The Issue Whether the Respondent violated Subsection 112.3145(2)(b), Florida Statutes (1996 Supp.), by failing to file a CE Form 1, Statement of Financial Interests, within 30 days of her appointment to the Northeast Florida Regional Planning Council and/or Subsection 112.3145(2)(b), Florida Statutes (1997), by failing to timely file her 1997 CE Form 1, Statement of Financial Interests.
Findings Of Fact Based on the evidence presented, the following findings of fact are made: The Respondent, Betty Burney, was appointed to the Northeast Florida Regional Planning Council on October 16, 1996, for a term expiring October 1, 1998. The Northeast Florida Regional Planning Council is a broad-based agency that is authorized by Section 186.504, Florida Statutes. The Northeast Florida Regional Planning Council has two primary statutory responsibilities: (1) reviewing local government comprehensive plans under Section 163.3174, Florida Statutes; and (2) coordinating the developments of regional impact process under Section 380.06, Florida Statutes. Both of these activities are land planning responsibilities. The Respondent, as a member of the Northeast Florida Regional Planning Council, held a public position and, as such, was subject to the requirements of Subsection 112.3145(l)(a), Florida Statutes. As a member of the Northeast Florida Regional Planning Council, the Respondent was required to file a CE Form 1, Statement of Financial Interests, within 30 days of her appointment. The Respondent was specifically advised of the requirement to file a CE Form 1, Statement of Financial Interests, within 30 days in her appointment letter. In addition, the Executive Director of the Northeast Florida Regional Planning Council reviewed this requirement with the Respondent in an orientation session. The disclosure required to be filed within 30 days would have been for calendar year 1995. The Respondent did not file a CE Form 1, Statement of Financial Interests, within 30 days of her appointment. The Respondent filed a CE Form 1, Statement of Financial Interests, dated April 21, 1997, for the calendar year 1996. As a member of the Northeast Florida Regional Planning Council, the Respondent was required to file a CE Form 1, Statement of Financial Interests, for the year 1997. The 1997 CE Form 1, Statement of Financial Interests, was due to be filed by July 1, 1998, with a grace period extending to September 1, 1998. The Respondent's name was on the list of persons required to file financial disclosures provided to the Duval County Supervisor of Elections by the Ethics Commission in 1998, filings required for calendar year 1997. A CE Form 1, Statement of Financial Interests, was mailed to the Respondent by the Duval County Supervisor of Elections for 1997. When the Respondent failed to file her financial disclosure by July 1, 1998, the Duval County Supervisor of Elections sent her a certified letter notifying her of her delinquency. The Respondent did not claim the certified letter, and never filed a CE Form 1, Statement of Financial Interests, for the year 1997.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that the Respondent, Betty Burney, violated Subsection 112.3145(2)(b), Florida Statutes, in the two instances alleged, and imposing a civil penalty of $2,000 for her failure to file a CE Form 1, Statement of Financial Interests within 30 days of her appointment to the Northeast Florida Regional Planning Council and $2,000 for her failure to file her 1997 CE Form 1, Statement of Financial Interests for a total fine of $4,000. DONE AND ENTERED this 20th day of February, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2002. COPIES FURNISHED: Betty Burney 2553 Soutel Drive Jacksonville, Florida 32208 Virlindia Doss, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Kaye Starling, Agency Clerk Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue for determination in this case is whether Broward County Ordinance 1999-26, amending the Broward County Comprehensive Plan (Plan), is "in compliance," as defined in Chapter 163, Part II, Florida Statutes, and more specifically whether that portion of PCT 99-2, adopted through Ordinance 1999-26, which limits the use of flexibility units and reserve units east of the Intracoastal Waterway is not "in compliance" under Section 163.3184(1)(b), Florida Statutes, as alleged by the City of Hallandale Beach.
Findings Of Fact Parties The Petitioner, the City of Hallandale Beach (the City or Hallandale) is an incorporated municipality located in Broward County, Florida. The City is a political subdivision of the State of Florida. The City has adopted the City of Hallandale Comprehensive Plan (the City's Plan). In August of 1999, the City of Hallandale officially changed its name to the City of Hallandale Beach. The Respondent, Broward County (the County or Broward) is a political subdivision of the State of Florida. The County is a charter county. The County has adopted the Broward County Comprehensive Plan (the County's Plan). The Respondent, the Department of Community Affairs (DCA), is the state land planning agency which under Chapter 163, Part II, Florida Statutes, is responsible for, among other things, the review of municipal and county comprehensive plans to determine if the plans, and subsequent amendments thereto, are "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes. Standing The transmittal hearing for the proposed amendment was conducted on February 23, 1999. The adoption hearing was held June 22, 1999. During the plan amendment process, the City submitted three letters dated January 22, 1999, February 11, 1999, and April 30, 1999, in opposition to the proposed amendment. These letters, along with other materials in support of and in opposition to the proposed amendment were forwarded to the Department in the adopted amendment package on June 30, 1999. The City is an "affected person" under Section 163.3184(1)(a), Florida Statutes. The County Charter The Charter of Broward County took effect on January 1, 1975. (The current Charter submitted as Joint Exhibit 1 is revised as of November 5, 2002). With reference to land use planning, the County Charter in Article VIII creates the Broward County Planning Council (Planning Council). The Planning Council is the local planning agency for the Broward County Land Use Plan (BCLUP). The Planning Council employs a staff, which includes professional planners, gathers data, performs analyses of data, conducts hearings, and recommends the adoption of land use ordinances by the Broward County Commission. The Planning Council has final authority over the approval, or recertification, of municipal land use plans and amendments. Under the Charter, the County has primary responsibility for land use planning. Municipal comprehensive plans must be in conformity with the BCLUP. Pursuant to section 11.01 of the Charter, County Ordinances relating to land use planning prevail over municipal ordinances. Flexibility Units/Reserve Units Broward County is a highly urbanized, fast-growing county located in the southeastern portion of Florida. The estimated 1998 population was 1,460,890, a 16.4 percent increase over the 1990 census. In addition to the County government, there are 29 municipalities in the County. In November 1977, Broward County first devised the concept of allowing flexibility to municipalities in land use planning by creating "flexibility units" (flex units) which could be used by municipalities in land use planning. The number of flex units is equal to the difference between the density permitted on the BCLUP map and the density permitted on the applicable municipal land use plan for any particular parcel of land. Flex units are unique to Broward County in the State of Florida. The entire County is divided into 126 flexibility zones. Each flexibility zone has a determined number of available flex units based on the difference in densities between the future BCLUP map and the municipal land use plan. Within each of the 126 flexibility zones, designated on the future BCLUP map, the appropriate municipality may rearrange and revise land uses and densities, within limits specified in the County Plan, without the necessity of an amendment to the County Plan. The total density within any particular flexibility zone cannot exceed the density on the future BCLUP map. The Administrative Rules Document contains rules and procedures regulating flexibility zones and units. Modifications to flexibility zones may be requested by the municipality, the County, or the Planning Council, subject to final approval by the Board of County Commissioners. Municipal plan amendments revising land uses by use of flex units within flexibility zones are subject only to recertification by the Planning Council. Without the use of flex units, the land use category for a particular piece of property on the BCLUP map can be amended through an amendment to the BCLUP. "Reserve units" are additional permitted dwelling units equal to 2 percent of the total number of dwelling units permitted in a flexibility zone by the future BCLUP map. Reserve units function similarly to flex units and may be allocated by a municipality to rearrange and revise densities within a flexibility zone. For the purpose of this Recommended Order, reserve units shall be treated as flex units. Hallandale contains flexibility zones 93 and 94. Review of the Operation of Flexibility Rules In 1996, in response to state requirements for periodic evaluations of county comprehensive plans, the planning council staff, including Henry Sniezek of the County planning staff, prepared the Broward County Land Use Plan "Flexibility Rules" Study. After many hours spent obtaining data and analyses, the staff recommended that flexibility rules include more consideration of compatibility with surrounding land uses and the impacts on public schools. The 1996 report concluded: (1) that flexibility rules generally continued to serve the purpose of allowing local governments to address local planning issues and market concerns; (2) that local governments have utilized the flexibility rules consistent with their intent; and (3) that flexibility rules should continue to be available for local government use. The issue which is the subject of this proceeding, as to whether flex units should continue to be authorized for land planning uses in areas east of the Intracoastal Waterway to increase density from 25 to 50 units per acre, was not specifically within the scope of the 1996 report. Coastal Densities An April 24, 1998, version of the County land uses plan map, which is apparently still in force, designated a number of parcels throughout Broward County, east of the Intracoastal Waterway on the Atlantic Ocean, as land use category "H," for high density dwellings of 50 units per gross acre. Under the Broward County land use regulations, gross acreage is calculated by including the property owned by the landowner and half of adjacent right-of-way. In County-designated "H" parcels, developments of 50 units per acre are permitted, without the need to allocate flex units to the parcels. The Hallandale Ordinance In 1998, Hallandale passed an Ordinance 1998-3, creating a new Residential High Density-2 Land Use Designation (HD-2), allowing developments up to 50 residential dwelling units per acre, but only by the allocation of available flex units. On June 1, 1999, the Mayor of Hallandale was notified, by letter, that the land use element, as amended to create the HD-2 category, was recertified by the Planning Council. The recertification process constitutes a determination that the municipal plan amendment substantially conforms to the County Plan. The DCA found Hallandale's HD-2 ordinance in compliance. The Regional Planning Council determines whether comprehensive plan amendments comply with the 1995 Strategic Regional Policy Plan. The Planning Council approved the City's HD-2 category as consistent with the Strategic Regional Policy Plan. The intent of the ordinance was to promote and attract redevelopment to Hallandale, particularly the beach area, where many buildings date from the 1960's and 1970's, and may be approaching the end of their useful lives. The City used the HD-2 for the redevelopment of a property called Riviera Beach, which consisted of a deteriorating motel, a restaurant, and offices. The City also used the category to promote the redevelopment of the Ocean Marine property site of another deteriorating motel with a yacht club on the Intracoastal Waterway, which is currently going through the approval process. The City's former Director of Growth Management, Lorenzo Aghemo, opined that with existing average density on the beach in the range of 86 to 89 units an acre, redevelopment up to only 25 dwelling units per acre is not economically advantageous. The Proposed Amendment The Amendment that is the subject of this proceeding began as a "housekeeping" amendment which was initially designed to establish a uniform cap of 50 units per acre for the use of flex units to be consistent throughout the County Plan. During the process of meetings and public hearings before the Planning Council and the County Commission, and in response to comments and suggestions from members and staff as well as comments from DCA, the Planning Council, the Broward County League of Cities and various municipal governments, the Amendment evolved as more particularly described below. The Amendment ultimately became a mechanism to further goals contained in a Governor's Commission report entitled "Eastward Ho!" which was published in July 1996 and discussed in more detail below. A primary focus of the Eastward Ho! report is the recommendation that development in Southeast Florida, including Broward County, should be redirected into a corridor of land that generally consisted of the land between CSX and Florida railroads. The precise parameters of the Eastward Ho! corridor are undefined and the corridor eventually was expanded beyond the lands between the railroads; however, it is agreed that this corridor contains many of the older municipal regions of the County west of the Intracoastal Waterway. In its adopted form, the portion of the County's challenged amendment PCT 99-2, adopted through Ordinance 1999- 26, implements several changes which encourage the redevelopment of the County's urban corridor, and redirects development away from the Coastal High Hazard Area (CHHA) as well as away from the environmentally sensitive western areas of the County. With respect to the use of flex units, the challenged Amendment establishes four areas ("Areas A-D") within the County. Each area is given its own designation regarding the use of flex units. Area A This area generally encompasses all land west of the Urban Infill Area line. It is treated differently from the other areas for planning purposes because of its environmentally sensitive lands. Included in this area are portions of the Florida Everglades, other wetlands and well fields. In recognition of the environmental features of this area, the Amendment restricts the use of flexibility units to a maximum of 25 units an acre and helps to minimize urban sprawl. Area B This area is defined as all land east of the Intracoastal Waterway. It lies entirely within the County’s CHHA, which includes the land and water eastward of the Atlantic Intracoastal Waterway to the Atlantic Ocean. CHHAs are areas that are prone to damage from flood and wind from a hurricane event. This vulnerability to hurricanes presents special planning issues which led the County to limit the use of flexibility units to a maximum of 25 units an acre. In order to better protect human life and property, the County not only places a limit on flexibility units in this area, but encourages development and redevelopment in other portions of the County outside the CHHA. Area C This area generally comprises all of the land east of the Urban Infill Area Line and West of the Intracoastal Waterway. It includes many of the County’s older cities, where there is the greatest need for redevelopment. This area generally includes the Eastwood Ho! corridor. In order to encourage redevelopment in this area, the County continues to allow local governments to use up to 50 flexibility units an acre. Area D This area contains pocket areas that lie west of the Urban Infill area. Although the Amendment restricts the use of flexibility units to a maximum of 25 units an acre in this area, no compatibility review is required. At this time, there are two areas with this designation. Both of these pocket areas lie close to the Urban Infill Area. Application to Hallandale Most of Hallandale lies within Area C. A small potion of the City consisting of the beach east of the Intracoastal Waterway is in Area B and also within the CHHA. Under the challenged Amendment the City is limited to a maximum allowable density, with the allocation of flex units, to 25 units per acre, because the area is east of the Intracoastal Waterway. For purposes of this proceeding, the objectionable effect of the challenged Amendment is that it prohibits the use of flex units to that small portion of Hallandale that is east of the Intracoastal Waterway to attain densities greater than 25 units per acre. Lorenzo Aghemo, formerly Hallandale's Director of Growth Management, testified that the County's challenged Amendment is inconsistent with the following elements of the County's Plan: Objective 8.03.00, on discouraging urban sprawl by directing development to areas with existing facilities and services; Goal 13.00.00, on maximizing intergovernmental coordination and cooperation; Policy 13.01.08, on the Planning Council's responsibility to ensure consistency, as compared to its decisions to approve 50 units and than a few months later 25 units per acre; Goal 17.00.00, directing growth to identified urban infill, in areas of existing infrastructure and services to promote redevelopment; Policy 17.02.02, on urban infill and redevelopment to promote economic development and increase housing opportunities. Mr. Aghemo testified that the County's Ordinance, limiting the flex units to 25 per acre is also inconsistent with the following statutes: Section 163.3177(11)(c) - on maximizing the use of existing facilities and services through redevelopment and urban infill development; Section 187.201(15)(a) and (b) - on directing development to areas which have, in place, land and water resources, fiscal abilities and service capacity; Section 187.201(16)(b)5. - on allowing local government flexibility to determine and address urban priorities. Henry Sniezek testified that the proposed Amendment viewed in its entirety, is consistent with the above-cited provisions. Evolution of the Proposed Amendment On January 15, 1999, the County Planning Council's Land Use/Traffic Ways Committee discussed, for the first time, an early version of a County amendment to limit the density allowed from the use of flex units. At that time, the staff recommended that flex units should result in densities no higher than 50 units per acres. As stated above, the maximum of 50 units an acre, recommended in 1999, was intended for "housekeeping" purposes to establish the same cap for flex units consistently referenced throughout the plan. Robert Daniels, the principal planner for the Regional Planning Council, first recommended that the coastal barrier island be excluded from certain flex unit allocations in a letter to Mr. Sniezek, on January 27, 1999. Mr. Daniels testified that his concern was based on the Strategic Regional Plan goal and policy of reducing densities on coastal barrier islands, the beaches and areas east of the Intracoastal Waterway. The Broward League of Cities Technical Advisory Committee, composed of planners from various municipalities in the County, also recommended to the County Commission that it attempt to direct growth to the area between the Everglades on environmentally sensitive west and the CHHA. That policy is included in the County's "Eastward Ho" voluntary initiative. The Broward County urban infill area has a western boundary that coincides with the western boundary of the challenged amendment but extends east to the Atlantic Ocean. The Amendment, as adopted, ultimately excluded the area east of the Intracoastal Waterway within the urban infill area, as designated on the County land use map, from the maximum flex unit uses without County Commission approved. Eastward Ho! "Eastward Ho! Revitalizing Southeast Florida’s Urban Core" is a 1996 planning initiative of the Governor’s Commission for a Sustainable South Florida. It was developed by the South Florida Regional Planning Council in conjunction with the Treasure Coast Regional Planning Council. Eastward Ho! promotes urban infill and redevelopment in order to revitalize older communities. Among its other goals is to direct development away from environmentally sensitive lands, prime agricultural areas, and water resources. The Eastward Ho! initiative attempts to capture some of the projected growth in the western and CHHA and redirect it to the urbanized areas. The boundaries for the Eastward Ho! initiative include portions of Palm Beach County, Broward County and Miami-Dade County. Its boundaries are not precisely defined and have evolved over time. The original study area encompassed the area between the Florida East Coast Railroad and the CSX Railroad. As the program progressed, it became apparent that additional areas should be included. This larger Eastward Ho! area includes the lands lying east to US 1 and west to the Palmetto Expressway, the Florida Turnpike, State Road 7 and Military Trail. The Amendment Area C is generally compatible with the Eastward Ho! boundaries in Broward County. Area B does not lie within the Eastward Ho! boundaries. In its totality, the Amendment advances the purposes of Eastward Ho! by redirecting growth towards already urbanized areas and away from the environmentally sensitive areas in the western portion of the County and the CHHA. The Eastward Ho! initiative is advanced by the Amendment in that the proposed flexibility units scheme promotes the goals of directing some future development away from environmentally sensitive areas and the CHHA and redirects that future development to the urban infill areas. As the Amendment is consistent with, and furthers, Eastward Ho! goals, the contents of the document entitled "Eastward Ho! Revitalizing Southeast Florida's Urban Core" constitute relevant and appropriate data and analysis which supports the Amendment. In February 1999, a report was issued by Rutgers University, Center for Urban Policy Research in which the Eastward Ho! program is described and analyzed. This report was prepared for the Florida Department of Community Affairs and the U.S. Environmental Protection Agency. This document is entitled "Eastward Ho! Development Futures: Paths to More Efficient Growth in Southeast Florida." Included in this report are data and analysis contrasting projected Eastward Ho! and non-Eastward Ho! development patterns. In this report, it is concluded that directing some residential development growth from the hurricane hazard area and the western areas into the Eastward Ho! areas in the next twenty-five years will save 52,856 acres of prime farmland and 13,887 acres of fragile environmental lands. It is also expected that housing costs would drop approximately 2.3 percent. The report also concludes that by directing some future development over a 25-year period into the Eastward Ho! areas, the following savings in infrastructure costs can be gained: $1.54 billion dollars in local road costs, $62 million in state road costs, $157 million in water capital costs, and $135.6 in sewer capital costs. As the Amendment helps implement the goals of Eastward Ho!, it reasonably can be concluded that this report contains data and analysis that supports the Amendment. Local Mitigation Strategy Broward County’s emergency management staff has prepared a local mitigation strategy (LMS), which is the County’s plan to mitigate the effects of potential natural disasters, especially hurricanes. In this document, the County identifies the trend of conversions of living units in the coastal hurricane evacuation zone from seasonal to year-round use, increasing the number of residents in the coastal hurricane evacuation zones. This area is basically the same as the portion of the County described in the Amendment as Area B. In order to minimize the impact of natural disasters, the LMS recommends discouraging additional public expenditures to expand or improve infrastructure in the CHHA. The Amendment implements these recommendations by providing an incentive for directing some future growth away from the CHHA to Area C. Accordingly, the LMS constitutes data and analysis which supports the Amendment. Consistency with the Broward County Comprehensive Plan The City contends that the Amendment is inconsistent with the following provisions of the Broward County Comprehensive Plan: Objective 8.03.00, Goal 13; Policy 13.01.08, Goal 17; and Policy 17.02.02. Those provisions are part of the BCLUP. Objective 8.03.00 is entitled "EFFICIENT USE OF URBAN SERVICES" and reads: Discourage urban sprawl and encourage a separation of urban and rural uses by directing new development into areas where necessary regional and community facilities and services exist. The BCLUP does not define "urban sprawl." The Department of Community Affairs has a rule that defines "urban sprawl" as meaning: . . . urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low- intensity or low density urban uses, and which are characterized by one or more of the following conditions: (a) The premature or poorly planned conversion of rural land to other uses; (b) The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area; or (c) The creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided.... Rule 9J-5.003(134), Florida Administrative Code. Rule 9J-5.006(5), Florida Administrative Code, provides guidance on how to ensure that plans and plan amendments are consistent with applicable requirements pertaining to the discouragement of urban sprawl. Rule 9J- 5.006(5)(a), Florida Administrative Code. The rule contains sections on primary indicators, land use evaluations, and development controls, each of which includes many factors to be carefully considered. The Amendment provides incentives for development in Area C, which is the older urban corridor of the County. Although some of it is also urban, Area B lies in the CHHA and the data and analysis support its disparate treatment. Taken as a whole, the Amendment has the effect of discouraging urban sprawl by promoting infill in older downtown areas (Area C) and directing development away from the environmentally sensitive areas (Areas A and B) and areas with inefficient land use patterns (Area A) such as the western areas of the County. Goal 13 and Policy 13.01.08 are located in the section of the plan entitled "INTERGOVERNMENTAL COORDINATION." They read as follows: GOAL 13.00.00 MAXIMIZE INTERGOVERNMENTAL COORDINATION AND COOPERATION AMONG STATE, REGIONAL, AND LOCAL GOVERNMENT ENTITIES. POLICY 13.01.08 The Broward County Planning Council shall continue to coordinate, cooperate and share information and services with all City and County planning offices and all local government agencies in order to ensure consistency and compatibility among the Broward County Land Use Plan and the other elements of the Broward County Comprehensive Plan, as well as municipal comprehensive plans. The Amendment does not modify the intergovernmental coordination provisions. While the Amendment restricts the effect of Hallendale Ordinance 1998-2 in that small portion of the City that is east of the Intracoastal Waterway, that restriction alone does not support a finding that the Amendment as a whole is inconsistent with Policy 13.01.08. Moreover, the County complied with the letter and spirit of Goal 13.00.00 and Policy 13.01.08 in developing and adopting this Amendment. It kept the municipalities informed of the Amendment by providing written drafts and coordinated with entities including the Broward County League of Cities, the South Florida Regional Planning Council, the Broward County Planning Council, and its technical advisory committee. Suggestions and comments from the South Florida Regional Planning Council and the League of Cities were a major influence in the ultimate version of the adopted Amendment. Goal 17.00.00 and Policy 17.02.02 are contained in the Plan’s section entitled "URBAN INFILL AREAS, URBAN REDEVELOPMENT AREAS AND DOWNTOWN REVITALIZATION." They read as follows: GOAL 17.00.00 DIRECT GROWTH TO IDENTIFIED URBAN INFILL, URBAN REDEVELOPMENT AND DOWNTOWN REVITALIZATION AREAS WITHIN BROWARD COUNTY IN ORDER TO DISCOURAGE URBAN SPRAWL, REDUCE DEVELOPMENT PRESSURES ON RURAL LANDS, MAXIMIZE THE USE OF EXISTING PUBLIC FACILITIES AND CENTRALIZE COMMERCIAL, GOVERNMENTAL, RETAIL, RESIDENTIAL AND CULTURAL ACTIVITIES. POLICY 17.02.02 Local land use plans should include policies to provide for adequate housing opportunities necessary to accommodate all segments of present and future residents of identified urban infill, urban redevelopment and downtown revitalization area(s). In its totality, the Amendment is not inconsistent with Goal 17.00.00 and may further it. By limiting development in the CHHA and the western portions of the County, the Amendment effectively encourages significant future growth to the urban infill areas and older downtown areas. The area encouraged for growth under this goal and policy is consistent with Area C, and targeted for the densest development and redevelopment. The Amendment is not inconsistent with Policy 17.02.02. Area B as a Coastal area is not particularly economically suitable for affordable housing. By encouraging development away from the CHHA, the Amendment may promote a wider range of housing opportunities through redevelopment in the Eastward Ho! corridor. Moreover, the Amendment provides that applications of flex units for affordable housing, Regional Activity Centers and special residential facilities are exempt from the Amendment’s restrictions in specified situations should affordable housing units be developed in Area B. Even if the Amendment were construed to be inconsistent with any of the above-discussed plan provisions, there are several other portions of the Plan that the Amendment furthers by encouraging development away from the CHHA and the environmentally sensitive areas in the western portion of the County. Those provisions include Objective 9.03.00, which requires developing and implementing land use controls to protect and enhance the County's beaches, rivers, and marine resources, and Policy 9.05.09, which requires considering the impact land use plan amendments have on wetland resources and minimizing those impacts to the maximum extent practicable. Objective 9.07.00 reads: Protect identified floodplains and areas subject to seasonal or periodic flooding. The Amendment advances this objective by limiting development in the CHHA (Area B), which is subject to storm surge, as well as limiting development in the western portion of the County (Area A), which has many flood-prone areas. Consistency with Section 163.3177(11)(c) The City alleges that the Amendment is inconsistent with Section 163.3177(11)(c), Florida Statutes, which reads: It is the further intent of the Legislature that local government comprehensive plans and implementing land development regulations shall provide strategies which maximize the use of existing facilities and services through redevelopment, urban infill development, and other strategies for urban revitalization. To the extent this statute is a substantive compliance criteria, the Amendment is consistent with this statute. By promoting development in Area C, the Amendment will help achieve the goal of maximizing existing facilities through redevelopment, urban infill and urban revitalization. Consistency with the South Florida Regional Policy Plan The Strategic Regional Policy Plan for South Florida (SFRPP) is the regional policy plan adopted by the South Florida Regional Planning Council. It is adopted by reference in Rule 29J-2.009, Florida Administrative Code. The Amendment is consistent with provisions in the SFRPP, particularly those related to land use, public facilities, natural resources, and emergency management. The Amendment is consistent with Strategic Regional Goal 2.1, which requires directing development and redevelopment to areas least exposed to coastal storm surges and where negative impacts on the environment are minimal. The Amendment is consistent with several of Goal 2.1's implementing policies, including Policies 2.1.2 (reducing allowable densities on barrier islands and in the Category 1 Hurricane Evacuation Area), 2.1.3 (restricting development, redevelopment, and public facility construction in the CHHA), and 2.1.4 (directing development away from environmentally sensitive lands). The Amendment also furthers Strategic Regional Goal 7.1 by directing future development away from the areas most vulnerable to storm surges. Viewed in its entirety, the Amendment is consistent with the SFRPP construed as a whole. Consistency with the State Comprehensive Plan The City contends that the Amendment is inconsistent with the following provisions in the State comprehensive plan: Sections 187.201(15)(a) and (b) and 187.201(16)(b)(5), Florida Statutes. Goal (15)(a) recognizes the importance of preserving natural resources and requires development to be directed into areas which can accommodate growth in an environmentally sensitive manner. Implementing Policies (b)1., 2., and 5. requires the encouragement of efficient development, the separation of urban and rural uses, and the consideration of impacts on natural resources and the potential for flooding in land use planning. As discussed in earlier findings, the Amendment is consistent with such directives. The Amendment furthers Goal (15)(a) and Policies (b) 1., 2., and 5. Policy (16)(b)(5) reads: Ensure that local governments have adequate flexibility to determine and address their urban priorities within the state urban policy. The Amendment coordinates the policy for prioritization of urban development. Development is promoted in areas away from the CHHA and environmentally sensitive lands in the west. This is accomplished through the use of a cap on flexibility units. Local governments may choose to utilize less than the full extent of their available flexibility units or use alternative mechanisms to achieve higher densities. The use of flexibility units is only one method for controlling densities. If a local government needs more density to address its planning goals than is allowed by the Amendment, it may request a Future Land Use Map amendment. Additionally, local governments may avoid the Amendment's limits by maximizing density by the use of affordable housing developments, Regional Activity Centers or special residential facilities. The Amendment is not inconsistent with Policy (16)(b)(5). The Amendment is consistent with the State Comprehensive Plan construed as a whole.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendment adopted by Broward County in Ordinance No. 1999-26 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rule promulgated thereunder. DONE AND ENTERED this 12th day of June, 2003, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2003. COPIES FURNISHED: Mark Goldstein, Esquire City of Hallandale 400 South Federal Highway Hallandale, Florida 33009 Craig Varn, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Jose R. Gonzalez, Esquire Broward County Attorney's Office 115 South Andrews Avenue Governmental Center, Suite 423 Fort Lauderdale, Florida 33301 Colleen M. Castille, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 David Jordan, Acting General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether the amendment to the Lee County Comprehensive Plan adopted by Ordinance No. 05-20 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2005),1 for the reasons set forth in the Petition for Formal Administrative Hearing and Statement of Intent filed by the Department of Community Affairs ("the Department").
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. Lee County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Leeward is a Florida limited liability company that owns a portion of the real property that is the subject of the amendment at issue. The Amendment The amendment would change the future land use designation for 41.28 acres in the northeast quadrant of the Interstate 75 (I-75)/State Road 80 (SR 80) interchange from General Commercial Interchange to Urban Community, as shown on the FLUM. The General Commercial Interchange land use is described in the County Plan as “intended primarily for general community commercial land uses: retail, planned commercial districts, shopping, office, financial, and business.” It does not allow residential development. The Urban Community land use provides for a mix of residential, commercial, public, quasi-public, and limited light industrial uses. The standard density range for residential uses in the Urban Community category is one to six dwelling units per acre (du/a). The 41.28 acres affected by the amendment ("the amendment site") consist of 19.28 acres of lands along the Orange River owned by Leeward, a platted subdivision known as Dos Rios of approximately 11 acres, and the remaining acreage consists of right-of-way for SR 80 and I-75. Currently operating on Leeward's property is a vessel repair facility, a marina with wet and dry slips, and an ecotourism company. Leeward also has its office on the site. The Dos Rios subdivision includes 26 single-family lots. Apparently, only a few of the lots (the number was not established in the record) have been developed. Because residential land uses are not allowed in the General Commercial Interchange category, the Dos Rios lots were non-conforming uses. Maximum Allowed Density The County Plan provides residential density bonuses to promote various County objectives, such as the provision of affordable housing. With density bonuses, lands designated Urban Community can boost their density to a maximum of ten du/a. There was testimony presented by Leeward that the County has not often approved applications for density bonuses. Even if the practice of the County in approving density bonuses were relevant, the practice can change. It is reasonable for the Department to consider the maximum intensity or density associated with a future land use designation when determining whether a FLUM amendment is in compliance. Therefore, in this case, it is reasonable to consider the Urban Community land use designation as allowing up to ten du/a. The Department asserts that the amendment would allow the 41.2 acres affected by the amendment to have a total of 412 dwelling units (41.2 acres x 10 du/a). Leeward disputed that figure because the 41.2 acres includes road right-of-way and the Dos Rios subdivision. A hearing officer appointed to review a Lee County development order recently determined that right-of-way external to a development should not be included in calculating allowable units, and the County accepted the hearing officer's recommendation based on that determination. The definition of "density" in the County Plan supports the determination.2 Therefore, for the purposes of this case, the right-of-way in the northeast quadrant should not be included in calculating the maximum residential density that would result from the amendment. On the other hand, Leeward's argument that the Dos Rios subdivision acreage should not be included in the ten du/a calculation is rejected. For the purposes of an "in compliance" determination, it is reasonable for the Department to apply the maximum potential densities to all developable and re- developable acreage. Using 29 acres as the approximate acreage affected by the amendment when road right-of-way is subtracted, the amendment would create the potential for 290 residences in the northeast quadrant of the interchange. Adoption of the Amendment The amendment was initiated as part of the County's reexamination of the existing land use designations in the four quadrants of the I-75/SR 80 interchange. Following the County planning staff's completion of a study of the entire interchange, it recommended several changes to the County Plan, but no change was recommended for the northeast quadrant. Apparently, the amendment at issue was urged by Leeward, and, at a public hearing held on June 1, 2005, the Board of County Commissioners voted to adopt the amendment. Pursuant to Section 163.3184(6), Florida Statutes, the proposed amendment was forwarded to the Department for an "in compliance" review. Following its review, the Department issued its ORC Report on August 19, 2005. In the ORC Report, the Department objected to the proposed amendment based upon what it considered to be inappropriate residential densities in the coastal high hazard area (CHHA) and floodplain. The Department recommended that the County not adopt the proposed amendment. On October 12, 2005, another public hearing was held before the Board of County Commissioners to consider adoption of the amendment. At the public hearing, the County planning staff recommended that the land use designation in the northeast quadrant not be changed to Urban Community "due to the potential increase in density in the Coastal High Hazard Area." Nevertheless, the Board of County Commissioners approved the amendment. Representatives of Leeward appeared and submitted comments in support of the amendment at the public hearings before the Board of County Commissioners. On December 16, 2005, the Department issued its Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance, identifying three reasons for its determination: (1) inconsistency with state law regarding development in the CHHA and flood prone areas, (2) internal inconsistency with provisions of the County Plan requiring the consideration of residential density reductions in undeveloped areas within the CHHA, and (3) inconsistency with the State Comprehensive Plan regarding subsidizing development in the CHHA and regulating areas subject to seasonal or periodic flooding. On January 5, 2006, the Department filed its petition for formal hearing with DOAH. Coastal High Hazard Area The Florida Legislature recognized the particular vulnerability of coastal resources and development to natural disasters and required coastal counties to address the subject in their comprehensive plans. [I]t is the intent of the Legislature that local government comprehensive plans restrict development activities where such activities would damage or destroy coastal resources, and that such plans protect human life and limit public expenditures in areas that are subject to destruction by natural disaster. § 163.3178(1), Fla. Stat. The statute also requires evacuation planning. Until 2006, the CHHA was defined as the "category 1 evacuation zone." § 163.3178(2)(h), Fla. Stat. In 2006, the CHHA was redefined as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model."3 Ch. 2006-68, § 2, Laws of Fla. The County Plan defines the CHHA as "the category 1 evacuation zone as delineated by the Southwest Florida Regional Planning Council." Map 5 of the County Plan, entitled "Lee County Coastal High Hazard Area (CHHA)," shows the entire amendment site as being within the CHHA. Nothing on Map 5, however, indicates it was produced by the Regional Planning Council. Daniel Trescott, who is employed by the Southwest Florida Regional Planning Council and is responsible for, among other things, storm surge mapping, stated that the Category 1 evacuation zone is the storm surge level for the worst case scenario landfall for a Category 1 storm. He stated that the Category 1 storm surge for Lee County was determined by the SLOSH model to be 5.3 feet. Mr. Trescott stated that the 5.3 foot contour (shown on Plate 7 of the Regional Planning Council's "Hurricane Storm Tide Atlas - Lee County") more accurately delineates the CHHA than Map 5 of the County Plan. Although Mr. Trescott's testimony suggests a conflict between the County Plan's definition of the CHHA and Map 5's depiction of the CHHA, the two can be reconciled by a finding that Map 5 is a gross depiction of the CHHA for general public information purposes, but the precise location of the CHHA boundary is the one delineated by the Regional Planning Council, and the latter is controlling. Using the 5.3 contour on the amendment site, Leeward's witness, Michael Raider, estimated that there are approximately 16 acres of the amendment site within the CHHA. Applying the maximum allowable residential density under the Urban Community land use designation (with bonuses) of ten du/a means the amendment would result in a potential for 160 dwellings in the CHHA. Florida Administrative Code Rule 9J-5.012(3)(b)6. and Rule 9J-5.012(3)(c)7., respectively, require each local government’s coastal management element to contain one or more specific objectives that "[d]irect population concentrations away from known or predicted coastal high-hazard areas” and limit development in these areas. The parties' evidence and argument regarding whether the amendment was "in compliance" focused on these rules and the following goal, objective, and policy of the County Plan related to the CHHA: GOAL 105: PROTECTION OF LIFE AND PROPERTY IN COASTAL HIGH HAZARD AREAS. To protect human life and developed property from natural disasters. OBJECTIVE 105.1: DEVELOPMENT IN COASTAL HIGH HAZARD AREAS. Development seaward of the 1991 Coastal Construction Control Line will require applicable State of Florida approval; new development on barrier islands will be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion will not be permitted; and allowable densities for undeveloped areas within coastal high hazard areas will be considered for reduction. POLICY 105.1.4: Through the Lee Plan amendment process, land use designations of undeveloped areas within coastal high hazard areas will be considered for reduced density categories (or assignment of minimum allowable densities where ranges are permitted) in order to limit the future population exposed to coastal flooding. In the opinion of Bernard Piawah, a planner employed by the Department, the amendment is inconsistent with the goal, objective and policy set forth above because these provisions only contemplate possible reductions of residential densities in the CHHA and there is no provision of the County Plan that addresses or establishes criteria for increasing residential densities in the CHHA. Population Concentrations As stated above, Florida Administrative Code Rule 9J-5.012(3)(b)6. directs local governments to include provisions in their comprehensive plans to direct population concentrations away from the CHHA. The term "population concentrations" is not defined in any statute or rule. The term apparently has no generally accepted meaning in the planning profession. The word "population" has the ordinary meaning of "all of the people inhabiting a specific area." The American Heritage Dictionary of the English Language (1981). The word "concentration" has the ordinary meaning of "the act or process of concentrating." Id. The word "concentrate" means "to direct or draw toward a common center." Id. In the context of Florida Administrative Code Rule 9J-5.012, the term "population concentrations" suggests a meaning of population densities (dwelling units per acre) of a certain level, but the level is not stated. Leeward argues that, because there is no state guidance on the meaning of the term "population concentrations," surrounding land uses should be examined to determine whether a proposed density would be "proportionate to its surroundings." According to Leeward, in order to be a population concentration, the density under review would have to be greater than the surrounding density. This comparative approach is rejected because the overarching Legislative objective is protection of life, which plainly calls for a straightforward consideration of the number of lives placed in harm's way. The Department, in its Proposed Recommended Order, states: By assigning either zero residential density to land by virtue of an Open Space land use designation, or a maximum density of one unit per acre by assigning a low density land use designation, the County Plan fulfills the mandates of State law that development be limited in and residential concentrations be directed away from the CHHA. Thus, not surprisingly, the Department does not consider one du/a to be a population concentration. A density of ten du/a is an urban density, as indicated by the fact that it is the maximum density allowed in the Urban Community land use designation and the highest density within the "standard density range" for the County's Central Urban land use designation. It is a generally known fact, of which the undersigned takes notice, that urban areas are areas where populations are concentrated. It is a another generally known fact, of which the undersigned takes notice, that ten dwelling units on one acre of land amounts to a lot of people living in a small space. Leeward, itself, described the residential density allowed under the Urban Community designation as "relatively intense." Leeward's Proposed Recommended Order, at 7. Whether measured by density alone (ten du/a) or by Leeward's estimate of 160 residences on 16 acres, the amendment places a population concentration in the CHHA. Offsets in the CHHA Leeward presented evidence that the County has been reducing residential densities, sometimes referred to as "down- planning," in other areas of the CHHA in Lee County. The reduction in dwelling units in the CHHA over the past several years may be as high as 10,000 units. The Department did not present evidence to dispute that there has been an overall reduction in dwelling units in the CHHAs of Lee County. Leeward argues that these reductions "offset" the increase in dwelling units in the CHHA that would result from the amendment and this "overall" reduction in densities in the CHHA must be considered in determining whether the amendment is "in compliance" with state law and with provisions of the County Plan related to directing population concentrations away from the CHHA. At the hearing and in its Proposed Recommended Order, the Department argued that the consideration of offsets in the CHHA was improper and unworkable, but that argument conflicts with the Department's actual practice and official position as described in the January 2006 "Department of Community Affairs Report for the Governor's Coastal High Hazard Study Committee." In that report, the Department acknowledged there is no statutory or rule guidance regarding what the maximum density should be in the CHHA. The Report notes that some local governments have established maximum densities for the CHHA (e.g., Pinellas County, 5 du/a; Franklin County 1 du/a). The Department states in the report that it reviews amendments to increase density in the CHHA on a "case by case" basis, and explains further: When a Comprehensive Plan Amendment in the CHHA proposes a density increase, DCA's review considers the amount of the density increase, the impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" (generally accomplished through public acquisition). One of the visual aides used in conjunction with the 2006 report to Governor's Coastal High Hazard Study Committee, entitled "Policy Issue #2 - Densities in High Hazard Areas," also describes the Department's practice: Without locally adopted density limits, DCA conducts a case by case review of amendments without any defined numeric limit. DCA considers amount of density increase, impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" in other areas of the CHHA. These statements use the phrase "there will be a corresponding offset," which suggests that for an offset to be considered, it would have to be proposed concurrently with an increase in residential density on other lands within the CHHA. However, according to the director of the Department's Division of Community Planning, Valerie Hubbard, offsets in the CHHA do not have to be concurrent; they can include previous reductions. Furthermore, although the Department pointed to the absence of any criteria in the County Plan to guide an offset analysis, Ms. Hubbard said it was unnecessary for a comprehensive plan to include express provisions for the use of offsets. To the extent that this evidence of the Department's interpretation of relevant law and general practice conflicts with other testimony presented by the Department in this case, the statements contained in the report to the Governor's Coastal High Hazard Study Committee and the testimony of Ms. Hubbard are more persuasive evidence of the Department's policy and practice in determining compliance with the requirement that comprehensive plans direct population densities away from the CHHA and limit development in the CHHA. As long as the Department's practice when conducting an "in compliance" review of amendments that increase residential density in the CHHA is to take into account offsets, the Department has the duty to be consistent and to take into account the County's offsets in the review of this amendment. The County planning director testified that he believed the applicable goal, objective, and policy of the County Plan are met as long as there has been a reduction in residential densities in the CHHAs of the County as a whole. The Department points out that the planning director's opinion was not included in the County planning staff's reports prepared in conjunction with the amendment. However, it necessarily follows from the Board of County Commissioners' adoption of the amendment that it does not interpret Objective 105.1 and Policy 105-1.4 as prohibiting an increase in residential density in the CHHA. Although these provisions make no mention of offsets, the Department has not required offset provisions in a comprehensive plan before the Department will consider offsets in its determination whether a plan amendment that increases density in the CHHA is in compliance. The wording used in Objective 105.1 and Policy 105-1.4 requiring "consideration" of density reductions in the CHHA can be harmonized with the County planning director's testimony and with the County's adoption of the amendment by construing these plan provisions consistently with the Department's own practice of allowing increases in the CHHA when the increases are offset by overall reductions in dwelling units in the CHHA. Seeking to harmonize the amendment with the provisions of the County Plan is the proper approach because, as discussed later in the Conclusions of Law, whether an amendment is consistent with other provisions of the plan is subject to the "fairly debatable" standard which is a highly deferential standard that looks for "any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction." Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Shelter Space and Clearance Time Prior to the hearing in this case, Leeward moved to strike certain statute and rule citations in the Department's petition related to shelter space and clearance time4 because they were not included in the Department's ORC Report. The motion was denied because, although Section 163.3184(8)(b), Florida Statutes, limits the Department's petition to issues raised in the "written comments" in the ORC Report, the statute does not indicate that the Department is barred from citing in its petition, for the first time, a rule or statute that is directly related to the written comments. The CHHA is defined in the County Plan as the category one "evacuation zone." It is the area most in need of evacuation in the event of a severe coastal storm. Shelter space and clearance time are integral to evacuation planning and directly related to the Department's comment in the ORC Report that the amendment would, "expose a substantial population to the dangers of a hurricane." Therefore, the Department was not barred from presenting evidence on shelter space and clearance time in support of this comment. The Department's practice when reviewing an amendment that increases residential density in the CHHA, described in its 2006 report to the Governor's Coastal High Hazard Area Study Committee, is to consider not only dwelling unit offsets in the CHHA, but also the effect on shelter space and clearance time. That report did not elaborate on how shelter space and clearance time are considered by the Department, but evidence that a comprehensive plan amendment would have a significant adverse effect on shelter space or clearance time could presumably negate what would otherwise appear to the Department to be an acceptable offset of residential density in the CHHA. On this record, however, the Department did not show that a significant adverse impact on shelter space or clearance time would be caused by this particular amendment.5 Special Planning Areas Leeward argues that, even if the amendment were determined to be inconsistent with Objective 105.1 and Policy 105-1.4, that inconsistency should be balanced against other provisions in the County Plan that are furthered by the amendment, principally the provisions related to the Caloosahatchee Shores Community Planning Area and the Water- Dependent Use Overlay Zone. There is no authority for such a balancing approach that can overcome an inconsistency with an objective or policy of the comprehensive plan. Therefore, whether the amendment furthers the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area, Water-Dependent Use Overlay Zone, or other subjects is irrelevant to whether the amendment is consistent with Objective 105.1 and Policy 105-1.4. On the other hand, the Department's contention that the amendment is inconsistent with the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area is contrary to the more credible evidence. 100-Year Floodplain The amendment site is entirely within the 100-year floodplain. In its Statement of Intent, the Department determined that the amendment was not in compliance, in part, because the amendment site's location in the 100-year floodplain made it unsuitable for residential development. In addition, the Department determined that the amendment caused an internal inconsistency with the following policies of the County Plan related to development in the floodplain: POLICY 61.3.2: Floodplains must be managed to minimize the potential loss of life and damage to property by flooding. POLICY 61.3.6: Developments must have and maintain an adequate surface water management system, provision for acceptable programs for operation and maintenance, and post-development runoff conditions which reflect the natural surface water flow in terms of rate, direction, quality, hydroperiod, and drainage basin. Detailed regulations will continue to be integrated with other county development regulations. According to Mike McDaniel, a growth management administrator with the Department, "we try to discourage increasing densities in floodplains and encourage that it be located in more suitable areas." The policies set forth above are intended to aid in the achievement of Goal 61 of the Community Facilities and Service Element "to protect water resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters.” Plainly, Goal 61 is directed to regulating construction and surface water management systems. There is no mention in this goal or in the policies that implement the goal of prohibiting all development or certain kinds of development in the 100-year floodplain. The Department's argument in this case regarding development in the 100-year floodplain is rejected because it ignores relevant facts and law. First, substantial portions of Lee County and the State are within the 100-year floodplain. Second, there is no state statute or rule that prohibits development in the 100-year floodplain. Third, the Department of Environmental Protection, water management districts, and local governments regulate development in the floodplain by application of construction standards, water management criteria, and similar regulatory controls to protect floodplain functions as well as human life and property. Fourth, there has been and continues to be development in the 100-year floodplain in Lee County and throughout the State, clearly indicating that such development is able to comply with all federal, state, and local requirements imposed by the permitting agencies for the specific purpose of protecting the floodplain and the public. Fifth, the Department "discourages" development in the floodplain but has not established by rule a standard, based on density or other measure, which reasonably identifies for local governments or the general public what development in the floodplain is acceptable to the Department and what development is unacceptable. Finally, the Department's practice in allowing offsets in the CHHA, as discussed previously, necessarily allows for development in the 100-year floodplain in that particular context.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Land and Water Adjudicatory Commission determining that the amendment adopted by Lee County in Ordinance No. 05-10 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 25th day of August, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2006.
The Issue The issue is whether the City of Jacksonville's (City's) amendment to the Future Land Use Map (FLUM), also known as Ordinance No. 2007-355-E, and a related text amendment to Conservation/Coastal Management Element Policy 7.3.1 adopted by Ordinance No. 2008-315-E are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City (which also comprises Duval County) is a local government in northeast Florida whose eastern boundary adjoins the Atlantic Ocean. The City is partially bisected by the St. Johns River (River), which begins several hundred miles to the south, flows north through the lower half of the City, and then turns east, eventually emptying into the Atlantic Ocean. The Intracoastal Waterway is connected to the River and runs parallel to the coast. The City adopted the plan amendments which are being challenged by the Department and Intervenors. Intervenor Valerie Britt and the six resident intervenors own property and/or reside within the City. They each presented oral or written comments to the City regarding both amendments before transmittal but before their adoption. As such, they are affected persons and have standing to participate in this matter. Moody (formerly known as the Moody Land Company, Inc.) owns property and operates a business within the City. Moody submitted oral or written comments in support of both amendments to the City after transmittal but before adoption of the amendments. As such, it has standing as an affected person to participate. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, including the City. Coastal High-Hazard Area Because the CHHA is relevant to both the FLUM amendment and the text amendment challenges, a brief overview of its history and development is appropriate. For local governments abutting the Atlantic Ocean or Gulf of Mexico, or that include or are contiguous to waters of the state, Section 163.3178, Florida Statutes, enumerates certain requirements that must be included within the coastal management element of their comprehensive plans. See § 163.3178(2)(a)-(k), Fla. Stat. The purpose of this directive is that comprehensive plans should "protect human life and limit public expenditures in areas that are subject to destruction by natural disaster." § 163.3178(1), Fla. Stat. Because it lies adjacent to the Atlantic Ocean, the City is subject to these requirements. One of the requirements is the designation of a CHHA in the element. § 163.3178(2)(h), Fla. Stat. "[F]or uniformity and planning purposes," prior to 2006, the CHHA was simply defined as "category 1 evacuation zones." § 163.3178(2)(h), Fla. Stat. (2005). Presumably to eliminate inconsistencies in the application of this broad definition, in 2006 the Legislature redefined the term as ”the area below the elevation of the category 1 storm surge line as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) model." § 163.3178(2)(h), Fla. Stat. (2006). The new law required that no later than July 1, 2008, local governments situated on or near Florida's coastline amend their "future land use map and coastal management element to include the new definition of [CHHA] and to depict the [CHHA] on the [FLUM]." § 163.3178(9)(c), Fla. Stat. Because Policy 7.3.1 of the Conservation/Coastal Management Element of the City's current Plan still utilizes the old definition of CHHA, Ordinance No. 2008-315-E was adopted for the purpose of complying with this requirement. The SLOSH model is a computerized model developed by the National Oceanic and Atmospheric Administration's National Weather Service to calculate hurricane storm surge heights. Storm surge is the abnormal rise of water caused by wind and the pressure forces of hurricanes. Based upon various inputs, such as the direction and speed of a hurricane, initial water elevation, topography, and bathymetry, the model produces a display with storm tide elevations per grid cell. The use of a grid cell enables the model to predict storm surge in a smaller land area. The outputs of the model are storm surge elevations averaged over grid cells, which are accurate to within twenty percent based upon post-storm observations from tide gauges behind coastal barrier islands. In July 1998, the Northeast Florida Regional Planning Council, now known as the Northeast Florida Regional Council, published a four-volume Storm Surge Atlas (Atlas) as a public safety planning tool to assist with hurricane evacuation planning within northeast Florida. (Each regional planning council in the State is tasked with this responsibility.) Volume 2 applies to Duval County. The Atlas reflects SLOSH model storm surge data on a map with land elevations and water features, thus providing emergency planners information they can use to evacuate coastal areas at appropriate times. Areas depicted in the Atlas below the elevation of the category 1 storm surge line are subject to evacuation and are considered to be in the CHHA. In preparing the Atlas, the Council used not only SLOSH model data, but other "suggested changes" (not otherwise disclosed) by emergency manager directors. Because of the time and effort involved in preparing the original Atlas, it has not been revised since its original publication in 1998. The topographical data input for the SLOSH model and the base map for Volume 2 of the Atlas was the 7.5-Minute Series Jacksonville Beach Quadrangle Map produced by the United States Geological Survey. These maps are used to establish the ground elevations for the grids but are limited in their ability to do fine resolution, that is, provide detailed information regarding the elevation for small areas of land within the grid. Although the Atlas indicates that it used the most current quadrangle map available, which was the 1994 version, the Council actually used the 1981 version. Except for some minor items, however, the record does not disclose any material differences between the two maps. Therefore, the use of the older version does not affect the validity of the information in the Atlas. The Atlas further indicates that the base contours taken from the Quadrangle Map were five-foot contours. However, both the 1981 and the 1994 versions of the Quadrangle Map only show a ten-foot contour line just to the south and southwest of the Moody property, and no five-foot contour lines. See Moody Exhibit BRJ-3. Thus, the map was "just saying that this property [the Moody property] is 10 feet or less." Time/History points are specific points within SLOSH grid cells that are selected by the Council for the purpose of giving detailed information at the point selected. Many of the points are on or near critical roadways. The Moody property is directly underneath Time/History Point 73. In terms of size, the Moody property is a very small percentage of the total grid cell in which that point is located. According to the Atlas, Point 73 is where Atlantic Boulevard crosses the Intracoastal Waterway. The Department, City, and Moody agree, and the Atlas indicates, that the maximum category 1 storm surge elevation at that point is five feet. Therefore, any land that is in the vicinity of Time/History Point 73 and is less than or equal to five feet in elevation will be inundated by the maximum category 1 hurricane storm surge. According to the legend on the Atlas, areas depicted in dark blue can anticipate inundation in a category 1 storm. The geographic area within Time/History Point 73 is shown on Plate 6 of Volume 2 of the Atlas and depicts the entire Moody property, as well the land in the vicinity of that point, in dark blue, thus implying that all or most of Moody's property is within the storm surge for a category 1 storm. However, it is noted that a significant portion of the Moody property is obscured by the Point 73 label on the Atlas' Plate 6. Even so, given the broad brush scope of that document and the solid dark blue color extending along the Intracoastal Waterway in that area, it is fair to infer that the land area under the label is also dark blue and subject to category 1 evacuation requirements. For land use planning throughout the State, the Department uses the CHHA that is established in the Atlas published by the local regional planning council. (In both the existing and amended versions of Policy 7.3.1, the City also uses the Atlas for purposes of delineating the CHHA.) Therefore, if the Atlas depicts a geographic area as being in the CHHA, the Department relies upon that information when it reviews plan amendments proposing to increase density within that area. In doing so, the Department acknowledges that the Atlas necessarily reflects the areas subject to storm surge on a "broad-brush regional approach," but points out that it would be impractical to attempt to carve out extremely small areas along the coast or waterways, parcel by parcel or acre by acre, which might have elevations above the storm surge line and not be subject to the development requirements within a CHHA. It also points out that if exceptions to the storm surge line in the Atlas are allowed, the CHHA requirements could be circumvented by a landowner simply placing fill on the property to raise the elevation. Finally, the SLOSH model is based on average elevations for an entire grid cell, and the model cannot produce a map with land elevations for specific parcels. The Department suggests, however, that generalized data is the best data available for conducting an analysis of storm surge. Because of the "broad-brush" and "averaging" constraints inherent in the Atlas and SLOSH, and the fact that the Atlas' delineation of the CHHA is used primarily for evacuation planning purposes rather than land use planning, the City and Moody contend that site-specific data is more desirable when determining land use entitlements. They suggest that professionally prepared surveys are far more accurate and precise in determining the elevation on a parcel than the Quadrangle Map, which in this case only depicted ten-foot contours. In this vein, the amended version of Policy 7.3.1 (which is the subject of Case No. 08-4193GM) allows a property owner to submit site-specific data (such as a survey) to demonstrate that the property, or part of it, is not below the category 1 storm surge elevation and is not within the CHHA. An increase of density (or development) within a CHHA is not barred by the statute. In fact, Section 163.3178(9)(a), Florida Statutes, provides that plan amendments proposing an increase in density within a CHHA may be found in compliance if the adopted level of service (LOS) for out-of-county hurricane evacuation is maintained for a category 5 storm event; or (b) a 12-hour evacuation time to shelter is maintained for a category 5 storm event and shelter reasonably expected to accommodate the residents of the contemplated development is available; or (c) appropriate mitigation is provided that will satisfy the provisions of items (a) and (b), including payment of money, contribution of land, and construction of hurricane shelters and transportation facilities. Therefore, even if the Moody parcel is found to be within a CHHA, it may still increase density within that parcel so long as the above criteria are met. By way of example, payments into a shelter mitigation fund would be one way to mitigate the effects of increasing residential density within the CHHA. FLUM Amendment The property In early 1995, Moody acquired the 77.22-acre tract of property which is the subject of the FLUM amendment, although it has been used as an industrial shipyard since 1951. The property lies on the north side of Atlantic Boulevard, a principal arterial roadway which generally extends from the coast (beginning just north of Neptune Beach) westward to the "downtown" area. The eastern boundary of the property adjoins the Intracoastal Waterway. Approximately 37 acres of the property, or a little less than one-half of the total acreage, consists of environmentally sensitive saltwater marshes. These are located on the west, north, and northeast sides of the property. Near the southwest corner of the property there is also a small wetland scrub vegetative community. The commercial activities on the current site consist of approximately 116,500 square feet of heavy industrial uses involved in the construction and repair of large ships. They are located on that part of the southern half of the property which sits closest to Atlantic Boulevard and the Intracoastal Waterway. The site also includes a small harbor for docking of ships. The area immediately surrounding the existing boat basin in the south-central part of the property has been environmentally disturbed as part of the ongoing shipyard operations. The development surrounding the Moody site is a mix of residential, commercial, and industrial uses. Single-family residences are the dominant use, occupying seventy-four percent of parcels within a one-half mile radius of the property. Britt and the resident intervenors all reside or own property in a residential development known as Pablo Point, which begins a hundred feet or so to the west of the Moody property, separated only by a marshland. Directly south of the Moody property, and on the south side of Atlantic Boulevard, is a new development known as HarborTown, which in 2002 was the subject of two land use changes, one from Agriculture IV to Conservation and one from Water-Dependent and Water Related (WD-WR) to Community/General Commercial (C/GC). A companion Planned Unit Development (PUD) provides for a mixed residential development with a maximum of 690 dwelling units, 28,000 square feet of office and commercial space, 150 wet slips, and conservation of approximately 29 acres of marshlands. According to the Atlas, it appears that at least part, if not all, of that development may be within the CHHA. The property is accessed by a service road at the Intracoastal Waterway, off Atlantic Boulevard. The eastbound exit ramp, which would be used by emergency rescue teams to access the site, exits to the right and goes under Atlantic Boulevard adjacent to the Intracoastal Waterway in order to reach the Moody site. Egress from the site westbound is by way of a service road on the north side of Atlantic Boulevard. The Moody property is in two flood zones: X5 and AE. Flood zone X5 generally corresponds with the upland areas at the center of the property that have been historically disturbed by shipyard operations and are not likely to flood. Floodzone AE generally corresponds with the environmentally sensitive wetland areas of the property and will likely flood in a 100-year storm. The Application and Review Process Sometime in 2006, Moody filed an application with the City to change the land use designation on its property from WD- WR and Agriculture IV to C/GC. The WD-WR classification allows for water dependent industrial uses such as shipyards, industrial docks, and port facilities. The Agriculture IV land use allows various agriculture uses and single-family residential development at the maximum density of 2.5 units per acre. The C/GC designation permits a wide range of uses, including multi-family residential and boat storage and sales, and is the same land use classification as the HarborTown project across Atlantic Boulevard and to the south. In contrast to the Agriculture IV land use, however, the C/GC land use allows residential development up to twenty units per gross acre. Thus, the map amendment will result in a potential net increase in development by 1,146 dwelling units and 200,245 square feet of nonresidential land use. After reviewing the application, the City approved the map change in December 2006 as a part of its semi-annual land use changes to its Plan. The amendment was then transmitted to the Department for its review. On March 5, 2007, the Department issued its Objections, Recommendations and Comments (ORC) Report, which noted six objections and one comment. Despite the objections contained in the ORC, on May 14, 2008, the City approved the map change by enacting Ordinance No. 2007-355-E. In conjunction with the land use change, the City also approved a PUD for the property (Ordinance No. 2007-356-E enacted the same date), which authorizes a maximum residential development of four residential buildings and 590 dwelling units on the property. This density would be achieved by the construction of four twelve-story buildings, each standing around 144 feet high. In addition, Moody intends to develop marina-related specialty retail (including a club, retail, and restaurant activities) not exceeding 6,500 square feet; a marina consisting of 650 slips, a minimum of which will be available to the public on a first come, first served basis; and a public boat ramp. However, the PUD conditions the residential approval through the restriction that no residential development shall be permitted on any portion of the property in the CHHA unless residential units are made available as a result of a program of mitigation for development in the CHHA, approved by the City and the Department under Section 163.3178(9)(a), Florida Statutes. This meant that the mitigation plan would take those impacts created by residential density in vulnerable areas and negate those impacts by minimizing the time it would take to evacuate and by providing adequate sheltering for those individuals if there was not adequate sheltering already available. On July 9, 2008, the Department issued its Statement of Intent to Find Comprehensive Plan Amendments Not in Compliance (Statement of Intent). (This action was directed not only to Ordinance No. 2007-355-E, but also to the other sixteen FLUM amendments, as well as certain other amendments not relevant here.) On August 1, 2008, the Department filed its Petition alleging that Ordinance No. 2007-355-E is not in compliance. The Department and Intervenors' Objections Moody (with the City's concurrence) has acknowledged on the record that the FLUM amendment is not in compliance. Although the Department has stated a number of reasons why the amendment is not in compliance, unfortunately, there is no record stipulation by the parties as to which specific deficiencies in the Statement of Intent, if any, the City and Moody still dispute. Further, in their Joint Proposed Recommended Order, the City and Moody contend that the Department and supporting Intervenors failed to sustain their objections in several respects. Because of this, a discussion of the Department and Intervenors' objections is appropriate. This Recommended Order will focus only on the objections to the amendment as adopted by the City, and not whether proposed mitigation measures will bring the amendment into compliance. The Department asserts that the FLUM amendment is not in compliance for four reasons. First, it alleges that the City has failed to direct population concentrations away from a known or predicted CHHA, maintain or reduce hurricane evacuation times, or present sufficient mitigation to offset these impacts. Fla. Admin. Code R. 9J-5.012(3)(b)6. and 7.; § 163.3178(9)(a), Fla. Stat. Second, it alleges that the amendment does not comply with the wetlands protection and conservation requirements of Florida Administrative Code Rule 9J-5.013(3), and it is internally inconsistent with Conservation/Coastal Management Element Goal 4 and Objective 4.1 of the Plan. Third, the Department alleges that the amendment will cause LOS standards on two segments of Atlantic Boulevard to fail, that the traffic analysis performed by Moody was flawed, and that the amendment did not include a financially feasible transportation improvement plan to mitigate traffic impacts. Fla. Admin. Code 9J-5.019(3)(a), (c), and (h). Finally, it contends that because of these deficiencies, the amendment is inconsistent with certain goals and policies of the State Comprehensive Plan (State Plan) and Northeast Florida Strategic Regional Policy Plan (Regional Plan). In resolving these contentions, it is noted that the Department's Petition adopts the allegations in the Statement of Intent, which alleges that the amendment is inconsistent with numerous provisions within Chapter 163, Florida Statutes, Florida Administrative Code Rule Chapter 9J-5, and the City, State, and Regional Plans. However, in its Proposed Recommended Order, the Department relies on only some, but not all, of these grounds for urging that the amendment be found not in compliance.3 The undersigned assumes that the Department has simply conformed its allegations to the proof adduced at hearing. (In any event, because the parties agree the amendment is not in compliance, this assumption does not affect the outcome of the case.) Britt and the resident intervenors are aligned with the Department and also contend that the amendment is inconsistent with Future Land Use Element Objective 1.1 and Policies 1.1.7, 1.1.10, and 1.1.14; Conservation/Coastal Management Element Goals 2, 3, 4, and 7, Objectives 4.1 and 7.4, and Policies 2.8.3, 7.1.6, 7.1.9, 7.3.12, 7.4.8, 7.4.12, and 11.1.1; and Transportation Element Objectives 1.1 and 1.2 and Policy 1.1.4. They further assert that archeological resources will be impacted. Development Within the CHHA The Department has alleged that the FLUM amendment constitutes a failure by the City to direct population concentrations away from a known or predicted CHHA, maintain or reduce hurricane evacuation times, or present sufficient mitigation to offset these impacts. These requirements are applicable when an increase in density is proposed for property within a CHHA. See Fla. Admin. Code R. 9J-5.012(3)(b)6. and 7.; § 163.3178(9)(a), Fla. Stat. As noted above, the parties sharply disagree on whether, for land use entitlement purposes, the entire site is within a CHHA. Although existing and amended Policy 7.3.1 rely upon the Atlas for delineating the areas of the City within the CHHA, the proposed amendment to Policy 7.3.1 also allows property owners to provide site-specific data indicating that the property is above the category 1 storm surge elevation and therefore is not subject to the development constraints associated with the CHHA. A professionally prepared survey confirms that about 23.88 acres of the Moody property, mostly located at the south- center of the site where existing commercial activities take place, are above five feet in elevation. (The elevation on the entire parcel ranges from two or three feet along the marsh of the lower lands to nearly twelve feet in the southwest corner of the property, or an average elevation of about seven feet.) Therefore, only the approximately 53.34 acres of the property below five feet in elevation can be expected to be inundated by the maximum category 1 storm surge; the other 23.88 acres will not be affected. The areas on the property which are above the five- foot contour line are connected to Atlantic Boulevard by a service road with an elevation of eleven or twelve feet down to eight feet at its lowest point. Thus, this part of the property is unlikely to ever become completely surrounded by water or inaccessible by emergency personnel or others by car in a category 1 storm event. Even those areas that are below five feet and subject to the storm surge will only reach and maintain an elevation of five feet of water for five or ten minutes before the water begins receding. The evidence shows that slightly less than twenty-four acres of the property are above the category 1 storm surge elevation of five feet, as established by the SLOSH. The evidence further shows that the Atlas is not the most accurate or precise in terms of land elevations because it only depicts ten-foot contours taken from the Quadrangle Map. Thus, it does not identify the elevation on any property less than ten feet. Because of this, on a site-specific scale, based on the Atlas, it cannot be said with certainty that a site or portions of a site are inside or outside of the CHHA. The more persuasive evidence supports a finding that, for land use entitlement purposes within the City, a professionally prepared survey constitutes the best available data regarding land elevations. Therefore, as long as Moody restricts its development to the twenty-four acres that have an elevation of five feet or higher, the mitigation requirements cited by the Department for development within a CHHA do not apply. Environmental Issues The Department asserts that the amendment fails to comply with the wetlands protection and conservation requirements of Florida Administrative Code Rule 9J-5.013(3)(a) and (b) and is internally inconsistent with Goal 4 and Objective 4.1 of the Conservation/Coastal Management Element of the Plan. The Department also cites to Section 163.3177(6)(d), Florida Statutes,4 which requires that the Plan protect wetlands and other natural resources. These requirements are relevant here since the site to be developed is bordered on the north and west by wetland areas and other environmentally sensitive lands that are characterized as primarily saltwater marshes. Florida Administrative Code Rule 9J-5.013(3)(a) and addresses policies regarding the protection and conservation of wetlands. It reads as follows: Wetlands and the natural functions of wetlands shall be protected and conserved. The adequate and appropriate protection and conservation of wetlands shall be accomplished through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands, and which is based on supporting data and analysis. Future land uses which are incompatible with the protection and conservation of wetlands and wetland functions shall be directed away from the wetlands. The type, intensity or density, extent, distribution and location of allowable land uses and the types, values, functions, sizes, conditions and location of wetlands are land use factors which shall be considered when directing incompatible land uses away from wetlands. Land uses shall be distributed in a manner that minimizes the effect and impact on wetlands. The protection and conservation of wetlands by the direction of incompatible land uses away from wetlands shall occur in combination with other goals, objectives and policies in the comprehensive plan. Where incompatible land uses are allowed to occur, mitigation shall be considered as one means to compensate for loss of wetlands functions. Goal 4 of the Conservation/Coastal Management Element provides that a City goal shall be "[t]o achieve no further net loss of the natural functions of the City's remaining wetlands, improve the quality of the City's wetlands resources over the long-term and improve the water quality and fish and wildlife values of wetlands." Objective 4.1 of the same Element implements Goal 4 and reads as follows: The City shall protect and conserve the natural functions of its existing wetlands, including estuarine marshes. In order to achieve this objective and its associated policies, the City shall continue to work with the applicable regional, state and federal agencies charged with these regulatory responsibilities. As the FLUM amendment now reads, development is limited only by the PUD. Although the PUD contains specific criteria that can be used to prevent adverse impacts to the wetland system, unless appropriate restrictions are incorporated into the Plan itself, the PUD can be amended at any time in the future to allow the property to be developed to its maximum potential. Because the data and analysis for impacts to wetlands are based on the PUD, and not the maximum development potential, the amendment is not supported by adequate data and analysis to ensure that there will be no net loss in existing wetlands, or that existing wetlands will be preserved and protected, as required by Goal 4 and Objective 4.1. Further, the amendment is not supported by adequate data and analysis to show that the City is protecting and preserving natural resources by directing incompatible uses away from the wetlands, as required by Florida Administrative Code Rule 9J-5.013(a) and (b). Therefore, the amendment is internally inconsistent with a goal and objective and is inconsistent with a Department rule. It is also inconsistent with Florida Administrative Code Rule 9J-5.005(5), which requires that there be internal consistency within a Plan. Finally, the amendment is inconsistent with Section 163.3177(6)(d), Florida Statutes, which requires that the Plan protect all natural resources, including wetlands. Transportation Impacts The Department contends that the amendment will cause the LOS on two roadway links to fail, that the traffic analysis submitted inappropriately assumed densities and intensities that were less than allowed by the amendment, and that the amendment did not include a financially feasible transportation improvement plan to mitigate traffic. Fla. Admin. Code R. 9J- 5.019(3)(a), (c), and (h). To address potential traffic impacts from the project, Moody's engineering consultant prepared a transportation analysis and hurricane evacuation study dated April 2007. This analysis was based on the amount of development approved under the PUD rezoning, and not the maximum development allowed under the Plan. The study showed that the amendment will cause the adopted LOS standards for two links on Atlantic Boulevard to fail. Those links include the segment from the Intracoastal Waterway to San Pablo Road and the segment from San Pablo Road to Girvin Road. The study does not show how the City will maintain its LOS standards on those links, assuming that the maximum development is allowed. In this respect, the amendment is inconsistent with Florida Administrative Code Rule 9J- 5.019(3)(c) and (h). Also, the package did not include a financially feasible transportation improvement plan to mitigate the traffic impacts. Although one roadway improvement project is under construction and a second is included in the Capital Improvements Element, both of which should assist in alleviating the traffic impacts caused by the development, these mitigation measures assume that the project will be based upon the development restrictions contained in the PUD and not on the densities and intensities that are potentially allowed under the FLUM amendment. Therefore, in this respect, the amendment is inconsistent with Florida Administrative Code Rule 9J- 5.019(3)(c) and (h). After this proceeding began, the City engaged the services of Prosser Hallock Planners and Engineers to perform a Transportation Analysis Update (Update). The results of that study are dated September 2008. See Moody Exhibit AFK-4. Like the original study, the Update was "based on the site plan [described in the PUD] and not on the maximum densities allowed in the land uses requested." Therefore, because the current FLUM amendment does not restrict development to the maximum densities allowed under the land uses requested, the study fails to properly assess the traffic impacts of the changes, as required by Florida Administrative Code Rule 9J- 5.019(3)(c) and (h). To test transportation impacts from the project, both the original traffic analysis and the Update used a methodology taken from a September 2006 memorandum prepared by the DOT's District II office. See Moody Exhibit AFK-3. However, this methodology uses a "significant and adverse" test to determine road impacts for Development of Regional Impacts (DRIs) under Florida Administrative Code Rule Chapter 9J-2. In using the so- called DRI methodology, the City and Moody assumed that the Department had approved this methodology when it entered into settlement agreements with the applicants for the other sixteen FLUM amendments in Case No. 07-3539GM. However, this assumption was incorrect. While the DRI methodology is not specifically prohibited for use in a plan amendment review, a better methodology to assess traffic impacts for plan amendments is the LOS standard referred to in Florida Administrative Code Rule 9J- 5.019(3)(a) and (h). Therefore, the amendment is not consistent with this rule. Archaeological Resources The Division of Historical Resources of the Department of State has reviewed the amendment and expressed no concerns regarding potential impacts on historical or archaeological resources. The contention by Britt and the resident intervenors that such resources will be impacted has been rejected. Consistency with the State and Regional Plans The Department argues that when the State Plan is construed as a whole, the amendment is inconsistent with that Plan, in contravention of Section 187.101(3), Florida Statutes. It also contends that the amendment is inconsistent with certain policies within State Plan Goals (9)(a), (15)(a), (17)(a), and (19)(a),5 which are codified in Section 187.201, Florida Statutes. Those goals relate generally to natural systems and recreational lands, land use, public facilities, and transportation, respectively. Specifically, the Department contends the amendment is inconsistent with Policies (9)(b)1.,5., and 7., (15)(b)5. and 6., (17)(b)6., and (19)(b)15., which implement the Goals. The Department further contends that the FLUM amendment is inconsistent with Regional Goal 3.2 and Regional Policy 3.2.2. The Regional Goal requires that future development be directed away from areas most vulnerable to storm surge and flooding, while Regional Policy 3.2.2 provides that "[d]evelopment within hurricane evacuation areas should be responsible and permitted only when evacuation route capacity and shelter space capacity is available. Responsible development includes but is not limited to: structures elevated in storm surge and flooding areas, adequate drainage in flooding areas, and sufficient access for emergency response vehicles to all development." Because the FLUM amendment is now limited only by the PUD, and not by other development restrictions in the Plan, the amendment is inconsistent with the cited policies within the State Plan until appropriate remedial measures are adopted. For the same reason, the FLUM amendment is inconsistent with the Regional Goal and Policy. Other Objections Because the City and Moody concede that the amendment is not in compliance, it is unnecessary to address the remaining objections lodged by Britt and the resident intervenors. Ordinance No. 2008-315-E Prior to the adoption of Ordinance No. 2008-315-E, Policy 7.3.1 of the Conservation/Coastal Management Element read as follows: The City shall designate the Coastal High Hazard Areas (CHHA) as those areas designated as the evacuation zone for a category 1 hurricane as established by the 1998 Northeast Florida Hurricane Evacuation Study or the most current study. In order to comply with the mandate that before July 1, 2008, it amend the definition of a CHHA to be consistent with state law, the City originally proposed to amend its current policy by redefining the CHHA as follows: The Coastal High Hazard Area (CHHA) is the area below the elevation of the Category 1 storm surge line as defined by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model as established by the most current Northeast Florida Hurricane Evacuation Study. It is shown on Map C-18. In February 2008, the foregoing amendment, along with an amendment to another policy not relevant here, was transmitted to the Department for its preliminary review. On March 21, 2008, the Department issued an ORC in which it lodged only one technical objection to new Policy 7.3.1. -- that the amendment was inconsistent with Florida Administrative Code Rule 9J-5.005(2), which requires that when a local government adopts by reference a document that may be revised subsequent to plan adoption, the local government "will need to have [its] reference updated within the plan through the amendment process." For reasons not of record, this specific objection was not included in the Statement of Intent or in the parties' Joint Prehearing Stipulation. Even though the Department's Proposed Recommended Order now relies upon that objection, the issue has been waived. Heartland Environmental Council, Inc. v. Department of Community Affairs, et al., DOAH Case No. 94- 2095GM, 1996 Fla. ENV LEXIS 163 at *63 (DOAH Oct. 15, 1996; DCA Nov. 25, 1996)("[challenger] is bound by the allegations in its Petition for Hearing as to the alleged deficiencies in the Plan, as further limited by the Prehearing Stipulation filed in [the] case"). Notwithstanding the technical objection, an adoption hearing was scheduled on June 10, 2008, at which time the City proposed to amend Policy 7.3.1 by adopting the provision as submitted to the Department. During the meeting, but prior to a vote on the matter being taken, a Moody representative submitted for consideration revised language, which added the following sentence at the end of the Policy: "A property shall be deemed to be within the CHHA unless site specific, reliable data and analysis demonstrates otherwise." See City Exhibit 1. The City then adopted the proposed amendment, including the language suggested by Moody. On August 7, 2008, the Department issued a Statement of Intent to Find Comprehensive Plan Amendments Not in Compliance (Statement of Intent). A Notice was also published on August 8, 2008. The Statement of Intent indicated that the text amendment is not in compliance because it is inconsistent with the statutory definition found in Section 163.3178(2)(h), Florida Statutes, and it creates an internal inconsistency with Conservation/Coastal Element Map C-18 attached to the text amendment. That Map defines and depicts the CHHA as the Category 1 surge zone based on the SLOSH model in the Atlas. The Statement of Intent further asserts that the foregoing deficiencies render the amendment inconsistent with State Plan Goals (7)(a), (8)(a), (15)(a), and (25)(a) and Policies (7)(b)23., (15)(b)6., and (25)(b)7. and Regional Goal 3.2. All of these objections are based upon the City's inclusion at the end of the amendment the words "unless site specific, reliable data and analysis demonstrates otherwise." Intervenor Britt has adopted the objections lodged by the Department. The statutory definition of CHHA does not reference an Atlas or a Hurricane Evacuation Study, but instead only references the SLOSH storm surge elevation for a category 1 storm event. Florida Administrative Code Rule 9J-5.005(2)(c) requires that "[d]ata are to be taken from professionally accepted existing sources, such as . . . regional planning councils . . . or existing technical studies." No matter which the City uses, "[t]he data used shall be the best available data, unless the local government desires original data or special studies." Id. In this case, the City has chosen to utilize the Atlas as the best available data regarding delineation of the CHHA unless rebutted by better data and analysis in the form of "site specific, reliable data and analysis." So long as the SLOSH storm surge elevation for a category 1 storm event is used, the greater weight of evidence supports a finding that use of either the Atlas or a land survey identifying the category 1 storm surge contour line on a given property is consistent with the statutory definition. Therefore, the Department's contention that the text amendment conflicts with the statutory definition has not been accepted. The Department also contends that the text amendment creates an internal inconsistency with Map C-18 of the Plan. However, the evidence shows that Map C-18 is used for illustrative purposes only and is intended to be a depiction of the information contained in the Atlas. For the reasons cited in the previous Finding of Fact, the Department and Intervenors have failed to show beyond fair debate that the use of site specific data is inconsistent with other provisions in the Plan. The Department further contends that if the amendment is approved, the requirements of the CHHA can be circumvented by a property owner simply filling his property above the elevation of a category 1 storm surge line. Provided all applicable permitting requirements have been met, however, there is nothing of record to indicate that this would be inappropriate or unlawful. There is insufficient evidence to support a finding that the text amendment is inconsistent with the State or Regional plans. The evidence shows that the City's determination that Policy 7.3.1 is in compliance is fairly debatable. Proposed Remedial Measures for Ordinance 2007-355-E The City and Moody have proposed the following remedial measures to bring the FLUM amendment into compliance, which would be incorporated into a new text amendment or by using an asterisk on the FLUM: Limit residential development to 590 dwellings; Limit marina-related specialty retail (including club, retail, and restaurant activities) to 6,500 square feet; Make available to the general public a minimum of 100 wet and dry slips; Make available to the 590 dwelling units a maximum of 550 wet and dry slips; Comply with the current Florida Clean Marina Program as designated by state law; Confine all residential and non- residential uses (other than boat channels, basins, docks, slips, and ramps) to the mean high water line; Confine all residential uses to areas above the elevation of the Category One storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model, which on the Moody property is 5.0 feet (NGVD-29); Obtain, prior to final site plan approval, a final wetlands jurisdictional line from the appropriate regulatory agencies; and Provide a conservation easement (except for boat channels, basins, docks, slips, and ramps), which will provide the highest level of protection, to the appropriate state agency or agencies for all wetlands that it or they require to be preserved. The City and Moody have also agreed to "correct certain inaccurate traffic-roadway improvement descriptions contained in its Traffic Circulation and Mass Transit 5-Year Plan" by: Revising the Hodges Boulevard roadway project to describe the construction of a 4- lane urban section from Atlantic Boulevard to Beach Boulevard; and Revising the Atlantic Intracoastal West Area Intersection Improvements roadway project (Atlantic Boulevard at Girvin Road, Hodges Boulevard, and San Pablo Road) to describe additional through lanes (from 6 to 8 lanes) to Atlantic Boulevard between each of the three intersections. No findings are made as to whether the above-proposed remedial measures will bring the FLUM amendment into compliance. See endnote 2, infra.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the plan amendment adopted by Ordinance No. 2007-355-E is not in compliance. It is further recommended that the final order make a determination that the plan amendment adopted by Ordinance No. 2008-315-E is in compliance. DONE AND ENTERED this 12th day of January, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2009.
Findings Of Fact North Florida Regional Hospital, Inc. is a wholly owned subsidiary of Hospital Corporation of America, Inc. (HCA). By deeds dated June 9, 1972 and July 27, 1972 HCA conveyed the property on which the hospital is located to NFRH (Exhibit 7). The construction plans for this hospital, which commenced operations in 1972 as a 170 bed general hospital, contemplated future expansion of the hospital by the addition of floors 5, 6, and 7. To accommodate this future expansion adequate foundation, larger sewer capacity, larger water and steam pipes, more boiler capacity, and greater electrical capacity were installed than would have been required for the original 4 floors. Space was also provided for the additional mechanical equipment that would be required for the addition. These provisions increased the cost of construction by approximately $300,000. Following receipt of notification on October 14, 1977 that NFRH was grandfathered in with respect to the certificate of need, NFRH employed architects to prepare the necessary final construction plans. Billing to date for these plans exceeds $25,000. By letter dated January 19, 1972, HCA advised the North Florida Regional Planning Council that ultimate plans call for a 300 bed capacity at NFRH. (Exhibit 14). By letter dated May 16, 1973, Gresham and Smith, architects for NFRH, forwarded what was designated as preliminary drawings for a 3 floor addition to NFRH to HRS Bureau of Health Facilities and Services. By letter dated June 4, 1973 the Bureau of Health Facilities acknowledged receipt of these plans (Exhibit 1). By letter dated June 5, 1973 (Exhibit 13 p.3) the Bureau of Health Facilities requested HCA to provide the cost of the proposed facility, current bed count, and projected bed count at the completion of construction. The letter further reminded HCA of the requirements to submit construction documents for final approval and to send copies of all plans to the Alachua County Health Department. At the request of HRS Bureau of Community Medical Facilities Planning, the Bureau of Health Facilities on July 19, 1973 prepared and forwarded a list of those projects for which plans had been received prior to July 1, 1973 (Exhibit 2). NFRH was listed thereon as having filed preliminary plans. The significance of the July 1, 1973 date stems from Section 381.497 Florida Statutes which exempts from the provisions of Sections 381.493-381.495 those health care facility projects for which land has been acquired and preliminary construction plans filed with HRS prior to July 1, 1973. Section 381.494 Florida Statutes provides generally that a certificate of need is required for the addition of beds by new construction to a health care facility. NFRH is a health care facility as that term is defined in Section 381.493 Florida Statutes. The plans submitted by NFRH on May 16, 1973 were architectural plans which were copied from, or at least very similar to, the plans for the existing patient floors of NFRH. The regulations in effect in 1973 were contained in Rule 10D-28.32 Florida Administrative Code (Exhibit 4) which provided in part that preliminary sketch plans shall include architectural plans, mechanical plans, electrical plans, and outline specifications. Lack of mechanical and electrical plans technically kept the plans submitted on May 16, 1973 from qualifying as preliminary plans as defined in Rule 10D-28.32 Florida Administrative Code. However, most architects would consider the plans submitted for NFRH to comply with the statutory requirement as preliminary plans. (Exhibit 3(a), Rosenvold deposition p. 16). Rosenvold was the architect on the staff of the Bureau of Health Services and Facilities at the time the NFRH plans were received. In Rosenvold's deposition (Exhibit 3(a) p. 31-32) the following colloquy occurred: Q. Maybe you should define for us what kind of electrical you were looking for and what kind of mechanical you were looking for. A. Generally our requirement has been fairly schematic in terms of the electrical requiring only a powerizing diagram, and in mechanical a single line, as you say in duct routing and location of outlets and that sort of thing. Q. Let's go to these plans that HCA had on file. A. Yes. Q. Could you look at those plans for us and tell us whether the air conditioning system and the electrical system were designed to accommodate a larger hospital from the foundation? A. No sir, I could not, not without a great deal of study, and I'm not an electrical engineer, mechanical engineer, or structural engineer. Q. Do you have such people in here to evaluate that? A. We have an electrical engineer, and at that time that's all we had. Q. Did you not have a mechanical engineer? A. No. Q. If these plans showed the sizing and the routing and everything prepatory to an addition, three more floors, would that have been sufficient mechanical in formation for you? A. Yes, if it had shown that. Q. Would that have then accommodated all the information you needed for the preliminary filing? A. Yes, probably. Immediately prior to July 1, 1973 numerous health care facilities submitted plans for expansions and/or construction to meet this deadline. Those whose plans appeared sufficient were placed on the list prepared and forwarded to the Bureau of Community Medical Facilities Planning (Exhibit 2). The Bureau of Community Medical Facilities Planning is the agency in HRS charged with determining those health care providers coming within the exemption provided by Section 381.497 Florida Statutes from the certificates of need requirement. The list (Exhibit 2) provided to the Bureau of Community of Medical Facilities Planning was used to determine which health care providers were "grandfathered" and exempt from having to obtain a certificate of need. Several other health care providers listed on Exhibit 2 had submitted only architectural drawings as had NFRH and subsequently made additions to their facility without having to obtain a certificate of need. At least one of those health care providers submitting preliminary plans was advised by the Bureau of Health Facilities that the plans submitted were incomplete and did not comply with the requirements of preliminary plans as defined in Rule 10D-28.32 Florida Administrative Code. There was no evidence that NFRH was advised prior to 1978 that the plans submitted on May 16, 1973 did not qualify as preliminary plans. The only health care provider, listed on Exhibit 2 and treated as exempt from the certificate of need requirement whose exemption has ever been questioned, is NFRH. By letter dated June 30, 1975 NFRH made application for a certificate of need to add the 5th, 6th, and 7th floors to NFRH but configuring only two of these floors for patients. By letter dated September 30, 1975 the Bureau of Community Medical Facilities Planning denied the request for certificate of need. Testimony presented at the instant hearing was that this application was intended as an application for Section 1122, P.L. 92-603 review to cover federal payments for Medicare and not for a certificate of need. By application dated August 8, 1975 NFRH requested from the Division of State Planning a binding letter of interpretation for a proposed 100 bed addition to the hospital. By letter dated October 8, 1975 the Division of State Planning found the proposed expansion to be a development of regional impact without stating the facts or law upon which this determination was based. Apparently while preparing for a renewal of its application for a certificate of need and/or development of regional impact, counsel for NFRH became aware of the 1973 filing of plans and on September 23, 1977 submitted a request for written confirmation that NFRH was grandfathered under the Section of 381.497 Florida Statutes and did not need to apply for a certificate of need. (Exhibit 6). After clarifying correspondence respecting the present number of beds at NFRH, by letter dated October 14, 1977,the HRS Office of Community Medical Facilities advised NFRH that "the proposed three story addition providing for additional 150 beds is not subject to review under the Certificate of Need statute as the land upon which the facility is located was acquired prior to July 1, 1973 and the preliminary construction plans for this three story addition were filed with the Office of Licensure and Certification prior to July 1, 1973." (Exhibit 5). Subsequently NFRH requested the Division of State Planning for an opinion regarding whether an expansion of 96 beds to a hospital existing prior to July 1, 1973 is a development of regional impact. By letter dated November 16, 1977 NFRH was advised that Section 380.06(14) Florida Statutes exempted any new construction or expansion to an existing hospital with less than 100 beds from the DRI provisions of Section 380.06 Florida Statutes. Thereafter, by letter dated November 30, 1977, the HRS Office of Community Medical Facilities advised NFRH that the proposed expansion was grandfathered only if the construction complied strictly with the plans submitted May 16, 1973 for a 150 bed addition. (Exhibit 13 p. 38). By letter dated December 12, 1977, NFRH retracted from the previously expressed intent to provide ancillary services on one of the expansion floors and confirmed that the project would proceed in accordance with the original plans for a 150 bed addition. By this time Petitioner had commenced actively opposing any expansion at NFRH and had filed the initial petition to have the addition declared a development of regional impact. Shortly thereafter the second petition to HRS was filed. By letter dated January 10, 1978 the Office of Community Medical Facilities requested the Office of Licensure and Certification, in view of the recent considerable discussion relative to the type of plans filed by NFRH prior to July 1, 1973, "to render a determination relative to the type of plans you had in your possession as of that date." (Exhibit 13 p. 48). By letter dated January 25, 1979 Mr. Rosenvold, Medical Facilities architect supervisor, Office of Licensure and Certification, replied that since all the necessary components of a preliminary submittal had not been included the plans must be judged to be schematics in accordance with stage one submission requirements of 10D-28.32 Florida Administrative Code. This letter did, however, note that the patient room addition, as proposed, is for all intents and purposes a duplication of the floors below and the architects could have presumed that the construction documents previously approved would suffice for the additional requirement for a preliminary submittal. Although the Respondent, NFRH, objected to the admissibility of some of the documents referred to above on the grounds of relevancy to the consideration of the Motion to Dismiss they are factual and are included to complete the pictorial background and to place the issues in proper perspective.
The Issue Whether the specifications set forth in Respondent's Invitation To Bid for Lease No. 590:2029 are in accordance with law.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Department of Health and Rehabilitative Services (Department) determines space need annually pursuant to a letter of agency staffing, primarily generated as a result of legislatively allocated new positions. Based on the letter of agency staffing showing the need for additional office space in the Inverness, Florida service area of the Department's District Three, the Department caused an ITB to be advertised regarding Lease No. 590:2029 seeking some 19,373 square feet of office space, plus of minus 3%. The Petitioners presently lease office space to the Department in the Inverness, Florida, District Three service area. This office space is located within the preferred zone set forth in Attachment B to the ITB. In addition to the presently leased space, the Petitioner intends to offer additional space within the preferred area. The Department's Leasing Manual HRS M 70-1 (Manual) sets out the procedure to be followed when the Department is seeking to lease office space of 2,000 square feet or more in privately owned buildings. Within this manual are the forms to be utilized for this purpose and, among other forms, is an ITB packet that contains a Bid Submittal Form (BSF) and, within the BSF is a page entitled Evaluation Criteria. The Department followed the procedure set forth in the manual in advertising for competitive bids on Lease No. 590:2029 for office space in Inverness, Florida service area of District Three and, in doing so, used the ITB packet that contains the BSF with the Evaluation Criteria page. The BSF, including the Evaluation Criteria page, is a slightly modified version of the Department of General Services' (DGS) Request For Proposal Submittal Form - BPM 4136, incorporated by reference in Rule 13M-1.015(3)(e), Florida Administrative Code, as a suggested format. The Evaluation Criteria page of the Department's BSF contains nine of the eleven evaluation criteria set forth on the evaluation criteria page of the BPM 4136, but does not place any limit on the weight of award factors as does BPM 4136 on two of the same criteria used by the Department. The Evaluation Criteria set out in paragraph C. 2. and 4. of BPM 4136 which corresponds to paragraph 1(a) and 2(c) of the Department's Evaluation page, provide that award factors for these two criteria should not exceed ten, whereas the Department does not place a limit on the award factors for any of the criteria. The two Evaluation Criteria on BPM 4136 that do not appear on the Department's Evaluation Criteria page address the availability of dining facilities and proximity of offered space to other Department activities and public services. Both the BSF and BPM 4136 are used in bidding for space in existing facilities and, therefore, require a scaled floor plan showing present configuration, with measurements that equate to the net rentable square footage using the Standard Method of Space Measurement. The BSF does not attach a "floor plan for suggested configuration of offices and rooms" as does the BPM 4136 but does provide the number, types and sizes of rooms to be placed in the existing facility. Both forms leave the final configuration of the floor plan to the successful bidder and the lessee. The Department's reasoning for not including a "suggested floor plan" is that this may reduce the number of prospective bidders due to the varied configuration of existing facilities in the bid area. The majority of the clients to be served by the Department in Citrus County, Florida reside within the preferred zone shown as Attachment B. However, there may be other areas where a lesser concentration of clients may be served by "outposting". That is, servicing those clients on a regular scheduled basis at other smaller facilities within an area outside of the preferred zone. The Department no longer requires the facility to be under one roof but how co-location is accomplished is important to the efficient utilization of services and supervision of staff. Elderly and handicapped clients experience difficulty in utilizing needed services (when more than one service is needed) because of distance between buildings. Department clients frequently utilize the services of more than one program and such multi-service utilization is projected to increase in the future. Public transportation in Citrus County, Florida is partially funded by the Department to assist its clients and is uniformly available to the clients in the Inverness services area. The Department did not prepare any studies of functional space needs, staff space needs, client needs, client demographics or client transportation needs before or after the ITB was advertised. The Evaluation Criteria did not include a factor for future expansion even though the Department's caseload is projected to increase. In accordance with the procedure set forth in the Manual an Evaluation Committee (Committee) was appointed to determine, among other things, the award factor or weight to be placed on the nine Evaluation Criteria set forth on the Evaluation Criteria page of the BSF. The committee determined the significance of the nine criteria on the Evaluation page to the Department's needs in regard to Lease No. 590-2029 and awarded a weight factor in accordance with the significance of the criteria. Those criteria most significant to the Department's needs received the highest weight. These award factors were added to the Evaluation page of the BSF at the time the ITB was advertised. No additional Evaluation Criteria were used by the Committee. There was insufficient evidence to show that Committee's action in determining the weight to be given the nine criteria was arbitrary or capricious or unlawful even though different weights had been placed on some of the same criteria in the 1988 ITB. Likewise, there was insufficient evidence to show that any of the specifications set forth in the ITB did not promote fair competition or otherwise reflect normal policy or, that the criteria were designed to favor a specific location or prospective bidder within the preferred zone. The procedure and the forms set forth in the Manual and used by the Department, including the procedure followed by the Evaluation Committee in putting together the ITB for Lease No. 590:2029, comports substantially with all substantive provisions of Chapter 13M-1, Florida Administrative Code, and more specifically with Rule 13M-1.015, Florida Administrative Code. The differences, such as they are, are not substantial, nor is there any extrinsic or intrinsic divergence from the substance of the rule such as to mislead any potential bidder who sought to address the ITB.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED that a Final Order be entered by the Department dismissing Petitioners' Formal Notice of Written Protest. DONE and ENTERED this 2nd day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6017BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings Of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. - 3. Covered in the Preliminary Statement 4. 6. Adopted generally in Findings of Fact 4 - 11, otherwise not material or a restatement of testimony and stated as a finding of fact. 7. - 8. Not material or relevant. 9. - 22. Adopted generally in Findings of Fact 4 - 11, 15, 17 and 18, otherwise not material or a restatement of testimony and not state as a finding of fact. 23. - 24. Not material or relevant. 23. - 24.*Covered in the Conclusions of Law, otherwise not material or a restatement of testimony and stated as a finding of fact. 25. - 27. Adopted in Findings of Fact 2 and 16. 28. - 31. Not material. Adopted in Finding of Fact 16, otherwise a restatement of testimony and not stated as a finding of fact. - 37. Not material or a restatement of testimony and stated as a finding of fact. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 1. 2. - 3. Not material. 4. 6. Adopted in Findings of Fact 14, 15 and 13, respectively. 7. - 9. Not material. 10. - 12. Adopted in Findings of Fact 11, 12 and 13. 13. - 15. Rejected as not being supported by substantial competent evidence in the record. 16. Adopted in Finding of Fact 13. 17. Not material. 18. Adopted in Finding of Fact 11. 19. - 22. Not Material COPIES FURNISHED: Thomas V. Infantino, Esquire Post Office Drawer 30 Winter Park, FL 32609 Arthur R. Shell, Esquire 1000 Northeast 16th Avenue Gainesville, FL 32601 Sam Powers, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Case No. - 89-6017BID
