted. These maps depict the boundary of the resources within the Flats, but cannot be used to definitely establish the boundaries of the Flats. Policy I.2.2 establishes the density for the Ag-5 land use classification as one dwelling unit per 40 acres. This is a low density which discourages development in the Ag-5 category, and directs development to other areas of the County which have higher densities. The density in this land use classification thereby serves to limit negative impacts from development to surrounding areas, including the Flats. As a buffer between the Flats and surrounding agriculture lands, the Ag-5 areas protect natural resources in the Flats from the potential adverse impacts of agricultural activities and higher densities and intensities of development permitted outside the Flats. Buffering in this way is a professionally-accepted planning tool for protecting natural resources. The natural resources associated with the Flats will receive adequate protection through the Plan policies referenced earlier, regardless of whether they fall within the S/A or Ag-5 land use classification. The data and analysis used by the County to delineate the boundaries of the S/A and Ag-5 land use classifications was the best available existing data, was relevant and appropriate. The Plan's classification of certain lands as S/A and Ag-5 was reasonable and based on sound planning principles. NEEDS ASSESSMENT Intervenors allege that the future population projections in the Plan do not demonstrate a need for additional density in the Flats in order to meet the future residential needs of Gilchrist County. Pursuant to Plan Policy I.2.2, a density of one dwelling unit per 160 acres in the S/A land use category would allow a maximum of 232 dwelling units to be built in the Flats. Under Plan Policy I.2.2, the current density allowed in Ag-5 is one dwelling unit per 40 acres. A comparison of the adopted FLUM with the prior zoning map reveals that over 5,000 acres are designated Ag-5 which were formerly zoned GFP-2 prior to the Plan's adoption. Under the old GFP-2 zoning category, a maximum of 5,000 dwelling units could have been built. Under the current Ag-5 land use classification, no more than 160 dwelling units could be built. Through the Plan's adoption, the densities established for the combined S/A and Ag-5 land use classifications result in an overall reduction in density allowed in the Flats and surrounding areas. Moreover, the densities permitted in these areas do not result in adverse impacts to natural resources in the Flats. The County's designation of densities in the S/A and Ag-5 land use classifications is reasonable and appropriate and based on data and analysis in the Plan.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department of Community Affairs enter a Final Order finding the Gilchrist County Comprehensive Plan as subsequently amended to be "in compliance." DONE AND ENTERED this 23rd day of May, 1995, in Tallahassee, Leon County, Florida. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings 23rd day of May, 1995.
The Issue Whether Respondent, Russell Spencer, willfully abandoned his employment with Petitioner, South Florida Water Management District, by unauthorized absence and failure to call-in or report to work for a three day period, without extenuating circumstances.
Findings Of Fact Respondent was employed by the District as a title examiner in its Real Estate Division. Respondent felt aggrieved and dissatisfied with his employment as a result of the denial of two promotions, which he believed he was entitled to receive. Most recently, in February, 1985, his application to fill the position of "Director of the Real Estate Division" was denied. (P-4) The Directorship of the Real Estate Division was vacated on January 31, 1985, as a result of the retirement of Jack W. Braun, who had held that position for approximately 12 years. Upon Mr. Braun's retirement, William C. Brannen, Jr., Director of the Land Management Department (which includes the Real Estate Division) assumed the position of Acting Director of the Real Estate Division until a new director could be hired. As Acting Director, he was Respondent's immediate supervisor during the interim period. The District has a long-standing written policy regarding annual leave, which requires prior written authorization from the immediate supervisor. The policy in effect in November 1982 and continuing through February 1985, states: Use of Annual Leave: a. * * * b. The use of annual leave shall require the prior approval of the employee's Supervisor or Division Director. Annual leave requests for more than 30 calendar days shall require prior written approval of the employee's Department Director. (p-10) The District's attendance and leave policy was revised on February 28,n 1985, but not with regard to the use of annual leave. The District developed and utilized a standard form for requesting annual leave. (P-11, P-12) On February 26, 1985, Respondent approached a co- worker, Andrew DuBois, and asked him to forward to Mr. Brannen (Acting Division Director) the following memorandum dated that day: In reference to the above subject matter, I have, at this writing, 200 plus hours of annual leave accrued and I intend to use whatever necessary to retain legal counsel to file suit on my behalf against this District. (P-1) He also asked Mr. DuBois to submit blank time sheets on his behalf. Mr. DuBois declined to become involved because he believed the matter was between Respondent and his supervisor. He did, however, remind Respondent of the need to obtain prior approval for annual leave. Respondent replied that he would not submit a leave request "for legal reasons." (P-34) He then left the District's offices and went home. Upon receipt of Respondent's memorandum, Mr. Brannen consulted with Mark Chapman, Director of the District's Personnel Department, as to the appropriate response. Mr. Chapman advised Mr. Brannen that Respondent was subject to disciplinary action under the District's Corrective Action Policy for taking unauthorized leave. (P-18, Section F.2.; Testimony of Brannen, Chapman Section C.7. of the District's Attendance and Leave Policy) Instead of initiating disciplinary action, Mr. Brannen telephoned Respondent and asked him to meet with him at 1:00 p.m. that day, February 26, 1985, to discuss his use of leave. At 1:00 p.m., Respondent, Mr. Brannen and the District's legal counsel, Thomas Schwartz, met at the District's offices. Mr. Brannen reminded Respondent that he was his acting supervisor and that his prior approval was required before Respondent could use annual leave. In reply to Respondent's expressed desire to seek legal counsel to file suit against the District, attorney Schwartz told him that his reasons for taking leave were immaterial with regard to whether a leave request would be granted. Respondent then asked for five days leave, through March 1, 1985. He completed the required leave forms and they were approved at the meeting. (P-2 Testimony of Brannen, Schwartz) Two days later, Mr. Brannen prepared a memorandum for the files summarizing the February 28, 1985, meeting. The memorandum, a copy of which was sent to Respondent by certified mail on March 1, 1985, and received on March 2, 1985, contains the following statement: We met at the appointed time and I explained to Russ that us of annual leave must have prior approval by me as his acting supervisor. We discussed how long he felt he needed to be on leave. Russ said he needed to be off through March 1, 1985. He filled out leave slips and I approved use of annual leave through March 1. (P-2) On February 28, 1985, Respondent returned to pick up his paycheck. On that date, Mr. Brannen and Mr. Dubois observed that Respondent's desk and office had been emptied of all personal materials and assumed that Respondent did not intend to return to work. (P-34; Testimony of DuBois, Brannen) Respondent's apparent intention not to return to work disturbed Mr. Brannen because there was a significant backlog of title examination work. Due to recruitment procedures it would have taken considerable time to hire a new title examiner, and recruitment could not be initiated until Respondent expressed a definite intention to resign. (Testimony of Brannen) Respondent's leave expired at 5:00 p.m. on Friday, March 1, 1985, but he did not return to work on Monday, March 4, 1985, the next working day. At 8:09 a.m. that date, Respondent telephoned Mr. DuBois, asking him to relay to Mr. Brannen his request for an additional week of annual leave through March 8, 1985. Mr. DuBois immediately relayed the request to Mr. Brannen, who telephoned Respondent at 8:21 a.m. at his residence, but received no answer. (P-3, P-34; Testimony of Brannen, DuBois) Mr. Brannen discussed Respondent's further unauthorized absence with Personnel Director Chapman, who again suggested that he take disciplinary action against Respondent for failure to follow instructions. Mr. Brannen, however again declined to take disciplinary action and instead decided to approve—after-the-fact—Respondent's verbal request for additional annual leave. On March 4, 1985, he mailed a letter to Respondent advising: Although you did not contact me as I instructed you to do, your use of annual leave through 5 p.m., March 8, 1985, is approved. You will be expected to return to work no later than 8 a.m., March 11, 1985. We have a backlog of title work to complete which requires your help; therefore, even though you have accrued annual leave, any further request for its use must be denied at this time. If you do not report to work as instructed you will be placed on an unauthorized leave without pay status until you return to work. After three days on unauthorized leave you'll be considered to have abandoned your job. (e.s.) Respondent received the letter on March 6, 1985. (P-3; R-2) On March 5, 1985, Respondent sent a letter to Stanley Hole, Chairman of the District's Governing Board, expressing dissatisfaction with the denial of certain promotions and alleging that the District had a policy of affording preferential treatment to friends and relatives. Respondent then stated that "I will interpret no reply or an adverse reply as an involuntary termination of 18 years of employment with District." (P-4) Although this direct communication with the Board circumvented the District's grievance procedures, the Executive Director of the District, fowarded a copy of the letter to the members of the Governing Board with a cover memorandum dated March 8, 1985. On that day, the District's Deputy Executive Director, Tilford C. Creel, sent Respondent a certified letter, which stated in relevant part: We do not agree with the general content of your letter and particularly we do not agree that you will be terminated due to "no reply or an adverse reply" to your letters. The authority to terminate employees resides in the executive office and in your case, Mr. Brannen informs me that you have been granted annual leave through Friday, March 8, 1985. He further informed me that the workload in the title examination area is such that we are in great need of your services and cannot extend your leave any further. There is only one other title examiner and the backlog of work continues to increase. Therefore, we will expect you to report to work on Monday, March 11, 1985, as you were adivsed by Mr. Brannen. (e.s.) (P-5; P-9) Respondent, however, failed to report to work on March 11, 1985. Neither did he telephone District officials, prior to or on that date to request an extension of his annual leave. Respondent also failed to report to work or telephone the District on Tuesday, March 12, 1985 or Wednesday, March 13, 1985. He was not ill or incapacitated or otherwise unable to reach a telephone. (Testimony of Brannen, Spencer) On Thursday, March 14, 1985, the District notified Respondent by certified letter that, effective at 5:00 p.m. on March 13, 1985, he was deemed to have abandoned his employment pursuant to Section C.7. of the District's Corrective Action Policy for failure to report to work for three consecutive working days. Personnel action was initiated that same date by Mr. Brannon. On March 29, 1985, the District notified Respondent by certified mail of his right to petition for an administrative hearing pursuant to Section 120.57, Florida Statutes, after first pursuing the normal grievance procedures. (P-6, P-7, P-8) Respondent requested a grievance hearing by letter dated April 5, 1985. The hearing was held by the Grievance Review Board on April 17, 1985. The Review Board consisted of two supervisory personnel and two non-supervisory personnel, selected at random by Respondent. After Respondent failed to appear at the hearing, the Board concluded that Respondent had ample notice and opportunity to return to work and that termination of his employment was justified and consistent with District policy and procedure. (P-13) Respondent then appealed the Grievance Review Board determination to the Executive Director, who affirmed it. It was a long-standing District policy that unau- thorized absence from work for three consecutive days would result in termination of employment. On March 14, 1985, the District had in effect an interim written guideline, stating: Any employee who fails to report to work for three (3) consecutive working days without notifying the division office or fails to report to work after a leave of absence has expired or after the leave has been disap- proved, revoked, or cancelled will automati- cally be considered to have resigned his/her employment with the District, barring the supervisors consideration of extenuating circumstances. (P-15,P-18, Section C.7.) This interim guideline was ultimately adopted as a rule, effective April 7, 1985. The District policy in effect prior to the adoption of the interim guideline on February 1, 1985, had a similar provision: Any employee who fails to report to work for three (3) full consecutive working days without notifying the District may be considered to have abandoned the position. (P-15,P-16,P-17) In implementing this long-standing policy, the District routinely terminated the employment of employees who failed to report to work for three consecutive days. The revised (interim and final) policy contains an exception for "extenuating circumstances," which is reasonably interpreted by the District to cover situations where a sudden emergency or physical impairment prevents an employee from reporting to work. In any event, the employee was still expected to telephone the District, except where prevented by a physical impairment. (P- l9,P-20,P-21,P-22, P-23,P-24,P-26 Testimony of Chapman Thomas) The District uniformly requires adherence to attendance and leave regulations throughout its work force. At its West Palm Beach Field Station, which is responsible for maintaining District projects in the West Palm Beach area, em- ployees are routinely given written notices of any lateness in reporting to work, even if only a few minutes. Repeated tardiness or other cumulative infractions of the District's attendance and leave regulations, which do not involve a failure to report to work for three consecutive days, have also resulted in discharge. It is also a common District practice to deny leave requests when work duties require an employee or supervisor to be at work. (P-25, P-27, P-29, P-31; Testimony of Thomas; Chapman) Respondent participated in the development of the revised Corrective Action Policy. Several meetings were held among the employees of his division, wherein the employees were given an opportunity to comment on various aspects of the proposed policy. Copies of the policy were distributed to the employees of his division prior to February 1, 1985, when it became effective as an interim guideline. (Testimony of Chapman; Braun; DuBois) Respondent's acting supervisor, Mr. Brannen, did not act in a retaliatory manner against Respondent in terminating his employment for failure to report to work for three consecutive days. On the contrary, on two prior occasions, Mr. Brannen had refrained from disciplining Respondent for violating the Attendance and Leave Policy. He valued Repondent's capabilities and long-term service to the District, and went to considerable lengths to accommodate him. Respondent was not in any way impeded by Petitioner in his attempt to seek legal counsel. He was able to confer with six attorneys during his leave of absence. (Testimony of Respondent)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent be deemed to have abandoned his employment (by failing to report to work for three consecutive working days, without authorized leave or extenuating circumstances) and his employment be thereby terminated effective 5:00 p.m. on March 13, 1985. DONE and ORDERED this 6th day of December, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1985.
The Issue Whether Rule 27G-1.06(2) and Rule 27G-1.08(4), Florida Administrative Code, or either of them, is an invalid exercise of delegated legislative authority?
Findings Of Fact The parties have stipulated that Fairfield Communities, Inc. (Fairfield) has the requisite standing to challenge the rule provisions at issue and that Friends of Fort George, Inc., (Friends), Florida Wildlife Federation (FWF) and Florida Audubon Society (Audubon) have standing to participate as intervenors in support of these rule provisions. The Florida Land and Water Adjudicatory Commission (FLWAC) is the state agency that promulgated the challenged rules. The Fort George DRI case, No. 86-4127, began on August 1, 1986, when the Department of Community Affairs took an appeal of the development order entered by the City of Jacksonville on June 12, 1986 on grounds The MLUP does not accurately show or locate the DER jurisdictional line on the western side of the island from which buffer areas required by the ADO are to be measured . . . The MLUP does not properly or accurately depict or locate buffer areas surrounding the sloughs on the western side of Fort George Island. Exhibit B to the Prehearing Stipulation. Together with others, the Intervenors in the present case filed, in the Fort George DRI case, No. 86-4127, a motion to intervene as of right and request for consideration of additional issues on August 7, 1986. The intervenors in No. 86-4127 sought consideration of a wide range of issues in the Fort George DRI case, including questions concerning Blue Pond, the perimeter buffer zone, the interior habitat, weirs, berms, dikes and hydraulic connections, the adequacy of the water supply, the effect of the Game and Fresh Water Fish Commission's disapproval, the placement of various boundaries, and whether "Fairfield has failed to provide adequate protection of the microclimate and ecology of the Rollins Bird and Plant Sanctuary as mandated by the ADO . . ." Exhibit C to the Prehearing Stipulation. In filing their motion to intervene as of right and request for consideration of additional issues in No. 86-4127, Friends, Audubon and FWF expressly relied on Rule 27G-1.06, Florida Administrative Code. The portion under challenge here provides: (2) Motions to intervene filed with the Commission within 30 days of the filing of a notice of appeal may request the Commission to consider issues raised in the record below but not raised by the parties to the appeal. Rule 27G-1.06, Florida Administrative Code. In the order of transmittal, entered in No. 86-4127 on October 15, 1986, FLWAC denied consideration of every issue raised by the intervenors, except for the issue concerning the Rollins Bird and Plant Sanctuary, and added a related issue, also concerning the Rollins Bird and Plant Sanctuary, citing Rule 27G- 1.08, Florida Administrative Code. The portion of that rule under challenge here provides: Within 60 days of receipt of a notice of appeal, the Commission shall meet to review the issues raised by the parties. If the Commission determines that an issue of statewide or regional importance was not raised by the parties but is necessary to its disposition of the appeal, the Commission shall specify said issue and shall specify whether the issue shall be the subject of review based on the record made below, additional evidence or a combination thereof. New issues shall not be raised by the parties or other persons after this Commission meeting. At this meeting, the Commission may also dispose of procedural motions, including motions to intervene, which have been filed within 30 days of the filing of the notice of appeal. Rule 27G-1.08, Florida Administrative Code. Fairfield, as the applicant for the development order in No. 86- 4127, questions FLWAC's authority to promulgate rules that allow FLWAC to consider issues not raised by the party who took the DRI appeal, whether sua sponte or on motion of an intervenor.
Findings Of Fact Background Respondent, City of Daytona Beach (City), is a Florida municipal corporation subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The City is responsible for the comprehensive planning for the entire municipality. Its most recent comprehensive plan (Plan) was adopted on May 16, 1990, and was found to be in compliance with the law in July 1991. On October 1, 1992, the City made application for what is known as the LPGA Plan Amendment (plan amendment). Generally, the plan amendment changes land uses and densities on approximately 4,000 acres of land within the City and adds various policies to the Plan. Public hearings on the plan amendment were held on October 22, 1992, April 21, 1993, and May 19, 1993. The plan amendment was adopted on June 2, 1993, and it was found to be "in compliance" by the DCA on July 26, 1993. Petitions challenging the plan amendment were filed in Case No. 93- 4863GM by petitioners, 1000 Friends of Florida and Robert Jenks. 1000 Friends of Florida is a non-profit tax-exempt corporation formed expressly for the purpose of overseeing implementation of Florida's growth management laws at all levels of government. Jenks is a property owner within the City and a member of 1000 Friends of Florida. A petition was also filed in Case No. 93-4864GM by petitioners, Adeline Jones, Marta Perez and Nelson Perez. Those individuals are adults residing within the City. Petitioners contended, among other issues, that the housing element of the plan, which has been revised by the amendment, would not assure the provision of adequate affordable housing within the City. Finally, a petition to intervene in support of the plan amendment has been filed in both cases by intervenors, Patricia Lagoni (Lagoni), as trustee, and Indigo Development, Inc. (Indigo). Lagoni is the trustee for two trusts that own approximately 4,600 acres of land within the City that are the subject of the plan amendment. Indigo is the developer of the trustee's property. The parties have stipulated that petitioners and intervenors are "affected persons" within the meaning of the law and have standing to participate in these proceedings. The Plan The plan is a twenty year long range planning document. It includes and applies to the entire City except for approximately 16,400 acres which has subsequently been annexed into the City limits since the adoption of the plan. The portions adopted by ordinance are goals, objectives, and policies; the Neighborhood Development Policies; Capital Improvement Element Implementation; Monitoring, Updating and Evaluation Procedures (Appendix); the Future Land Use Map Series; the Future Traffic Circulation Map; the Future Mass Transit Map; and the Future Aviation Facilities Map. Because a local government may choose not to adopt support documents such as data and analysis, the City did not adopt by ordinance the supporting data and analysis to the plan. The plan support documents include population projections through the year 2010. The population projections used in support of the plan are based on the 1980 U. S. Census. A census is an estimate of population at a particular time while a population projection is an analysis using estimates of past existing populations, such as a census, to predict future population. When the plan was prepared and adopted, the City was required to rely on the 1980 U. S. Census. At that time, the City's Evaluation and Appraisal Report (EAR) was due in 1995. Based on a 1993 change in the law, the EAR is now due in 1997. Under the Department's interpretation of the Act, which is found to be reasonable, a local government need not apply the 1990 U. S. Census until it submits its EAR. Therefore, between the adoption of the original plan and submittal of the EAR, a local government may amend its plan without having to base the amendment on a newly released U. S. Census. Such a comprehensive evaluation and updating of the plan and its data source is not required until the EAR is due because it would be a very exhaustive and expensive burden on local governments. The existing land use map is a support document of the plan. It generally depicts how land is used in various parts of the City at the time of transmittal of the proposed plan and includes six classifications: residential, vacant/undeveloped, commercial, industry, government and institution, and parks and recreation. On the other hand, a future land use map series is an adopted portion of the plan which generally depicts where the local government wants to have particular land uses by the end of its planning period. The future land use classifications include the following broad categories of land uses: residential, commercial, industry, government and institutional, parks and recreation, and miscellaneous. It is noted that the future land use map has no "vacant" classification since "vacant" is not an actual use which can be assigned a density or intensity and direct future development. The plan amendment Adoption and contents On October 1, 1992, Indigo made application for the plan amendment. Public hearings were held for the review and discussion of the amendment on October 22, 1992, and resolution number 92-460 was subsequently enacted by the City authorizing the proposed amendment to be forwarded to the DCA for review. After the amendment was submitted to the DCA, the agency conducted an in-house review of the amendment and thereafter issued its objections, recommendations and comments (ORC) on February 19, 1993. That document contains the DCA's objections and comments as well as more than twenty recommendations which address those concerns. A notice of intent was published by the DCA to advertise that fact. After considering the ORC, the City made various changes in its proposed plan amendment and issued its response to the ORC on March 24, 1993. Also, it conducted further public hearings on April 21 and May 19, 1993. On June 2, 1993, the City adopted plan amendment 93D2 by Ordinance No. 93-219. On July 8, 1993, the amendment was found by the East Central Florida Regional Planning Council (ECFRPC) to be consistent with its Comprehensive Regional Policy Plan. Finally, on July 26, 1993, the amendment was found by the DCA to be in compliance. The plan amendment (a) amends the future land use map to provide new classifications for approximately 4,000 acres within the City, (b) includes some textual changes to the future land use, conservation, coastal management, traffic, and housing elements, and (c) changes the future traffic circulation map in certain respects. The acreage in question is located mostly to the west of I-95 except for some portions east of I-95 where 11th Street crosses the Interstate. The property is intended to be developed by Indigo as a "world- class golf resort and accompanying planned community." Prior to the amendment, the predominant land use category on the property was Level 1 residential with some designation for government or institutional use and retail commercial. As originally proposed by the City, the amendment reduced Level 1 residential acreage, increased Level II residential acreage, and created new categories of passive park/buffer area, interchange commercial and mixed use. After the DCA issued its criticisms in the form of an ORC, the City revised its amendment by redistributing the future land uses and adding policies to the housing element. The land use changes include a 1,375 acre reduction in Level 1 residential (a single-family residential future land use category with 1 to 8 units per acre) caused by conversion of land to a golf course and dedication of 831 acres for conservation purposes, a 575 acre increase in Level 2 residential (a residential future land use category with 9 to 20 units per acre), and a 98 acre increase in Level 3 residential (a mixed residential/retail category with 21 to 40 residential units per acre), or a net effect of an overall increase in the residential land use density of approximately 4,300 units of higher density housing than that density which existed prior to the plan amendment. The plan amendment proposes a mixed use future land use category to allow a wide range of urban uses, including light industrial, office, tourist accommodations, retail and multi-family residential. In neighborhoods K, S, T and U, a minimum of 12 percent and a maximum of 30 percent of the total area designated as mixed use must be developed as residential with a minimum of 15 dwelling units per acre and a maximum of 25 dwelling units per acre. Increased density on the property from both the increased Levels 2 and 3 land use designations, as well as the mixed use residential requirements, provide opportunities that foster increased availability of affordable units. Housing element Every comprehensive plan must contain a housing element with goals which state the aspirations for where a community wants to be. Goal 1 of the housing element is "to assure the availability of sound and affordable housing for all current and future residents of Daytona Beach." This means that the City will assure the availability of housing for all segments of the population. The housing element must also contain specific objectives for each goal statement. In the original plan, the City adopted Objective 1.1 (on page 5.37 of the plan) entitled "New Construction." It was not revised by the amendment. That objective reads as follows: Assist the private sector in providing 6,400 additional units of diversified (and thus affordable) housing types by 1995. The amendment adds seven policies to the housing element, all relating to affordable housing. In the context of a comprehensive plan, a policy is interpreted to mean the specific actions the local government will use to implement its objectives. Proposed policy 1.3.6 reads as follows: Policy 1.3.6 The City, through its land development regulations, shall establish a mechanism that permits density bonuses of at least 10 percent for projects that provide very low and low income housing units, provided that the increased density is consistent with all other goals, objectives and policies of this plan including, but not limited to, environmental and concurrency goals. Under this proposed policy, developers are encouraged to construct affordable housing through the offering of a financial incentive. The incentive, more commonly known as a density bonus, allows them to use a slightly higher density than they otherwise would have. This is a common approach in encouraging affordable housing, and while not an absolute guarantee, the policy does have the effect of encouraging additional affordable housing in the City. Proposed policy 1.3.7 reads as follows: Policy 1.3.7 The City will continue programs to maximize opportunities for private sector involvement in the formation of community-based non-profit organizations to actively participate in the provision of low and moderate income affordable housing. This policy simply reinforces the City's commitment in existing policy 1.3.2. to "continue to use its CDBG funds to provide seed money and technical assistance to non-profit corporations that construct housing for low and moderate income households including HUD 202 elderly housing and State/County housing finance agency bond-funded rental units." Proposed policy 1.3.8 provides as follows: Policy 1.3.8 The City Community Development Department will continue to support community-based non-profit organizations such as Habitat for Humanity in their efforts to provide adequate housing at a cost affordable to low-income residents by providing land that is acquired by the City. This policy reiterates the City's commitment in existing policy 1.3.2 and proposed policy 1.3.7 to supporting non-profit organizations which participate in providing affordable housing to low and moderate income households. Although the policy does not add any new assurances in providing affordable housing, it does not adversely affect the provision of affordable housing. No evidence was submitted to show that this policy is inconsistent with any requirements applicable to this proceeding. The next proposed policy is 1.3.9. It reads as follows: Policy 1.3.9 The City shall strive to participate in the State Housing Incentives Partnership Program as specified in the 1992 William Sadowski Affordable Housing Act. The City will follow its Local Housing Assistance Ordinance which establishes a local housing partnership, administrative responsibilities, and a local Housing Advisory Committee. This policy reflects a new affordable housing program which was enacted by the state subsequent to the plan's adoption. The more credible evidence reflects that the policy will have a positive impact on affordable housing. Proposed policy 1.3.10 provides that the City "will encourage the County to provide impact fee waiver programs for schools and transportation as an incentive for affordable housing." In Volusia County, impact fees are a significant cost of housing. Seventy percent of the impact fees applied in the City are County assessed. Under the proposed policy, the City is attempting to persuade the County to provide certain impact fee waivers for affordable housing. Proposed policy 1.3.11 reads as follows: Policy 1.3.11 By 1995, the City shall complete an assessment of affordable and special housing needs utilizing detailed housing data from the 1990 U. S. Census and an assessment of target areas and population segments representing priority affordable housing needs as a basis for establishing specific quantifiable near and long-term affordable housing programs. Results of the assessment shall be used to update the Comprehensive Plan's affordable housing policies. Although this policy will not have the direct effect of producing affordable housing, there is no evidence that the policy is inconsistent with any requirements at issue in this proceeding. Finally, the City has proposed a new policy 1.3.12, which reads as follows: Policy 1.3.12 The City will continue to be active in housing isues through the Community Development Department in the following ways: providing informational and technical asistance to the public on affordable housing programs, completing housing inventories and assessments, working to increase local utilization of state and federal funding programs, and coordinating with the Redevelopment Department. The City will annually update the Comprehensive Housing Affordability Strategy (CHAS) in compliance with U.S. HUD guidelines in conjunction with the State of Florida CHAS. This policy adds nothing new to the plan. It simply reiterates commitments expressed in other housing element policies. Again, no evidence was submitted to show that the policy is inconsistent with any other requirements at issue. As noted earlier, objective 1.1 is to "assist the private sector in providing 6,400 additional units of diversified (and thus affordable) housing types by 1995." The derivation of the 6,400 units is found on page 5.25 of the housing element of the plan. In general terms, the number of units was derived by taking the population of the City in 1980, updating that figure through 1987, and then projecting the number of households by income category in the year 1995. Of the 6,400 units, 2,601 are projected for the low and very low income household categories. Low income is defined as being 80 percent of the median income ($31,000) for Volusia County, or $24,800, while very low income is defined as being one-half of median income, or $15,500. Tables 5-20 and 5-21 of the data and analysis support this objective. Table 5-20 projects housing needs for the City by income category from 1987 to 1995. Table 5-21 projects housing need by income category for the years 1995 through 2000. The tables break the population into the following income categories: very low, low, moderate, middle, and upper and high. The data and analysis concludes that availability of land is not a concern with meeting the projected need for residential units through the year 2000. Rather, the principal concerns center around the current lack of federal and state subsidy programs for housing construction, and the fact that the City is already shouldering more than its regional fair share. As to this latter concern, the City now provides at least 75 percent of the public housing in Volusia County. The amendment, however, provides more opportunities for the new construction of affordable housing units. Also, the mixed use category and its location near retail and office uses and arterial roads will provide a greater diversified housing stock. Between the years 2000 and 2010, the City will need to annex additional acreage to accommodate the anticipated population growth for that period. Since the plan adoption, however, the City has annexed approximately 16,400 acres of land west of I-95 belonging to Indigo. The concept of "filtering" in relation to affordable housing is that when a new house is built, an existing household will move into that house and vacate a less expensive house. Filtering is discussed in the plan's data and analysis as a solution to providing the needed additional units for very low and low income households projected in Tables 5-20 and 5-21. The plan assumes that filtering is operative in the City, and the evidence shows that filtering does in fact operate as a source of affordable housing within the City. The City uses a large portion of its $1.2 million in federal community block grants in assisting low and very low income residents to rehabilitate existing substandard housing. The City also employs a down payment assistance program to aid in the filtering process. This program consists of homeowner education and grants to low and very low income individuals for down payments on the purchase of an existing home, thereby enabling the individual to qualify for and successfully purchase existing housing stock. The program has not had any difficulty in finding housing stock for purchase by its clients. Finally, the City recently obtained an additional $1 million award of federal Housing Opportunities for People Everywhere (HOPE) funds for use in its rehabilitation and down payment assistance programs. While it is not possible to identify the location of future affordable housing on the future land use map, local government can create favorable conditions for affordable housing on the map by utilizing densities and locations. Here, the City has done so. The data and analysis reveal increased minimum floor densities to 15 units per acre minimum and a 25 units per acre maximum of multi-family housing and the location of land uses adjacent to arterial roads of 11th Street and the municipal stadium. They also reveal that the nature of mixed use categories with increased densities could result in three-story, more affordable apartment complexes. Finally, the amendment provides an additional forty-four acres of Level III residential in the area parallel to Williamson Boulevard, south of 11th Street, and increases sites at higher residential densities, and thus increases opportunities for affordable housing. Therefore, it is found that the plan amendment does not preclude the devevopment of affordable housing. b. Data and analysis used in the amendment All elements of a comprehensive plan must be based on "appropriate data." According to Rule 9J-5.005(2)(c), Florida Administrative Code, that data must be taken from existing data sources and should be the "best available existing data." As to population data, Rule 9J-5.005(2)(e), Florida Administrative Code, requires comprehensive plans to be based on resident and seasonal population estimates and projections provided by the University of Florida, Bureau of Economic and Business Research, the Executive Office of the Governor, or generated by the local government. Finally, where data are relevant to several elements, Rule 9J-5.005(5), Florida Administrative Code, requires that "the same data shall be used, including population estimates and projections." The City has adhered to each of these requirements, and it is found that the plan amendment is based on the best available data and analysis. Population projection information is used in several plan elements. If the 1990 Census was used to support one element, as petitioners suggest it should have been, that same census must be used to support the other elements. Stated another way, the chosen population estimates and projections must be used consistently throughout the entire plan. Relying on different censuses in different elements would render the plan internally inconsistent. Contrary to petitioners' assertion, there is no specific requirement that a local government update its population estimates and projections each time it amends its plan. Such a requirement would impose an unreasonable burden on local governments without advancing any of the purposes of the Act. Petitioners failed to present any compelling reason that the 1990 Census should be the underlying basis for plan amendments before the EARs are due. The fact that the 1990 Census was available in its raw form in the fall of 1991 is not persuasive to overcome the specific requirements of Rule 9J-5.005(2)(c), Florida Administrative Code, as to the approved sources of population estimates and projections. Therefore, it is found that the City was not required to use the 1990 Census in support of its amendment. The LPGA property is located within Zone C, one of three zones designated in the future land use element. Of the 3,995 available vacant developable residential acreage, 2,740 acres were originally allocated to Zone C within the City. Under the plan amendment, the available residential land in Zone C has been reduced to 1,313 acres. The reduction of residential land by the amendment reduces the overall residential developable acres to 2,838. The City's total residential acreage need is 2,144 acres. Of that 2,144 acres, approximately 876 acres are required for very low and low income housing. The data indicates that an additional 694 excess acres are available to accommodate affordable housing needs within the City. When added to the 876 acres previously required for very low and low income housing, a total of 1,570 acres are available to accommodate the very low and low income affordable housing needs within the City. The data and analysis also indicate that a ratio of 1.8 or 180 percent of the need for affordable housing acreage is being met by the City. The more land that is made available by the City increases the opportunity for market forces to work to provide housing. The ratio of 1.8 is further increased by the recent annexation of the Indigo property of approximately 16,400 acres. Not including the recently annexed property, 46 percent of the total vacant residential acreage in the City is in the LPGA property. The LPGA Development of Regional Impact Intervenors' property which is the subject of this amendment is intended to be the future headquarters site of the Ladies Professional Golf Association (LPGA). If completed as originally planned, it will be the size of the neighboring municipality of Holly Hill. The development is a public-private joint venture between the City and intervenors, and the City and State have pledged $23 million of public money for the project. In conjunction with the project, a development of regional impact (DRI) development order was adopted by the City on August 18, 1993. Petitioners did not appeal that order. A DRI is a development order issued by a local government. It pertains to approval for a specific type of development requested by a developer for a particular site. In contrast, a comprehensive plan is a different type of document altogether which considers long range planning for an entire jurisdiction, taking into account the cumulative effect of many developments. DRIs are subject to the requirements of Chapter 380, Florida Statutes. One of the requirements for a DRI is that it be consistent with the requirements of the local government's comprehensive plan, a determination that is separate and apart from that undertaken here. Conversely, comprehensive plans and amendments must comply with Subsection 163.3184(1)(b), Florida Statutes, which defines "in compliance" as being consistent with Sections 163.3177, 163.3178, and 163.3191, Florida Statutes, the state comprehensive plan, regional policy plan, and Chapter 9J-5, Florida Administrative Code. A plan amendment does not have to be consistent with chapter 380 to be "in compliance." A DRI development order does not guarantee that the site will be developed or developed as approved. For example, the development order may be amended through the substantial deviation process to allow for different types of development or increased development over certain thresholds. Then, too, a developer may add up to ten percent more residential units without going through the substantial deviation process. Finally, a development order may expire during the planning period without finishing or even beginning construction. In reviewing a plan amendment, the whole range of development possibilities must be evaluated regardless of any development order issued for the affected land. What a DRI development order, or any other development order, allows to be constructed on a parcel of land which is the subject of a plan amendment is therefore irrelevant for amendment review purposes. Applications for DRI approval are prepared and submitted to the DCA by the developer. These applications are submitted in response to a set of criteria that differ from those applicable to a plan amendment. It is true, of course, that some information provided by a developer in support of a DRI request may be relevant to the review of a plan amendment. Here, however, the information regarding income range of employees and price range of housing anticipated to be constructed on the project site is speculative and should not guide the scope of review for a long range planning document. Indeed, it was not credibly shown how this information applies to the plan or any requirements in this proceeding. Therefore, petitioners' reliance on various projections used in the DRI application for incremental development approval and other DRI documents is misplaced and not relevant to this action. The amendment's internal and external consistency Rule 9J-5.005(5), Florida Administrative Code, requires comprehensive plan elements to be consistent with each other. The same rule requires the future land use map to reflect the goals, objective and policies within all elements of a plan. When amending a plan, consistency is maintained by using data consistently throughout the plan. In order to be internally consistent, the City was required to use 1980 census data for the plan amendment, as it did here. By adding policies to the housing element, the City has assisted with the implementation of objective 1.1 of the housing element. By changing the land use designations on the future land use map, the City has effectively increased the opportunity for higher density housing. Finally, the plan amendment's changes to the future land use element are consistent with and further objective 1.1 of the housing element. Accordingly, the plan amendment is found to be internally inconsistent. The state comprehensive plan is found in Chapter 187, Florida Statutes. The appropriate regional policy plan in this case is the East Central Florida Comprehensive Regional Policy Plan. The DCA does not interpret Subsection 163.3177(10(a), Florida Statutes, as requiring a plan or amendment to be consistent with every policy in the state or regional plans. If an inconsistency with an individual policy exists, that policy is not viewed in isolation but rather is considered in the context of the complete state or regional plan. While an amendment may frustrate the achievement of a policy in the state or regional plan, it may further the local government's pursuit of another policy, thus rendering the amendment to be consistent with the state or regional plan construed as a whole. Petitioners allege that the amendment is inconsistent with state plan goals 5, 8, 10 and 16 and with regional policy plan issues 19, 37, 43, 44 and In the joint prehearing stipulation, they also make reference to regional policies 19.1(1), 19.2 and 19.3(4) and state plan provisions found in Subsections 187.201(5)(a), (b)1. and (b)3., Florida Statutes. They did not, however, present any evidence describing how the plan amendment is inconsistent with the foregoing goals, issues or statutes. To the contrary, the more credible and persuasive evidence supports a finding that the amendment is consistent with both the state and regional plans. Therefore, the plan amendment is in compliance. Attorney's fees Intervenors, but not the DCA or City, have requested sanctions on the theory that the petition initiating Case No. 93-4863GM was filed for an improper purpose within the meaning of Subsections 120.57(1)(b)5., 120.59(6)(a), and 163.3184(12), Florida Statutes. The request is grounded principally on the notion that because the initial petition of 1000 Friends of Florida and Robert Jenks contains allegations pertaining to environmental issues, and no proof was submitted at final hearing as to those claims, the undersigned should draw an inference that the petition was filed for an improper purpose. Having cosidered the totality of the record, the undersigned concludes that insufficient evidence exists to make such an inference. Similarly, there is an insufficient record basis to find that petitioners raised the issue of affordable housing merely to cause unnecessary delay, or that 1000 Friends of Florida's conduct as a whole constitutes "economic harrassment." Therefore, the request for sanctions is denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the City's plan amendment to be in compliance with the law. DONE AND ENTERED this 17th day of May, 1994, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May 1994. APPENDIX Petitioners: Although the undersigned has considered petitioners' joint proposed order in the preparation of this recommended order, he has not made specific rulings on proposed findings of fact since the proposed order was untimely and it violated Rule 60Q-2.031(3), Florida Administrative Code. Respondents: 1. Partially accepted in finding of fact 3. 2-3. Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Partially accepted in findings of fact 1 and 4. Partially accepted in finding of fact 5. 7-8. Partially accepted in finding of fact 6. 9. Partially accepted in finding of fact 5. 10-11. Rejected as being unnecessary. 12. Partially accepted in findings of fact 4 and 29. 13. Rejected as being unnecessary. 14-16. Partially accepted in finding of fact 29. 17-18. Partially accepted in finding of fact 31. 19. Partially accepted in finding of fact 30. 20-21. Partially accepted in finding of fact 31. 22. Partially accepted in findings of fact 8 and 9. 23. Partially accepted in finding of fact 9. 24-25. Partially accepted in finding of fact 10. 26. Partially accepted in finding of fact 11. 27-29. Partially accepted in finding of fact 14. 30-31. Partially accepted in finding of fact 17. 32-33. Partially accepted in finding of fact 18. 34-35. Partially accepted in finding of fact 19. 36-37. Partially accepted in finding of fact 20. 38-39. Partially accepted in finding of fact 21. 40-41. Partially accepted in finding of fact 22. 42. Partially accepted in finding of fact 15. 43.-45. Partially accepted in finding of fact 24. 46-47. Partially accepted in finding of fact 26. 48. Partially accepted in finding of fact 27. 49. Partially accepted in finding of fact 35. 50-51. Partially accepted in finding of fact 36. 52. Partially accepted in finding of fact 37. 53. Partially accepted in finding of fact 38. 54-56. Partially accepted in finding of fact 39. 57. Rejected as being unnecessary. 58-59. Partially accepted in finding of fact 43. 60-61. Partially accepted in finding of fact 44. Intervenors: 1-2. Partially accepted in finding of fact 1. 3-7. Partially accepted in finding of fact 3. Covered in preliminary statement. Partially accepted in finding of fact 1. Rejected as being unnecessary. 11-13. Partially accepted in finding of fact 4. 14-15. Partially accepted in finding of fact 5. 16. Rejected as being unnecessary. 17. Partially accepted in finding of fact 6. 18-21. Partially accepted in finding of fact 32. 22-25. Partially accepted in finding of fact 25. 26. Partially accepted in finding of fact 14. 27. Partially accepted in finding of fact 21. 28. Rejected as being unnecessary. 29. Partially accepted in finding of fact 25. 30. Partially accepted in finding of fact 26. 31-32. Rejected as being unnecessary. 33. Partially accepted in finding of fact 34. 34. Partially accepted in finding of fact 27. 35. Rejected as being unnecessary. 36. Partially accepted in finding of fact 7. 37. Rejected as being unnecessary. 38-41. Partially accepted in finding of fact 8. 42-43. Partially accepted in finding of fact 9. 44. Partially accepted in finding of fact 10. 45-49. Partially accepted in finding of fact 11. 50. Partially accepted in finding of fact 12. 51. Partially accepted in finding of fact 13. 52. Partially accepted in finding of fact 29. 53-56. Partially accepted in finding of fact 32. 57. Rejected as being unnecessary. 58-60. Partially accepted in finding of fact 32. 61-64. Partially accepted in finding of fact 33. 65. Partially accepted in finding of fact 11. 66-67. Partially accepted in finding of fact 6. 68. Rejected as being unnecessary. 69-70. Partially accepted in finding of fact 6. 71-77. Partially accepted in finding of fact 28. 78-81. Rejected as being unnecessary. 82-89. Partially accepted in findings of fact 34-39. Rejected as being unnecessary. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Partially accepted in finding of fact 16. Partially accepted in finding of fact 14. Rejected as being unnecessary. Partially accepted in finding of fact 25. Rejected as being unnecessary. Partially accepted in finding of fact 14. Partially accepted in finding of fact 24. 100-104. Partially accepted in findings of fact 40-44. 105-106. Partially accepted in finding of fact 5. 107-119. Partially accepted in findings of fact 40-44. 120-160. Rejected. See finding of fact 45. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the evidence, subordinate, unnecessary to a resolution of the issues, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Karen A. Brodeen, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 Richard J. Grosso, Esquire Post Office Box 5948 Tallahassee, Florida 32314 Paola G. Annino, Esquire 308 South Martin Luther King Drive Daytona Beach, Floirda 32014-4872 Frank B. Gummey, III, Esquire Marie S. Hartman, Esquire Post Office Box 2451 Daytona Beach, Florida 32115-2451 James F. Page, Jr., Esquire Thomas A. Cloud, Esquire Michele P. Scarritt, Esquire Post Office Box 2068 Orlando, Florida 32802-3068 Jonathan W. Hewett, Esquire 216 South 6th Street Palatka, Florida 32177-4608 Robert F. Apgar, Esquire Post Office Box 10809 Daytona Beach, Florida 32120
The Issue The issue is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Poinciana Community Development District.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts relevant to the issues presented for determination are found: At the first hearing on January 8, 1981, the petitioner and the respondent stipulated and agreed that an appropriate rate base for petitioner's water operations was $249,622, that an appropriate rate base for petitioner's sewer operations was $714,919, and that an appropriate overall rate of return on petitioner's net investment was 13.07 percent. The reopening of the hearing was occasioned by a dispute over the appropriate amount of contributions-in-aid-of- construction (CIAC) attributable to petitioner's sewer operations. The petitioner takes the position that $84,500 is the appropriate amount of CIAC and the respondent and intervenor are of the opinion that the appropriate amount of CIAC is $317,000. Thus, the prior stipulation with regard to the figures contained in petitioner's Exhibit 4 is dissolved and the appropriate rate bases are dependent upon a resolution of the disputes concerning CIAC and additional rate case expenses occasioned by the reopening of the hearing. Quality of Service. The fifteen customers who testified at the hearing were concerned primarily with the large increase in sewer rates requested by the petitioner. The majority of petitioner's customers are elderly, retired persons on fixed incomes. Other than one witness who did not like the taste of the water and two customers who complained of billing errors, there was no adverse testimony concerning the quality of water or sewer services provided by petitioner to its customers. The petitioner's water and treated sewage consistently meets the standards and regulations imposed by regulatory agencies. There are no corrective orders or citations outstanding against petitioner's water or sewer operations. Charge for Delinquent Accounts. The petitioner presently computes a late payment charge of five percent of the overdue balance on delinquent accounts. Its request to charge a $10.00 fee when delinquency in payment results in a termination of water service and a charge of $2.20 for processing a delinquent bill which does not result in a termination of service is based upon actual labor and mailing costs necessary to the performance of these functions. These charges are reasonable and comport with similar charges made by other utility companies. Monthly Versus Quarterly Billing Cycle. The petitioner is presently billing its customers on a quarterly basis and has requested approval to change to monthly billing. The additional expense associated with monthly, as opposed to quarterly, billing would amount to $22,626.00 annually, or approximately 64 cents per customer per bill. The working capital allowance formula of one-eighth operation end maintenance expense is based upon a 45-day lag period or monthly billing system. If petitioner continues to bill on a quarterly cycle, its working capital allowance should be increased. Meters do occasionally stop working, meter boxes and covers become broken and water lines can develop leaks. Billing on a monthly basis would allow the petitioner to determine on a more frequent basis when a meter or a water line becomes inoperable, thus assuring that customers are accurately billed and preventing hazardous conditions with possible liability on petitioner's behalf. On a quarterly billing system, a meter could be incorrectly functioning for 90 to 150 days before the utility becomes aware of it. Between 1978 and 1900, the petitioner replaced 405 meters. No evidence was offered as to the amount of water, and therefore revenue, lost as a result of the nonfunctioning meters. With the exception of those in Duval County, most water and sewer utilities bill their customers on a monthly basis. Rate Case Expenses. Prior to the close of the January 8, 1991, hearing, the petitioner and the respondent Public Service Commission stipulated that the appropriate amount of rate case expense was $57,900.00 and that said expense should be amortized over a three-year period. The only remaining issue is the appropriate amount of rate case expense resulting from the reopening of the hearing due to the dispute regarding CIAC, and the appropriate period of amortization as to those expenses. The petitioner has claimed additional rate case expenses attributable to the new hearing in the amount of $15,100.00, for a total rate case expense of $73,000.00. This $15,100.00 is made up of additional attorneys' fees in the amount of $9,000.00, additional fees to three certified public accountant firms in the amount of approximately $4,000.00 and additional printing costs and miscellaneous costs of approximately $2,000.00. These amounts constitute estimates based upon incurred and expected hours of professional time occasioned by the new hearing. The figures were prepared for the April 10 hearing and do net include expenses or time spent on the May 14, 1981 hearing. The subject application is the petitioner's first application for a rate increase. While the use of one accounting firm may have been more economical and efficient, the use of two independent accounting firms is not unusual in a utility's first rate case due to the necessity of gathering historical data, the preparation of the minimum filing requirements of the Public Service Commission and the expertise required in regulatory matters. The two independent consulting firms did not engage in duplications of effort. The reopening of the hearing to resolve the CIAC dispute also resulted in many hours of PSC staff time. The petitioner has gained an extended benefit from the legal and accounting work done in this first application for a rate increase, and rate case expenses in a future application should be lower as a result of the efforts devoted to the present rate increase request. A three-year period has been a normal and reasonable period of time between rate cases. Contributions-in-aid-of-construction. The petitioner provides water and sewer service to the Beverly Hills Subdivision, which was developed in several stages. Units 1, 2 and 3 have septic tanks and Units 4, 5 and 6 are connected to a centralized sewerage treatment plant. During the period of 1069 and 1970, the petitioner collected a premium of $500.00 for homes sold in Units 4 and 5. There was evidence that some purchasers of homes in Units 4 through 6 were charged a premium of $1,000.00. Since no evidence was adduced as to the number of $1,000.00 fees which were collected, it is assumed for computational purposes that all such fees collected were in the amount of $500.00. There premiums were printed on petitioner's promotional literature as "houses in sewer areas extra." On land sales contracts, the premiums were referred to as "land improvements," "sewers" or "Unit 4 or 5 improvements," and on the closing statements the premiums were referred to as "land improvement fee." This fee was separate from and in addition to the monthly or quarterly charge for day to day sewer service. The utility presented no evidence that there was any other reason for the collection of $500.00 for "improvements" in Units 4 through 6. The collected premiums for the years 1969 and 1970 in the amount of $84,500.00 were recorded on the petitioner's books as "sales -- sewer charge" and the petitioner reduced the plant account and revenues by this amount. Also, in 1969, a New York branch office collected $500.00 fees in the total amount of $14,500.00. This amount was recognized by petitioner as taxable income and was not credited to the plant account. While the petitioner does not concede that the $500.00 premiums collected in 1969 and 1970 actually constitute CIAC, it does not contest the inclusion of the $84,500.00 as CIAC since it did not pay federal income taxes on that amount in 1969 and 1980. In 1971, petitioner continued to collect $500.00 premiums for lots sold in Units 4 through 6 and treated them in the same manner as they were treated on its books and records in 1969 and 1970. The amount of $54,500.00 was collected as premiums in 1971. Subsequently, the Internal Revenue Service audited the petitioner's 1971 tax return and treated the $500.00 collections amounting to $54,500.00 as revenue subject to income tax liability. The petitioner continued to collect the $500.00 premiums from purchasers in Units 4 through 6 until 1974. Due to the Internal Revenue Service report or directive which classified the 1971 $500.00 premiums as revenues, the petitioner incurred federal income tax liability on the premiums collected from 1971 through 1974. In 1972, the books of the petitioner changed with respect to the treatment of the $500.00 premiums. Prior to that time, the funds were segregated and declared as reductions to plant. After that time, the funds were treated on the corporate books as revenues from the sale of homes and were placed in a separate corporate account. Funds from sources other than sewer premiums wore also deposited into that account and monies from that account were used for such things as engineering services, sewer plant construction, roads, advertising, repairs, storm drainage and materials. Promotional materials, contracts of sale and closing statements, as well as customer testimony, indicate that petitioner consistently characterized the $500.00 fees for Units 4 through 6 as a charge for the sewer service available in those Units. The only difference between the homes in Units 1 through 3 and the homes in Units 4 through 6 was the presence of the sewer system in the latter as opposed to septic tanks in the former. Between 1969 and 1974, the petitioner sold 634 homes which included the $500.00 (or in some instances $1,000.00) premium for sewer service. Assuming a $500.00 fee from each purchaser, the total premiums collected amount to $317,000.00. The petitioner paid federal income taxes on all such $500.00 fees collected with the exception of the $84,500.00 collected in 1969 and 1970. Due to the three-year statute of limitations on refunds, the petitioner cannot now recover or recoup the taxes paid on that income. The imputation of CIAC to funds which petitioner has treated in the past for Internal Revenue purposes as income will substantially reduce petitioner's future sewer rate base and will reduce the petitioner's cash flow potential. If CIAC is imputed to these $500.00 premiums, it is estimated that the petitioner's sewer operation would offer revenue reductions in the approximate amount of $25,000.00 per year. Prior to December of 1973, no governmental agency regulated petitioner's water and sewer rates. The petitioner came under the jurisdiction of the Florida Public Service Commission in December of 1973. Although the petitioner did not produce the revenue agent's report which allegedly required the $500.00 fees to be reported as income, the testimony of petitioner's expert witness was that only a regulated utility could report tax-free Contributions- in-aid-of-construction. For federal income tax purposes, the CIAC of an unregulated utility was treated as ordinary taxable income. The assets represented by such funds can be depreciated for income tax purposes.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the issues in dispute between the parties be resolved as follows: The quality of service provided by the petitioner to its water and sewer customers be found adequate; A delinquent account charge he set at $10.00 if service must be disconnected and $2.20 if only a delinquent notice must be mailed; The petitioner's request to change from a quarterly to a monthly billing cycle be granted; Rate case expenses in the amount of $73,000.00 be approved, said amount to be amortized over a three-year period; and The $500.00 premiums collected between 1969 and 1974, in the total amount of $317,000.00, be treated as contributions-in-aid-of-construction and the petitioner's sewer rate base be accordingly reduced. Respectfully submitted and entered this 14th day of July, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1981. COPIES FURNISHED: R.M.C. Rose and Martin Friedman 1020 East Lafayette Street Tallahassee, Florida 32301 Marta M. Suarez-Murias and Paul Sexton, Staff Counsel Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Suzanne Brownless and Steven Burgess Office of Public Counsel Room 4, Holland Building Tallahassee, Florida 32301 Steve Tribble, Clerk Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Charles E. Lertora, Jr. Beverly Hills Civic Association, Inc. Post Office Box 23 Beverly Hills, Florida 32665