Findings Of Fact On September 23, 1983, Hollywood submitted a permit application to DNR for construction of the proposed project which is the subject matter of this proceeding. DNR designated that permit application as Permit Application 50-41. The proposed project is actually the first phase of a two-phase project, Phase II of which has already been permitted by DNR. Phase I, which is the subject of Permit Application 50-41, consists of an extension of existing Surf Road in the City of Hollywood, an extension of an existing asphalt boardwalk, construction of a parking area with landscaped island, swale, and associated lighting. The excavated fill removed from the site of Phase I is to be used in the construction of a dune which is encompassed within Phase II of the project. The properties on which Phase I and Phase II are to be constructed are owned by the City of Hollywood and are located seaward of the Coastal Construction Control Line and landward of the Erosion Control Line. The Summit Condominium is a condominium development located west of South Surf Road in the City of Hollywood, and is directly adjacent and contiguous to the property upon which the aforementioned project is to be constructed. Petitioner is the builder and developer of the Summit Condominium and, in addition, is the fee simple owner of approximately 15 units in that development. Phase I of the proposed project, which is the permit application at issue in this proceeding, provides for the construction of a 121-space public parking area which will be approximately 62 feet wide and 605 feet long, and will extend approximately 95 feet seaward of the Coastal Construction Control Line. The parking lot will be constructed with a six-inch limerock base over a six-inch crushed limerock subbase, and will be surfaced with a one and one-half- inch asphalt wearing course. The parking lot is designed with a definite landward slope, so that stormwater will sheet flow across the parking lot away from the dune system. There is no evidence of record in this proceeding which would in any way justify a conclusion that stormwater runoff from the parking lot area will have any adverse effect on the dune system seaward of the lot. Stormwater runoff once it has left the parking lot surface will be collected in a swale and drainage ditch system located landward of the paved parking lot surface. The drainage ditch will be composed of sandy material presently located on the site and is designed on a 1.2 to 1 slope. In addition, Wedelia is to be planted in and around the drainage ditch system in order to stabilize the slopes of the ditch. The ditch and swale system is designed to allow most stormwater runoff to percolate into the soil, with any excess being collected in the ditch itself and transmitted in a northerly direction. A drainage calculation study prepared in conjunction with this proceeding demonstrates that the drainage capacity for the proposed ditch meets minimum standards contained in the South Florida Building Code, as applied by the City of Hollywood. As the ditch fills with stormwater, the water will flow in a northerly, shore parallel direction to Jefferson Street, which is located north of both the proposed project and the Summit Condominium. From Jefferson Street, runoff from the project site will flow westerly to Highway A-1-A where an existing stormwater sewer system is located. If for some reason that system proves insufficient to handle runoff, the runoff will then travel across A-1-A into the intracoastal waterway. There is no competent evidence of record in this proceeding to demonstrate that stormwater runoff from the project site will, under any conditions, flow onto Petitioner's property. Phase I of the project has been designed to minimize the potential for the creation of aerodynamically or hydrodynamically propelled missiles in the event of a major storm. The asphalt surface of the parking lot is designed to break into chunks which will settle into the sand or water when exposed to wind and water forces. The parking meters are set four feet into the ground which reduces their potential to act as missiles, but even should the beach recede to the point where the meters are installed, evidence of record in this proceeding establishes that they will fall to the base of the eroded dune wall and will be washed out to sea rather than be propelled shoreward either by water or air. Various storm surge computer models for pre- and post-construction conditions at various locations on the property were performed. The result of these models shows that there will be no difference in impact on the beach dine system and adjacent property between the pre- and postconstruction profiles in the event of a ten-year storm. Further, computer models actually showed that there will be less erosion for the post-construction profile than for the preconstruction profile in the event of a twenty-year storm surge. In the event of a fifty-year or greater storm event, the beach profile for both pre- and postconstruction in the project area would be inundated, so that the impact of such a storm will be the same with or without the proposed construction. Evidence of record does, however, establish that based upon postconstruction conditions as proposed in the permit application it would take a greater storm to erode material from the postconstruction profile, thereby establishing that the proposed project will afford greater protection than existing topography. It appears from the record in this proceeding that Hollywood's Permit Application 50-41 is complete, and that DNR has in its possession all information necessary and required by law for the processing of the permit application. Engineering plans submitted in support of the application for Phase T have been signed and sealed by a professional engineer registered in the State of Florida.
Recommendation RECOMMENDED That a Final Order be entered by the State of Florida, Department of Natural Resources, granting the requested permit. DONE AND ENTERED this 25th day of October, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1983. COPIES FURNISHED: Steven L. Josias, Esquire Donald J. Dooty, Esquire 3040 East Commercial Boulevard Fort Lauderdale, Florida 33308 Deborah A. Getzoff, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Leonard Lubart, Esquire Post Office Box 2207 Hollywood, Florida 33022 Elton J Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue The issue is whether the Department of Environmental Protection should approve Petitioner’s application for a coastal construction control line permit.
Findings Of Fact Stipulated Facts2 Petitioner, Beach Group Investments, LLC (Beach Group), is a limited liability corporation under Florida law. Its address is 14001 63rd Way North, Clearwater, Florida 33760. On December 19, 2005, Coastal Technology Corporation (Coastal Tech) on behalf of Beach Group submitted to the Department an application for a CCCL permit pursuant to Chapter 161, Florida Statutes, to construct 17 luxury townhome units in two four-story buildings, a pool, a dune walk-over, and ancillary parking and driveway areas (hereafter “the Project”). The Department designated the application as File No. SL-224. The property on which the Project is proposed (hereafter “the Property”) is located between the Department's reference monuments R-34 and R-35, in St. Lucie County. The Property’s address is 222 South Ocean Drive, Fort Pierce, Florida. The Property is located seaward of the CCCL line established in accordance with Section 161.053, Florida Statutes, and Florida Administrative Code Rule Chapter 62B-33. On April 21, 2006, the application was determined to be complete. By letter dated June 5, 2006, the Department notified Beach Group that the Project appeared to be located seaward of the 30-year erosion projection of the seasonal high water line (SHWL), and that in accordance with Section 161.053(6), Florida Statutes, the staff could not recommend approval of the Project since major structures are seaward of the estimated erosion projection. By letter dated July 7, 2006, and subsequent submittals, Beach Group requested a waiver of the 90-day time period for processing completed applications pursuant to Chapter 120, Florida Statutes, until October 31, 2006. On August 30, 2006, Beach Group submitted a certified engineering analysis of the 30-year erosion projection of the SHWL for the Department's consideration pursuant to Florida Administrative Code Rule 62B-33.024(1). Beach Group's analysis determined that the proposed major structures associated with the Project were located landward, not seaward, of the 30-year erosion projection. The Department also performed its own 30-year erosion projection of the SHWL, and determined that the proposed major structures were located seaward, not landward, of the 30-year erosion projection. The Department asserts that the proposed structures are located between 87 feet and 68 feet seaward of the Department's determination of the 30-year erosion projection. The Department disagreed with Beach Group's analysis because the analysis appeared to be inconsistent with Section 161.053(6), Florida Statutes, Florida Administrative Code Rule 62B-33.024, and the Department's own analysis. The Property is located just south of the Fort Pierce Inlet, and landward of a federally maintained beach restoration project that had approximately 14 years of life remaining under the existing Congressional authorization when the permit was submitted to the Department. By proposed Final Order dated November 1, 2006, the Department provided to Beach Group notice of its intent to deny the permit application. The proposed Final Order was received by Beach Group on November 8, 2006. Beach Group's petition for hearing was timely filed with the Department. Since the Department proposes to deny Beach Group's CCCL permit application, its substantial interests are clearly at issue, and it has standing to maintain this proceeding. On December 11, 2006, the Department issued an environmental resource permit for the Project. The Department denied Beach Group’s permit application because the Project extends seaward of the 30-year erosion projection calculated by the Department and because the Project’s impacts to the beach-dune system had not been minimized. The permit was not denied on the basis of the existence, or absence, of a line of continuous construction in the vicinity of the Project. The 30-year Erosion Projection (1) Background Fort Pierce Inlet (hereafter “the inlet”) was constructed by the Army Corps of Engineers in the 1920’s. The channel of the inlet is protected by two jetties that extend several hundred feet into the Atlantic Ocean. The jetties act as a barrier to the littoral transfer of sand from the north to south that would otherwise occur along the beach in the vicinity of the Property. The jetties cause accretion on the beach to the north of the inlet and erosion of the beach to the south of the inlet. The inlet channel beyond the jetties also restricts the littoral transfer of sand in the area. The deepening and widening of the channel in 1995 likely contributed to the increased erosion observed south of the inlet in recent years. The beach to the south of the inlet, including that portion on the Property, is designated as a “critically eroded beach” by the Department. The inlet is the primary cause of the erosion. Congress first authorized beach nourishment south of the inlet in 1965. That authorization expired in 1986. Congress “reauthorized” beach nourishment south of the inlet in 1996. That authorization expires in 2021, but St. Lucie County has requested that the authorization be extended for “another 50 years.” The first “major” beach nourishment south of the inlet occurred in 1971. Subsequent “major” nourishments occurred in 1980, 1999, 2003, 2004, and 2005. Another “major” nourishment is planned for 2007. There was a “moderate” nourishment of the beach in 1995, which included the placement of geotextile groins on the beach just to the north of the Property. “Small” nourishments occurred in 1973, 1978, 1987, 1989, 1990, 1992, 1994, 1997, and 1998. Cumulatively, the nourishments that occurred between the “major” nourishments in 1980 and 1999 involved approximately 419,000 cubic yards of sand, which is more than the volume involved in several of the “major” nourishments. Beach nourishment south of the inlet has been an ongoing effort since it started in 1971. The more persuasive evidence establishes that the nourishment project that is authorized through 2021 is a continuation of the project started in 1971 rather than a separate and distinct project. Various erosion control efforts have been used south of the inlet in conjunction with the beach nourishment efforts. For example, geotextile groins (which are essentially massive sandbags) have been installed and removed on several occasions since the mid-1990’s in order to “temporarily stabilize the shoreline until such measures could be taken to design, permit and construct a long-term solution”; concrete rubble and other riprap has been placed on the beach over the years (without a permit from the Department) to protect upland structures from erosion; and a "spur jetty" was constructed on the south jetty in an effort to reduce erosion south of the inlet. These efforts have not slowed the pace of the erosion or minimized the need for beach nourishment south of the inlet. Indeed, the need for and frequency of “major” nourishments south of the inlet have increased in recent years. Beach erosion south of the inlet will continue to be a serious problem so long as the inlet exists and the jetties remain in place. There is no reason to expect that the inlet or the jetties will be removed in the foreseeable future and, as a result, beach nourishment south of the inlet will continue to be necessary. The Department has recognized the need for continuing nourishment of the beach south of the inlet, as reflected in both the Strategic Beach Management Plan for the St. Lucie Beaches and the Ft. Pierce Inlet Management Study Implementation Plan. Those plans acknowledge the long-term need for continued nourishment of the beach at a rate of at least “130,000 cubic yards on an average annual basis.” The plans do not, however, guarantee that future beach nourishment in the area will occur at that, or any, rate. (2) Rule Methodology Florida Administrative Code Rule 62B-33.024 contains the methodology for determining the 30-year erosion projection, which is the projected location of the SHWL 30 years after the date of the permit application under review. Where, as here, the beach at issue is subject to an ongoing beach nourishment project, the methodology requires consideration of “pre-project” conditions -- i.e., the conditions that existed before the beach nourishment efforts started -- because those conditions are used to project how the beach will migrate landward in the periods over the next 30 years when there may not be any beach nourishment activity. The coastal engineering experts presented by the parties -- Michael Walther for Beach Group and Emmett Foster for the Department -- used essentially the same methodology to determine the location of the 30-year erosion projection. However, the variables that they used in each step of the methodology differed. Step 1: Locate the Pre-Project MHWL The first step in determining the 30-year erosion projection is to locate the pre-project MHWL. If a pre-project erosion control line (ECL)3 has been established in the area, it is to be used as the starting-point for the determination of the 30-year erosion projection. Otherwise a pre-project survey of the MHWL is to be used as the starting-point. Mr. Walther used a 1997 ECL as the starting point for his analysis. Mr. Foster used a March 2002 survey of the MHWL as the starting point for his analysis because he did not consider the 1997 ECL to be an appropriate pre-project ECL. The March 2002 survey of the MHWL is not itself an appropriate starting point for the analysis. The survey is not a “pre-project” survey, no matter how the project is defined; the survey occurred more than 30 years after the nourishments started in 1971, and three years after the first “major” nourishment pursuant to the Congressional reauthorization of the project. Moreover, as discussed below, there is an appropriate pre-project ECL in the area. There are two lines that might be considered to be a pre-project ECL in this case -- (1) the ECL established in 1997, and (2) the South Beach High Tide Line (SBHTL) established in 1968. The 1997 ECL was established based upon a survey of the MHWL performed on May 5, 1997. The survey occurred two years after a “moderate” beach nourishment and the placement of the geotextile groins on the beach. There was also a “small” nourishment in 1997, but the record does not reflect whether that nourishment occurred before or after the survey. The SBHTL was established based upon a survey of the MHWL between 1966 and 1968, prior to the initial nourishment of the beach south of the inlet. It is approximately 65 feet landward of the 1997 ECL. The SBHTL is the functional equivalent of an ECL, and it roughly corresponds to the “best fit line” for the March 2002 survey used by Mr. Foster as the starting point for his determination of the 30-year erosion projection in this case. The Department contends that the 1997 ECL is not based upon a “pre-project” survey of the MHWL because the applicable beach restoration project south of the inlet began in the 1970’s and has been ongoing since that time. Beach Group contends that the applicable project is the current one that is authorized through 2021, and that the 1997 survey preceded the start of the nourishments authorized by that project. The Department has used the 1997 ECL as the starting- point for determining the 30-year erosion projection in several prior permits in the vicinity of the Project,4 and in an April 9, 1999, memorandum discussing the 30-year erosion projection in the vicinity of monuments R-35 and R-36, Mr. Foster stated that “the ECL represents the pre-project [MHWL].” Mr. Foster no longer considers the 1997 ECL to be the appropriate pre-project MHWL for purposes of determining the 30- year erosion projection south of the inlet. He testified that had he been aware of “the complete background” of the 1997 ECL and the extent of the nourishments in the 1980’s and 1990’s, he would have brought the issue to the Department’s attention so that the Department could consider whether the 1997 ECL or “an earlier prenourishment line” was the appropriate pre-project MHWL. Although it is a close question, the more persuasive evidence presented at the final hearing establishes that the 1997 ECL is not an appropriate pre-project MHWL because the applicable “project” includes the beach nourishment efforts started in 1971 that have continued through the present, even though those efforts were intermittent at times. Thus, the appropriate starting point for determining the location of the 30-year erosion projection is the SBHTL, not the 1997 ECL used by Mr. Walther or the March 2002 MHWL survey used by Mr. Foster. Step 2: Locate the Pre-Project SHWL The second step in determining the 30-year erosion projection is to determine the location of the pre-project SHWL. Mr. Walther located the pre-project SHWL 26.4 feet landward of the 1997 ECL. That is the surveyed distance between the MHWL and SHWL in June 2005. Mr. Foster located the pre-project SHWL at the most landward location that the SHWL was surveyed in March 2002. The line is between 50 and 75 feet5 landward of the “best fine” line used by Mr. Foster as the pre-project MHWL, and it is as much as 25 feet landward of the surveyed location of the SHWL in some areas. Mr. Foster used “an average [of] 50 feet” as the MHWL- to-SHWL distance in his analysis of several prior permits in the vicinity of the Project.6 Mr. Foster testified that the distance between the MHWL and SHWL in this area varies “from the 20s in the immediate post-nourishment situations . . . all the way up to 70-some feet” and that the “the averages gravitate towards 40 feet.” Consistent with that testimony, the distance between the surveyed locations of the MHWL and SHWL depicted on Department Exhibit 6 is approximately 40 feet, on average. The MHWL-to-SHWL distance calculated by Mr. Walther is not a reasonable projection of the pre-project distance because it was based upon survey data taken immediately after a “major” beach nourishment when the shoreline was unnaturally steep and, hence, not representative of “pre-project” conditions. The SHWL located by Mr. Foster is also not a reasonable projection of the pre-project SHWL because it was based upon a March 2002 survey (which is clearly not "pre- project"); because it used the most landward surveyed location of the SHWL rather than a “best fit” line or an average of the distances between the surveyed MHWL and SHWL; and because it runs across areas of well-established dune vegetation. In sum, the MHWL-to-SHWL distance calculated by Mr. Walther (26.4 feet) is too low, whereas the distance resulting from Mr. Foster's siting of the SHWL based on the March 2002 survey (50 to 75 feet) is too high. Those distances are essentially endpoints of the range observed in this area, as described by Mr. Foster. A more reasonable estimate of the pre-project MHWL-to- SHWL distance is approximately 40 feet. See Findings 51 and 52. Thus, the pre-project SHWL is located 40 feet landward of and parallel to the SBHTL. That line is not depicted on any of the exhibits, but on Petitioner’s Exhibit 37, it roughly corresponds to a straight line between the points where the red- dashed line intersects the Property’s north and south boundaries. Step 3: Calculate the Erosion Rate The third step in determining the 30-year erosion projection is to calculate an erosion rate. The erosion rate used by Mr. Foster was -7 feet per year (ft/yr). That rate was calculated based upon an average of the shoreline change data for monument R-35 for the period from 1949 to 1967. The rate would have been higher had Mr. Foster averaged the rates for the nearby monuments.7 The erosion rate used by Mr. Walther was -4.9 ft/yr. That rate was calculated based upon an average of the shoreline change data for monuments R-34 to R-39 over the period of 1930 to 1968. An erosion rate of -7 ft/yr south of the inlet was referenced in permit applications submitted by Mr. Walter’s firm, Coastal Tech, for several shore protection structures south of the inlet; was used by Mr. Foster in his review of several prior CCCL permit applications south of the inlet; and was included in reports on the inlet prepared by the Army Corps of Engineers over the years. An erosion rate of -3.3 ft/yr was used and accepted by the Department in its review of another permit application in the general vicinity of the project.8 That erosion rate was based upon data from the period of 1972 to 1994, which is after the beach nourishment started south of the inlet. It is not entirely clear why Mr. Foster chose to use a data set starting in 1949, particularly since his report stated that the “1928-30 survey already shows significant erosion occurring south of the inlet.” His testimony did not adequately explain the choice of that data set. The use of a longer data set is typically more appropriate when calculating a historical rate. In this case, however, the use of the shorter period of 1949-68 is reasonable because the 1930-49 erosion rate was considerably lower than the 1949-68 rate,9 which has the effect of skewing the erosion rate calculated for the longer period of 1930-68. The higher erosion rate calculated by Mr. Foster also better takes into account the increased frequency of the nourishments in recent years as well as the continued need for shore stabilization in the area. In sum, the higher erosion rate of -7 ft/yr calculated by Mr. Foster using the 1949-68 data set better reflects the historical post-inlet, pre-nourishment erosion rate than does the lower erosion rate calculated by Mr. Walther. Step 4: Determine the Remaining Project Life The fourth step in determining the 30-year erosion projection is to determine the “remaining project life” of the “existing” beach nourishment project. It was stipulated that there are 14 years remaining until the currently authorized federal beach restoration project expires. It is reasonable to expect that beach nourishment south of the inlet will continue well beyond the expiration of the current federal project, but there were no other funded and permitted projects in place at the time Beach Group’s permit application was filed. Potential future beach nourishment projects are not considered “existing” under the rule methodology in Florida Administrative Code Rule 62B-33.024 unless they are funded and permitted at the time the application at issue is filed. Mr. Walther used the 14-year remaining life of the existing federal project in his calculation of the 30-year erosion projection, as did Mr. Foster. The “remaining project life” applicable to this case is 14 years, notwithstanding the likelihood of continued beach nourishment in the area beyond the expiration of the existing project. Step 5: Calculate the 30-year Erosion Projection The final step in determining the location of the 30- year erosion projection is a calculation using the variables determined in the previous steps. The calculation is as follows: first, the remaining project life determined in step four is subtracted from 30; then, that result is multiplied by the erosion rate determined in step three to get a distance; and, finally, the SHWL is moved that distance landward of its pre-project location determined in step two. Subtracting the remaining project of 14 years from 30 equals 16 years. Multiplying 16 years by the erosion rate of -7 ft/yr equals 112 feet, which means that the 30-year erosion line is located 112 feet landward of the pre-project SHWL (or 152 feet landward of the SBHTL). That line is not depicted on any of the exhibits, but it roughly corresponds to a straight line than runs across the Property parallel to the SBHTL just landward of the “conc. pad” and “existing conc. Pile caps (typ)” shown on Petitioner’s Exhibit 37. The line is 25 to 30 feet seaward of Mr. Foster’s 30-year erosion projection depicted on that exhibit. (3) Ultimate Finding Regarding the Location of the Proposed Structures in Relation to the 30-year Erosion Projection The Project includes major structures seaward of the 30-year erosion projection, as determined above. Impacts of the Project on the Beach-Dune System The Project includes 17 luxury town home units in two four-story buildings, a pool and spa, landscaping, and an elevated dune walkover. The units will range from 2,700 to 4,400 square feet of living space and are projected to be offered for sale in the $1.5 to $2.5 million range. Beach Group’s principal, Harold Seltzer, testified that the Project is sited as far landward as possible to allow for the development of all 17 units while still complying with the local setback and height restrictions; that the Project’s financial viability depends upon it being developed as proposed; and that the Project cannot be redesigned and remain financially viable. The CCCL permit application included a letter from the City of Ft. Pierce confirming that the Project is consistent with the applicable local development codes. Mr. Seltzer testified that the Project’s local development approvals expired in September 2006 because the CCCL permit had not been issued, and that Beach Group is having to go back through the local permitting process. The seaward extent of the Project is the 1978 CCCL, which is approximately 250 feet seaward of the current CCCL. The buildings on the adjacent properties are also located on the 1978 CCCL. The Project does not extend further seaward than the nearby development, including the structures authorized by the Department in File Nos. SL-162 and SL-173.10 The seaward boundary of the Property is the SBHTL. That line is approximately 295 feet landward of the MHWL established in June 2005, and as noted above, it is approximately 65 feet landward of the ECL established in 1997. The adjacent properties are developed with multi-story residential buildings. There is a densely vegetated dune feature in front of the building to the south of the Property. There is some vegetation, but no discernable dune in front of the building to the north of the Property. The Property as a whole is sparsely vegetated, but there are areas of “prolific vegetation” on the Property. The seaward extent of the vegetation on the Property roughly corresponds to the location of the 1978 CCCL. There are several mature sea grape clusters in the vicinity of that line. The beach in front of the Property is devoid of vegetation. It has a steep slope immediately landward of the water line; a wide (approximately 270 feet) expanse of relatively flat beach; and a gently sloping dune feature that starts just landward of the Property’s seaward boundary, crests approximately 30 feet farther landward, and then gradually slopes downward across the Property all of the way to State Road A1A. The dune feature on the Property is the frontal dune. It is the first mound sand located landward of the beach that has sufficient vegetation, height, continuity, and configuration to offer protective value. The crest of the frontal dune is seaward of the vegetation line on the Property, and ranges in height from +9.7 to +12.2 feet NAVD.11 The seaward toe of the dune is shown on the topographic survey for the Property at elevations ranging from +7.27 to +7.85 feet NAVD. Similar elevations occur on the landward side of the dune crest, just landward of the 1978 CCCL. The vegetation on the Property extends landward of the 1978 CCCL and landward of the line shown on the topographic survey of the Property as the “approximate location of sparse grass and ground cover.” The landward extent of the vegetation does not in and of itself define the landward extent of the dune; changes in the slope of the ground must also be considered. The more persuasive evidence establishes that the landward toe of the frontal dune is landward of the 1978 CCCL, but not as far landward as suggested by Department witness Tony McNeal.12 The landward toe of the dune on the Property is best defined by the elevations landward of the dune crest similar to the elevations shown for the seaward toe of the dune. The Project extends into the frontal dune on the Property, and it will requires minor excavation of the frontal dune, primarily in the area of the proposed pool. All aspects of the project, except for the proposed dune walkover, will be landward of the crest of the frontal dune and the mature sea grape clusters located on the dune. There will be no net excavation on the Property as a result of the Project. The sand excavated for the pool will be placed on-site, and additional beach-compatible sand will be used as fill for the site. Overall, the Project will result in the net placement of approximately 66 cubic yards of sand on the Property. The proposed structures will be elevated on piles, which will allow the beach-dune system to fluctuate under the structures during storm events. The finished floor elevation of the proposed structures is approximately +8 feet NAVD, which is slightly higher than the elevations associated with the toes of the frontal dune. The Project will not destabilize the frontal dune, even though it will encroach into the dune. The impacts of the Project on the beach-dune system will be mitigated by the placement of additional sand into the beach-dune system, as described above. The Project’s impacts will be further mitigated by the enhancements to the frontal dune described in the permit application. Mr. Walther testified that the frontal dune on the Property could “very easily” be enhanced to be of comparable height and magnitude of the dunes on the adjacent properties. The permit application proposes enhancements to the frontal dune as part of the Site Landscaping Plan for the Project. The proposed enhancements include increasing the crest of the dune to a height of +15 feet NAVD, and extensive planting of the dune with sea grapes, beach morning glories, and sea oats. The plantings would extend from the 1978 CCCL to the seaward toe of the existing frontal dune. The dune enhancements proposed in the permit application should be included as a specific condition of the CCCL permit for the Project, if it is approved.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order denying Beach Group’s application for a CCCL permit. DONE AND ENTERED this 19th day of April, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 19th day of April, 2007.
The Issue Petitioners challenged the Department of Environmental Protection's (Department) preliminary Final Order, alleging that Petitioners committed the "unauthorized clearing and destruction of dunes and dune vegetation for the purposes of constructing a roadway seaward of the coastal construction control line [(CCCL)] without benefit of a permit." The ultimate issue is whether the work Petitioners performed was seaward of the CCCL, and if it was, whether there was a violation of Amended Permit FR-563 and Section 161.053(2), Florida Statutes.
Findings Of Fact Parties Petitioner, Ben Withers, Inc., is a Florida corporation doing business in the State of Florida. Petitioner, Ben Withers, is the President and owner of Ben Withers, Inc., and a resident of Panacea, Florida. (Henceforth, Ben Withers and Ben Withers, Inc., are referred to collectively as "Mr. Withers," unless otherwise noted.) Mr. Withers is a licensed general contractor. The Department is the executive agency of the State of Florida operating pursuant to, among others, Chapter 161, Florida Statutes, and Chapter 62, Florida Administrative Code. Pursuant to Chapter 161, Florida Statutes, the Department administers the CCCL program for construction activities seaward of the CCCL. Coastal Construction Control Line Program The Department's Bureau of Beaches and Wetland Resources regulates construction and excavation activities seaward of the CCCL. The Department is responsible for determining and setting the CCCLs. The CCCL is a scientifically established line pursuant to Section 161.053, Florida Statutes. By definition, the CCCL "defines that portion of the beach-dune system subject to severe fluctuations based on a one-hundred-year storm surge, storm waves, or other predictable weather conditions." Rule 62B-33.002(13), Florida Administrative Code. Construction and excavation activity seaward of the CCCL is regulated by Section 161.053, Florida Statutes, and Rule 62B- 33, Florida Administrative Code. Mr. Withers admitted that he is aware of Department rules regarding beaches and coastal construction and is also aware that excavation seaward of the CCCL requires a permit unless it is otherwise exempt, and that he had this knowledge prior to the present case. Accessing the Pepper Project Site Under Amended Permit FR-563 Dog Island is a barrier island south of and about three miles off the coast of Franklin County, Florida. The island is approximately eight miles in length. There is no bridge to the island. The Pepper project site is on the far western end of the island. The Gulf of Mexico borders the island on the south and St. George Sound borders the island to the north. The most common way to access the Pepper site with any vehicle carrying equipment and materials, would be to use a boat or barge to a marina area (Tyson's Harbor) near the center of the island, or a private dock, and then traverse west down the middle of the island or down the beach itself, or a combination of the two. The Easy Street Easement is an easement area for a roadway running east and west through Dog Island. The parties agree that Easy Street and the Easy Street Easement are the same. The Easy Street Easement had been an unpaved roadway years before; part of the roadway was still visible in May 2001, and other parts had been covered with vegetation. There are portions of Easy Street and Easy Way east of the cul-de-sac which are visible roadways. See, e.g., Department Exhibit 13. Additionally, parts of Easy Street are seaward of the Department's CCCL (e.g., in the narrows area which is west of the cul-de-sac) and other parts are landward of the CCCL. See, e.g., Finding of Fact 29. Pursuant to its statutory duty, in 1996, the Department set the reference monuments R-158-R-160 for the CCCL on the west end of Dog Island. These monuments are in the narrows area of the island and run west to east. The CCCL is not visible on the ground. A surveyor is needed to locate the line. The alleged violation in this case was committed between R-158 and R-160, part of the narrows area. The Easy Street Easement on Dog Island runs both north and south from The Nature Conservancy cul-de-sac and then runs westerly to the west end of Dog Island. The CCCL Permits On October 21, 1999, the Department issued Permit FR-563 to Leonard Pepper, the property owner, for the construction of a single–family dwelling and for structures associated with the dwelling on the west end of Dog Island. Permit FR-563 contained Standard Permit Conditions that required in part: (1)(a) all construction or activity for which the permit was granted be carried out in accordance with the plans and specifications which were approved by the Department as a part of the permit; (1)(b) all construction or activity authorized under the permit shall be conducted using extreme care to prevent any adverse impacts to the beach and dune system; and (1)(g) existing beach and dune topography and vegetation shall not be disturbed except as expressly authorized in the permit. Permit FR-563 did not authorize the start of construction until a construction access plan to the Pepper project site was approved, in order to minimize impacts to the beach and dune system. On October 16, 2000, Amended Permit FR-563 was issued with a Notice to Proceed Withheld. The Amended Permit also contained Special Condition 1.5 which required the submittal and approval of "[a] construction access plan showing the route and timing for bringing equipment and materials to the site, in order to minimize impacts to the beach and dune system." The Department was concerned about the manner in which equipment and materials would be brought to the project site without causing further harm to the system. Amended Permit FR-563 did not expressly or implicitly authorize excavation or grading seaward of the CCCL in any area on Dog Island off of the project site and footprint of the house. In late 2000, Mr. Withers became involved with the Pepper project after Amended Permit FR-563 (with the Notice to Proceed Withheld) was issued on October 16, 2000. Part of Mr. Withers' job responsibility was to prepare and submit a construction access plan to the Department for approval. The Department does not normally require an access plan because most job sites are located in areas with established roads for ingress and egress. Here, there was no established road to and from the project site. The access plan was necessary in order to determine how Mr. Withers would transport equipment and materials to the Pepper project site on the west end of Dog Island due to the site's remote location and the absence of an established roadway to the site. Mr. Withers expected that materials and heavy equipment, including cranes, would be off-loaded at Tyson's Harbor, located approximately in the middle of Dog Island, and transported by vehicle to the project site along the access plan route. He expected to only transport pilings using the beach access route. On March 15, 2001, Mr. Withers submitted an access plan which described the route Mr. Withers would traverse by vehicle with construction equipment and materials. See Endnote 1. The Easy Street Easement starts at the east end of the island as an established roadway. Proceeding in a westerly direction, Easy Street comes to a dead-end at a cul-de-sac landward of the CCCL. The access plan authorized Mr. Withers to access the job site using part the Easy Street/Easy Street Easement (starting on the east end of the island) going north from The Nature Conservancy cul-de-sac, then heading in a westerly direction just south of the Ausley house (west of R-158 and just landward of the CCCL) and across the narrows area and continuing in a westerly direction along the northern shoreline and in southerly direction toward R-154. The access plan then authorized Mr. Withers to proceed in a westerly direction over the middle portion of the west-end of the island, then in a southerly direction toward the project site.1 The access plan showed a route both landward and seaward of the CCCL along the narrows area. See Department Exhibit 4- orange line then blue line after the orange circle on the west-end of the island. As described by Mr. McNeal of the Department, the access route is seaward, for the most part, of the CCCL from R-157 to R- 159 (running west to east) and landward of the CCCL east of R-159. The Department described the damaged area of 5,305.6 square feet (Department Exhibit 11A, insert "B") caused by Mr. Withers as east of R-159 and seaward of the CCCL and south of the access plan route. See also Finding of Fact 35. However, it appears that a portion of Easy Street, between R-159 and R-160, is seaward of the CCCL. Compare Department Exhibit 12 with Department Exhibits 4, 11A, and 13. During a pre-hearing deposition, Mr. Withers marked in pink the route he took through a portion of the narrows area which coincides with the portion of Easy Street between the approximate locations of R-159 and R-160, depicted on Department Exhibit 12. See Finding of Fact 43. (Mr. Withers had the Easy Street Easement staked prior to doing any work on Dog Island. See Findings of Fact 33-35.) The damaged area appears to coincide with this portion of Easy Street, and seaward of the CCCL. See Department Exhibit 11A. The access plan authorized Mr. Withers to drive (vehicular traffic) his equipment over the easement following the route depicted on the access plan until he arrived at the project site. See Endnote 1. The Department expected that travel along the access route would cause minimal and temporary damage or destruction to the topography, so the plan was considered acceptable. The access plan did not authorize excavation of a roadway within the route, including the narrows area, nor did it contemplate any other activity over or around a dune other than what might occur as a result of driving.2 The Department understood that Mr. Withers would be driving daily over the access plan route to the project site. The Department assumed that trucks would be used to transport equipment and materials. The Department did not differentiate among vehicles which could be used, including large trucks. On April 11, 2001, the Department issued a Notice to Proceed to Mr. Pepper to begin construction of his single-family dwelling in accordance with Amended Permit FR-563. The access plan is part of the Amended permit. Shortly after the Notice to Proceed was issued, The Nature Conservancy advised the Department of concerns it had with the access plan. As a result, on April 24, 2001, there was a meeting in Apalachicola, Florida, convened by the Department and attended by other interested governmental entities and private persons, including Mr. Withers. The purpose of the meeting was explore other possible ways and means of access by Mr. Withers to the Pepper project site.3 No resolution was reached during the meeting and the access plan previously approved by the Department remained effective. The previously issued Notice to Proceed was also in effect. The Violations Mr. Withers hired Kenneth Greenwood of Garlick Environmental Associates to perform a threatened/endangered species inspection, plant and animal, on an approximately 30-foot wide strip on the Easy Street Easement (approximately 1,800 feet) being utilized in Mr. Withers' access plan and within the narrows area. See Department Exhibit 13-yellow markings. On May 2, 2001, Mr. Greenwood performed the inspection within the easement that Mr. Withers had staked out by a land surveyor, approximately 15 feet on either side of the stakes. He found no threatened/endangered species. (The CCCL was not staked by Mr. Withers because, according to Mr. Withers, the Department did not ask him to locate the CCCL with stakes.) The access route depicted by Mr. McNeal in orange on Department Exhibit 4, which runs east of R-159, is similar to the description of the staked areas east of R-159, described by Mr. Greenwood and marked in yellow on Department Exhibit 13. See Findings of Fact 28-29. Both areas are landward of the CCCL. However, the 5,305.6 square foot damaged area is east of R-159 and is seaward of the CCCL. Mr. Greenwood described the area where he performed his investigation as being "relatively undisturbed," "relatively stable," having no vehicle tracks, and he stated that there were areas of bare sand as well as areas of "natural beach dune vegetation." He described the area as "relatively flat with some small amounts of mounding." The pictures taken by Mr. Greenwood within the staked easement on May 2, 2001, as part of his investigation, do not depict any vehicle tracks. After Mr. Greenwood completed his investigation on May 2, 2001, he observed Mr. Withers landward of the CCCL on a front-end loader and north of the cul-de-sac, proceeding west along the Easy Street Easement scraping off the top layer of soil and heading in a westward direction. Mr. Greenwood believed that the activity performed by Mr. Withers at this time was consistent with unpaved, road construction. According to Mr. Greenwood, the width of the scraped area appeared to be approximately the width of the bucket on Mr. Withers' front-end loader. Mr. Withers stated that he was doing minor grading landward of the CCCL with a John Deere 310-E front-end loader tractor when Mr. Greenwood was present on May 2, 2001. This tractor had a front bucket (approximately seven to eight feet wide) and a backhoe for excavating dirt on the back-end. Mr. Withers described the work which he performed when Mr. Greenwood was present as moving out and smoothing off the top of the sand landward of the CCCL in order for his equipment to get through. Mr. Withers also stated that he made areas in the easement seaward of the CCCL smooth by using the bottom of the bucket of his front-end loader to move sand around. Mr. Withers mentioned that he was very concerned that he needed to have the pathway he was utilizing in the access plan marked and smoothed off and fairly level. He believed the access plan authorized him to smooth off the areas on the access route. Mr. Withers stated that he had to have the access path level because he was bringing a self-propelled, 25-ton crane down the access path and they are top heavy and can get off balance, topple over, or get stuck. Mr. Withers described two types of work that he performed in the Easy Street Easement as: 1) clearing landward of the CCCL that required scooping and moving dirt, and 2) smoothing several areas seaward of the CCCL, just east of R-158 to around R- 160. An area of excavation damage seven feet seaward of the CCCL (beginning approximately 130 feet east of R-158) and an area 41 feet seaward of the CCCL (beginning at R-159, continuing east approximately 500 feet) are located within the area Mr. Withers stated he did some "smoothing off areas," again, east of R-158 and continuing east toward, but west, of R-160. Mr. Withers believed that Amended Permit FR-563 allowed him to use the Easy Street Easement in the access plan "to do . . . whatever was necessary and . . . needed to get [his] equipment, access [his] equipment down to the job site." He also admitted smoothing the areas. Mr. Withers also stated that Amended Permit FR-563 granted him permission to access the west end of Dog Island. Therefore, there was no need for him to locate the CCCL. Mr. Withers referred to the easement in the access plan as turning into a good pathway after he smoothed the areas. Mr. Withers stated that it was his "intention to gain access to the west end of Dog Island through a legal easement and an existing roadway" and that he wanted to utilize it. Mr. Withers testified "that he knew a lot of roads on Dog Island crossed seaward of the [CCCL]" in response to questioning whether he knew at the time of his performing work on the easement, whether or not the Easy Street Easement crossed seaward of the CCCL. He knew he was going to be traversing "fairly close" to the CCCL. Mr. Withers stated he did not knowingly violate the conditions of the Amended Permit. Mr. Withers was aware of the Department's permit requirements for work seaward of the CCCL when he performed his access work in the easement on Dog Island. However, Mr. Withers never had a survey done to figure out where the CCCL was located. Notice of the Alleged Violations Around May 2, 2001, the Department received a complaint that excavation was occurring seaward of the CCCL on Dog Island in the narrows area of the Easy Street Easement. On May 4, 2001, John A. Poppel, William Fokes, and Phil Sanders went to Dog Island on behalf of the Department to investigate the complaint of excavation in the narrows area seaward of the CCCL. On May 4, 2001, Mr. Poppel performed a survey of the narrows area and located the CCCL. He located monuments R-158- R-160. Department Exhibit 11. As a product of his survey, Mr. Poppel was able to depict the newly excavated roadway or pathway in relation to the CCCL. Mr. Poppel calculated that one area of damage was seven feet seaward of the CCCL and consisted of 503.8 square feet of damage and a second area of damage was 41 feet seaward of the CCCL and consisted of 5,305.6 square feet of damage. These square foot areas represent only the disturbed areas seaward of the CCCL, not the entire area between the CCCL and the Gulf of Mexico. Both areas of damage are within the area where Mr. Withers stated that he smoothed out the sand. As part of the May 4, 2001, investigation, William Fokes, an Engineer I with the Department, took photographs of the damaged areas and prepared an inspection report. Mr. Fokes' report indicates that an approximately 11-foot wide roadway or pathway had been cleared by excavation with the most seaward extent of the road being about 40 feet seaward of the CCCL. In addition, the report states that small dunes and beach vegetation had been destroyed. Mr. Fokes described the damage as excavation or grading done by some kind of machine, which cut and uprooted vegetation and pushed sand to the side as it leveled the ground. Mr. Fokes testified that the damage did not appear to be caused by merely traversing the area. Mr. Sanders, an engineer with the Department, processes CCCL permit applications and supervises Mr. Fokes, a field engineer. On May 4, 2001, Mr. Sanders observed the narrows area in question and confirmed that it looked like a "graded road" in that "[i]t appeared in the road bed that vegetation was gone and had been pushed out to the side, graded away," and that there was "excavation" seaward of the CCCL. Mr. Sanders stated that this activity did not comply with the approved access plan. On May 7, 2001, a Notice of Violation was issued to Mr. Withers for the "the unauthorized clearing and destruction of dunes and native vegetation for the purpose of constructing a roadway seaward of the coastal construction control line." Mr. Greenwood's photographs taken May 2, 2001, when compared with Mr. Fokes' photographs taken May 4, 2001, show that no discernable roadway or pathway was present landward or seaward of the CCCL in the narrows area at the time of Mr. Greenwood's inspection on May 2, 2001. This is evident when comparing Mr. Greenwood's photograph, Exhibit 15a, taken on May 2, 2001, with Department Exhibit 16g taken on May 4, 2001--the roadway or pathway present in the May 4, 2001, photo is absent in the May 2, 2001, photograph, and the vegetation has been removed from part of the area. Comparing Mr. Greenwood's photograph, Department Exhibit 15b, taken May 2, 2001, with Department Exhibits 16c and d, taken on May 4, 2001, also shows that the roadway or pathway was not present on the narrows portion of the Easy Street Easement at the time of Mr. Greenwood's inspection. The previously mentioned pictures, which were used for a comparison, were taken by two different people on separate dates, and from approximately the same locations. Also, Department Exhibit 16j was taken 250 feet east of R-159 and within the narrows area, facing east which shows clearing approximately 40 feet seaward of the CCCL. On May 14, 2001, at the request of the Department, Ken Jones, a principal engineer with Post Buckey et al., performed a damage assessment of the narrows portion of the Easy Street Easement which was seaward of the CCCL. Mr. Jones has a bachelor's degree in civil engineering and a master's degree in physical oceanography. Mr. Jones was familiar with the narrows area having been to Dog Island for recreation during the past 20 years and as a Dog Island property owner for the last three years. Mr. Jones described the narrows area as relatively flat and located between the St. George Sound to the north and the Gulf of Mexico beaches to the south. Between these two areas, the land is undulating sand and fairly consistent vegetation. At the time of Mr. Jones' damage assessment, he determined that a road had been cut through the vegetative portion of the dune of the narrows. Mr. Jones observed cut roots and a majority of the vegetation destroyed. Mr. Jones stated it appeared that the damage was caused by a vehicle with a blade on the front. The result was the road sat down in the sand approximately four to six inches. Mr. Jones stated that the work appeared to have been recent because distinct edges were still present. Mr. Jones took photographs and compiled an inspection report as part of his damage assessment. Mr. Jones testified that the damage "was pretty consistent from both landward and seaward of the [CCCL]." The pictures labeled Department Exhibits 18a1 and 18a2 depict a level pathway or roadway barren of vegetation seaward of the CCCL. Department Exhibit 18a4 is a photograph of a typical vegetated dune. Mr. Jones took this picture in order to have a general idea of what the vegetation coverage was in order to get an idea from a cost-estimating perspective. Mr. Jones's cost estimate for repairing the damage to the narrows area seaward of the CCCL, was approximately $7,500.00.4 Mr. Jones calculated the $7,500.00 by making an estimate of what it would cost to buy coastal vegetation, and by estimating what it would cost to employ laborers to hand rake the sand back into position and to plant the vegetation. Administrative Fine and Damages Jim Martinello, an environmental manager in charge of enforcement and compliance with the Bureau, used Mr. Jones' damage assessment estimate for informational purposes in assessing the damages amount for the narrows area. Mr. Martinello calculated the administrative fine and damages in accordance with Section 161.054, Florida Statues, and Rules 62B-54.002 and 62B-54.003, Florida Administrative Code. Rule 62B-54.002, Florida Administrative Code, provides that the Department shall assess fines for willful violations of, or refusing to comply with, for example, Section 161.053, Florida Statutes, and the fine should be sufficient to ensure immediate and continued compliance. In determining the actual fine within the range, the Department shall consider the offender's past violations, if any, and other aggravating or mitigating circumstances. Aggravating circumstances include prior knowledge of rules. Mitigating circumstances may be considered. Id. Mr. Withers had knowledge prior to the issuance of Amended Permit FR-563 of Department rules regarding permit requirements for construction activities seaward of the CCCL. On October 4, 1996, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible unauthorized construction seaward of the CCCL. This matter was resolved by entering into a consent order. On October 29, 1997, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible permit violation seaward of the CCCL. On November 13, 1997, Mr. Withers was issued a warning letter for possible unauthorized construction seaward of the CCCL. On October 27, 2000, Mr. Withers wrote a letter to Mr. McNeal indicating that he believed that the Easy Street Easement on Dog Island heading south from The Nature Conservancy cul-de- sac, then west to the west end of Dog Island, is landward of the CCCL and, therefore, no permit was necessary to reopen and use the easement, but he would have a surveyor establish the control line prior to work commencing. On November 7, 2000, Phil Sanders replied by letter to Mr. Withers' October 27, 2000 letter, in which Mr. Sanders reminded Mr. Withers of the pertinent rules and laws and suggested that Mr. Withers have the CCCL surveyed. On December 20, 2000, Mr. Martinello sent Mr. Withers an advisory letter informing him that the area he traversed (on July 2000) on the south route of the Easy Street Easement from the cul- de-sac on Dog Island was considered to be a dune as defined by Rule 62B-33.002, Florida Administrative Code. However, Mr. Martinello further advised that the Department did not take any action because "the traversing [did not] cause any substantial damage, it was minimal damage." In regard to the present case, it is more than a fair inference that Mr. Withers had specific knowledge of the CCCL and the Department's laws and rules, and that he knew excavation was not authorized seaward of the CCCL. The information in the prior Findings of Fact was used by the Department, and specifically Mr. Martinello, to determine that the harm to the beach resource or potential harm was major, and the administrative fine assessed was $7,500.00. However, part of Mr. Martinello's determination was predicated on Mr. Jones' assessment that the site one narrows violation was approximately 700 feet in length when, in fact, the area was approximately 500 feet in length, which explains in part the disparity between a 9,800 square foot area and the proven 5,305.6 square foot area. See Finding of Fact 78 and Endnote 4. Even the additional amount of damage of 503.8 square feet for the site two narrows area, when viewed in the aggregate, is significantly less than Mr. Jones' assessment of damages by square feet. (Mr. Martinello used the Jones' assessment as a guideline. Mr. Martinello says that the mistake did not alter his decision, although he was unaware of the mistake until the final hearing. He also says that Mr. Jones recommended a higher damage amount than the $5,000.00 assessed by the Department in its preliminary Final Order. He did--$7,500.00 for 9,800 square feet of damage.) Grossly negligent or knowing violations of statutes and Department rules regarding coastal construction seaward of the CCCL, which result "in harm to sovereignty lands seaward of mean high water or to beaches, shores, or coastal or beach-dune system(s), including animal, plant or aquatic life thereon," shall be considered in determining damages. Rule 62B-54.003(1), Florida Administrative Code. Rule 62B-54.003(2), Florida Administrative Code, provides that a damage amount greater than the minimum amounts may be assessed to ensure, immediate and continued compliance and the Department may consider, e.g., the need for restoration and the damaged ecological resource. The Department determined that the violation was knowing based on the factors mentioned above. The Department also considered the need for restoration and the damage to ecological resources and whether the amount would ensure immediate and continued compliance. Id. The Department determined that there was harm to the resource and that it was major and knowing. The Department proposed to assess the minimum damage amount of $5,000.00. On January 11, 2002, the Department entered a preliminary Final Order for the unauthorized grading and destruction of dunes and dune vegetation seaward of the control line for the purpose of constructing a roadway. The amount assessed in the Final Order was $12,500.00, $7,500.00 in administrative fines and $5,000.00 in damages, as described above. As noted, there has been harm to the beach area resource seaward of the CCCL and the Department proved the need for restoration and the damage to the ecological resource. In mitigation, Mr. Withers' construction access plan was approved by the Department. The Department knew that Mr. Withers intended to use the access route, which ran seaward of the CCCL from approximately R-157 to R-159 (except for a small portion between R-158 and R-159) in the narrows area; that Mr. Withers planned to transport equipment and materials by truck using the access route and necessarily would traverse seaward of the CCCL; and that he would continuously use the access route until the project was completed. The actual damaged area is less than originally determined by Mr. Jones, thus the need for restoration reduced. Mr. Jones, without the benefit of a survey, estimated the total cost to restore the damaged area of 9,800 square feet to be approximately $7,500.00. The total square feet of damage proven in this proceeding is 5,809.4 square feet in the narrows area and the Department is requesting $12,500.00 in fines and damages. Based on an approximate ratio of square feet and dollars needed to restore, a damage assessment in the amount of $4,500.00 is appropriate. Balancing the aggravating and mitigating circumstances, a fine of $3,500.00 is appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: That a final order be issued adopting this Recommended Order; and Within 30 days of a final order being effective, Petitioners shall pay a fine of $3,500.00 and $4,500.00 in damages with the total amount of $8,000.00, to the Department of Environmental Protection. DONE AND ENTERED this 9th day of January, 2003, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 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 9th day of January, 2003.
The Issue The issue in these cases is whether the Santa Rosa County comprehensive plan, as adopted on September 27, 1990, and the remedial amendments adopted on April 22, 1993, are in compliance.
Findings Of Fact Exception #2. The Hearing Officer, in an October 15, 1993 order, determined that the issues in the consolidated cases would be those 13 issues stated in the petition filed on July 15, 1993, in Case No. 93-4980, which ruling was observed by the parties at the final hearing (RO page 3). Petitioners/Intervenors take issue, thus, "At no time during these proceedings did the Petitioners abandon the issues raised in their Petitions to Intervene filed in the original noncompliance proceeding." The Respondent County and the Petitioner/Respondent Department take the position that the original, noncompliance proceeding was extinguished when the Department issued its cumulative notice of intent pursuant to section 163.3184(16), Florida statutes. The County and the Department further disagree with the Hearing Officer's conclusion of law determining that the issues of public access and Navarre Beach dune system should be determined pursuant to the preponderance of the evidence standard in section 163.3184(10), Florida statutes. The County and the Department urge the Agency to enter its order addressing all issues accordingly. Subsection (9) of section 163.3184, Florida statutes, governs proceedings if the local plan or amendment is in compliance. In the words of the statute, "In this proceeding, the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." Subsection (10) of section 163.3184, Florida statutes, governs proceedings if the plan or amendment is determined to be not in compliance. The statute specifies, in this subsection: In the proceeding, the local government's determination that the comprehensive plan or plan amendment is in compliance is presumed to be correct. The local government's determination shall be sustained unless it is shown by a preponderance of the evidence that the comprehensive plan or plan amendment is not in compliance. Subsection (16) of section 163.3184, Florida statutes, authorizes the Department of Community Affairs to enter into voluntary compliance agreements to resolve issues raised in proceedings initiated pursuant either to subsection (9) -- in compliance determinations -- or subsection (10) -- not in compliance determinations. It is under this subsection that the cumulative notice in this case was issued. Paragraph (f) of subsection (16) provides, in part, as follows: If the local government adopts a comprehensive plan amendment pursuant to a compliance agreement and a notice of intent to find the plan amendment in compliance is issued, the state land planning agency shall forward the notice of intent to the Division of Administrative Hearings and the pending s. 120.57 proceeding concerning the plan or plan amendment shall be dismissed by the hearing officer as to the department. Any affected person may challenge the plan or plan amendment which is the subject of the cumulative notice of intent by filing a petition with the agency as provided in subsection (9). The language of the statute is somewhat problematic. It is unclear how a proceeding can be dismissed as to one of the parties, in this case, the state land planning agency issuing the notice of intent. See Department of Community Affairs, et al. v. DeSoto County, Final Order No. AC-94-009 (Fla. Admin. Comm. January 31, 1994), approving, Recommended Order of Dismissal, DOAH Case No. 91- 6039GM (DOAH January 13, 1994)(approving interpretation of statute). Further, this statutory language as to dismissal of the proceeding as to the department arguably is at odds with the next sentence, which states that affected persons may challenge the plan or amendment which is the subject of the cumulative notice by filing a petition with the agency as subsection (9) provides. The statutory language does not say, "Any other affected person" may challenge; it says "Any affected person" may challenge, which ending s. 120.57 proceeding. Paragraph (f) also deals with the issue of a cumulative notice that the plan amendment is not in compliance, as follows: If the local government adopts a comprehensive plan amendment pursuant to a compliance agreement and a notice of intent to find the plan amendment not in compliance is issued, the state land planning agency shall forward the notice of intent to the Division of Administrative Hearings, which shall consolidate the proceeding with the pending proceeding and immediately set a date for hearing in the pending s. 120.57 proceeding. It is clear from that statutory language that the cumulative notice proceeding is consolidated with the pending original proceeding if the Department of Community Affairs finds the amendment not in compliance, in contrast to the language used if the Department's cumulative notice is an "in compliance" determination. Finally, paragraph (f) deals with persons who are not parties to the pending original proceeding, as follows: Affected persons who are not a party to the underlying s. 120.57 proceeding may challenge the plan amendment adopted pursuant to the compliance agreement by filing a petition pursuant to subsection (9) or subsection (10). This language seems to do more than provide for persons who are not parties to the underlying proceeding to file subsection (9) or subsection (10) petitions depending upon whether the cumulative notice is an "in compliance" one or a "not in compliance" one, as the case may be. The language also aids in interpreting the previous sentence of the paragraph, "Any affected person may challenge the plan or plan amendment which is the subject of the cumulative notice of intent by filing a petition with the agency as provided in subsection (9)." If that sentence were only intended to apply to affected persons who were not parties to the underlying proceeding, there would be no need for the sentence above-quoted, "Affected persons who are not a party to the underlying s. 120.57 proceeding may challenge the plan amendment adopted pursuant to the compliance agreement by filing a petition pursuant to subsection (9) or subsection (10)." As the state land planning agency and the Agency of final jurisdiction in an "in compliance" proceeding, it is the responsibility of the Department of Community Affairs to interpret the operable statute. Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987 (Fla. 1985.) The Department of Community Affairs interprets the subject provisions of section 163.3184(16), Florida statutes, to mean that, if the Department issues a cumulative notice of "in compliance," the previously existing, original proceeding is extinguished. Thereafter, all affected parties must file petitions challenging the cumulative notice, and the proceeding is governed exclusively by the "fairly debatable" standard and the procedures set out in subsection (9) of section 163.3184, Florida statutes. The particular standard of proof to be applied is based upon the issuance of a notice of intent to find the plan or amendment in compliance or not in compliance. Sheridan v. Lee County, DOAH Case No. 90-7791GM, Final Order No. DCA93-158- FOF-CP (Department of Community Affairs, June 28, 1993). In Department of Community Affairs, et al. v. City of Jacksonville, DOAH Case No. 90-7496GM (January 24, 1994), Final Order No. DCA94-258-FOF-CP (Department of Community Affairs, February 24, 1994), the Department of Community Affairs expressly adopted the interpretation of Hearing Officer J. Lawrence Johnston as set forth in the Recommended Order of Dismissal and Final Order Closing File in the case of Department of Community Affairs v. DeSoto County, DOAH Case No. 91-6039GM (January 19, 1993), approved, Final Order No. AC-94-990 (Fla. Admin. Comm. January 31, 1994), a copy of which is attached hereto as Exhibit B and incorporated by reference. That recommended order at footnote 3 -- recognized that there is contrary dicta in the Recommended Order in Department of Community Affairs, et al. v. Hillsborough County, DOAH Case No. 89-5157GM (December 8, 1992). In the instant case, the Hearing Officer erred in treating the proceeding as one in which both subsections (9) and (10) of section 163.3184, Florida statutes, continued to apply. The burdens of proof -- whether the fairly debatable standard, or the preponderance of the evidence standard -- could be alternatively assigned to a given issue, depending upon whether the issue remained from the original proceeding, or arose as a result of the proceeding brought in response to the cumulative notice. But the statute does not appear to allow the proceeding to be resolved as it was in the instant case, i.e., under both subsections (9) and subsections (10). If that were the case, it would be unclear in a given case as to which entity appropriately should enter the final order, the Administration Commission, or the Department of Community Affairs. Clearly, that does not comport with the objective of the Legislature in specifying the entities with final order authority separately in subsections (9) and (10). Petitioners/Intervenors suggest, in Exception #34, which is dealt with below, that both the Administration Commission and the Department of Community Affairs enter a final order in this. This would result in untenable situations, such as the potential for inconsistent rulings, separate appeals, etc. The Hearing Officer should have treated the proceeding exclusively as one arising as a result of a cumulative notice of "in compliance" governed under the auspices of subsection (9) of section 163.3184, Florida statutes. In that case, the issues should have been those directed to the cumulative notice; thus, Petitioners/Intervenors' complaint in this exception -- that the Hearing Officer should not have limited the issues to those set forth in the July 15, 1993 petition, which was filed as a result of the cumulative notice -- is not well- taken. Further, the standard of proof in a proceeding brought following a cumulative notice of "in compliance" must be the "fairly debatable" standard of section 163.3184(9), Florida Statutes. In this case, however, the Hearing Officer made his various determinations and weighed the evidence with respect either to the fairly debatable standard, or to the preponderance of evidence standard, depending upon the issue. It would be implausible at best, impossible at worst, for the Agency now to attempt to reweigh the selected issues -- those that have been determined using the preponderance of the evidence standard -- under the fairly debatable standard. The Department of Community Affairs, as the Agency entering the Final Order in this cause, is not free to reweigh evidence; that is the prerogative of the Hearing Officer when there are factual issues of ordinary proof. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Moreover, such a reweighing of the issues, even if authorized, would not change the outcome. The issues that were decided under the preponderance of the evidence standard were decided against the Petitioners/Intervenors in this case. The outcome would not change if the fairly debatable standard were applied to those issues. The Agency therefore declines the invitation to apply the fairly debatable standard throughout the proceeding, as it should have been done by the Hearing Officer. Nonetheless, the Agency also must deny Petitioners/Intervenors' Exception #2. PETITIONERS/INTERVENORS EXCEPTION #2 is DENIED. Exception #3. This exception is directed to the Hearing Officer's exclusion of testimony regarding Petitioners/Intervenors' allegations of "urban sprawl." Petitioners/Intervenors assert that a cursory review of the subject petition reveals that "urban sprawl" was properly raised as an issue, even though that precise term was not used. The Hearing Officer heard argument directed to the issue of the "urban sprawl" question (TR Vol. I, pp. 12-18) and determined that it was not within the scope of the petition filed on July 15, 1993 (see Exception #2, above). The Agency has reviewed the subject petition and the portions of the record dealing with argument directed to this issue, and the Agency does not find a sufficient basis for granting the exception. PETITIONERS/INTERVENORS EXCEPTION #3 IS DENIED. Exceptions #4, #5 and #6. The basis for these exceptions is the Hearing Officer's finding of fact, in paragraph 13 of the Recommended Order, that publicly-owned lands in the Garcon Point Project would not be injured by the development of privately- owned lands north of the project. According to the Petitioners/Intervenors, "The evidence introduced at the administrative hearing clearly refutes this finding." Petitioners/Intervenors allude to witness testimony that contradicts the conclusion of the expert who was tendered in general ecology and natural systems, Dr. Joe A. Edmisten [TR Vol. III, pages 78-87] on this point at hearing; it is upon Dr. Edmisten's testimony that the paragraph is supported. The contradictions notwithstanding, however, the paragraph to which these exceptions are directed is supported by competent, substantial evidence in the record, and thus the exceptions must be denied. [Edmisten (TR Vol. III), pages 95-96.] PETITIONERS/INTERVENORS' EXCEPTIONS #4, #5, AND 6 are DENIED. Exception #7. This exception is directed to paragraph 14 of the Recommended Order, in which the Hearing Officer found, "More than 95 percent of Garcon peninsula is jurisdictional wetland for the U.S. Army Corps of Engineers . . . ." According to the Petitioners/Intervenors, no evidence was introduced to support this finding. There is competent, substantial evidence in the record sufficient to support the finding. [Edmisten (TR Vol. III), page 89.] PETITIONERS/INTERVENORS' EXCEPTION #7 is DENIED. Exception #8. In Exception #8, Petitioners/Intervenors take exception to the following finding of fact in paragraph 15 of the Recommended Order, "Little development will occur on the Garcon peninsula . . ." The Petitioners/Intervenors assert that the evidence at the hearing "clearly refutes this finding" and, in support thereof, refer to Future Land Use Map indications of densities of up to four dwelling units per acre and commercial development for Garcon peninsula. The finding is supported by competent, substantial evidence in the record. [Edmisten (TR Vol. III), pages 90-91.] PETITIONERS/INTERVENORS EXCEPTION #8 is DENIED. Exception #9. Petitioners/Intervenors take exception to the findings of fact of paragraph 20 of the Recommended Order, which relates to the condition of the Navarre Beach dune system and the testimony of the expert in coastal geomorphology. The apparent basis for the exception is stated by Petitioners/Intervenors thus, "The fact that the Navarre Beach dune system is still a valuable resource is a compelling reason for implementing a dune protection program which will ensure the system's long-term viability." A finding of fact cannot be overturned on the basis of the argument stated by the Petitioners/Intervenors. Moreover, the findings of fact in paragraph 20 are supported by competent, substantial evidence. [Stone (TR Vol. II), page 155.] PETITIONERS/INTERVENORS' EXCEPTION #9 is DENIED. Exception #10. The Petitioners/Intervenors take exception to paragraph 26 of the Recommended Order wherein the Hearing Officer finds, "The County maintains control over those beach access points shown on the Navarre Beach Future Land Use Map by maintaining them in an unleashed status." The Petitioners/Intervenors state that the evidence clearly refutes the finding, and that the Navarre Beach Future Land Use Map does not identify beach access points. The finding is based upon sufficient competent, substantial evidence of record, and must be sustained. (Miller [TR Vol. I), pages 166-167; Joint Exhibit 1, Plan Objective 11.A.9, and policies 11.A.9.1-9.S, pages 11-6 through 11-7.] PETITIONERS/INTERVENORS' EXCEPTION #10 is DENIED. Exception #11. Petitioners/Intervenors take exception to paragraph 30 wherein the Hearing Officer states that the expert of the Petitioners/Intervenors "did not critique the plan, but said it was laudable." The Petitioners/Intervenors assert in this exception that the evidence clearly refutes this finding in that the expert in question, Dr. Sneed B. Collard, criticized the Santa Rosa County Comprehensive Plan for failing to contain policies and objectives to implement the plan's goal to protect the Pensacola Bay system. The context in which the Hearing Officer made the statement to which exception is taken is important to an understanding of the finding. paragraph 30 of the Recommended Order, in its entirety, reads as follows: Petitioners' expert also admitted that the plan was laudable in terms of the manner in which it seeks to protect the Bay system. While he criticized the plan for not containing clear implementation of its noteworthy goals, he later admitted that if all points of implementation were covered in detail, the plan would become a lengthy and cumbersome document of a more scientific nature. He further admitted to being unaware of the appropriate level of detail for a comprehensive plan and later stated that he did not critique the plan, but said it was laudable. [FF 30; RO page 14.] That having been clarified, the specific statement to which Petitioners/Intervenors take this exception is supported by competent, substantial evidence of record, to wit, the testimony of Dr. Collard, "I didn't critique the Santa Rosa Plan. I said it was laudable." [Collard (TR Vol. I), page 140]. PETITIONERS/INTERVENORS' EXCEPTION #11 is DENIED. Exception #12. The Petitioners/Intervenors take exception to the finding in paragraph 31 of the Recommended Order that finds "that all challenges to the issuance of environmental permits for the bridge have been voluntarily dismissed by the challengers." The Petitioners/Intervenors take this exception based on relevancy. The context of the statement is not clear from the exception. The entirety of paragraph 31 reads as follows: Although petitioners raised the bridge as an issue in these cases, very little evidence was presented concerning the potential impacts of the proposed bridge. It is noted, however, that all challenges to the issuance of environmental permits for the bridge have been voluntarily dismissed by the challengers. It is clear from the context that the information was "noted" and not accorded great weight in the findings. Moreover, the Hearing Officer's inclusion of the information was not erroneous. Thus, there is an insufficient basis to grant the exception. PETITIONERS/INTERVENORS' EXCEPTION #12 is DENIED. Exception #13. Petitioners/Intervenors take exception to the findings of fact contained in paragraphs 37-54 of the Recommended Order, as follows: The Hearing Officer failed to consider or give any ruling with respect to the proposed findings of fact set forth at paragraphs 9-28 and the conclusions of law set forth at paragraphs 96-106 and 111 of Petitioners/Intervenors' proposed Recommended Order. indeed, the Hearing Officer utterly failed to even mention the Wet Prairies and their associated endangered and threatened species. As to the proposed findings of fact included in paragraphs 9-28 of Petitioners/Intervenors' proposed recommended order, the Hearing Officer did so rule, "[paragraphs] 7-34. Partially accepted in findings of fact 10-15 and 37- 54." [RO page 38.] As to paragraphs 96-106 and 111 of Petitioners/Intervenors' proposed recommended order, the Hearing Officer did not make explicit rulings. The subject paragraphs were conclusions of law, which the Hearing Officer is not required to address. In pertinent part, section 120.59(2), Florida Statutes, provides, "If . . a party submitted proposed findings of fact . . . in connection with the proceeding, the order must include a ruling upon each proposed finding . ." It was thus within the sound discretion of the hearing officer to rule only upon the Petitioners/Intervenors' findings of fact. PETITIONERS/INTERVENORS' EXCEPTION #13 is DENIED. Exception #14. Petitioners/Intervenors take exception to the Hearing Officer's finding in paragraph 40 of the Recommended Order that states, "The plan contains extensive provisions designed to implement the Wetlands FLUM (Future Land Use Map) and provide significant protection of wetlands and the natural resource functions of wetlands." The Petitioners/Intervenors assert that no evidence was introduced to support this finding. The finding is based upon competent, substantial evidence, and therefore the exception cannot be granted. [Joint Exhibits 3 and 4, Plan Policies 11.A.4.5 (fig. 7-30); 11.B.3.3; 11.A.1.8.a.b.; 11.A.1.8.c.; 11.A.1.7; 11.A.4.3; 11.B.3.3; 11.A.2.1; 11.B.3.1.; 11.B.3.6; 11.A.1.4; and 11.A.1.8.] PETITIONERS/INTERVENORS' EXCEPTION #14 is DENIED. Exception #15. The basis for this exception is the finding of fact in paragraph 49 of the Recommended Order wherein it is found that the Santa Rosa County Comprehensive Plan "grants only very limited development rights in the Garcon Peninsula region, while also providing significant protections for natural resources in that area." Petitioners/Intervenors assert that the evidence refutes this finding. The finding is based on competent, substantial evidence in the record. [Joint Exhibits 3 and 4.] PETITIONERS/INTERVENORS' EXCEPTION #15 is DENIED. Exception #16 and #17. In Exceptions #16 and #17, Petitioners/Intervenors take exception to paragraph 50 of the Recommended Order. In that paragraph, the Hearing Officer finds that, short of public acquisition, "no other reasonable method by which this area can be comprehensively protected and preserved as an intact ecological unit was presented." The Hearing officer further finds, "Requiring the County to reduce densities to the point where a moratorium on development in the area is created would create inverse condemnation . . Petitioners/Intervenors state that the evidence clearly refutes these findings, that evidence was presented that one dwelling unit per 40 acres was appropriate for the Garcon peninsula, and that designations of up to four units per acre and commercial development would completely destroy the unique ecology of Garcon peninsula. Further, the Petitioners/Intervenors assert that the issue of inverse condemnation was not supported by competent evidence introduced, and that densities of less than four dwelling units per acre can be implemented without creating an "inverse condemnation" situation. As to the reasonableness of the preservation effort, the Agency has reviewed the testimony as to that point, and concludes that the finding is within the allowable inferences from the evidence presented, and within the permissible prerogatives of the Hearing Officer. [Dorman (Vol. III), page 13.] The inverse condemnation finding is rejected as being legally incorrect, but this rejection is irrelevant as to the result because it is cumulative in nature. PETITIONERS/INTERVENORS" EXCEPTIONS #16 and #17 are DENIED. Exception #18. This exception is directed to the finding of fact in paragraph 51 which states that "the great majority of undeveloped areas on the Garcon peninsula currently fall within the wetlands permitting jurisdiction of DEP [Department of Environmental protection] and the federal government. As a consequence, permits for development will be difficult to obtain at best." Petitioners/Intervenors aver that there was no evidence introduced to support this finding. To the contrary, however, the finding is adequately supported by competent, substantial evidence. [Edmisten (Vol. III), pages 90-91.] PETITIONERS/INTERVENORS' EXCEPTION #18 is DENIED. Exception #19. In Exception #19, Petitioners/Intervenors take exception to the finding of fact in paragraph 52 of the Recommended Order, in which it is stated that the Petitioners/Intervenors "failed to prove to the exclusion of fair debate that the plan inappropriately treats wetlands and wildlife habitat on the Garcon peninsula in light of chapter 163 requirements." This is a permissible inference from the evidence presented, both from testimony adduced at hearing, and from the Santa Rosa County Comprehensive Plan itself. PETITIONERS/INTERVENORS' EXCEPTION #19 is DENIED. Exception #20. This exception takes issue with the findings of fact of paragraphs 55-63 of the Recommended Order because the Hearing Officer "failed to consider or give any ruling" on the proposed conclusions of law in the Petitioners/Intervenors' proposed recommended order at paragraphs 142 and 143. The Hearing Officer is not required to do so for the reasons more specifically set forth in disposing of Exception #13, above. PETITIONERS/INTERVENORS' EXCEPTION #20 is DENIED. Exception #21. In Exception #21, Petitioners/Intervenors take exception to the findings of fact of paragraphs 64-70 of the Recommended Order in that the Hearing Officer "failed to consider or give any ruling" on Petitioners/Intervenors' proposed findings of fact at paragraphs 41 and 54-56 of their proposed recommended order, as well as their conclusions of law at paragraphs 112-118 and 121-126 of the same. As to the findings of fact, the Hearing Officer made such rulings, "[paragraphs] 35-56. Partially accepted in findings of fact 16-20 and 64-70." [RO page 38.] As to the conclusions of law, that issue has been addressed above in disposing of Exception #13, as also applied in disposing of Exception #20. PETITIONERS/INTERVENORS' EXCEPTION #21 is DENIED. Exception #22. Petitioners/Intervenors ground this exception on the failure of evidence to support the finding of fact, in paragraph 64 of the Recommended Order, that the Santa Rosa County Comprehensive Plan requires "restoration of preexisting impacts of altered dunes . . The finding is based upon competent, substantial evidence, and therefore the exception must be denied. [Joint Exhibits 3 and 4.] PETITIONERS/INTERVENORS' EXCEPTION #22 is DENIED. Exception #23. Petitioners/Intervenors take exception to the finding of fact in paragraph 69 for the following reasons: The Hearing Officer found that the dune system was protected because the County encourages dune walkovers, sand fences, and other similar methods. The evidence introduced at the administrative hearing clearly refutes this finding. Without a mandatory program of providing such methods to protect the dune system from pedestrian traffic, the plan's alleged protection is illusory. This finding is based upon competent, substantial evidence of record. [Joint Exhibits 3 and 4; Plan Policies 7.A.6.3 and 11.A.1.3.] PETITIONERS/INTERVENORS' EXCEPTION #23 is DENIED. Exception #24. Petitioners/Intervenors base this exception on the finding of fact in paragraph 70 of the Recommended Order wherein the Petitioners/Intervenors assert that the Hearing Officer finds that the Petitioners/Intervenors failed, in the words of the filed exception: "to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan" does not fulfill the Chapter 163 and Rule 9J-5 requirements for protection of the Navarre Beach dune system. The testimony of Dr. Stone clearly refutes this finding. In point of fact, that is not an appropriate paraphrase of the wording of the finding of fact in paragraph 70. The finding of fact, verbatim, is as follows: [P]etitioners have failed to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan does not contain policies which are designed to prevent individual and cumulative impacts of development on beach and dune systems. The finding is a permissible conclusion from the evidence adduced at the hearing, and is based upon competent, substantial evidence. [Joint Exhibits 3 and 4.] PETITIONERS/INTERVENORS' EXCEPTION #24 is DENIED. Exception #25. Petitioners/Intervenors take exception to the findings of paragraphs 74-76 of the Recommended Order based upon the failure of the Hearing Officer to consider or rule on conclusions of law contained in paragraphs 128- 132 of the Petitioners/Intervenor's proposed recommended order. As specified in the disposition of Exception #13, above, and as carried forth in the disposition of Exceptions #20 and #21, above, the exception is denied. PETITIONERS/INTERVENORS, EXCEPTION #25 is DENIED. Exceptions #26, #27, and #28. These exceptions are directed to paragraph 75 of the Recommended Order. The findings of the paragraph that are the basis for the exception include the following: The record does not reflect impacts, if any, the project may have to the environment, but does indicate that adequate mitigation is proposed. The County cannot legally adopt any plan provisions which are inconsistent with a state transportation project. . [P]etitioners have failed to show to the exclusion of fair debate that the plan's treatment of the proposed Santa Rosa Bay Bridge is inappropriate. The findings are supported by competent, substantial evidence. [Edmisten (TR Vol. III); Joint Exhibit 2, Vol. I, pages 4-32 through 4-40.] Exceptions #27 and #28 are simply argument of the Petitioners/Intervenors' position in this proceeding and, as such, are insufficient to overturn findings supported by competent, substantial evidence. PETITIONERS/INTERVENORS' EXCEPTIONS #26, #27, and #28 are DENIED. Exception #29. This exception is directed to paragraphs 77-79 of the Recommended Order, alleged to be in error because the Hearing Officer failed to consider or rule on the conclusions of law in Petitioners/Intervenors' paragraphs 133-140 of their proposed recommended order. As more specifically discussed in disposing of Exception #13, and as concluded in the denials of Exceptions #20, #21, and #25, the Hearing Officer is not required to make such rulings. PETITIONERS/INTERVENORS' EXCEPTION #29 is DENIED. Exceptions #30, #31 and #32. In these exceptions, Petitioners/Intervenors assert that there was no evidence introduced to support the findings, in paragraph 77-79 of the Recommended Order, concerning beach access points. In paragraph 77, Petitioners/Intervenors take exception to the finding that reads, "The plan contains a number of provisions designed to ensure the continued availability of beach access. The future land use map indicates a number of beach access points shown on the map as conservation/recreation." In support of this exception, Petitioners/Intervenors state, "Indeed, during cross examination of Ms. Miller by the County, counsel for the County attacked Ms. Miller for stating that the beach access points were identified on the Navarre Beach Future Land Use Map." In response, Respondent County and Petitioner/Respondent Department state: The Petitioners' own witness, Yvonne Miller, testified that beach access points were indicated on the FLUM. [Citation omitted.] The fact that counsel for the County obtained clarification from Ms. Miller concerning her understanding of how access points were identified on the map is irrelevant to the validity of this finding of fact, and is not a basis for overturning same. As to paragraph 78, Petitioners/Intervenors take exception to the finding that reads that "petitioners have failed to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan does not include appropriate objectives and policies concerning public access to the beach." In response, Respondent County and Petitioner/Respondent Department state, "The plan support documents include extensive data and analysis concerning public access to beaches." With respect to paragraph 79, Petitioners/Intervenors take exception to the finding that the Future Land Use Map includes many public access points. The Agency has reviewed the testimony adduced at hearing regarding beach access points [Miller (TR Vol. 1), pages 150- 169]. The Hearing Officer's conclusions drawn from the testimonial evidence are within the allowable range of inferences. Based upon the record testimony, the findings of fact in paragraphs 77-79 to which exceptions are taken is based upon competent, substantial evidence in the record. [Miller (TR Vol. 1), pages 150-169; Joint Exhibit 2, Vol. II, pages 7-17 through 7-19; Joint Exhibit 7.] PETITIONERS/INTERVENORS' EXCEPTIONS #30, #31, and #32 are DENIED. EXCEPTIONS TO CONCLUSIONS OF LAW Exception #33. Petitioners/Intervenors take exception to the conclusion of law in paragraph 87 of the Recommended Order wherein the Hearing Officer concluded that the petitions challenging the plan must fail. Petitioners/Intervenors assert that they have met their burden of proof, and their petition must be granted. The Hearing Officer found that the Petitioners/Intervenors failed to meet their burden of proof. The conclusion of law ultimately was based upon the Hearing Officer's findings of fact in this case. Factual issues susceptible of ordinary methods of proof are the prerogative of the hearing officer. Heifetz v. Department 6f Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). It is for the hearing officer to consider the evidence presented, resolve conflicts, judge credibility of witness, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence. Id., 475 So.2d at 1281. In this case, the Hearing Officer did so, and his findings of fact did not support the position of the Petitioners/Intervenors. The conclusion of law was the logical result of the Hearing Officer's permissible rulings on the findings of fact. PETITIONERS/INTERVENORS' EXCEPTION #33 is DENIED. Exception #34. Petitioners/Intervenors take exception to the conclusion of law in paragraph 90 of the Recommended Order wherein the Hearing Officer recommends that the Department of Community Affairs enter the final order in this cause, finding the Santa Rosa County Comprehensive Plan in compliance. Petitioners/Intervenors assert that both the Department of Community Affairs and the Administration Commission should enter a final order finding the plan to be not in compliance. For the reasons set out in disposing of Petitioners/Intervenors' Exceptions #1 and #2, above, the Administration Commission is not the entity to whom the Recommended Order in this cause should be directed. The Department of Community Affairs is the appropriate Agency to enter the final order in this cause. As to the issue of compliance, the Department found the plan, as amended, to be in compliance; the Hearing Officer heard evidence and considered the issues, and found the plan, as amended, to be in compliance. The conclusion is the logical and ultimate result of the findings of fact in this case, which were based upon competent, substantial evidence. The Petitioners/Intervenors have not borne their burden of proving that the plan, as amended by remedial amendments, is not in compliance. PETITIONERS/INTERVENORS' EXCEPTION #34 is DENIED. WHEREFORE, the Department of Community Affairs adopts the Recommended Order of the Hearing Officer, and issues this Final Order determining that the Santa Rosa County Comprehensive Plan, as amended, is in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Department of Community Affairs enter a final order determining the Santa Rosa County comprehensive plan, as amended, to be in compliance. DONE AND ENTERED this 12th day of July, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of July, 1994. Petitioners: APPENDIX TO RECOMMENDED ORDER CASE NOS. 90-7706GM AND 93-4980GM 1-3. Partially accepted in finding of fact 2. 4. Covered in preliminary statement. 5-6. Partially accepted in finding of fact 1. 7-34. Partially accepted in findings of fact 10-15 and 37-54. Partially accepted in finding of fact 9. 36-56. Partially accepted in findings of fact 16-20 and 64-70. 57-65. Partially accepted in findings of fact 31-36 and 74-76. 66-77. Partially accepted in findings of fact 24-26 and 77-79. 78-83. Partially accepted in findings of fact 27-30 and 55-63. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the more credible, persuasive evidence, subordinate, or unnecessary to the resolution of the issues. Respondents: Because respondents' joint proposed order exceeded the forty page limit imposed by Rule 60Q-2.031, Florida Administrative Code, the undersigned has considered the contents of the proposed order but has not made specific rulings on each proposed finding. See Sunrise Community, Inc. v. DHRS, 14 F.A.L.R. 5162 (DHRS, 1992), affirmed 619 So.2d 30 (Fla. 3rd DCA 1993). COPIES FURNISHED: Linda Loomis Shelly, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 Stephanie M. Callahan, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 Thomas V. Dannheisser, Esquire County Attorney Santa Rosa County Courthouse Room 106 Milton, FL 32570 Kenneth G. Oertel, Esquire Post Office Box 6507 Tallahassee, FL 32314-6507 David A. Theriaque, Esquire Building F, Suite 100 820 East Park Avenue Tallahassee, FL 32301 Mr. Robert Carl 9277 Deer Lane Navarre, FL 32566 John M. Harold, Esquire J. Dan Gilmore, Esquire 4400 Bayou Boulevard, Suite 45 Pensacola, FL 32503
Recommendation Close existing railroad crossing at Citrus Springs Boulevard and Seaboard Coastline Mile-post 763. DONE and ORDERED this 8th day of November, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Eugene R. Buzard, Esquire Seaboard Coastline Railroad 500 Water Street Jacksonville, Florida 32202 Mr. Gordan S. Burleson, Sr. Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William Livingston, Esquire 3250 S. W. 3rd Avenue Miami, Florida James L. Shroads, Esquire 2350 S. W. 3rd Avenue Miami, Florida 33129
The Issue The issue for determination is whether the Town of Indian River Shores is entitled to a coastal construction control line permit to construct a beach access seaward of the coastal construction control line in Indian River Shores, Florida.
Findings Of Fact The Town of Indian River Shores (Town) is an incorporated municipality located on a five-mile stretch of the Atlantic Ocean in Indian River County, Florida. The Town has a population of approximately 2,700 residents. The Town's Public Safety Department has the combined functions of law enforcement, fire protection, and life support (lifesaving). All of the Officers of the Public Safety Department are cross-trained and cross-designated as police officers, firefighters, and emergency service specialists who are either paramedics or emergency medical technicians (EMTs). The Officers are on eight-hour shifts; each shift has approximately four to five Officers on duty, i.e., a police officer, a firefighter, a paramedic, and an EMT. When fully staffed, the Public Safety Department consists of 25 Officers. Because of the small number of Officers and their varied duties, restrictions and limitations are placed on their deployment. One of the vehicles used by the Public Safety Department in the performance of duties is an all terrain vehicle (ATV). The Public Safety Department has one ATV which is used on the beach for patrol and rescue purposes and for moving rescue and lifesaving equipment to and from the beach. In order to access the beach, the Public Safety Department must travel across the dune, primarily through private property (Corrigan Beach) located approximately 3.4 miles from the office of the Public Safety Department. The Town determined that this location was unsatisfactory for beach access due to the property being offered for sale, the great distance of the property from the Public Safety Department's office, and the dune being breached each time the ATV is taken onto the beach. The Town determined, however, that Beachcomber Lane, a public street within the Town, was the best choice for beach access and entry by the Public Safety Department. Beachcomber Lane is approximately 1,000 feet in total length and extends from Highway A1A to the bluff of the Atlantic Ocean. The Pubic Safety Department is located approximately 1,500 feet from Beachcomber Lane. The residents of Beachcomber Lane include Peter Broom, Jeremy R. Geffen, and Duane Jackson. At various times, the Public Safety Department has also used Beachcomber Lane as an access to the beach on emergency bases. Currently, a public raised wooden walkway, with steps, leads over the dune and onto the beach at the Atlantic Ocean end of Beachcomber Lane. In order for the Public Safety Department to obtain beach access by way of Beachcomber Lane, an access ramp will have to be constructed seaward of the coastal construction control line (CCCL). Such construction requires, among other things, a permit from the Department of Environmental Protection (DEP). To design and present the plan to the DEP for a proposed beach access by way of Beachcomber Lane, the Town obtained the services of Coastal Technology Corporation (Coastal Technology), an engineering firm. On July 24, 1996, Coastal Technology filed an application on behalf of the Town with the DEP for a permit to construct a beach access ramp seaward of the CCCL. The application process included the submission of detailed drawings and other documents required by DEP. In the application, Coastal Technology described the construction, in pertinent part, as follows: 6. The proposed work consists of the removal of Brazilian Pepper . . . and installation of a 100 foot (approximate) long, 10 foot wide stabilized emergency access ramp. To minimize the impact to the existing native vegetation, the proposed emergency access ramp will be located approximately 8 feet from the north Right-of-Way within the area of the existing Brazilian Peppers. . . . A 2-inch layer of washed concrete sand will be placed between the limestone and paver blocks for a proper leveling of the previous paver blocks. The paver blocks will be TURFSTONE . . . which . . . have been permitted by DEP at other locations. . . . The openings in the TURFSTONE will be filled with excavated beach sand from the proposed access ramp footprint. Any remaining sand . . . will be placed at the seaward end of the proposed access ramp. To mitigate for any potential impact to native vegetation, 6 sea grapes will be installed . . . and any sea oats removed during excavation will be kept alive and replanted within those areas void of sea oats. Three 6-inch by 6-inch pressure treated posts will be installed with a chain fence. A locking chain fence will be used to prohibit the general public from accessing the beach through the emergency access ramp. In the application, Coastal Technology presented the justification for the construction, in pertinent part, as follows: 7. The proposed access ramp at Beachcomber Lane is specifically for the use by the Town of Indian River Shores for emergency access to the beach. The access ramp will have a locking chain only accessible by the Public Safety Department and has been designed to accommodate four-wheel drive patrol and EMT vehicles. . . . Beachcomber Land [sic] site was chosen by the Town because of : 1) the relative stability of the shoreline at that location; and, [sic] 2) accessibility from the Indian River Shores Town Hall which is on the west side of A1A across from Beachcomber Lane. The application indicated that the proposed beach access ramp was being constructed for emergency access to the beach. However, prior to the filing of the application, both emergency and routine patrol access by the Public Safety Department were discussed as uses for the access ramp at public meetings by the Town's public officials in which the subject of the access ramp was brought up. Such use for the beach access ramp was contemplated by the Town from the very inception of the plan for the access ramp. Routine patrol is defined by the Public Safety Department to be patrolling approximately every other day for one or two hours. By notice dated August 7, 1996, the DEP requested public comment on the Town's application for the CCCL permit. By letter dated August 21, 1996, residents of Beachcomber Lane, including Mr. Broom, Mr. Geffen, and Mr. Jackson, provided the DEP with their comments on the Town's application. On September 3, 1996, the Town's application for the CCCL permit was considered complete by the DEP. On November 6, 1996, at the request of DEP, the Town conducted a public meeting to obtain public comments regarding the proposed beach access ramp. The residents of Beachcomber Lane were notified of the public meeting, and among the residents attending the meeting were Mr. Broom, Mr. Geffen, and Mr. Jackson. At the public meeting, the Town clearly stated that the proposed beach access ramp would be used by the Public Safety Department for both emergency and routine patrol purposes with the ATV. Also, the Director of the Public Safety Department indicated that, based upon information collected regarding criminal activity and suspected criminal activity along the beach, routine patrol was needed.2 The application process culminated in the issuance of a Final Order by the DEP on November 27, 1996, granting the CCCL permit, with special permitting conditions in addition to the standard conditions. The CCCL permit granted by the DEP was Permit No. IR-507. The proposed beach access ramp to be constructed is approximately 100 feet in length and 10 feet in width. The construction will utilize turf blocks which permit grass and foliage to grow through the blocks on the access-way. A provision of the DEP Final Order requires the removal of exotic plants (Brazilian Pepper), which are not native plants, and the replanting of native vegetation adjacent to the access-way. On December 6, 1996, public notice of DEP's issuance of the CCCL permit to the Town was published in the Town's local newspaper. The Town agrees to abide by the special conditions, as well as the standard conditions, to the issuance of the CCCL permit. The beach access ramp on Beachcomber Lane will be used by the Town's Public Safety Department for public service purposes, including emergency rescue, training, and routine patrol. Beachcomber Lane is the appropriate location for the beach access ramp. The DEP has determined that the construction of the beach access ramp meets all the requirements of the DEP for the issuance of the CCCL permit. The DEP has determined the proposed beach access ramp to be a minor structure. The construction of the proposed beach access ramp will cause no significant adverse impact or cumulative impact on the beach dune system. The design of the proposed beach access, with the conditions added by the DEP, minimizes adverse impact of the access ramp. Native vegetation will be maintained and replenished around the proposed beach access ramp. The proposed construction of the beach access ramp will not result in a significant adverse impact to the beach and dune system. No net excavation in the sandy soils seaward of the control line will result from the construction. No structurally induced scour will result from the construction because the proposed structure is designed to break- away during a storm. The potential for wind and waterborne missiles during a storm is minimized by the construction. Public access to the beach is not interfered with by the beach access ramp. The construction of the beach access ramp will occur in a nesting habitat of the marine turtle, i.e., loggerhead, leatherback and green turtle. The DEP addressed protection of the nesting area through one of its special conditions to the issuance of the CCCL permit. The special condition included "no construction, operation, transportation or storage of equipment or materials seaward of the dune crest during the marine turtle nesting season" which is March 1 through October 31 of each year. With this special condition, the construction, itself, will have no adverse impact on the marine turtle or the turtle nesting. The Town agrees to abide by this special condition.3 The access ramp, itself, will have minimal impact on the marine turtles and will not cause a "take" of the turtles. Furthermore, the use of the ATV by the Public Safety Department will have no adverse impact on the marine turtles or the turtle nesting. At hearing, the DEP made another recommendation for the issuance of the CCCL permit, involving the marine turtle. Prior to the issuance of the Final Order, the DEP was not fully aware that the proposed beach access ramp was to be used for both emergency and routine patrol access. Having considered the circumstance of routine patrol, the DEP further recommends that a survey of turtle nesting be conducted after construction, but prior to routine use, on the Town's entire five-mile stretch along the Atlantic Ocean to mark turtle nesting areas for their protection and to place certain restrictions on the use of the ATV vehicle. This recommendation will not prohibit or hinder the construction of the beach access ramp.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Town of Indian River Shores the Coastal Construction Control Line Permit No. IR-507, with the special conditions as may be required by the Department for the protection of marine turtles. DONE AND ENTERED this 8th day of December, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1997.
Findings Of Fact W. B. Johnson Properties, Inc., Petitioner, is the owner of the 428- room Holiday Inn Surfside located on Clearwater Beach. This hotel was constructed in 1981 on land zoned CTF-28 for commercial tourist facilities. The tract of land on which the hotel is situated is approximately ten acres and the maximum density of 42 rooms per acre is utilized. This hotel is currently in conformity with all building and zoning regulations. Holiday Inn Surfside has decking around its swimming pool which is capable of accommodating only 120 to 150 deck chairs for the guests of the hotel. Additional chair space, if needed, must be obtained by using the undecked area of the beach in front of the hotel. The occupancy rate for this hotel from the beginning of 1983 to date has been 80 percent. Petitioner owns the entire beach fronting its property, a distance of some 340 feet. Prior to the passage of Clearwater Ordinance No. 3075-83, the western setback line for this property was 50 feet from-mean highwater (MHW). Ordinance 3075-83 made the Coastal Construction Control Line (CCCL), as established by Section 161.063, Florida Statutes, as the western setback line for property located on Clearwater Beach. This is now the Coastal Control setback line. The Coastal Construction setback line as it crosses Petitioner's property is 338 feet from MHW of the Gulf of Mexico. Prior to the passage of Ordinance No. 3075-83, Petitioner could have constructed decking up to the then setback line, 50 feet from MHW. Petitioner is one of the few property owners on Clearwater Beach that has undisputed ownership of the beach fronting its property seaward of the CCCL. This area of Clearwater Beach in the vicinity of Holiday Inn Surfside is the widest part of the beach between the CCCL and MHW. Exhibit 7, which was submitted as a late-filed exhibit, clearly shows the beach north of Petitioner's property is not as wide as is the beach fronting Petitioner's property, and much of the property on the beach south of Petitioner's property is owned by the City. Solely by having ownership of more beachfront property seaward of the CCCL, Petitioner is more adversely affected by Ordinance No. 3075-83 than are other property owners. Petitioner has signs restricting the use of the decking around the pool to hotel guests. Petitioner also has a patio bar in the vicinity of the pool which is accessible from the beach and from the hotel. Drinks are served to the public at this patio bar. By extending the deck 28 feet seaward of the OCCL, Petitioner would be able to provide decking for an additional 150 to 170 chairs for the use of hotel guests. With an 80 percent occupancy rate there is insufficient deck space to accommodate all of the hotel guests who desire to use these facilities. Currently the excess place their deck chairs in the sand seaward of the CCCL. Those who testified in opposition to the variance requested did so on the grounds that the increased deck facilities would bring more people to the patio bar, thereby increasing the traffic and parking problems on the beach, that the hotel did not adequately restrict the use of the existing deck to guests of the hotel, and that if this application is granted it will open the doors to others who would like to construct a deck seaward of the CCCL. None of these grounds is deemed particularly meritorious. Many factors could increase the patronage of the patio bar and more adequate decking would not be a significant one, particularly in view of Petitioner's contention that the deck was reserved for guests of the hotel, albeit not strictly enforced during periods of low occupancy.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: The Parties and the Amendment DCA is the state land planning agency charged under Chapter 163, Part II, Florida Statutes, with the review of comprehensive plans and plan amendments. Final agency action with regard to plans and plan amendments found not "in compliance" by DCA is taken by the Governor and Cabinet, sitting as the Administration Commission, in accordance with Section 163.3184(10), Florida Statutes. The City is a municipality located in Broward County. As a municipality, it is required by Chapter 163, Part II, Florida Statutes, to adopt a comprehensive plan. The City adopted its comprehensive plan (the "Comp Plan") in June of 1989. The two planning periods addressed in the Comp Plan are five year and ten year periods. Subsequent to adoption of the Comp Plan, the City has adopted at least two amendments which were found to be "in compliance" by DCA. A third amendment, which was adopted at the same time as the amendment at issue in this proceeding, was the subject of a "compliance agreement" at the time of the hearing in this case. The amendment which is at issue in this case was adopted by the city on September 3, 1991 as Ordinance No. 91-77. (This amendment is hereinafter referred to as the "Amendment" or the "Plan Amendment"). The Amendment revised the Recommended Traffic Circulation Plan Map and the Future Functional Classification Map of the City's Comprehensive Plan to remove approximately 10.46 acres of Oaks Drive right-of-way, a local road, from the traffic circulation network. The portion involved was the northern segment located from Oaks Way to Oaks Terrace. Prior to adoption of the Amendment, a draft of the proposal was reviewed by DCA which issued its objections, recommendations and comments in the form of a letter to the Mayor of the City dated July 5, 1991. (This letter is hereinafter referred to as the "ORC.") After receiving the ORC, the City adopted the Amendment. The adopted Amendment was not changed from the proposed amendment. Following the adoption of the Amendment, the City transmitted to DCA the following: a September 4, 1991 transmittal cover letter; Ordinance No. 91- 77; the Traffic Circulation Element goals, objectives and policies from the Comp Plan in place at the time of the Plan Amendment; the application for the Plan Amendment submitted by the developer to the City; a traffic circulation study prepared by Tinter Assoc. (the "Tinter Study") which was part of the application; and the City's Response to DCA's ORC. After receipt and review of the adopted Amendment and the other documents in the transmittal package, DCA initiated this proceeding. The Site and the County Plan The segment of road which is abandoned by the Amendment is adjacent to the "Oaks Tract", a 51.7 acre site within a development known as the Palm Aire Development. The Palm Aire Development lies to the west of Powerline Road, east of Florida's Turnpike, and south of Atlantic Boulevard. The Oaks Tract is part of the northern portion of the Development and is bordered by Broward County Water Management District No. 4 Canal on the west and South Florida Water Management District C-14 Canal on the north and east. Beyond the C-14 Canal to the north is Atlantic Boulevard. To the south of the site is a golf course and condominiums which are part of the Palm Aire Development. The Comp Plan's data and analysis describes Atlantic Boulevard as the City's main arterial. It is a six lane road from Florida's Turnpike east to I- 95 and a four lane road from I-95 to its eastward terminus at the beach. The data and analysis notes that future plans along Atlantic Boulevard include the construction of an interchange at Florida's Turnpike. The Palm Aire Development is one of the facilities which the data and analysis mentions as served by Atlantic Boulevard. The segment of Atlantic Boulevard at issue in this proceeding is the portion of Atlantic Boulevard west of Powerline Road. The plat for the Oaks Tract Subdivision, which is described as Palm Aire Oaks Course Estates Section 3, was approved by the Broward County Commission and recorded in 1980. At that time, the subdivision was planned for 1182 high-rise units. In 1986 or 1987, the County and owners of the subdivision entered into an agreement which resulted in an amendment to the subdivision's development level. Based on this revised agreement, the Oaks Tract Subdivision was planned for 1180 units of mixed types: single family detached units, townhouse units, garden apartments, and high-rise units. In other words, the development plan was no longer exclusively high-rise multi-family units. Impact fees were assessed by the County when the plat was initially approved. Additional road impact fees were assessed at the time of the change in the development mix. At the time of the original plat approval, the owners of Oaks Tract conveyed the Oaks Drive right-of-way to the City. As of the date of the hearing in this case, most of the Oaks Drive right-of-way was not paved. Only a small portion at the beginning and end of this segment had been paved. When the original plat was approved and recorded in 1980, there was no segment of Atlantic Boulevard to the north of Oaks Tract. That portion of Atlantic Boulevard was not constructed until the mid-1980's. At the time of original plat approval, neither the County nor the City analyzed or required concurrency. The City did not have any concurrency requirements until January 1, 1990, when such requirements first appeared in the City's land development regulations. The County first implemented concurrency requirements in 1989. Under the County's current regulations, a concurrency analysis is done prior to plat approval. While the current procedure for plat approval necessarily includes a determination that the traffic concurrency requirements of the regional road network have been met, such a determination was not required in 1980 when the plat for the Oaks Tract was approved. The Broward County Comprehensive Plan (the "Broward Comp Plan") was adopted in March of 1989. In the Traffic Circulation Element of the Broward Comp Plan, the adequacy of the regional road network is addressed. The regional road network consists of state arterial and collector roads and all county collector roads. FDOT Road Classifications And Level Of Service Standards The Florida Department of Transportation ("FDOT") is responsible for classifying roadways into hierarchical categories based on overall function in the regional transportation system. FDOT has adopted a functional classification system which categorizes the various roadway systems as part of the State Highway System, the County Road System or the City Street System. The State Highway System is a network of regional roads whose primary purpose is to move and transport people and goods in an efficient and safe manner. The roads in this network serve intrastate, intra-regional and intra-urban area trips. They are not designed to provide access to or serve adjacent land, which is a function of local roads. As noted above, the segment of Atlantic Boulevard at issue in this case is classified as a principal arterial road. It is part of the State Highway System. A principal arterial road is the highest level of road under the FDOT functional classification system. A principal arterial is a major highway serving regional activity centers and is designed primarily to move traffic, not provide access to adjacent land. Under the FDOT Highway Capacity Manual, roads are rated from "A" to "F" to measure the quality of service of a road. This FDOT manual sets forth level of service standards based on the speed which an average driver can maintain over a section of road. A level of service of "A" is the highest rating and "F" is the lowest. Under the FDOT Highway Capacity Manual, the level of service standard for an arterial road is "D" which reflects an average travel speed of 17 miles per hour. An arterial road which operates under capacity would reflect an average travel speed of under 17 miles per hour. The "E" level of service describes arterial roads with an average travel speed of between 13-16 miles per hour. If an arterial operates at less than 13 miles per hour, it is described as operating at a level of service of "F". Several factors affect the average travel speed of a road. The primary factor which slows travel speed is signalized intersections. Other factors include whether the road is divided, the level of development adjacent to the road, the number of driveways, and the types of traffic. FDOT rules relating to minimum level of service standards require principal arterials, such as Atlantic Boulevard, to operate at a level of service of "D". The comprehensive planning process seeks to insure that local land use decisions are consistent with these level of service standards. The type of analysis for arterial roads recognized and strongly recommended by FDOT to measure level of service is a peak hour analysis. Peak hour analysis is based on operating conditions of the 30th busiest hour in the year. Level Of Service For Atlantic Boulevard In order to assess whether the level of service for a road in the regional road network has been exceeded, Broward County developed and applies a "trips model." This "trips model" considers both trips generated by existing development and expected trips from committed development. Committed development is unbuilt development which has been vested or otherwise approved through development order for future development activity. When the County determines that a property is vested, the traffic is considered as committed on the regional road network. The determination applies to a certain level of development and does not designate specific roads for which the trips are vested. Around the time of the adoption of the Broward Comp Plan, the County made an assessment of the regional transportation network. The County determined that any road segment that was operating at level of service "D" or better just prior to the adoption of the Broward Comp Plan would be assigned a level of service standard of "D" in the Broward Comp Plan. The level of service standard adopted in the Broward Comp Plan in March of 1989 for the pertinent segment of Atlantic Boulevard is "D." This level of service standard has not been amended and remains in effect. To establish this standard, the County applied the "trips model" to the portion of Atlantic Boulevard to the north of the Oaks Tract and determined that, based on existing and committed development, this portion of Atlantic Boulevard was operating at a level of service of "D" or better. This analysis took into consideration the Palm Aire Development, including the Oaks Tract. The County concluded that development of the Oaks Tract was vested and calculated 5300 vested trips per day for the Oaks Tract Subdivision. In Broward County, municipal plans are required by the County to be at least as stringent on level of service standards as the County's plan. The City has adopted the County's standard for Atlantic Boulevard in the traffic circulation elements, goals and objectives of its Comp Plan. In the data and analysis submitted by the City to DCA in support of its Comp Plan, a system overview and analysis of the existing roadway conditions for daily and peak hour periods is set forth. Based on this analysis, the City developed a travel demand modeling process to identify future traffic conditions for short-range (1994) and long-range (2010) planning periods. The Comp Plan's data and analysis includes existing traffic volumes based on peak season and average daily traffic analysis. "Peak season" is considered to be the first quarter of the calendar year while average daily conditions reflect a year round situation based on the average of traffic counts performed in winter and summer seasons. Traffic Circulation Policy 02.05.02 of the Comp Plan provides: After January 1990, or when required by state statute, provide a Development Management System that will allow development to occur in concurrence with the Future Land Use Map and in concert with development of the traffic circulation system. Provide daily and peak hour LOS [level of service] "D" on all arterial and collector roadways where existing plus committed traffic allows and maintain traffic conditions on all other roadway segments. Provide daily and peak hour LOS "C" on all local roadways. LOS shall be based on the 1985 Highway Capacity Manual and the FDOT Generalized Daily and Peak Hour Level of Service Maximum Volumes. Other methods may be utilized but are subject to technical review and acceptance by the City. In Traffic Circulation Policy 02.05.02, the City establishes level of service standards for all arterial and collector roadways, where existing plus committed traffic allows, as "D" based on both daily and peak hour (not peak season) analyses. In order to be consistent with this policy, a level of service of "D" must be maintained under both daily and peak hour analysis. Rule 9J-5.0055(1)(d), Florida Administrative Code, requires that, in analyzing and establishing level of service standards for roads, a local government must, to the maximum extent feasible, adopt level of service standards which are compatible with the level of service standards established by FDOT. In addition, the local government should insure that adopted level of service standards will be maintained prior to issuance of a development order. Oaks Drive The Oaks Drive right-of-way is designated a local collector road in the City's Comp Plan. This right-of-way is depicted on the Comp Plan's future traffic conditions map series. The Plan Amendment which is the subject of this proceeding would change two of the four maps in that series, the "Recommended Traffic Circulation Plan" and the "Future Functional Classifications" maps, to reflect the removal of this right-of-way. The Oaks Drive right-of-way, as originally conveyed to the City, provided two access points into and out of the Oaks Tract Subdivision. Neither of those access points was directly connected to Atlantic Boulevard. The Bridge To Atlantic Boulevard In approximately May of 1989, the developer of Oaks Tract requested a roadway alteration permit from FDOT to build a bridge over the C-14 canal and connect the Oaks Tract Subdivision with Atlantic Boulevard. The application did not indicate, nor could it be gleaned from the information contained therein, that the Oaks Drive right-of-way would be abandoned at a future date. In order to receive the FDOT permit, neither the developer nor the City was required to demonstrate that the level of service on Atlantic Boulevard would be maintained. The road alteration permit was issued in approximately September of 1989. At the time of the hearing in this case, the access road and bridge between Atlantic Boulevard and the Oaks Tract was completed and approximately $450,000 had been expended on construction and engineering costs. Subsequent to the issuance of the roadway alteration permit, the developer of Oaks Tract requested the City to abandon the Oaks Drive right-of- way. The City advised the applicant that the abandonment would require an amendment to the Comp Plan as well as an abandonment authorization. Three right-of-way vacation requests were submitted to the City by the owners of Oaks Tract on October 12, 1990, March 13, 1991 and April 23, 1991. The right-of-way abandonment requests were forwarded to FDOT for approval. The requests did not reflect or reveal that, as a result of the abandonment, the only access to Oaks Tract would be across the new bridge spanning the C-14 canal to Atlantic Boulevard. This result was not clearly reflected in any information provided to FDOT prior to the initiation of this case. Because the right-of-way was not adjacent to a state road and the requests as written did not appear to affect a state road, FDOT did not raise any objection to the abandonments. At the hearing in this case, FDOT's representatives testified that the FDOT now objects to the vacation of the right-of-way because it would result in an exclusive access to Oaks Tract via the bridge to Atlantic Boulevard. FDOT is concerned that, by creating an exclusive access, all of the traffic generated by the development would be routed to Atlantic Boulevard thereby lowering the level of service on Atlantic Boulevard. DCA Review Of The Amendment The City approved the right-of-way abandonment requests submitted by the developer. Ultimately, the City also adopted the Plan Amendment to modify the Comp Plan to reflect the removal of Oaks Drive from the traffic circulation network. As noted above, prior to adopting the Amendment, the City sent the proposed Amendment to DCA for review as required by Section 163.3184, Florida Statutes, and Rule 9J-11.006(1), Florida Administrative Code. The documentation submitted to DCA included the Tinter Study. This Study is a "build-out" study which assesses traffic circulation patterns after the Oaks Tract development is completed. The time frame for build-out was estimated to be three years. Therefore, the Study addresses a projected three year period in the future. The Tinter Study was designed to support the right- of-way abandonment request, not the Comp Plan amendment. The Tinter Study is insufficient to support an amendment to the Comp Plan because its focus is too limited. The Study is concerned only with the impact of development from the Oaks Tract subdivision. To support a future traffic conditions map amendment, the impacts of other development which may occur in the area throughout the entire planning period (through year 2010), not just the impacts of the Oaks Tract subdivision over the next three years, should have been analyzed in order to properly evaluate whether the level of service will be maintained on Atlantic Boulevard. For example, the impact of the nearby Arvida Pompano Beach DRI was not considered in the Tinter Study even though that development will certainly affect the traffic on Atlantic Boulevard. The Tinter Study also failed to address the need for a traffic signal at the new access onto Atlantic Boulevard and/or at the future Florida's Turnpike interchange. A proper study of future impacts to Atlantic Boulevard would have addressed the need for and/or possibility of two additional traffic signals at these locations. Consideration of the need for these signals could alter the analysis of the capacity and the level of service of Atlantic Boulevard. Under the FDOT Level of Service Manual, if two new signals were added, the applicable classification of the road based on signalization would drop from Group "C" to Group "D," resulting in a lowering of the operating level of service to "F." Because it was designed as a "build-out" study to support a vacation of the right-of-way, the Tinter Study did not explore alternative traffic patterns such as leaving open access points on Oaks Drive leading to roads other than Atlantic Boulevard. Other access points could possibly mitigate impacts on the level of service of Atlantic Boulevard. The Tinter Study includes the following conclusion: [D]evelopment of the site based on the proposed Traffic Circulation Plan would result in a decrease in operating Level of Service on Atlantic Boulevard from Powerline Road to the proposed site access location from 'D', the maximum acceptable standard, to 'E'. The Study also concludes that, if the change was not made and the existing Traffic Circulation Plan remained in effect, at least three local collector roadways would exceed the City's minimum standards as a result of the development of Oaks Tract. As noted above, DCA issued its ORC in the form of a letter to the Mayor of the City dated July 5, 1991. That letter set forth DCA's position that the proposed Amendment was not supported by adequate and relevant data and analysis. Specifically, DCA expressed concern that creating a single access to the site from Atlantic Boulevard could result in a lowering of the level of service for this segment of Atlantic Boulevard from "D" to "F". As indicated above, after receiving the ORC, the City adopted the Plan Amendment with no significant modifications. When the City transmitted the adopted Plan Amendment to DCA, it included a "Response to DCA Objections, Recommendations and Comments Re: Traffic Circulation Element Amendment 91-03 Oaks Drive" (the "Response") attached to which was a letter dated August 22, 1991 from Walter H. Keller, Jr., a traffic planning engineer. The City's Response disputed DCA's conclusion that the level of service for the segment of Atlantic Boulevard would decrease from "D" to "F". The City contended that the Tinter Study's conclusion reflecting a decrease in level of service from "D" to "E" was based on a worst-case, peak season condition scenario. According to the City, average annual operating conditions for all the studied roadways would not be affected by the Amendment. The City cited to the letter from Mr. Keller to support this conclusion. That letter stated that ...[t]he proposed amendment will not impact adopted LOS standards. Furthermore, the proposed revised network will provide relief for the over capacity link on Powerline Road between Atlantic Boulevard and Palm Aire Drive North. Pompano Beach traffic circulation standards require LOS "D" to be maintained on an average daily basis. The amendment will not cause average conditions to exceed LOS Standards. This condition is based on the traffic circulation study performed for the proposal and the seasonal traffic analysis included in the City's traffic circulation element. In addition, the proposed network resulting from the Amendment will decrease traffic on Powerline Road between Atlantic Boulevard and Palm Aire Drive North by approximately 1800 trips per day. The City's Response to DCA's ORC also noted that FDOT had issued the permits for the access bridge to Atlantic Boulevard and that the bridge was under construction. The Response pointed out that The subject property is platted and vested for the trips expected to be generated by the proposed development. Based on this information, the proposed amendment satisfies transportation concurrency requirements for the City of Pompano Beach Comprehensive Plan. The documentation submitted by the City with the adopted Amendment did not alleviate DCA's concerns regarding the Amendment. In particular, DCA noted that Figure 6B of the Tinter Study and its accompanying chart show projected daily peak-season traffic volumes on Atlantic Boulevard at build-out. The portion of Atlantic Boulevard between Powerline Road and the new access to Oaks Tract is projected to serve 50,256 trips at a level of service of "E" and the portion of Atlantic Boulevard west of the new access to Lyons Road is projected to serve 45,943 trips at a level of service of "D." Thus, despite the conclusory language in the Response and in Mr. Keller's letter, the Tinter Study clearly shows that there will be some increased traffic on Atlantic Boulevard as a result of the Amendment. DCA noted with concern the Study's conclusion that: The only impact expected from the development of the site given the proposed Traffic Circulation Plan would be a decrease in the operating Level of Service from "C" to "E" for the link of Atlantic Boulevard from the site to Powerline Road. As mentioned, considering the existing plan, the link would decrease from Level of Service "C" to "D". Explaining The Tinter Study The Tinter Study includes the conclusion that: The development of the property based on the proposed Traffic Circulation Plan would create a negligible impact upon the roadway network in comparison with development of the property based on the Existing Traffic Circulation Plan. Unfortunately, The Tinter Study did not attempt to analyze the expected impact of the Plan Amendment by utilizing a methodology that could be easily compared to the calculation of the level of service standard set forth in the Broward County Plan. Instead, the Tinter Study was based upon existing operating level of service data to which was added the projected increase in average daily traffic and peak-season volume expected as a result of the buildout. Under these circumstances, comparing the conclusions of the Tinter Study to the policies and goals of the Comp Plan is very confusing and can be the functional equivalent of comparing apples to oranges. At the hearing, Andrew Sebo, the traffic engineer who prepared the Tinter Study, testified and attempted to explain certain of the conclusions set forth in the Study. He contended that the level of service for average daily traffic conditions on Atlantic Boulevard would not increase as a result of the Amendment. To support this conclusion, he presented revised calculations applying the Group C figures of the FDOT Manual to the data from the Tinter Study. These calculations are of questionable value since they, like the Tinter Study, apparently fail to take into account the possible addition of traffic lights on the relevant portion of Atlantic Boulevard. Mr. Sebo also testified that there would be no increase in level of service on a peak-hour basis for Atlantic Boulevard as a result of the Plan Amendment. He claimed that the calculations in the Tinter Study used a peak- season analysis which resulted in a much higher traffic volume than average annual daily traffic volume or peak hour measurements. He pointed out that the Study assumed that there would be a 15% growth in traffic over the three years of the study. This assumption of a 5% annual growth in traffic consisted of a 3% projection attributable to traffic growth with the remaining 2% coming from "committed development" traffic. Since the committed development traffic was factored into the Comp Plan's level of service determinations, Mr. Sebo contends that this 2% was double-counted in determining whether the Plan Amendment will result in a degradation of the level of service on Atlantic Boulevard. He also contends that the assumption of an annual 3% growth in traffic was probably overstated since the actual growth over the proceeding three years was much less than that. Mr. Keller confirmed some of these contentions. However, neither of these witnesses specifically addressed the increase in traffic on Atlantic Boulevard throughout the applicable planning periods set forth in the City's Comp Plan. Furthermore, it does not appear that either witness considered the possible need for a new traffic signal. Even with the clarifications provided by Mr. Sebo, there are some unexplained inconsistencies and/or ambiguities regarding the Tinter Study. For example, the Study assumes 5.92 trips per day per unit for the Oaks Tract development. Utilizing a formula set forth in the Institute of Transportation Engineer's Manual (the "ITE Manual"), this assumption would result in 7,131 trips per day. (7,131 = 1,196 x 5.92 + 51). Mr. Keller contends that 5.92 trips was probably excessive for a development like Oaks Tract. However, the ITE Manual sets forth the following trip generation projections: high-rise-4 trips per day per unit; garden apartments-6.8 trips per day per unit; townhouses-7.8 trips per day per unit; single family-10 trips per day per unit. As noted above, Oaks Tract, changed in 1986 or 1987 from all high-rise units to a mixed type of development comprised of single family detached homes, townhouses, garden apartments and high-rises. The Study's premise that the "[Apartment] category was selected as it has the highest trip generation rate of the various multi-family residential development categories listed in the [ITE] report" is apparently incorrect because townhouses are higher trip generators than apartments in the multi-family classification. Moreover, single family units, which are the highest trip generators of all, were not included in the analysis even though they will be part of the development. Thus, the Study arguably underestimated the number of trips. It should be noted that the county in its Comp Plan only considered 5,300 trips per day in calculating the committed traffic for Atlantic Boulevard from Oaks Tract. While the discrepancy between this figure and the calculations in the Study may be the result of the elimination of other access points, no clear explanation has been provided. The Study notes that peak hour traffic volumes were collected for the Study. However, no peak hour analysis was done for future traffic conditions. No explanation was provided in the Study as to why peak hour analysis was not done in accordance with Traffic Circulation Policy 02.05.2. As indicated above, at the hearing Mr. Sebo attempted to extrapolate a peak hour analysis from the information in the Study. This testimony was not persuasive because it did not take into account the possible addition of a new signal at the access point and/or at the turnpike interchange. Moreover, this testimony was not correlated with the evidence presented regarding the existing operating level of service for Atlantic Boulevard as calculated in accordance with the "trips model." At the hearing, DCA presented evidence that, subsequent to the adoption of the Broward Comp Plan, the operating level of service of Atlantic Boulevard as measured by the "trips model" has degraded from "D" to "E." This determination includes existing plus committed traffic. As noted above, under the "trips model", only 5300 trips per day from the Oaks Tract Subdivision were included as part of the committed traffic volumes. An addition of 1831 trips would further burden Atlantic Boulevard, which according to the evidence presented by DCA, is currently overcapacity and operating below its established level of service standard of "D." Neither Mr. Sebo's testimony nor any other evidence presented by the City specifically addresses this issue. In sum, because the Tinter Study did not adequately take into account impacts of adjacent development over the remainder of the planning period and did not analyze the impact of the Amendment in the context of the City and County's Comp Plans, it is not adequate to support the Amendment. The City's Response to the OCR did not adequately clarify the many questions raised by the Tinter Study. While the evidence at the hearing provided some elucidation, it still did not resolve all the issues. Consistency Issues DCA argues that the Amendment is internally inconsistent with several policies set forth in the City's Comp Plan. 1/ For example, DCA contends that the Plan Amendment is internally inconsistent with Traffic Circulation Policy 02.05.2 of the Comp Plan because the Tinter Study indicates that the change in the Traffic Circulation Network would lower the level of service of a portion of Atlantic Boulevard, an arterial road, to below the level of service standard of "D" adopted by that policy. As discussed above, the Tinter Study's reference to a deterioration in level of service was not predicated on the same methodology used in the Broward Comp Plan. Thus, there are some unresolved questions as to the actual impact of the Amendment on the level of service for Atlantic Boulevard. Accordingly, it is more accurate to conclude that the Amendment is not based on adequate data and analysis. In order to support the Amendment, the data and analysis should have demonstrated that the level of service as determined in accordance with the Broward Comp Plan would be maintained or improved. Alternatively, the City should have articulated a justification for lowering the level of service. Traffic Circulation Objective 02.03 of the City's Plan states: When reviewing development proposals, provide for minimal negative impacts associated with access point locations, and provide for safe and efficient on-site traffic circulation and parking, including provisions for handicapped users. The evidence in this case indicates the new access point may have a negative impact by lowering the level of service of a state road. While retaining the existing traffic circulation network could result in a deterioration of local roads or perhaps other state roads as Oaks Tract is developed, the choice between these two alternatives has not been fully explored and/or justified. Absent evidence that efforts have been undertaken to minimize negative impacts associated with the new access point, the Amendment, viewed in isolation, is inconsistent with Traffic Circulation Objective 02.03. Traffic Circulation Policy 02.05.01 of the Comp Plan states: Adopt the LOS standards as outlined and, for those facilities less than LOS "D", coordinate the designation of special transportation areas with the appropriate state, regional and county planning agencies. Under this policy, a special transportation area designation could have been adopted by the City if the level of service of Atlantic Boulevard will fall below "D". No such special transportation area is identified in the Amendment. The City's Comp Plan contains several other policies and objectives that may be contravened if the Amendment leads to the degradation of the level of service of Atlantic Boulevard. Traffic Circulation Policy 02.05.06 states: After January 1990, or when required by state statute, the City will only issue development permits for projects impacting links identified from Policy 02.05.05, under the following circumstances: . An approved traffic impact study shows that projected traffic conditions are not degraded below LOS "D" at project buildout. . There is an approved Action Plan accompanying the traffic impacts of the proposed development where an Action Plan refers to any combination of accepted transit, ride-sharing, transportation systems management methods, etc. of traffic impact mitigation. . The necessary improvements to provide LOS "D" are under construction, under contract for construction or the City Commission determines they will be under contract during the same fiscal year. . The necessary improvements to provide LOS "D" are included in an enforceable development agreement. Traffic Circulation Objective 02.07 states: Protect and obtain future rights of way necessary for transportation purposes. Traffic Circulation Objective 02.08 states: The City shall coordinate with the plans and programs of the Broward County Metropolitan Planning Organization (MPO), Broward County and the Florida Department of Transportation's Five Year Transportation Plan. Traffic Circulation Policy 02.09.04 states; Approve additional city development in concert with maintenance of the adopted level of service standard. The Amendment, viewed in isolation, is potentially inconsistent with Policy 02.05.06, Objective 02.07, Objective 02.08 and with Policy 02.09.04 because the development activity associated with the Amendment (vacating an existing right-of-way and creating an exclusive access to Atlantic Boulevard) may degrade the level of service for Atlantic Boulevard. The South Florida Regional Policy Plan is the regional policy plan which applies to the City. Public Facilities Policy 18.1.3 of the regional policy plan states: Encourage the use of mechanisms that provide incentives for development to use existing public facilities and services. Transportation Policy 20.1.7 of the regional policy plan states: Encourage the uses of transportation through management strategies to reduce the congestion and to maximize the use of existing transportation facilities. Transportation Policy 20.1.13 of the regional policy plan states: Local governments should adopt or amend their ordinances to protect or preserve transportation corridors and rights of way identified in local government comprehensive plans or in the state or regional plan. The Amendment, viewed in isolation, arguably conflicts with Public Facilities Policy 18.1.3, Transportation Policy 20.1.7, and Transportation Policy 20.1.13 because, rather than encouraging the use of, protecting and preserving an existing right-of-way, the City is eliminating it. The City has not demonstrated that any policies or goals of the regional policy plan will be achieved by the Amendment and/or that the Amendment would in any way further the South Florida Regional Policy Plan construed as a whole. State Comprehensive Plan Transportation Policy 20(b)3. states: Promote a comprehensive transportation planning process which coordinates state, regional, and local transportation areas. Contrary to Transportation Policy 20(b)3, there was no coordination of the City's action with the county or state transportation plans. Furthermore, the evidence does not reflect that any State Comprehensive Plan goals or policies will be furthered by this Plan Amendment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs submit this Recommended Order to the Administration Commission for entry of a final order determining that the subject plan amendment is not in compliance for the reasons set forth above. DONE and ENTERED this 2nd day of November, 1992, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1992.
