The Issue The issue is whether the plan amendment adopted by Ordinance No. 2004-026 on August 24, 2004, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's original Plan was adopted on August 31, 1989, and became effective on September 11, 1989. In 2000, the County amended its Plan by establishing a Managed Growth Tier System, which includes five classifications of land (Urban/ Suburban, Exurban, Rural, Agricultural Reserve, and Glades), along with three classes of service areas within the County to guide delivery of public services: Urban Area, Limited Urban Service Area, and Rural Service Area (RSA). It also assigned different levels of service for potable water and wastewater for each service area. At the same time, the County amended its FLUE to add a new Policy 3.4-c, which provides as follows: The County shall neither provide nor subsidize the provision of centralized potable water or sanitary sewer in the Rural Service Area, unless urban levels of service are required to correct an existing problem, prevent a projected public health hazard or prevent significant environmental degradation, or the areas meet the criteria described in Future Land Use Policy 3.4.b. The County intended Policy 3.4-c to implement the Managed Growth Tier System by limiting the provision of centralized utility service in the Rural Tier. The effect of this new policy was to prohibit the County from providing urban levels of utility services outside its existing service area boundaries in the RSA unless necessary to correct or prevent a public health hazard, existing problem related to urban levels of service, or environmental degradation. In February or March 2003, the County Planning Department began assessing ways to address the problem of overlapping utility service in the RSA. Shortly thereafter, the Florida Legislature passed the Scripps Law (Chapter 2003- 420, Laws of Florida), which took effect on November 3, 2003. Both of these factors led to the development of the Amendments in issue here. In late 2003, the County staff began the actual development of new amendments to its Plan (also known as Round 04-1 Plan Amendments) that would allow the County to provide services into the RSA. More specifically, the staff proposed to add a new FLUE Policy 3.1, which (as finally drafted) read as follows: The Palm Beach County Water Utilities Department shall provide potable water, reclaimed water and wastewater service to all unincorporated areas of the County except those unincorporated areas where the Palm Beach County Board of County Commissioners has entered or enters into a written agreement that provides utility service area rights to a public or privately owned potable water, reclaimed water, and/or wastewater utility, or in areas where the Palm Beach County Water Utilities Department is specifically excluded from providing utility service by Florida law. Palm Beach County Water Utilities Department shall continue to provide utility services to incorporated areas where service is already being provided by the County, or as provided for under utility service area agreements or as allowed for by law. In general terms, the new policy designated the County as a service provider of water and wastewater services for unincorporated areas of the County where the County has, or will enter into, interlocal agreements except where excluded by interlocal agreement or by law. The effect of the amendment is to allow the County to extend potable water and wastewater services to unincorporated areas of the County, particularly "the western communities," where it currently does not do so. The County staff also proposed to delete FLUE Policy 3.4-c, described in Finding of Fact 1, which was previously adopted in 2000. Finally, the County staff proposed to delete another policy adopted in 2000, CAI Policy 1.5-c, which read as follows: Urban levels of service shall not be provided by any governmental entity (outside of its existing service area boundary) within the Rural Service Area of the unincorporated area, except where: The Rural Service Area receives urban services pursuant to Objective 1.1 in the Element, or An urban level of service is required to correct a demonstrated public health, or Development on a parcel in the Rural Tier that is adjacent to water and/or sewer lines which existed prior to the adoption of the Comprehensive Plan in 1989 shall be allowed to connect to those existing lines and shall be allowed to connect to public sewer and/or water when required by the Public Health Department. This policy shall not allow the extension of new water and/or sewer lines into the Rural Tier to serve development without first amending the Service Area Map and the Future Land Use Atlas to reflect a change in the service area boundary. By deleting these two provisions, the County would no longer be prevented from providing utility services in the RSA unless certain conditions were met. (The staff also proposed to delete FLUE Policy 1.4-k, but that deletion is not in issue in these proceedings.) On January 14, 2004, the County initiated the adoption process by transmitting Notice of the Amendments to the Intergovernmental Plan and Amendment Review Committee (IPARC), which is made up of all the local governments and special districts in the County, including the City, Wellington, SID, and ITID. IPARC acts as a clearinghouse for all comprehensive plan amendments prepared by the IPARC members. IPARC in turn distributed the notice to its members, including the City, Wellington, SID, and ITID. After a public hearing on March 12, 2004, before the County's Local Planning Agency (known as the Land Use Advisory Board), by an 11-0 vote it recommended denial of Round 04-1 Plan Amendments and recommended that the County meet with the affected parties to resolve problems voiced by various attendees, including the City, SID, and ITID. On April 2, 2004, the County held a meeting with interested persons in an attempt to resolve objections to the Amendments before they were presented to the Board of County Commissioners. The objections were not resolved. On April 5, 2004, by a 5-0 vote, the Board of County Commissioners approved transmittal of the Amendments to the Department, other commenting agencies, and each unit of local government or governmental agency that had filed a written request for copies of the Amendments. The Amendments were transmitted to the Department on April 15, 2004. Between January 2004 and August 2004, the County held at least 37 meetings with utilities and other interested persons to discuss the Amendments, including three meetings with the City, at least five meetings with SID, at least ten meetings with ITID, and at least two meetings with Wellington. In addition, the County invited all utilities to attend meetings on April 28, 2004, at three locations to discuss utility service area boundaries. These meetings were attended by approximately 25 different utilities, including the City, SID, ITID, and Wellington. As a result of these meetings, the County prepared and distributed utility service area maps in an attempt to demonstrate the necessity for better coordination between utilities. On May 21, 2004, the Treasure Coast Regional Planning Council notified the County of no objection or comments regarding the Amendments. On June 19, 2004, the Department issued its Objections, Recommendations, and Comments Report, which did not identify any objections, recommendations, or comments with respect to the Amendments. On June 22, 2004, the South Florida Water Management District (District) notified the Department of no objections or comments regarding the Amendments. After a public meeting on August 24, 2004, by a 5-1 vote, the Board of County Commissioners adopted Ordinance No. 2004-26 enacting the Amendments, and they were transmitted to the Department on September 14, 2004. On October 29, 2004, the Department issued its Notice determining the Amendments were in compliance. On November 19, 2004, Petitioners (except Wellington) filed Petitions challenging the Amendments. Wellington filed its Amended Petition on December 16, 2004. The Parties and Their Standing The City is a municipality and adjoining local government of the County, operating its own water and wastewater utility system. The City owns the largest water treatment plant in the County and has an extensive wastewater treatment system, including partial ownership in the East Central Regional Water Reclamation Facilty, the largest wastewater plant in the County. It owns property and currently provides bulk service to entities located within the unincorporated area of the County, including ITID. It submitted written objections to the County during the adoption process and has standing to bring this action. SID is an independent special district created by special act of the legislature in 1970. It lies within the unincorporated area of the County and has the authority to provide water and wastewater service within and without its boundaries. At present, SID provides potable water service within and without its boundaries, but only provides wastewater service within its boundaries. SID owns property in the unincorporated area and submitted objections to the County during the adoption process. These facts establish that SID has standing as an affected person to challenge the Amendments. Callery-Judge is a limited partnership, which owns and operates citrus groves on property located within the unincorporated area. It also submitted objections to the County during the adoption process. Callery-Judge is an affected person and has standing to participate in this matter. Mr. Roberts owns property in the unincorporated area, including Callery-Judge, of which he is the General Manager. He submitted objections to the Amendments during the adoption process and is an affected person. ITID is an independent special district created by special act of the legislature in 1957. (In 2002, the Legislature amended and reenacted ITID's enabling legislation.) In 1998, ITID began operating a water and wastewater system within the unincorporated area. ITID does not generate its own potable water or treat its wastewater. It obtains bulk water from the City and SID and bulk wastewater service from the City. ITID owns property within the unincorporated area and submitted objections to the amendment during the adoption process. As such, it is an affected person within the meaning of the law. Wellington is a municipality and adjoining local government of the County and operates a utility providing water and wastewater service within its boundaries and outside to several developments. It also submitted objections to the County during the adoption of the Amendments. Because Wellington does not own property or operate a business within the unincorporated area of the County, in order to demonstrate standing, it must show that the Amendments will produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within its jurisdiction. See § 163.3184(1)(a), Fla. Stat. Wellington bases its standing on alleged increases in traffic and the use of parks within its boundaries, which purportedly will occur as a result of the Amendments. While Wellington could not give a precise amount (in terms of dollars) of those impacts, the testimony of its Director of Community Services established that the availability of centralized water and sewer services in the areas adjoining Wellington will arguably lead to higher density development patterns, which in turn will lead to an increased need for publicly funded infrastructure. As such, Wellington is an affected person and has standing to challenge the Amendments. The Department is the state planning agency charged with responsibility for reviewing and approving comprehensive plans and amendments. The County is a political subdivision of the State of Florida and is responsible for adopting a comprehensive plan and amendments thereto, including the Amendments. The County Water Utilities Department currently serves approximately 425,000 people, making it the largest utility provider in Palm Beach County and the third largest in the State of Florida. The Current Plan As noted above, the County initially adopted its current Plan on August 31, 1989, by Ordinance No. 89-17. The Plan has been amended numerous times since its initial adoption. The original 1989 Plan and all subsequent amendments up to the ones at issue in this proceeding have been found in compliance by the Department. The current Plan is made up of sixteen elements, nine of which are mandatory, and seven of which are optional. The parties have indicated that the Utilities Element, CIE, Intergovernmental Coordination Element, and FLUE are relevant to this controversy; therefore, a brief description of their content and purpose is necessary. The purpose of a Utilities Element is to provide necessary public facilities and services correlated to future land uses. See § 163.3177(6)(c), Fla. Stat., and Fla. Admin. Code R. 9J-5.011. The existing Utilities Element contains potable water, wastewater, drainage, and solid waste sub- elements. The aquifer recharge sub-element is found in the Coastal Management Element. The Utilities Element and the aquifer recharge sub-element of the Coastal Management Element constitute the "general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element" referenced in Section 163.3177(6)(c), Florida Statutes, and Florida Administrative Code Rule 9J-5.011. The existing Utilities Element has been found in compliance with applicable provisions of statute and rule. Section 163.3177(3)(c), Florida Statutes, and Florida Administrative Code Rule 9J-5.016 contain requirements for the capital improvements element of a comprehensive plan. The existing CIE complies with these requirements. Objective 1.7 and Policy 1.7-a describe how the County implements the CIE. Pursuant to these requirements, the CIE is updated annually at the same time as the County budget. Table 10 of the CIE reflects the water utilities revenue and expenditures for the then current budget year and five years into the future. Table 10 was not updated when the Amendments were adopted because any future changes to the County's capital expenditures resulting from the Amendments would be made through the annual budget update process. The Intergovernmental Coordination Element contains provisions encouraging coordination between the County and adjoining municipalities and special districts in order to more efficiently meet the needs of the County residents. (There are more than 25 municipalities and special districts within the County.) This Element has previously been found in compliance with Section 163.3177(6)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.015. One of the coordination tools identified in the Intergovernmental Coordination Element is the IPARC, described in Finding of Fact 5, which acts as a clearinghouse for all comprehensive plan amendments prepared by the IPARC members. IPARC distributes notice of plan amendments to all members, who then have the opportunity to provide comments regarding the proposed action. Section 163.3177(6)(a), Florida Statutes, and Florida Administrative Code Rule 9J-5.006 contain requirements for the future land use element of a comprehensive plan, including the future land use map (FLUM). According to the Plan, the FLUE "is the nucleus of the . . . Plan" and "defines the components of the community and the interrelationship among them, integrating the complex relationships between land use and all of the other elements of the Plan that address the physical, social, and economic needs of the people who live, work, and visit Palm Beach County." Both the existing FLUE and the current FLUM have been found in compliance. The Amendments do not alter the FLUM, but they do change FLUE Policy 3.1-c and delete FLUE Policy 3.4-c. As noted above, in 2000 the County adopted a Managed Growth Tier System, which is a planning tool intended to manage growth and protect varying lifestyles in the County. The Managed Growth Tier System consists of five categories or tiers, which are described in Objective 1.1 of the Plan. Objectives 1.2 through 1.6 govern development within the five tiers. FLUE Table 2.1-1 establishes permitted densities for each of the tiers. The Amendments do not modify any Goals, Objectives, or Policies governing the five tiers, with the exception of FLUE Policy 1.4-k. However, Petitioners have not challenged the proposed deletion of FLUE Policy 1.4-k and it is not one of the Amendments at issue in this proceeding. Additionally, the Amendments will not alter the permitted densities for any of the tiers. Concurrency Management refers to the system adopted in the CIE to ensure that infrastructure, which meets or exceeds the established minimum level of service standards, is in place concurrent with development approval. According to FLUE Policy 3.5-a, development orders and permits shall not be approved unless services and facilities meet or exceed the minimum levels of service. FLUE Objective 3.1 establishes three graduated service areas in Palm Beach County -- the Urban, Limited Urban Service, and Rural Service Areas. Each service area corresponds to one or more of the five tiers. The minimum levels of service required for each area are listed in FLUE Table 3.1-1. According to FLUE Table 3.1-1, FLUE Policy 3.5-a, and Utilities Element Policies 1.2-g and 1.3-e, the minimum levels of service in the RSA for potable water and sewage are on-site wells and septic tanks, respectively. With the exception of water and sewer, the other minimum levels of service are the same for all three service areas. The Amendments do not alter the minimum levels of service for any service area. Through its planning expert, Wellington contended that the Amendments will cause a de facto change to the minimum levels of service. However, the extension of centralized water and sewer service into the RSA does not change the established minimum levels of service. Petitioners also argue that the Amendments will increase minimum levels of service in the RSA for traffic and parks. However, the minimum levels established in FLUE Table 3.1-1 for all services and facilities, other than potable water and sanitary service, are County-wide standards. Reasons for Adopting the Plan Amendments Policy 3.4-c did not have its intended effect because it prevented the County from providing service to the Rural Tier. After 2000, repeated efforts by the County to negotiate the service areas of the numerous entities operating utility services in the unincorporated area were unsuccessful. Indeed, "there was not a willingness of many utility providers to agree on anything." This created a lack of coordination and planning as to the provision of services in the Rural Tier. The City, SID, and ITID each have utility service areas which overlap the service area of other utility providers. In particular, portions of the Acreage, a community located in the central-western unincorporated area of the County, fall under the claimed utility jurisdiction of SID, ITID, Cypress Grove Community Development District, and the Village of Royal Palm Beach (Royal Palm Beach). The City is also rapidly expanding service in the unincorporated area by entering into bulk water service agreements with a number of utilities located in the Rural Tier, including Royal Palm Beach, Seacoast Utilities Authority, and ITID. The City intends further expansion of bulk service in the Rural Tier, so as to increase utility revenues. It views the Amendments as affecting its substantial interests by potentially limiting these revenues. Royal Palm Beach claims an exclusive utility service area which overlaps the utility service areas claimed by SID and ITID. Royal Palm Beach is located entirely within the legislative boundaries of ITID and claims all of ITID as its service area. The Amendments support the authority granted to the County by the Scripps Law. That law gives the County the exclusive right to provide water and wastewater service to the Scripps Biomedical Research Facility and to construct utility facilities within and without the boundaries of the Scripps project. The enactment of the Scripps Law reinforced the need for the Amendments, as the Scripps Biomedical Research Facility will be located in the unincorporated area. Existing FLUE Policy 3.4-c is arguably inconsistent with the Scripps Law because it prevents the County from providing utility service in the RSA. Since the Scripps Law supersedes all other contrary provisions of Florida Law, it logically follows that FLUE Policy 3.4-c should be repealed. The Amendments are also supported by the provisions of the County Code of Ordinances Sections 27-16 through 27-22, which codify County ordinances that were adopted in the 1970s and deal with utility service. These ordinances authorize the County to designate a Control Area in the unincorporated area and to require County approval of any water and wastewater facilities constructed in these areas. In summary, the County adopted the Amendments to avoid service area disputes between utility providers such as those described above, to prevent wasteful and duplicative utility services, to implement the Legislature’s mandate regarding the Scripps Biotechnology Park, to ensure a sufficient water supply to meet the reasonable development needs of the unincorporated area, and to enforce the provisions of the County Code of Ordinances. Petitioners' Objections Data and analysis Petitioners contend that the only data and analyses submitted by the County to support the Amendments are contained in a rather brief County Staff Report (Petitioners' Exhibit 5), and that no other documentation was actually forwarded to the Department. They further contend that the Amendments must be based on demographic, economic, and fiscal studies, and that none were utilized by the County. Because of these omissions, they argue that the Amendments violate relevant statute and rule provisions and are not in compliance. Section 163.3177(8) and (10)(e), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2) require that plan amendments be based on relevant and appropriate data and analyses applicable to each element. In determining whether a plan amendment complies with this requirement, the Department reviews each amendment on a case-by-case basis. In doing so, it does not require the same amount or type of data for all plan amendments. See, e.g., Zemel et al. v. Lee County et al., DOAH Case No. 90-7793 (DOAH Dec. 16, 1992, DCA June 22, 1993)(projections of aquifer thickness and transmissivity do not require the same precision as calculating volume-to- capacity ratios for levels of service on road segments); 1000 Friends of Florida et al. v. Department of Community Affairs et al., DOAH Case No. 04-4492GM, 2005 WL 995004 at *15 (DOAH April 28, 2005, DCA May 9, 2005)("a numeric analysis is not necessary to justify industrial uses since they may be goal- based and aspirational"). For example, if amendments merely represent a policy or directional change and depend on future activities and assessments (i.e., further analyses and decision-making by the local government), the Department does not require the degree of data and analyses that other amendments require. (These amendments have sometimes been referred to as aspirational amendments. See Collier County v. City of Naples et al., DOAH Case No. 04-1048GM, 2004 WL 1909265 at *5 and *6 (DOAH Aug. 24, 2004, DCA Dec. 28, 2004)). Conversely, amendments which are mandatory in nature, that is, amendments which are required to be implemented by Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5, require more data and analyses. Thus, under Department interpretations of the relevant statutory and rule provisions, if an amendment does not have an immediate impact on the provision of services in the unincorporated area, is policy- based, does not require any capital improvement expenditures at the time the amendment is adopted, and simply represents a directional change in the County's long-term water utility planning, it is similar to an aspirational amendment and can be based on less data and analyses than might otherwise be required. Here, the County’s actual policy regarding utility service areas will depend on future activities and assessments. The Amendments do not require the County to take any immediate action. The Amendments do not mandate that existing utility customers in the RSA switch to the County. The Amendments do not authorize any new development in the Rural Tier, and any future development would have to be approved by the Board of County Commissioners through the normal development approval process. Therefore, the Amendments are akin to an aspirational amendment and do not require the degree of data and analyses that are required for other amendments. The County Staff Report identifies, albeit in brief fashion, data and analyses in support of the Amendments. It provides, among other things, that the Amendments are necessary because "[t]he lack of County participation as a service provider has created a void in effective long-term utility planning, resulting in duplicative service lines, inefficient services in the RSA, overlapping utility jurisdictions and, absence of some written agreements defining service areas." The Staff Report further identifies the County’s authority to provide service and the necessity for the Amendments to allow the County to provide service to the Biotechnology Research Park in northwest Palm Beach County. In addition, a number of documents presented at hearing provide data and analyses in support of the Amendments. In considering these documents, the undersigned notes that all data or analysis available and existing at the time of the adoption of the plan amendment may be relied upon to support an amendment in a de novo proceeding and may be raised or discussed for the first time at the administrative hearing. Zemel, supra; McSherry et al. v. Alachua County et al., DOAH Case No. 02-2676GM, 2004 WL 2368828 at *54 (DOAH Oct. 18, 2004, DCA May 2, 2005); Melzer et al. v. Martin County et al., DOAH Case Nos. 02-1014GM and 02-1015GM, 2003 WL 2150756 at *33 (DOAH July 1, 2003, DCA Sept. 26, 2003 and Oct. 24, 2003). The District's Districtwide Water Supply Assessment identifies future potable water demands for various utilities in the County. The District's Lower East Coast Regional Water Supply Plan describes the available raw water supply to meet future demands in the County. The District's CUP-CERP (Consumptive Use Permit-Comprehensive Everglades Restoration Plan) Guiding Principles lists interim water use permitting guidelines, which indicate utilities may experience problems obtaining permitted allocations beyond what is needed to meet their 2005 demands. District Water Use Permit 50- 00135-W is the County's 20-year water use permit, which confirms that the County is the only utility in the unincorporated area with a guaranteed, long-term potable water allocation. The information contained in these documents confirms the County's ability to act as the default water utility provider in the unincorporated area. The County Linking Land Use and Water Supply Plan, Water and Wastewater Master Plan, Reclaimed Water Master Plan, Raw Water Master Plan, 20-Year Wastewater Collection System Master Plan, and Projected Yearly Capital Expenditures each provide data and analysis, which support the County's ability to serve as the default utility provider in the unincorporated area. As a water management district study, the District's documents are professionally accepted sources, which constitute appropriate data and analyses under Florida Administrative Code Rule 9J-5.005(2)(c). Similarly, the County's reports constitute existing technical studies, which are also appropriate data and analysis. Petitioners contend that the County was required to collect new data and prepare a comparative analysis of the County Water Utilities Department and other utility providers in the unincorporated area. However, according to Florida Administrative Code Rule 9J-5.005(2)(b), local governments are not required to collect new data in support of a plan amendment. Further, neither Florida Administrative Code Rule 9J-5.005(2) nor Section 163.3177, Florida Statutes, requires a comparative analysis. It is at least fairly debatable that the Amendments are supported by relevant and adequate data and analyses. Intergovernmental Coordination Petitioners also contend that in order to comply with the Intergovernmental Coordination Element of the Plan, the County must inventory and analyze the facilities and services provided by other utility providers in the areas affected by the Amendments. In other words, they contend that without data and analysis relative to other providers, the coordination function is incapable of being done and is meaningless and renders the Amendments inconsistent with Florida Administrative Code Rule 9J-5.015. (That rule sets forth in detail the data requirements upon which the element in a local government's comprehensive plan must be based, and the goal statements, specific objectives, and policies which must be found in the element.) Section 163.3177(6)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.015 set forth requirements for the intergovernmental coordination element of a comprehensive plan. The existing Intergovernmental Coordination Element has been found to be in compliance. The Amendments do not modify this element. Although not required for purposes of compliance, the County followed intergovernmental coordination procedures in the comprehensive plan when adopting the Amendments. The Amendments were submitted to IPARC for review by member governments prior to their consideration by the Board of County Commissioners. The County met with other utility providers and interested persons no less than 37 times to discuss the Amendments. Further, Petitioners' own witnesses concede that their representatives attended multiple meetings with the County regarding the Amendments. Such efforts demonstrate that the County substantively complied with the Intergovernmental Coordination Element. Petitioners' contention that these meetings were not conducted in good faith has been rejected. Petitioners implicitly suggest that intergovernmental coordination means acquiescing to the position of an objector. If this were true, adjacent local governments would have veto power over the County's ability to enact plan amendments, a result not contemplated by the statute. The intergovernmental coordination requirements of Section 163.3177(6)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.015 do not require that local governments resolve all disputes regarding a comprehensive plan and its amendments to the satisfaction of all interested persons, but only that the local government take into consideration input from interested persons. See, e.g., Department of Community Affairs et al. v. Lee County et al., DOAH Case Nos. 89-1843GM and 90-7792GM, 1990 WL 749359 (DOAH Jan. 7, 1993, Admin. Comm. Feb. 10, 1994). The numerous meetings held by the County demonstrate adequate consideration of opposing views. It is at least fairly debatable that the County satisfied the intergovernmental coordination requirements of Section 163.3177(6)(h), Florida Statutes. Economic Feasibility/Comparative Analysis Petitioners argue that the Amendments fail to comply with Section 163.3177(2), Florida Statutes, which requires that "the comprehensive plan shall be economically feasible." Petitioners claim that in order to establish economic feasibility, the County first should have conducted a comparative economic analysis of the cost of utility service in the unincorporated area by various existing and hypothetical service providers. However, this construction of the statute is at odds with the Department's interpretation. The Department does not interpret the economic feasibility requirement of Section 163.3177(2), Florida Statutes, as requiring such a comparison. Instead, it construes the statute as only requiring that a plan amendment be realizable in financial terms, that is, that the local government has the financial ability to achieve what is specified in the amendment. See Resolution Trust Corp. v. Department of Community Affairs et al., DOAH Case No. 94- 5182GM, 1995 WL 1052797 *6 (DOAH April 19, 1995, Admin. Comm. Sept. 4, 1998)("Economic feasibility means plans should be realizable in financial terms."). Compare Southwest Fla. Water Mgmt. District et al. v. Charlotte County et al., 774 So. 2d 903, 916 (Fla. 2d DCA 2001), where the Court interpreted the use of the term "economically feasible" in a proposed Basis of Review provision as meaning "financially feasible or financially 'doable' . . . [and the] financial ability of a WUP applicant to institute reuse." The Department's interpretation of the statute was not shown to be unreasonable or clearly erroneous. The evidence shows that the Amendments are financially realizable. The County Water Utilities Department is one of the financially strongest utilities in the nation. It has the highest municipal bond rating (AAA) granted by the three major rating agencies. As of August 24, 2004, no other utility in the State of Florida had achieved an AAA rating from the three bond rating agencies, and the County Water Utilities Department is among only a handful of utilities nationwide to have achieved that status. Petitioners have acknowledged that the County is a very strong utility from a financial perspective. Given the County's strong financial state, it is qualified and able to serve as the default provider in the unincorporated area. In summary, it is fairly debatable that the Amendments are economically feasible as the term is used in Section 163.3177(2), Florida Statutes, because the County has the financial ability to extend utility service to the unincorporated area. Urban sprawl Wellington (but not the other Petitioners) essentially contends that the Amendments will promote urban sprawl because the County will now allow new urban services (water and wastewater) into undeveloped areas thereby resulting in urban development. Florida Administrative Code Rule 9J-5.006(5) contains standards discouraging the proliferation of urban sprawl. Existing provisions in the Plan, including the Managed Growth Tier System, prevent urban sprawl within the County. Florida Administrative Code Rule 9J-5.006(5)(k) provides in part that "if a local government has in place a comprehensive plan found in compliance, the Department shall not find that plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction." The Amendments do not affect existing growth management provisions in the Plan and thus will not exacerbate urban sprawl. Although not required, the amendment of FLUE Policy 1.4-k, which Petitioners did not challenge, will also have the effect of maintaining the status quo with respect to urban sprawl. At the same time, the Amendments do not directly or indirectly authorize new development and are only aspirational in nature. Any extension of water and sewer lines into the unincorporated area does not necessarily create urban sprawl because development is not automatically authorized by these activities. Even Wellington's planning expert concurred that urban sprawl is not caused by the provision of utility services, but by the Board of County Commissioners' approval of development orders. It is at least fairly debatable that the Amendments will not encourage urban sprawl in contravention of the Plan.2 Internal consistency Petitioners next contend that the Amendments fail to comply with Sections 163.3177(2), 163.3177(10)(a), and 163.3187(2), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(5), which require that all elements of a comprehensive plan be consistent with each other. In addressing this objection, only those inconsistencies expressly alleged in their Petitions and Amended Petition will be considered. See, e.g., Heartland Environmental Council v. Department of Community Affairs et al., DOAH Case No. 94- 2095GM, 1996 WL 1059751 at *19 (DOAH Oct. 15, 1996; DCA Nov. 25, 1996). Future Land Use Element Petitioners first contend that the Amendments are inconsistent with Goal 3, Objective 3.1, and Policies 3.1-a and 3.1-b of the FLUE. These provisions require that the County "define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost-effective manner"; that the County establish graduated service areas "to distinguish the levels and types of services needed within a Tier, consistent with the characteristics of the Tier," which include "the need to provide cost effective services"; that the County establish Urban, Limited Urban Service, and Rural Service Areas based on several factors in Table 3.1.1, including "[t]he cost and feasibility of extending services"; and that the County review minimum levels of service "during preparation of the Evaluation and Appraisal Report [EAR] and the Comprehensive Plan as amended." The latter provision also requires that each service provider determine the maximum and available capacity of their facilities and services for this review. The first broad goal is implemented through the County's existing Managed Growth Tier System and is not affected by the identity of the utility provider. Also, the Amendments do not alter the Managed Growth Tier System, nor do they alter the existing minimum levels of service required for the RSA. Similarly, FLUE Objective 3.1 is not affected, as the Amendments only have the potential to change the utility provider in certain areas, and not the level of service provided within the RSA. Further, the Amendments do not change the existing service area boundaries and established service area definitions. As to Policy 3.1-a, the service areas have been established and found in compliance and the Amendments do not alter the service area designations or Table 3.1-1. Therefore, they are not inconsistent with Policy 3.1-a. Finally, Policy 3.1-b is not affected by the Amendments because the minimum levels of service are not altered and the Amendments are not the product of an EAR. Capital Improvements Element – Table 10 Table 10 of the CIE describes water and sewer revenues, operating revenues, federal/state grants, other revenues, bond/ loan proceeds, fund balances, total water and sewer revenues, water and sewer operating expenditures, water and sewer capital projects, annual surplus/deficit, and cumulative surplus/deficit for fiscal years 2004-2009. Petitioners contend that the Amendments are inconsistent with this provision because the Table has not been amended to reflect the expenditures that will be made by the County as a result of the Amendments. This Table is not affected because the Amendments do not require any changes to the County's capital expenditures. If changes do occur as a result of the County's planned extension of utility service into the unincorporated area, the capital improvements associated with extension of service will be addressed in subsequent annual updates of Table 10. Intergovernmental Coordination Element Petitioners contend that the Amendments are inconsistent with Goal 1 and Objective 1.1 of the Intergovernmental Coordination Element, which require the County to "provide a continuous coordination effort with all affected governmental entities" and to "utilize existing mechanisms to coordinate planning efforts with the plans of school boards, other units of local government providing services, adjacent municipalities, adjacent counties, the region, the State, and residents of Palm Beach County." Petitioners essentially claim that the Amendments were adopted and transmitted without coordination with other local governments, as required by the goal and policy. As explained above, the evidence shows that the Amendments were submitted to IPARC for review by each of the local governments and special districts located in the County, these entities were given ample opportunity to comment or object to the Amendments, and the County utilized existing mechanisms to coordinate planning efforts. Therefore, the Amendments are consistent with these portions of the Intergovernmental Coordination Element. Petitioners also contend that the Amendments conflict with Goal 4, Policy 4.1-a, and Policy 4.1-b of the Intergovernmental Coordination Element. The broad goal relates to coordination of "service provision to assure the most effective and efficient service delivery for the residents of Palm Beach County and its municipalities," while the two policies require that the County coordinate with special taxing districts and each municipality within the County during "the concurrency management and development review processes" and in defining the "ultimate boundaries of that entity's sewer and water service areas." The Amendments are consistent with the goal because their purpose is to create more effective and efficient service delivery by encouraging utility providers to enter into agreements which establish exclusive service areas and eliminate overlapping service areas. For similar reasons, the Amendments are consistent with Policy 4.1-a because the County coordinated with each of the special taxing districts through IPARC and numerous subsequent meetings relating to the Amendments. Finally, the main purpose of the Amendments is to prevent overlapping utility service areas and to encourage utility providers to enter into agreements defining service areas. Therefore, they are not inconsistent with Policy 4.1- b. Treasure Coast Regional Planning Council Plan Petitioners next allege that the Amendments are inconsistent with Goal 8.1, Regional Strategy 8.1.1, and Regional Policies 8.1.1.3 and 8.1.1.4 of the Treasure Coast Regional Planning Council's Regional Policy Plan (Regional Policy Plan). In order for a plan amendment to be consistent with a regional policy plan, Section 163.3177(10)(a), Florida Statutes, requires that plan amendments be consistent with the regional plan "as a whole," and that no specific goal or policy be "applied in isolation from the other goals and policies in the plans." Because the Petitions and Amended Petition do not allege that the Amendments are inconsistent with the Regional Policy Plan as a whole, their challenge must necessarily fail. See, e.g., 1000 Friends of Florida, Inc., supra at *38. Even if a provision in the Regional Policy Plan could be viewed in isolation, the Amendments are consistent with Regional Goal Regional Goal 8.1, which requires "public facilities which provide a high quality of life." Nothing in the Amendments would impair the provision of a high quality of life. One of the purposes of the Amendment is to more efficiently provide utility service by defining service areas and improving the provision of services. Regional Strategy 8.1.1 relates to the provision of "levels of public service necessary to achieve a high quality of life cost-effectively." The Amendments are not inconsistent with this strategy, as they are designed to help the County implement the existing objectives and policies relating to this strategy. The purpose of Regional Policy 8.1.1.3 is to "encourage patterns of development which minimize the public cost of providing service, maximize use of existing service systems and facilities and take into full consideration environmental/ physical limitations." As stated above, one purpose of the Amendments is to provide more efficient and cost-effective utility service by encouraging providers to enter into agreements that prevent overlapping service areas and avoid duplication of services. Finally, the purpose of Regional Policy 8.1.1.4 is to "develop local Capital Improvement Programs which maximize development of existing systems before allocating funds to support new public facilities in undeveloped areas." Because the Amendments do not alter the County's Capital Improvement Programs, they do not implicate this policy. State Comprehensive Plan Petitioners further allege that the Amendments are inconsistent with two goals in the state comprehensive plan, which are codified in Section 187.201, Florida Statutes. Like regional policy plans, Section 163.3177(10)(a), Florida Statutes, provides that for purposes of determining consistency, the state plan is to be construed as a whole, with no specific goal or policy applied in isolation from the other goals and policies. If a plan appears to violate a provision of the state plan, a balanced consideration must be given to all other provisions of both the state and local plan to determine whether a local comprehensive plan is consistent with the state plan. Petitioners have not alleged that the Amendments are inconsistent with the state comprehensive plan as a whole. Therefore, their challenge to the Amendments must necessarily fail. See 1000 Friends of Florida, Inc., supra; Heartland Environmental Council, supra. Assuming that a provision within the state comprehensive plan can be viewed alone, Section 187.201(17)(a), Florida Statutes, provides that "Florida shall protect the substantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner." Petitioners contend that because the Amendments fail to protect the public facilities that already exist in the unincorporated area of the County, the Amendments conflict with this goal. The Amendments are not inconsistent with this goal because their purpose is to implement the Plan provisions in a timely, orderly, and efficient manner. Further, the Amendments are consistent with the specific provisions of Section 187.201(17)(b), Florida Statutes. Petitioners also allege that the Amendments contradict the requirements of Section 187.201(20)(a), Florida Statutes, which deals with cooperation between levels of government, elimination of needless duplication, and promotion of cooperation. Again, the purpose of the Amendments is to eliminate duplication and promote cooperation between entities by encouraging utility providers to enter into interlocal agreements with the County that define exclusive service areas and prevent duplication of services. Further, the Amendments are consistent with the specific provisions of Section 187.201(20)(b), Florida Statutes. Other Objections Finally, any other contentions raised in the Petitions and Amended Petition not specifically addressed herein have been considered and found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Amendments adopted by Ordinance No. 2004-026 on August 24, 2004, are in compliance. DONE AND ENTERED this 18th day of July, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2005.
The Issue The issue is whether Respondent, Todd Voigt, should be terminated from employment with the City of Clearwater (City) for violating City policies as alleged in the City's Termination and Dismissal Notice (Notice) dated August 3, 2016.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board make a determination that the charges in the Notice are sustained, and that Mr. Voigt be terminated as a City employee. DONE AND ENTERED this 7th day of December, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2016.
The Issue The issue is whether the application of Westinghouse Gateway Communities, Inc. for approval of the Area Master Plan 2 in the Gateway Development of Regional Impact in Lee County, Florida should be approved, approved with conditions, or denied.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Petitioner, Westinghouse Gateway Communities, Inc. (WGC), is a real estate developer that owns and operates a project known as the Gateway new community (Gateway) in Lee County, Florida. Gateway lies in central unincorporated Lee County, adjacent to I-75. It is located southwest of Lehigh Acres, immediately north of the Southwest Florida Regional Airport, and just east of the City of Fort Myers. The community is planned and approved for not more than 19,932 residential dwelling units, 816 acres of business, commercial and office uses and required support facilities on approximately 5,464 acres of land. To date, WGC has expended more than $38.9 million on the project, and more than 180 homes and 49,000 square feet of non-residential uses and a golf course country club are under construction or have been constructed. Petitioner, Department of Community Affairs (DCA), is the state land planning agency charged with the responsibility of administering and enforcing Chapter 380, Florida Statutes, and the development of regional impact (DRI) programs pursuant to that chapter. Petitioner, Southwest Florida Regional Planning Council (SWFRPC), is the regional planning agency for the region in which Gateway is located. It is charged with various DRI-related responsibilities under chapter 380. Respondent, Lee County Board of County Commissioners (County), is the local government unit authorized by chapter 380 to issue local development orders for DRIs and to adopt land use and zoning policies under other legal authority. This proceeding involves three separate and timely appeals under Section 380.07, Florida Statutes (1989) from a development order rendered by the County on January 4, 1990. The development order pertains to the Gateway DRI. Many of the issues raised by the parties are factually and legally complex with little, if any, agency and judicial precedent to use as a guide. The issues are dealt with in separate portions of this Recommended Order. Finally, all parties presented fact and expert testimony on the various issues raised by the pleadings. As might be expected, the testimony is sharply conflicting in many respects. In resolving these conflicts, the undersigned has accepted the more credible and persuasive testimony, and that testimony is embodied in the findings below. Background WGC purchased its Gateway acreage in 1982. At that time, it obtained an appraisal of the land showing a value of approximately $5,000 per acre, based on the highest and best use of the then agriculturally-zoned property for residential development. According to WGC, it purchased the land because of its single ownership, location in the path of growth, surrounding transportation network, and the adjacent Southwest Florida Regional Airport which was then under construction. At present, WGC owns approximately one-half of the Gateway land and holds the balance under options with a takedown rate of approximately 350 acres per year. (Schmoyer, Tr. 131-32; Respondent's Exhibit 3; Paragraph 2, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Koste, Tr. 607-08, 615-16). Prior to 1984, the Gateway property was zoned agricultural. In 1984, the County adopted the 1984 Lee County Comprehensive Plan pursuant to Chapter 163, Florida Statutes. Under the plan, public expenditures for roads and other infrastructure were targeted to an Urban Services Area, which the County's local planning agency recommended stop at Interstate 75. Gateway was located east of the Urban Services Area and beyond I-75 and designated rural under the local planning agency's plan. Although WGC desired to have Gateway included in the Urban Services Area, the local planning agency did not change its recommendation to the County. WGC accordingly proposed a "New Community" land use category in the comprehensive plan. (Spikowski, Tr. 1781; Bigelow, Tr. 1709-1712). In 1984 WGC developed the "New Community" land use concept, drafted the language, and submitted the proposal to the County. Among other things, WGC represented to the County that: Such lands are capable of being planned and developed as a cohesive unit in order to be free-standing economic units which do not impose negative fiscal impacts on the County. We've requested a non-urban services district designation. Thus, we have not affected the efficiency of the urban services area. We are not going to cost the County anything. This will not add to the cost of the plan. (Paragraphs 9 and 10, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Respondent's Exhibits 16 and 517). In proposing the new community designation, WGC sought to establish a category that would work with the location and the proposed plan of development of the Gateway DRI, while also fulfilling the 1984 comprehensive plan requirements. On December 21, 1984, the County adopted the new community designation proposed by WGC with only minor changes in the 1984 comprehensive plan. The Gateway property is designated as a new community in accordance with Section III, Land Use Plan Element of the 1984 comprehensive plan. When the new community designation was adopted by the County, the County included such statements as follows: New Community areas will be developed as free-standing economic units and will not impose negative fiscal impacts on the County. The land shall be developed as a free- standing community offering a complete range of land uses, e.g., a full mix of housing types for a range of household incomes... Off-site impacts shall be mitigated. (Paragraphs 11-14, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Respondent's Exhibits 10 and 28). The new community designation was specifically created for Gateway and agreed to because WGC indicated to the County that it would provide its own infrastructure, not cost the County anything, and be a freestanding economic unit. In light of the County's inability at that time to finance the infrastructure outside urban areas, it agreed to allow urban densities in non- urban areas only if the developer privately provided infrastructure. The new community designation has benefited WGC by increasing the valuation of the property. While the 1982 appraisal valued the property at $5,000 per acre, seven years later WGC requested an appraised value of $75,000 per acre for a land donation. Finally, it is noted that the Gateway lands are the only lands designated as new community within the entire county. (Spikowski, Tr. 1781-83; 1785-88; Respondent's Exhibits 3, 239, and 517; Nicholas, Tr. 3372-78; Paragraphs 15, 16, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement). The 1985 DRI Order The WGC development known as Gateway is a development of regional impact (DRI) pursuant to the provisions of Section 380.06, Florida Statutes. A DRI is a development which, because of "its character, magnitude, or location," substantially affects the health, safety and welfare of citizens of more than one county. Gateway's ultimate buildout development of 19,932 residential units and 816 acres of commercial/office uses is the equivalent of 20 DRIs, based on commercial acreage alone. Indeed, Gateway is the second largest DRI in Lee County history. (Paragraph 26, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Starnes, Tr. 2414; Gibbs, Tr. 2117-18). An application for development approval for the Gateway DRI was determined to be sufficient under the provisions of Section 380.06, Florida Statutes (Supp. 1984) by SWFRPC on August 17, 1984. SWFRPC's report and recommendations were issued on October 18, 1984, recommending that the Gateway DRI be approved subject to certain enumerated conditions. (Paragraphs 28 and 29, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Respondent's Exhibit 22). In the DRI process, the regional planning council takes a lead coordination role in the review of a DRI. According to SWFRPC's executive director, SWFRPC staff recommended only conceptual approval of the Gateway DRI at the outset in 1984 under a process in Section 380.06, Florida Statutes, known as the Application for Master Development Approval (AMDA) process because the proposed 40-year buildout of Gateway exceeded local planning horizons and the proposed Gateway DRI was very large. Moreover, it is impossible to accurately plan a development over twenty years or more. SWFRPC staff worked with WGC to find a way to allow the development to move forward with certain planning and analysis delayed. The staff concerns were eventually resolved when WGC proposed phased or incremental review to provide for more specific analysis of Gateway as portions were proposed for development and to provide for a continued review role by the regional planning council. (Daltry, Tr. 2626, 2628; Burr, Tr. 2691- 92, 2701). In 1984 and early 1985 County planning staff also advocated the master application review approval and found the application information inadequate to analyze the project's impacts 40 years into the future. Staff indicated that the Gateway DRI application raised concerns about whether infrastructure needs would be mitigated in later phases. (Gibbs, Tr. 2119-22; Respondent's Exhibits 23, 37, 45 and 46). On May 31, 1985, the County approved, with conditions, restrictions and limitations, WGC's illustrative concept plan in the Gateway DRI Development Order #1-8384-36 (1985 DO). The illustrative concept was a delineation of the land use program specified in the area master plan (AMP) development program in the 1985 DO. The County granted approval for WGC to develop not more than 19,932 residential dwelling units, 816 acres of business/commercial/office uses, and required support facilities in accordance with the AMP development program set forth in Exhibit C to the 1985 DO and subject to certain conditions, limitations, and restrictions. Gateway included a total of approximately 5,319 acres and was proposed to be developed in nine areas over a 40-year buildout. (Paragraphs 33 and 35, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Respondent's Exhibits 45, 46, 63, and 809). On May 31, 1990, the County also adopted Planned Unit Development (PUD) Ordinance No. 85-15 to implement the Gateway DRI in terms of local procedures. (Respondent's Exhibit 62; Gibbs, Tr. 2118). The 1985 DO created an area master plan (AMP) process to determine the "precise location of land uses within each area," or the "precise location and character of land uses within the DRI," "in order to logically and rationally coordinate the phasing of development with available facilities." However, the 1985 DO did not assess the particular impacts of development of any area within Gateway or the mitigation WGC would be required to pay for them. (Respondent's Exhibits 63 and 809). Under the 1985 DO, no development within Gateway could occur without submission to the County of an AMP for the area sought to be developed. This prohibition was in accordance with a provision of the DO which provided that "Prior to carrying out any development of the parcel proposed for development, WGC shall prepare and submit to Lee County an Area Master Plan." The PUD ordinance adopted for WGC on May 31, 1985, and which is referred to in finding of fact 16, provided a process for further refinements of each AMP and also precluded commencement of "any development or construction within GATEWAY" without submission of an AMP to the County for review and approval. (Respondent's Exhibits 62, 63, 809 and 810). Under the 1985 DO, information in each AMP application must address drainage, conservation, transportation impact, wetlands, potable water, sewer, parks and recreation, schools, threatened and endangered species and fire protection, among other issues. The County must also determine whether to approve, approve with conditions, or deny the AMP according to the following standards for determination as to the extent to which the proposed AMP is: Consistent with the land uses authorized by this Development Order and the general distribution of uses set forth in paragraph 1 of this Order; Consistent with the PUD Ordinance #85-15 and the Lee County Comprehensive Plan; Consistent with sound land planning principles; Served, or will be served, by adequate public facilities, including: Water, Sewer, Roads, Surface Water Management, Law Enforcement, Fire Protection, Schools, Parks and Recreation. Consistent with the specific conditions set forth in this Development Order.. Finally, as part of its determination, the County must make a determination of whether the AMP is a "substantial deviation" pursuant to then Subsection 380.06(17), Florida Statutes, now Subsection 380.06(19), Florida Statutes. After approval, the AMP is the "controlling instrument" concerning the "location, character and magnitude of specific uses" within that area of the Gateway DRI. (Respondent's Exhibits 63 and 809). The 1985 DO further highlights the importance of the AMP process and the fact that issues would be subject to later adopted regulations for mitigation of impacts identified in that process in the following specific subject areas: Drainage. WGC must comply with every applicable rule, regulation, or requirement of the South Florida Water Management District (SFWMD) prior to any development of "any portion of the Gateway DRI". Energy. WGC must provide a bicycle/pedestrian system consistent with Lee County requirements. Transportation. WGC must submit a traffic impact statement (TIS) with each AMP application and approval or approval with conditions of Gateway phases is dependent on the results of the TIS and review and recommendations of various agencies, including SWFRPC. WGC must agree to pay for its "proportionate share" of needed road improvements as a "condition for area master plan approval." Water Supply and Sewer Service. During each AMP review, WGC must document adequate water supply and sewer service and comply with all SFWMD and Florida Department of Environmental Regulation (DER) regulations prior to development. Wetlands. WGC must delineate jurisdictional wetlands and submit plans for mitigation of impacted wetlands during the AMP process and comply with all applicable SFWMD and DER regulations. Education. School sites will be located during the AMP process. Protective Services. Sites for fire protection, emergency medical services and law enforcement will be dedicated during the AMP process. Each AMP application must demonstrate availability of fire protection services. Fiscal Impact. WGC must demonstrate with each AMP submittal that Gateway will not have a negative fiscal impact on the County. Parks. Parks will be located during the AMP process. Housing. WGC must cause the provision of a "range of housing types to be addressed" during AMP review. (Respondent's Exhibits 63 and 809). The 1985 DO also provides that the approval is further limited because it does not "obviate the duty of the applicant to comply with all other applicable local or state permitting procedures." (Respondent's Exhibits 63 and 809). The SWFRPC planning director agreed that (a) the 1985 DO did not confer blanket approval to develop the Gateway DRI, (b) information in the 1984 DRI application by Gateway did not satisfy regulatory requirements for DRI review of area 2, and (c) the original 1985 DO does not permit WGC to develop area 2 of the DRI due to missing details. In particular, the original application was not sufficient to fully address transportation concerns for every phase. (Burr, Tr. 2695-96, 2705-05). County planning staff viewed the 1985 DO as atypical, because it did not confer any authority to begin construction without further review under the AMP process. In essence, the County deferred impact mitigation to the AMP process because there was no 40-year impact assessment. The 1985 DO did not establish the specific development conditions for each area within Gateway. (Gibbs, Tr. 2118-20, 2173; Spikowski, Tr. 1789). Doctor Earl M. Starnes, the County's outside planning expert and the first state planning director, found that the 1985 DO did not address specific impacts in detail or by time frame, deferring those issues. Instead, it established a broad scheme for the location of future land uses and their intensities, subject to detailed AMP review for assessment and mitigation of impacts. The 1985 DO gave WGC no right to build future areas before availability and adequacy of public facilities and services and required mitigation were determined, but instead established a mechanism to make such determinations. (Starnes, Tr. 2415, 2429-30, 2509-10). WGC's president and chief operating officer indicated that the original DRI application addressed all issues, but provided for traffic mitigation on a more current basis. In a letter written to the County in March 1985 before approval of the DO, he stated that the AMP process offered continual County review of impacts. Under the 1985 DO, he agreed that WGC needed AMP approval and development orders before construction can occur. By stating that the 1985 DO authorized a "fully approved" DRI for the entire community, he meant it authorized a conceptual plan, as opposed to final approval of all of Gateway. (Koste, Tr. 616-23, 631, 646; Respondent's Exhibit 52). AMP Review Process The AMP process is similar but not identical to the application for master development approval (AMDA) process established in Subsection 380.06(21), Florida Statutes, and Rule 9J-2.028, Florida Administrative Code, in that both identify information needed for further review of later development phases or increments, identify the issues subject to further review and issues that could result in denial, and provide for review by substantial deviation procedures. The ADMA process was designed to deal with large projects with long buildouts and complex issues. The important parts of the AMDA process were addressed for the Gateway DRI by providing for the AMP process. According to the SWFRPC's executive director, who participated in the Gateway DRI review and approval process, the 1985 DO essentially gave WGC the right to submit more detailed applications and to continue to participate in the process. Future AMP applications and reviews were to address and resolve how the approved dwelling units could be supported by infrastructure, what mitigation was needed for impacts and the timing of that mitigation. This is consistent with SWFRPC's desire to limit the original approval to what was currently planned for roads and public services. (Daltry, Tr. 2660-61, 2627, 2641; Respondent's Exhibit 809). The DCA planner who reviewed the 1985 DO concurred that the AMDA and AMP processes were similar, stating: "This project is not a master incremental DRI, but it will be reviewed in that fashion." (Respondent's Exhibit 67). The County's expert witness Starnes also found the AMP process similar to the AMDA process, which was developed while he was state planning director. Under both processes, the developer was allowed to proceed subject to assurances that infrastructure would be addressed later. Both processes look first at future land uses and intensities and then refine them later to coordinate with infrastructure timing issues based on details that cannot be addressed over a 40-year period. An example would be in the transportation area where WGC submitted a DRI application in 1984 addressing that issue, but the County wanted to reassess the mitigation to relate to the development and proportionate share payment due in the AMP time frame proposed. (Starnes, Tr. 2431-37, 2464-65, 2467). According to the County's acting zoning director and the planner principally responsible for County review of the Gateway 2 application, the AMP process is similar to the AMDA or phased DRI process in that a long list of issues must be addressed in an AMP application. The acting zoning director also established that the AMP process is not a typical Lee County review or a strictly local review. This was further confirmed by witness Starnes, who concluded that the AMP review was not a local review process in general. (Gibbs, Tr. 2119-22; Starnes, Tr. 2437-38). The County's understanding and intent for the AMP approval process was expressed in an April 26, 1985, letter from an assistant county attorney and county director of development review to a member of the County Commission: Some concerns were raised about fire protection services and proper funding for water, sewer, police, EMS and other services. The L. P. A. was very concerned about Westinghouse Gateway Communities meeting their financial obligations. The comprehensive plan requires that the "New Community areas will be developed as free- standing economic units and will not impose negative fiscal impacts on the County." The L. P. A. required WGC to come back through the L. P. A. with each Area Master Plan to insure that when the specifics were known, the impacts of those specifics would be addressed in every respect, including financial. If there was any shortfall utilizing the funding mechanisms provided for, WGC would have to make up its financial shortages. (Respondent's Exhibit 57). WGC's intent and understanding of the AMP review process was expressed in the following: A letter dated March 22, 1985, to the County's director of the division of county development in which WGC acknowledged that: "The Board of County Commissioners are the ultimate decision-makers with respect to an Area Master Plan." A letter dated March 28, 1985, to the chairman of the Board of County Commissioners dated March 28, 1985, in which WGC represented that the DRI development order and PUD ordinance scheduled for adoption on April 19, 1985: "... will represent a beginning not an end, of an approval process which will involve many governmental agencies on an ongoing basis over the projected life of the [40- year] development period. The Area Master Plan approval process (phase) requires that each Area Master Plan be approved by the Lee County staff ... the Local Planning Agency, and the Board of County Commissioners. This process offers several advantages to both the developer and the County. The developer obtained a Development Order for the entire property and a set of rules to live by which will allow it to make the business decisions necessary to begin development. The County will be able, through the Area Master Plan process, to continually review impacts of the Gateway Community and react accordingly during the Area Master Plan approval reviews. We believe the County staff and WGC have developed a proper program for a larger scale development to gain approval while allowing the County a continuing opportunity to thoroughly review the land uses and impacts of the community. (Emphasis added) (Respondent's Exhibits 51, 52, 54; paragraph 38, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement). Area 1 Development Order The County amended the 1985 DO on May 21, 1986, and approved with conditions the Area 1 Master Plan. That amendment authorized development of two hundred and ten acres of office/commercial/industrial uses and 1,850 residential dwelling units. Under the transportation-related terms and conditions of the Area 1 DO: WGC is required to submit a new Traffic Impact Statement and to mitigate additional adverse traffic impacts where approval is requested for the next AMP. (Emphasis added) WGC is required to pay a proportionate share for traffic mitigation of $3.5 million (1985 dollars). To satisfy that requirement WGC must pay road impact fees (estimated at $2.8 million in 1985 dollars) in effect at the time building permits are issued for all residential and non-residential development in Area 1. In addition, WGC agreed to construct the four-lane extension of Daniels Road at no cost to Lee County. However, WGC is not eligible for credits against road impact fees for the construction and right- of-way dedication associated with the construction of the four-lane extension of Daniels Road during Area 1 and subsequent areas of Gateway. WGC may claim a credit against future road impact fees in the later phases of Area 1 or subsequent phases of Gateway if WGC's actual costs for the construction of the four-lane extension exceed $700,000. WGC is also required to pay a proportionate share of the cost of the Southwest Florida Regional Airport (SWFRA) and the extension of Daniels Road; and to pay 70% of the cost of an at-grade intersection at Daniels Road and SWFRA entrance, if the design study indicates such an improvement is necessary. WGC's payment of a proportionate share for at-grade improvements are to be in addition to payments of road impact fees and other obligations specified in the amendment. WGC's payment of a proportionate share of the cost of at-grade improvements at the Daniels Road extension and the SWFRA entrance intersection will not reduce WGC's obligation for proportionate share contribution for future improvements needed at this intersection, but the contribution of the $125,000 may be credited against WGC's obligation for future proportionate share contributions for further improvements at that intersection. However, WGC is not eligible for credits against road impact fees during Area 1 or subsequent areas of Gateway for any proportionate share payments for at- grade improvements at that intersection. WGC's president acknowledges that Area 1 is the only area in which WGC has approval to construct. After approval of AMP 1, WGC commenced development activities and has done so continuously since that time. (Respondent Exhibit 107; Koste, Tr. 651). The County stated in the Area 1 DO that its highest priority for expenditure of road impact fees collected from Gateway Area 1 and other developments along the Daniels Road corridor was for road improvements necessary to mitigate traffic impacts along Daniels Road. (Respondent's Exhibit 107). Area 2 Application On January 17, 1989, WGC submitted a notification of proposed change to a previously approved DRI, the state's standard substantial deviation determination request, which included related DO amendments. This request indicated specifically that "Approval of the Second Area Master Plan" was among "PROPOSED CHANGES-TO THE APPROVED DRI." The request stated that the complete AMP application was attached. (Respondent's Exhibit 229; Montgomery, Tr. 419; Gibbs, Tr. 2125-26). The Area 2 application was submitted February 1, 1989. In the same time frame, WGC's attorney indicated that the new community designation required assurance that adequate public facilities would exist at the time of demand and that the issues for Area 2 review included determination of the AMP 2 proposal's consistency with "the Lee County Comprehensive Plan" and sound land planning principles, as well as availability of adequate infrastructure. After a meeting with County staff, WGC waived the time frame for initial staff review. (Respondent's Exhibit 239; Montgomery, Tr. 419; Gibbs, Tr. 2127-28, 2224). While the 1985 DO anticipated that Gateway would consist of nine areas developed over a 40-year period, the Area 2 Master Plan submitted in 1989 actually included geographical Areas 2 through 5 of the original nine areas. As a result, the Area 2 application also included assessment of Area 1 in the transportation portion of the application in order to look at cumulative traffic impacts. In the Area 2 application, WGC requested approval of development of 2,481 total acres including 5,244 residential dwelling units and approximately 504 acres of non-residential office/commercial uses, with non-residential square footage initially limited to 1,670,000 square feet of office and 177,000 square feet of commercial use. The buildout period proposed by WGC for Area 2 was the year 2000. (Gibbs, Tr. 2130-31, 2220; WGC Exhibit 6; Respondent's Exhibit 237). A substantial deviation determination by the County was required for evaluation of the Area 2 application. The substantial deviation process reviews new, additional or previously unreviewed regional impacts. While the 1985 DO allowed review of more than one area at a time, submission of original Areas 2-5 as the Area 2 application resulted in half the total property coming in for review at one time and an area boundary modification in violation of the spirit and intent of the 1985 DO. This change also suggested a potential shifting of development density from the southern portions of Gateway near Daniels Road and other development toward the environmentally sensitive Six-Mile Cypress area. WGC also requested amendments to and changes in the 1985 DO, provided the County with public hearing notices treating the Area 2 proposal as a DO amendment and a substantial deviation request under Subsection 380.06(19), Florida Statutes, and proposed an Area 2 development order as part of amendments to the 1985 DO, despite protestations from WGC witnesses at final hearing that DO amendments were not needed. Under standard DRI practice, submission of a substantial deviation notice like the one WGC submitted in January 1989 calls for an amendment to the original DO. (Gibbs, Tr. 2132-42, 2255-56, 2181-83; Respondent's Exhibits 220 and 302; Montgomery, Tr. 505-06, 509; WGC Exhibit 155). Based on statutory criteria that consider new or additional or unreviewed regional impacts to be substantial deviations, the County's DRI reviewer concluded that the AMP 2 proposal would constitute a substantial deviation. However, the County ultimately approved a final Area 2 development order on December 20, 1989, that found the proposal would not be a substantial deviation "if subject to the conditions enumerated herein." The formal order itself was rendered on January 4, 1990. The DO approved the amount of development requested by WGC through the year 2000 subject to numerous detailed conditions. It is from those conditions that these appeals ensued. Finally, on September 5, 1990, the County receded from a number of conditions imposed in the January 4, 1990 order. This action is formalized in respondent's exhibit 742. (Gibbs, Tr. 2205-06; Respondent's Exhibits 606 and 742; WGC Exhibit 1). Applicability of Post-1985 Regulations to the Project A key disputed issue was whether various regulatory requirements adopted after the May 1985 DO were applicable to the Area 2 proposal or whether it was vested by virtue of the DO against their application. Such later-adopted regulations included the 1989 Lee County Comprehensive Plan adopted under Chapter 163, Florida Statutes, general County ordinances, and state and local "concurrency" regulations requiring development to meet level of service standards for public infrastructure and services concurrently with actual development. According to the County's deputy director of the department of community development, its acting zoning director and the assistant county attorney in charge of the Gateway 2 review in 1989, only the Gateway Area 1 development may have vested rights against concurrency and other regulations adopted after that DO was approved in 1986. Further, from his expert planning perspective, Dr. Starnes concluded that the 1985 DRI DO did not protect Gateway from applicability of new regulations for issues subject to future assessment, such as transportation and housing. Doctor Starnes also concluded that to the extent the DO approved activities, such as the establishment of conceptual boundaries, those things are protected under DRI vesting provisions of chapter 163, but activities that were not approved or assessed and mitigated are open to further regulation. (Spikowski, Tr. 1870-71; Gibbs, Tr. 2200; Ciccarone, Tr. 2850, 2860-61; Starnes, Tr. 2444-46, 2474; Respondent's Exhibits 199 and 402). From a local regulation perspective, the County's acting zoning director indicated that the proposed development submitted for approval in the County, including a Gateway AMP proposal, is evaluated under the County comprehensive plan in effect at submission. This approach is appropriate for review of AMP 2 for several reasons. First, the 1985 DO contains no language indicating that other County ordinances would not apply. Secondly, WGC was only entitled to rely on express conditions of the 1985 DO. Third, under the Gateway PUD ordinance, County ordinances and regulations should apply unless pre-empted by the provisions of that ordinance. Fourth, the 1985 DO requires that future AMPs satisfy "sound land planning principles," which are included in the 1989 comprehensive plan. Finally, it is illogical to assume that the single 1984 Gateway DO would apply over 40 years of development, with the comprehensive plan changing throughout that period. It is noted that other Lee County DRIs that may be exempt from later adopted comprehensive plan amendments either contained specific mitigation requirements, which the 1985 Gateway did not, or contained specific DRI DO conditions allowing election of one or another plan. (Gibbs, Tr. 2123-24, 2161-64, 2166-2167, 2194-95, 2204, 2272-73) At hearing, one of WGC's current attorneys, who was assistant county attorney at the time the 1985 DO was approved, testified she advised WGC that the 1985 DO was vested and that only the 1984 comprehensive plan applied. However, because the County staff took the position that both the 1984 and 1989 comprehensive plans applied, WGC instructed her to cooperate with the County on that basis. The former assistant county attorney also took the position that except for the PUD ordinance, no other development ordinance would apply to Gateway. She further interpreted condition 58 of the 1985 DO, which states that the DO does not obviate WGC's duty "to comply with all other applicable local or state permitting procedures," to mean local building or state environmental permits. However, the same witness' testimony was contradicted by her own prior statements and other testimony given at hearing. For example, while employed as assistant county attorney, she authored documents indicating that Gateway would need to be consistent with other laws if areas of regulation were not covered in the DRI DO or PUD ordinance and that Gateway would be subject to continuing review. She also told County staff in April 1989 that Gateway should be under the 1984 comprehensive plan for one purpose, but under the 1989 plan for another purpose if it were to Gateway's advantage, such as for transportation conditions. The witness also confirmed that Gateway had sought to apply the 1989 plan to avoid disadvantage to Gateway. The witness further conceded that the 1985 DO standards for AMP approval include consistency with the "Lee County Comprehensive Plan," not the "Lee Plan" as the 1984 Plan was called, and consistency with sound land planning principles, on which she placed no temporal limitation. (Montgomery, Tr. 408, 482-84, 488, 490-91, 495-96, 539; Gibbs, Tr. 2146-47, 2203-04,). Transportation Issues Generally An Overview The 1985 DO on appeal determined that, based on its then current analysis, the transportation proportionate share for Gateway Areas 1 and 2 through the year 2000 was approximately $26 million, plus costs for additional needed road improvements not yet identified. It required WGC to pay $15 million of that amount within one year and required a reanalysis after five years of the appropriate additional proportionate share. (Respondent's Exhibit 606). The principal transportation issues in these appeals are how much WGC should pay for mitigation of its Areas 1 and 2 traffic impacts through the year 2000 and how that amount should be determined. Based upon the more credible and persuasive testimony, it is found that a transportation proportionate share contribution of $21,367,457, plus approximately $8.6 million anticipated in future costs, is the appropriate amount of mitigation. It is also found that identification of impacts through a widely used transportation computer model and calculation of proportionate share by publicly accepted mathematical formulas are a standard DRI methodology appropriate for use by the County. Alternate DRI mitigation methodologies proposed by WGC are rejected as contrary to accepted public policy, precedent and professional practice. It is further found that transportation mitigation consisting of a DRI proportionate share payment may be required in advance of development by Gateway under standard DRI policy. Advance payment would secure WGC certain development and transportation concurrency rights based upon the County's evidence at hearing. WGC's Expectations as to Traffic Mitigation When it purchased the Gateway property in 1982, WGC recognized that funding mechanisms for traffic improvements were evolving and that it would be required to participate in the funding of transportation improvements on the public road network surrounding the proposed project. However, WGC did not study the costs of such funding participation as part of its acquisition analysis because the answers would depend on when and where WGC commenced development on its property. Ultimately, development of Gateway commenced toward the southern end of the project nearest the new regional airport and Daniels Road, which WGC considered a "growth corridor". (Paragraph 5, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Koste, Tr. 2000-01). Internal WGC meeting notes dated December 3, 1982, reveal that WCG recognized even then that traffic impacts would be significant for Gateway. With respect to Daniels Road, they contained statements such as "capacity captured by airport" and "Need to capture capacity any way we can." With respect to Colonial Boulevard, the notes contained statements such as "do whatever it takes to get it built --even help pay for it" and "potentially serious capacity problems". With respect to traffic levels of service, they stated "Need educational process to get level of service D." With respect to development phasing, they stated "Colonial or Daniels 1st? Go to north if can capture capacity on Daniels." WGC's then director of planning and permitting, who wrote the notes, testified at hearing that the idea of "capturing capacity" was not an important objective or main idea to Gateway in the sense that "if ... you are there first ... there would be adequate capacity on the road to handle the levels of traffic." Rather, he testified that "Westinghouse was looking to make sure that the roads would not be congested because that is not a good marketing for a community." He conceded that, from a marketing standpoint, free-flowing roads in the vicinity are a "benefit to any development." (Respondent's Exhibit 4; Widmer, Tr. 1733). One WGC reviewer of a draft of WGC's original DRI application for development approval (ADA) noted in a June 13, 1983, memorandum to WGC's president: After the ADA is submitted, the probability of getting the County to participate or to build (Daniels Road) on their own will be negligible. To offer to make improvements to County roads is foolhardy. We will be negotiating from a very weak position. Why not let them tell us what they expect? (Respondent's Exhibit 9) In its evaluation of the transportation section of the original Gateway ADA filed in early 1984, SWFRPC estimated that the DRI would require: two additional lanes on Daniels Road from U.S. 82 to the airport entrance by 1988; two further lanes on Daniels Road from U.S. 41 to the airport entrance by 2010; interchange modifications at I-75 and the airport entrance from 1997 through 2015; two lanes on Daniels Road from the airport entrance to S.R. 82 by 1985; two further lanes on Daniels Road from the airport entrance to S.R. 82 by 2000; additional lanes and access controls on Daniels Road between the airport and Gateway entrances by 2010; four lanes on Colonial Boulevard from I-75 to S.R. 82 by 1988; two additional lanes on Colonial Boulevard from Metro Parkway to I-75 by 2010, with access control by 2020; two further lanes on Colonial Boulevard from I-75 to the Gateway entrance by 2020; and control devices and auxiliary lanes at the junction of S.R. 82 and Colonial Boulevard by 1988 and 2020, respectively. The SWFRPC evaluation of WGC's ADA rejected WGC's assertion that certain improvements would not be needed by Gateway and advised that "planned improvements on several regional roadways must be pushed forward to accommodate Gateway ..." In its 40-year application, WGC had committed to direct funding of internal roads, intersection improvements at entrances, right-of-way donations for roads along its boundaries, 50% participation in construction of Daniels Road from the airport to S.R. 82 and of a Colonial Boulevard extension to the DRI. (Respondent's Exhibit 22) On January 30, 1985, approximately four months before adoption of the original Gateway development order, the president of WGC's corporate parent wrote WGC's president with respect to the development order as it then was proposed: The one area that is rather ambiguous is in the area of the road construction (transportation).... We commit to build two lanes here, two lanes, there.... (Respondent's Exhibit 40) On April 15, 1985, or approximately six weeks before adoption of the 1985 DO, WGC's president wrote the corporate parent's president and identified, among other "liabilities", the following feature of the proposed DO and PUD: Regional transportation improvements "open- ended" -- to be imposed at each phase based on periodic studies of actual and projected impacts. At hearing, WGC's president testified that there were changes in the final documents "but the areas (of liability) as far as I know, were all still included, and I know none of them went away." In his deposition received in evidence, he testified that with respect to the AMP process, which was adopted: The mitigation costs are not determined up front, they are determined as you go through the process, and should we ever conclude what the costs will be for Area Master Plan 2, that will only be as good as Area Master Plan 2 and Area Master Plan 1 together. Area Master Plan 3 remains a question mark. By not appealing the original DO, WGC accepted the deferral of impact mitigation determinations until each area master plan review. (Respondent's Exhibit 54; Koste, Tr. 621, 634-35, 2002-03; Paragraph 38c, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement). Before filing an application for approval of AMP 1, WGC's vice president informed the WGC staff that potential transportation issues included "how proportionate share would be calculated, what would be the appropriate timing of the road improvements and receiving due credit ... with regard to impact fees for advanced payment if there was a question of timing of a road improvement." (Schmoyer, Tr. 135-36, Respondent's Exhibit 69). During the review of Gateway AMP 1, both DCA and the County took issue with WGC's assumption that the widening of Daniels Road to four and six lanes and the extension of Daniels Road to S.R. 82 would be available when needed because the improvements were "programmed." In response, WGC recognized that the improvements were not "committed" and stated that they were "necessary to support all area developments" and "a function not only of Gateway Area 1 development but also other area developments in the Daniels Road Corridor." (Respondent's Exhibits 77, 78, and 81) On April 3, 1986, while AMP 1 was still under review, WGC's traffic consultant for AMP 1 wrote WGC's director of planning and permitting as follows: As you requested, we have prepared an estimate of the likely roadway network in the Gateway Study Area at buildout of Westinghouse Gateway Communities. The future Study Area roadway network will be dependent not only on Gateway development but also other area development. Improvements of particular importance include the widening of Daniels Road to six lanes from west of US 41 to SR 82, the extension and widening of Colonial Boulevard to six lanes from west of US 41 to SR 82, a new east/west arterial (north of Daniels Road) from US 41 to SR 82, an interchange with I-75 at the new east/west arterial, and the Airport Flyover at Daniels Road. That portion of the new east/west arterial from Palomino Lane to the Six Mile Parkway, due to environmental permitting problems, may be very difficult to construct. In fact, the Development Order for Gateway (1-8384-36, Condition 17) states that access to Gateway Area 9 "... shall not be permitted through, over or under the slough." Nevertheless, as east/west access along Daniels Road becomes more difficult in the future due to area developments, the County in combination with area developers may consider alternative east/west access routes. Any alternative east/west in the area would require bridging the Six Mile Cypress. Without doing more detailed traffic studies, it is difficult to estimate with any degree of certainty the roadway requirements for Gateway Area 2. Those roadway requirements will be dependent on the level of development anticipated in Area 2 (and in particular the retail/office component), other area developments, and roadway improvements undertaken by the County, State and area developers. At this time, we would anticipate the following Study Area roadway improvements be considered during Area 2. Daniels Road widened to six lanes divided from the Airport Entrance to Gateway Boulevard, four lanes divided from Gateway Boulevard to SR 82 and six lanes divided from I-75 to US 41. Colonial Boulevard extended as four lanes divided from Gateway Boulevard to SR 82. East/West Arterial extended as four lanes divided from Gateway Boulevard to SR 82. East/West Arterial extended as four lanes divided from Gateway Boulevard to Treeline Road (and possibly to I-75 with an interchange at I-75). Treeline Road widened to four lanes divided from Daniels Road to the East/West Arterial. North/south connection from Gateway to Colonial Boulevard (four lane divided). Airport Entrance/Daniels Road flyover. It is very likely that Area 2 will be treated in the same manner as Area 1. That is Area 2 would be assessed a proportionate share of all roadway improvements with impact fees representing a portion of that proportionate share. At some time in the future, beyond Area 2, it would be anticipated that impact fee payments would represent the total proportionate share. (Emphasis added) (Respondent's Exhibit 97; Widmer, Tr. 1742-44). WGC's knowledge and understanding of the transportation conditions of the May 1986 Area 1 DO were reflected in an August 6, 1986, internal memorandum in which WGC's director of planning and permitting stated that: If a road improvement is needed at some future point which jeopardizes our continuance of development, there is always the option to make the road improvement ourselves (within reason) and receive credits against impact fees, which is provided for in our DO. (Paragraph 56b, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement). A WGC staff member's notes of a November 16, 1988 internal strategy meeting concerning the pre-AMP 2 application reflects the following strategic considerations, among others: DRI proportionate share number should be brought in line with impact fee number; Consider pipelining impact fee money to County for construction of needed roads -- this will help AMP approval with County, RPC and DCA; Neale (Montgomery) will determine dollars to pipeline and where on Daniels Road (dollars needed for four-laning and east of I-75). At that time, the staff member recognized the impact fees and a calculated proportionate share could differ. (Anderson, Tr. 2018-31; Respondent's Exhibit 213). In a November 23, 1988 letter to Chris Knotts, U. S. Army Corps of Engineers, concerning the Area 2 mitigation, a WGC staff member wrote: A development designated as `New Community' must be able to obtain a complete mixture of land uses, in order to be economically self-sufficient (as possible). This type of development is an appropriate response in order to refrain from contributing to negative fiscal impacts to Lee County, which is already suffering from inadequate infrastructure. This lack of infrastructure ranges from roads operating at acceptable levels of service to proper sewer and water distribution lines and treatment facilities. (Respondent's Exhibit 217) County's Road Financing Efforts Lee County is one of the fastest growing metropolitan areas in the United States. The County seeks to accommodate rather than limit growth by devising funding mechanisms to meet infrastructure needs. For transportation funding, the County has relied on user fees, gas taxes, impact fees, state road funds and assessments against benefited individuals or properties, including DRI exactions. The County has adopted every tax within its authority to fund roads, including all optional gas taxes, and was one of the first counties in the State to adopt road impact fees. (Nicholas, Tr. 3364-70, 3440-41; Spikowski, Tr. 1790- 91; Respondent's Exhibit 733) Unmet road needs in Lee County are overwhelming. According to SWFRPC's executive director, traffic problems in the four Southwest Florida coastal counties, including Lee, are going to be as bad as Dade and Broward Counties in southeast Florida. Therefore, the goal of the DRI planning process is to have DRIs charged for the full impact of their traffic. (Daltry, Tr. 2640). According to a former member of the Board of County Commissioners from 1986-1990, the County's philosophy concerning new development was that infrastructure needs should be met by the public and private sectors collectively. The County directed its administrator to move the County to "get about the business of putting infrastructure in the ground." (Bigelow, Tr. 1713- 15; Segal-George, Tr. 1182-84). The County is continuing its efforts to finance road needs. It is seeking approval of a one-cent optional sales tax for roads by public referendum in the spring of 1991 and lobbying for state approval of a 1% real estate transfer tax for road financing. In addition, the County has had prepared a major report identifying major options for future road funding in the County. (Segal-George, Tr. 1189-90; Spikowski, Tr. 1942-43; Respondent's Exhibit 733). Mitigation for Road Impacts of Areas 1 and 2 Requirements of 1985 DO The 1985 DO required submission of a Traffic Impact Statement (TIS) by WGC for each area master plan. After submission of the TIS, the 1985 DO required the county engineer to determine off-site road and intersection improvements required due to that Gateway area to maintain a Level of Service D during the peak season and to determine Gateway's proportionate share of the cost of needed improvements, which could be 100%. As a condition for AMP approval, WGC was required to enter into an agreement with the County concerning how and when payments would be made. (Respondent's Exhibits 63 and 809). By mutual acquiescence of the County and WGC, key features of the DO requirements were not followed during the processing of WGC's application for AMP 2. The county engineer played essentially no role in the required determinations. The county administrator delegated determination of a proportionate share jointly to the County's department of community development and department of transportation and engineering, but final decision-making authority on that subject was left to the Board of County Commissioners. Generally, the department of community development assures that mitigation imposed is appropriate, adequate and consistent with other DRIs and coordinates its activities with the department of transportation and engineering. There was no agreement ever entered by WGC and the County regarding proportionate share, as required by the 1985 DO as a condition for AMP approval. (Brown, Tr. 2521; M. Swanson, Tr. 1657-58, 1683-84; Segal-George, Tr. 1192, 1196). Under the 1985 DO, the TIS was to be prepared "as per Attachment E" to the DO. There was disagreement among the transportation planners at final hearing as to what was required by Attachment E to the DO, and by the methodology discussed and agreed to in 1988 by County, SWFRPC and WGC planners and as to whether the TIS submitted by WGC followed Attachment E and the methodology the planners discussed. The more credible and persuasive evidence supports a finding that the 1985 DO did not require the use of the difference between results of the "with DRI" and "without DRI" analyses to determine proportionate share, as advocated by WGC, that both County and SWFRPC staff objected to this method and that it is not standardly accepted DRI practice. (Respondent's Exhibits 63 and 809). Attachment E did not call for a "with and without" approach in which the difference between "with DRI" and "without DRI" analyses would equal project impacts, but rather called for identification of traffic generated specifically by the DRI or DRI trips. The generally accepted definition of a "DRI trip" is a trip that has one "end," or an origin or destination within the DRI. Indeed, WGC's expert planner agreed that Attachment E did require assignment of DRI trips to the road network and he did not do that in the TIS submitted to the County or ever send that information to the County. (Respondent's Exhibit 809; M. Swenson, Tr. 1590-91, 1593-94, 1597-99, 1654-55; Horner, Tr. 870-71, 2880-81, 2901-02, 2926, 2931; Hall, Tr. 3086, 3112-14, 3322-24; Jackson, Tr. 768). Concerning the TIS methodology agreed to by the County, SWFRPC and WGC planners in 1988 for AMP 2, the County and SWFRPC planners established a methodology in June 1988 calling for identification of DRI trips on the road network by means of a manual assignment of those trips from a transportation computer model projecting total traffic on the road network at the buildout of the Area 2 phase. The methodology agreed to did ask for a "without Gateway" model run to give a basic idea of what the roadway network would need to look like without Gateway, but that run was not used to identify DRI trips. The planners rejected WGC's suggestion that project impacts be modeled as the difference between the total traffic "with and without" the Gateway project. (Respondent's Exhibits 154 and 165; M. Swenson, Tr. 1593-96, 1652-54, 1597-99; Horner, Tr. 2874-77). The TIS submitted to the County in February 1989 used the "with and without" methodology, contrary to County and SWFRPC staff positions. This use of the "with and without" approach meant that County staff could not use the TIS to identify project traffic and future roadway needs to determine mitigation because project or DRI trips were not identified. Both County and SWFRPC staff objected to the TIS because it used only a "with and without" approach and failed to identify DRI trips as needed to determine whether a DRI's trips are "significant" on a particular road link and therefore require mitigation. (M. Swenson, Tr. 1657, 1660-61, 1663-64, 1697-98; Loveland, Tr. 2935, 2941-43; Respondent's Exhibits 169, 249, 265, 271 and 273). The TIS also failed to follow SWFRPC DRI policies and had other deficiencies. Under the SWFRPC Comprehensive Regional Policy Plan, DRI traffic is deemed "significant" for purposes of determining which roads should be studied and which roads should be improved or impacts mitigated if DRI traffic is 5% of the Level of Service D peak hour capacity of a road. WGC's planner conceded that his use of a 10% significance factor in the TIS was inconsistent with the SWFRPC adopted plan, which he had been given a copy of prior to the preparation of the TIS. (Respondent's Exhibit 125; Daltry, Tr. 2630, 2681-82; Loveland, Tr. 2942; Horner, Tr. 2920; Jackson, Tr. 775-76; Montgomery, Tr. 498- 99). The TIS also included no calculation by WGC of a proportionate share to be paid by WGC and WGC did not submit an estimated total proportionate share to the County before late July 1989. Prior to-the adoption of the AMP 2 DO by the County on December 20, 1989, WGC's planner never submitted to the County a spread sheet containing his independent determination of a proportionate share. As contemplated by the original DO and as a result of WGC's actions, determination of the proportionate share required of WGC for the traffic impacts of Gateway Areas 1 and 2 fell to the County staff. (M. Swenson, Tr. 1666, 1700- 01; Jackson, Tr. 796). County Methodology As a result of these and other factors, County staff conducted an independent assessment of the road impacts of Gateway Areas 1 and 2 and determination of the proportionate share WGC was required to pay as a result. It is noted that the TIS and DO for Area 2 included Area 1 for purposes of traffic analysis due to the need to cumulate traffic impacts and as a result of prior DO conditions. (Gilbertson, Tr. 2725; Jackson, Tr. 776-78). The basic methodology used by the County staff to determine the WGC proportionate share relied on a transportation computer modeling program known as FSUTMS (Florida Standard Urban Transportation Model Structure) to determine the road impacts of Gateway Areas 1 and 2 in the Area 2 buildout year of 2000 and on a variation of an adopted DCA proportionate share rule for DRIs used to calculate the proportionate share dollar amount owed. (M. Swenson, Tr. 1667-75). County staff agreed with WGC representatives to do various FSUTMS computer runs in August 1989. The staff used a FSUTMS run to identify total traffic on the road network. It also identified DRI trips with a FSUTMS module known as "module 4" or the "DRI trips" or "selected link" methodology. These computer runs were performed and the output was in the form of oversized drawings known as "plots," which identify the road network and traffic volumes projected in the year 2000 on those roadways. Information from the plots for the total traffic and DRI trips FSUTMS runs was then used with a separate Lotus 1-2-3 spread sheet computer program to determine a proportionate share contribution for roads. (M. Swenson, Tr. 1666-68, 1670-72; Faris, Tr. 859; Johnson, Tr. 1483-85; Jackson, Tr. 716; Hall, 3092-93; Respondent's Exhibits 443, 446 and 450). The County used its standard DRI policies at the time to determine proportionate share. Those standard policies follow a variation of the DCA DRI transportation policy rule (Rule 9J-2.0255, Florida Administrative Code) minimum proportionate share policy. Those County policies were that if a roadway was operating at an inadequate level of service (less than level of service D), or the adversity test, and the road was impacted by the DRI by more than 5% of the level of service D capacity of the road (the "significance" test), then a proportionate share for that particular roadway link is calculated. The formula assesses the DRI a proportionate share of needed improvements if future traffic projected at project or phase buildout exceeds capacity, not if the addition of DRI traffic alone causes a road to exceed capacity. However, the DRI is only assessed a share of those total improvement costs. The spread sheet program uses information, including the total trips and DRI trips volumes, determined by FSUTMS, and a number of mathematical calculations to determine whether a proportionate share contribution is required for each roadway link studied, the share for that road link and the total proportionate share due for all road links. (M. Swenson, Tr. 1619-22, 1659-60, 1678-83; Hall, Tr. 3073). According to SWFRPC's executive director, SWFRPC has its own list and map of regional road links to be studied for DRI impacts adopted as part of its Regional Comprehensive Policy Plan. That plan and map show certain roads in the vicinity of Lehigh Acres, such as Alabama Road, as regional. Other roads may be reviewed in the DRI process for local impacts in agreement with the County's MPO. The SWFRPC encourages local governments not to overlook their local roads. It is noted that WGC's planner did not indicate any problem with the list of roads studied by the County for proportionate share purposes and he included them in his own spread sheets offered in evidence. (Daltry, Tr. 2663-65, 2683; Respondent's Exhibit 125; WGC Exhibit 95). The 5% test used by the County to determine if a proportionate share should be determined for a particular roadway link is the SWFRPC's 5% significance test. The basic mathematical formula used by the County to determine Gateway's percentage or proportionate share of a road improvement needed as a result of Gateway's traffic was received from SWFRPC staff. In addition to the 5% significance factor, the SWFRPC staff formula differed from the DCA proportionate share rule in that it allocated "reserve" or presently unused road capacity on road links studied first to non-DRI trips and then to the DRI in the year 2000. (M. Swenson, Tr. 1673-74; Hall, Tr. 3099-3101; Respondent's Exhibit 465). The County's use of FSUTMS and the SWFRPC proportionate share approach resulted in a final County staff spread sheet in November 1989 with a proportionate share for Gateway Areas 1 and 2 of $25,951,738 due to an error in one of the computer formulas for one road link. This total did not include additional improvements still needed by the year 2000 to Daniels Road and Colonial Boulevard. SWFRPC's executive director conducted an independent proportionate share estimate in November 1989 determining a $23.5 million cost. He found the County's $26 million share "within the range." (M. Swenson, Tr. 1677-78; Hall, Tr. 3075-78; Daltry, Tr. 2633, 2635-36; Respondent's Exhibits 525, 541 and 688; WGC Exhibit 187). The settlement of a County-DCA dispute over the 1989 comprehensive plan in the fall of 1989 had no bearing on the $26 million Area 2 proportionate share amount included in the Gateway Area 2 DO. (Bigelow, Tr. 1715-17; Segal- George, Tr. 1191) Using the same basic FSUTMS/SWFRPC staff proportionate share formula, in 1990 the County's expert planner recalculated the proportionate share based on an updated FSUTMS base year model for Lee County and on updated land use, road network and road cost information, all available after County staff acted in 1989. Based on this updated and more accurate information, in October 1990 he calculated a new proportionate share for Gateway Areas 1 and 2 as WGC sought to develop them through the year 2000 of $21,367,457, which reduces the amount imposed in the County's Area 2 DO on appeal by more than $4 million. In conjunction with an alternate five-year development program approving Area 1 and one-half the proposed Area 2 development through 1995 only, the planner in October 1990 also calculated a proportionate share of $11,386,657. (Hall, Tr. 3120-37; Respondent's Exhibits 896 and 897). None of those proportionate share calculations included the cost of additional improvements still needed beyond the six-laning of Daniels Road and Colonial Boulevard. Those improvements could consist of expressway-type improvements to Daniels Road. The County estimated, without challenge, that WGC's proportionate share of them was $8.6 million. (Hall, Tr. 3128-33; M. Swenson, Tr. 1681-82). FSUTMS Model Use Transportation computer modeling of future traffic projections began in the 1960s and has been evolving continuously. Such modeling is the representation of road network and land use date to project future travel demands and road improvement requirements. In the early 1980s, access to computer technology and modeling became more widely available as a result of the creation of microcomputers and minicomputers. Model systems have become extremely "bullet-proof" over many years of use, according to witness Fennessy, a national expert and pioneer in the field of transportation computer modeling. (Fennessy, Tr. 2977-85). The County's expert transportation planner, while working for the Florida Department of Transportation (FDOT) in the late 1970s, developed the concept of a standard computer traffic model for use in all urban areas in Florida and the research needed to implement the concept. The Florida standard model became known as FSUTMS. FDOT's goal was to create a standard model to be used by all public agencies in Florida and private consultants to evaluate future traffic conditions. (Hall, Tr. 3065-66; Faris, Tr. 838). The FSUTMS model, as developed in the late 1970s and early 1980s by FDOT, could only be used on large mainframe computers at first. When microcomputers became available, FDOT was aware that they would allow extended use of FSUTMS by public agencies such as local transportation planning groups known as Metropolitan Planning Organizations (MPOs). MPOs play an important role in growth management and local comprehensive planning issues concerning roads, developing future road improvement design and construction plans for their areas. FDOT wanted all urban areas to continue to plan and analyze long- range transportation needs similarly and in 1985 selected Fennessy as the software author for the FSUTMS model for micro- and minicomputers. The software program became available for use in late 1987 and early 1988 after several years of FDOT testing and refinement. Indeed, Florida is the most advanced state in the United States in the field of transportation computer systems modeling. (Faris, Tr. 844-47). The FSUTMS model simulates human travel behavior. It has three basic operational steps. In simplified terms, based on in-home surveys, the model determines how many trips will be generated for what purpose from each traffic area or zone, distributes them based on the shortest path of travel by time, and assigns them to a particular road network. Old "manual" methods of using a hand calculator, standard industry trip generation rules and guesswork cannot simulate the complex sets of interactions among land uses determined by FSUTMS. Those methods are not as dynamic as FSUTMS is in assessment of DRI traffic impacts. (Faris, Tr. 849-58; Hall, Tr. 3083-88). The FSUTMS model is widely used and accepted. It is used by all Florida MPOs and many local governments and major private transportation planning firms. It is the most commonly used model in Florida today. (Faris, Tr. 863; C. Swenson, Tr. 1341). Over the years, the FSUTMS model has evolved to the point where it is appropriate for use to measure transportation impacts of a particular development using a "selected link" or DRI trips analysis developed by Fennessy which is as accurate as the model in general. Fennessy developed the selected link capability from another computer model in response to inquiries from private consultants and government staff who wanted to know which development had traffic using a particular road link. This technique can be used with a high degree of confidence to isolate trips generated by a particular development and their impact on a particular road. (Faris, Tr. 859; Fennessy, Tr. 2969-75, 2989). The FDOT recommends use of FSUTMS and the selected link methodology to evaluate the transportation impacts of larger DRIs and to determine DRI trips. This recommendation in favor of FSUTMS is contained in official FDOT guidelines for DRI review issued in April 1990. The selected link analysis is the method taught to analyze DRI road impacts in FDOT training courses for private and public planners. One of WGC's transportation planners agreed that FDOT intends in its guidelines that FSUTMS be used to identify the transportation impacts of DRIs and pointed out that Gateway Area 2 is of such a size that it would fit the recommended category for use of FSUTMS. The FDOT has implemented the guidelines in its district offices to require FSUTMS use if recommended by them. If a developer wants to use any other computer model or a manual method, he must go through a justification process as to why he is departing from use of the model studied, supported and recommended by FDOT. (Faris, Tr. 860-61, 888-89; Fennessy, Tr. 2972-73; Hall, Tr. 3078-79, 3081-82, 3143-44, 3212-13; Mierzejewski, Tr. 1152-53; Respondent's Exhibit 674). The DCA's chief of the bureau of state planning agreed that transportation computer modeling is a very common approach for large DRIs and that a computer is needed to help determine the distribution of DRI trips and significance of their impact on the roadway. FSUTMS is the model encouraged and accepted to identify DRI transportation impacts in the DCA's new application form for DRIs projected at time of hearing to be adopted in November 1990. Departure from use of computer modeling would require a demonstration that another method is appropriate. The new DRI application form promotes use of FSUTMS by name to determine traffic generation and assignment to the network and this is the first time a specific transportation model has ever been mentioned in an agency rule. Most of the DRI applicants in the SWFRPC area who use computer modeling are also using the selected link analysis to identify DRI trips as well. (Beck, Tr. 1978, 1987-88, 1993-95; Hall, Tr. 3215-17; Loveland, Tr. 2944; Respondent's Exhibit 734). In the private transportation planning field, it is now routine to use FSUTMS for large DRIs. The old "manual" techniques are only used under standard practice on small DRIs and those with short buildouts. FSUTMS is more accurate than manual techniques in reflecting traffic impacts on a systemwide basis. It provides an objective starting place using land use data in a model validated for accuracy without favoring or disfavoring any particular development. It replaces the subjective manual approach where planners and engineers used to estimate that 5% of a project's trips would head in one direction or 10% in another. The 1984 original Gateway DRI application used those outdated methods. (Hall, Tr. 3081-82; C. Swenson, Tr. 1434-35; Crawford, Tr. 2750, 2752; WGC Exhibit 3). The FDOT has high confidence in the accuracy of FSUTMS. Each model with a particular urban area's land uses projected to a future year goes through a formal accuracy determination called validation. Indeed, no model duplicates observed traffic behavior and no computer model is infallible. However, FDOT standards for accuracy call for traffic projected by FSUTMS to be within 10% of actual ground traffic counts for a prior year on roads with high traffic volumes and within 20% on lower volume roads. During the validation process, adjustments to the model are made to correlate model traffic projections to ground counts. The models are achieving that accuracy generally. The accuracy on individual links may vary by much greater percentages, but if a road link has an inaccuracy greater than 10% or 20%, that variance needs to be explained in order to validate a model. (Faris, Tr. 838, 857-58, 864-65, 881-83; Mierzejewski, Tr. 1145; Nicholas, Tr. 3448). WGC's consultant Mierzejewski questioned using the County FSUTMS model to assess the impacts of a particular development on individual road segments based on illustrations from a December 1989 validation study prepared by Kimley- Horn, a private transportation firm that is a Lee County consultant. In particular, he highlighted the post-validation range of correlation between actual counts and traffic projections for four road segments studied in the Kimley-Horn validation report, although he stated that the Kimley-Horn adjustments to the FSUTMS model during the validation process were generally within accepted modeling practice. However, the Kimley-Horn transportation planner and engineer in charge of the validation report established that plus or minus 20% is the general range for accuracy on individual road links although in some very rare cases there may be significantly higher errors on individual links. Moreover, overall the FSUTMS model as validated for the County is the best method to project traffic for any development within the County, including Gateway, and those model outputs can be used to calculate a proportionate share reliably. The County validated model is more likely to underpredict actual traffic than overpredict it. (Mierzejewski, Tr. 1115-17; 1143-44; C. Swenson, Tr. 1339, 1341, 1359, 1408, 1411, 1415-16, 1434). The model results for four road segments in the validation report Mierzejewski criticized were the four worst of eighty-three studied in the report. However, if the model traffic projections for those road links were adjusted to match actual ground traffic counts, the result would increase the WGC proportionate share for Gateway Areas 1 and 2 by about $1 million, due to the model's tendency to underproject. (Hall, Tr. 3055). Both WGC and County experts agreed that the computer models should be more accurate in the five to ten year timeframe, due to land use projection accuracy, than for longer periods. Thus, FSUTMS and the selected link technique can be used with confidence for analysis of DRI transportation impacts for the DRI-related level of detail in a five and ten year buildout, such as Gateway Area 2. (Mierzejewski, Tr. 1166; Faris, Tr. 881, 937-38) In his private consulting business, WGC's transportation planner routinely uses FSUTMS computer modeling on DRI projects and also uses the output of DRI trips or selected link technique as a guide to identify and assign DRI trips to the road network and as an input to calculation of a proportionate share. Both he and County experts agreed that transportation planning and engineering judgment should be applied to analysis and use of the traffic volumes projected using the FSUTMS and the DRI trips technique. If sound engineering judgment indicates that the model outputs are logical, both also agreed that no adjustments to the output of FSUTMS may be needed. The FDOT April 1990 DRI review guidelines also call for use of judgment in using modeling results. (Jackson, Tr. 710, 804-05, 816, 820-21, 971, 3568-69, Hall, 3057-58, 3092-93; Respondent's Exhibit 674). Concerning the total future traffic projections and DRI trip projections as a result of the County's FSUTMS runs in September 1989, WGC's expert witness Jackson did not have any major problems with using the data without adjustment from computer runs as input into the County's proportionate share spread sheet. The expert was present at County offices in mid-September 1989 when the County prepared its output "plots" from the FSUTMS DRI trips runs. The record reflects that the expert (and his staff) actually helped input the data from FSUTMS computer plots into the County's proportionate share spread sheet program, and concluded that the output was reasonable for use and that the DRI trips model run was valid. (Jackson, Tr. 802-03, 806-08, 1023-24; Johnson, Tr. 1490-94, 1499-1500). DCA Rule and County Variations The DCA established the basis from which the County derived its proportionate share methodology in a DRI transportation policy rule (Rule 9J- 2.0255, FAC) adopted in early 1987. According to the DCA's chief of bureau of state planning, there was extensive debate over the rule and input from many formal and informal advisory groups, but the rule was a consensus as far as one could be reached. The goal of the rule was to bring some consistency to DRI transportation impact assessment and evaluation. The rule has had the intended effect. (Beck, Tr. 1966-67, 1976-77). The DCA rule includes three mitigation options: "staging" of development with the timing of road improvements by government or others so they accommodate the development, "pipelining" proportionate share dollars for road impacts to one or more major improvements, and a creative third option which combines those two. In "pipelining," the most commonly used option, a mathematical formula is used to calculate a proportionate share and those dollars are paid up front before development occurs and expeditiously committed to actual road building. WGC transportation experts agree proportionate share dollars are usually paid up front and devoted to road building in advance of development. If these minimum criteria are met, then a DRI has, to DCA's satisfaction, met the requirements of Subsection 380.06(15)(e), Florida Statutes, that a DRI makes "adequate provision" to accommodate its road impacts. (Beck, Tr. 1964, 1967-68, 1972; Jackson, Tr. 962-63; Mierzejewski, Tr. 1164). The DCA rule options establish minimum criteria. Both the rule and DCA practice allow regional planning councils and local governments to impose more stringent criteria or mitigation requirements. For example, the SWFRPC, and other regions, use the 5% significance test, rather than the DCA's 10% test. Transportation monitoring of actual traffic conditions as the DRI develops and determination of whether a road should be considered "committed" for improvement or subject to a proportionate share charge are other areas where the local government could be more stringent, based upon local or regional conditions. (Beck, Tr. 1964, 1969-70, 1972, 1974; Bittaker, Tr. 1476-77) The proportionate share formula used by the County as obtained from SWFRPC staff had another more stringent feature than the DCA rule. The formula used by the County allows any "reserve" capacity on a road segment to be used first by non-DRI traffic before it is used by the DRI being analyzed. The DCA formula gives first call on use of the reserve capacity to the DRI being reviewed. Even prior to submitting the TIS, WGC was aware that this reserve capacity issue had a major effect involving millions of dollars on proportionate share amount and that reviewing agencies often ignored the reserve feature of the DCA rule. (Hall, Tr. 3099-3101; Horner, Tr. 2882-83; Jackson, Tr. 783; Anderson, Tr. 2026-27; Respondent's Exhibits 218 and 736). The specific SWFRPC staff formula supplied to County staff was used for the Omni DRI in Fort Myers and gave other development first call on reserve capacity before the DRI. SWFRPC staff did not feel that DRIs should have first call on existing capacity. The southwest Florida region has a large number of approved subdivisions with one million lots that have a vested right to develop and the County has 400,000 such lots. There is no available reserve capacity near those projects and they should get priority over a new expanding DRI. In other words, the latest DRI should not be first in line. Those projects include Lehigh Acres near Gateway and Cape Coral and will require use of existing reserve road capacity. (Horner, Tr. 2882-83; Loveland, Tr. 1207-08; Daltry, Tr. 2630-33, 2644). The SWFRPC has not formally adopted a formula to deal with the vested project issue due to diversity but the SWFRPC itself has continually indicated that vested projects were more entitled to use capacity than a new DRI. Its staff recently has been taking a position of equivalent use by DRIs and non-DRIs but vested growth constitutes a public policy reason for the approach taken in the formula used by the County. The County used the formula because it was more representative of conditions in the County concerning the use of excess or reserve capacity than the DCA rule in light of the large, vested Lehigh Acres and Cape Coral projects in the County. (Daltry, Tr. 2653-54, 2680-81; M. Swenson, Tr. 1674-75; Spikowski, Tr. 1817). It is not inequitable to give other developments use of reserve road capacity before Gateway because surplus capacity should belong to the general public or the County, which is paying for 80% of the road needs in the vicinity of Gateway. This use of reserve capacity is a legitimate public policy choice so long as the County treats other DRIs similarly. First come, first served is a normal approach to use of available road capacity. (Nicholas, Tr. 3432-34, 3461-62). Proportionate Share for Daniels Road Widening Daniels Road is a major east-west road that serves and will serve the Gateway DRI. Daniels Road to the south of Gateway, Colonial Boulevard to the north, Metro Parkway to the west and S.R. 82 to the east form the principal road network surrounding Gateway on all four sides. (Hall, Tr. 3096-97; Respondent's Exhibit 738). The inadequate condition of Daniels Road as a two-lane facility was of particular concern to the County in the late summer and early fall of 1989. It was the general consensus that Daniels Road should be widened to six lanes rather than four, and the County approved imposition of two additional cents of local gas taxes and bonded those revenues in order to accommodate the six- laning. The County bonded ten years worth of these gas taxes to get the Daniels Road and Colonial Boulevard Extension improvements, among others, built although its most important development areas lie elsewhere, in Cape Coral, Bonita Springs, and South Fort Myers. (Segal-George, Tr. 1185-87; Spikowski, Tr. 1820, 1931; WGC Exhibit 16). The Gateway DRI benefits from the Daniels Road widening. The County accelerated the Daniels and Colonial improvements ahead of other pressing needs elsewhere to serve development needs, including those of Gateway. Gateway is a major contributor to the need for the Daniels Road widening, although not the sole cause, and Daniels Road was substantially impacted under the 5% significance test by the proposed development of Gateway Areas 1 and 2. A conservative estimate of Gateway's proportionate share use of the Daniels Road to the year 2000 was 20%. (Jackson, Tr. 991; Spikowski, Tr. 1848-50; M. Swenson, Tr. 1687; Hall, Tr. 3130-31). The County advance-funded the Daniels Road widening based on knowledge since 1983 of the Gateway development. If a county such as Lee County advances road funding in order to get ahead of development, it should not bear the risk that it cannot recover those funds in part from benefited developers. If the County cannot require Gateway's participation, the County would not participate in future forward funding. The County also demonstrated responsibility by determining the amount of development expected east of I-75 and initiating improvements rather than waiting for severely congested conditions, given the long lead time needed to plan, design, and build roads. It is unsafe to wait until a road is over capacity to initiate improvements. (Hall, Tr. 3098, 3249-50; Nicholas, Tr. 3472-73, 3508-09, 3519-22). If the Daniels Road widening to six lanes were considered a road "committed" to improvement, under the County's proportionate share methodology WGC would pay nothing for the widening of Daniels Road from two to six lanes, despite Gateway's traffic impact on that road. In any event, however, WGC would need to participate in funding improvements beyond six-laning. (Hall, Tr. 3342) The County staff initially considered the Daniels Road widening committed and calculated no proportionate share for WGC on that facility. When the county administrator learned of this, she determined it made no sense to charge nothing of a development that would significantly impact Daniels Road and established a policy that developers' road impacts should be assessed and a proportionate share calculated, regardless of whether the road improvement was in the County's capital improvement budget. It is the County's present general practice and policy to follow this approach for all developments. The County staff followed this policy for Gateway Areas 1 and 2 for roads including Daniels Road, the Colonial Boulevard Extension, and Metro Parkway. It would not be a true picture of Gateway's traffic impact and resulting responsibility to assume that improvements to those roads, which are now underway, were in place without a proportionate share contribution required from WGC. (Segal-George, Tr. 1187- 89; M. Swenson, Tr. 1610-12; Hall, Tr. 3096-97, 3169-70). Other DRIs in the vicinity of Daniels Road have been assessed a proportionate share for that road widening and it is reasonable to expect WGC to pay along with other anticipated causes of growth for that project. (Crawford, Tr. 2840-41, 2844-47) Other DRI review agencies agree that the issue of whether a road improvement is considered "committed" or should be assessed a proportionate share may depend on local circumstances. The DCA transportation policy rule does not address what is a committed road. Rather, that is an area left to local government based on local and regional conditions. In addition, committed roads usually include those under construction, but the source of the funding commitment is important and those revenue sources commonly include anticipated developer proportionate share payments. (Beck, Tr. 1974; Daltry, Tr. 2659, 2678- 79; Hall, Tr. 3243-44). If the County were to follow DCA's staging option approach to mitigation, the Gateway Area 2 development, as proposed by WGC in a single 10- year phase, would be required to wait until Daniels Road improvements beyond six-laning were planned and in place. Segments of Colonial Boulevard, as well as Daniels Road, would also fail by 1995 and 2000 even after identified improvements have been made. (Hall, Tr. 3104-05, 3128, 3342-43, 3351-53, 3575). County Estimated Road Improvement Costs In determining a proportionate share, the DRI's percentage of the demand for a needed road improvement is multiplied times the estimated cost of the improvement. In the County proportionate share spread sheets prepared in 1989, costs were based on estimates from the County project manager in charge of road projects under design or improvement and on FDOT average costs. The DCA generally relies on FDOT and local government cost data for estimated road costs under its proportionate share rule. (M. Swenson, Tr. 1673, 1681, 1683; Beck, Tr. 1973). As part of his updated 1990 determination of a proportionate share contribution for Gateway Areas 1 and 2, the County's expert planner Hall made adjustments to the cost per mile data based on actual bid and other updated information prepared by the County staff. The updated costs came from County staff, FDOT and adjustments made by Hall. For County roads under construction or bid, Hall used costs determined by the county engineer in September 1990. Those costs for Cypress Lake, Daniels Road, Metro Parkway, Six-Mile Cypress and the Colonial Boulevard Extension were cost per centerline mile averages derived from actual or estimated right-of-way, engineering, construction, project management and miscellaneous costs. Those costs were the most accurate reasonable costs available to the County as of September 1990. WGC's transportation engineer and civil engineering consultant agreed that specific actual or bid costs for particular road projects were better to use than other types of estimates. (Hall, Tr. 3149-50, Brown, Tr. 2535-37; Hill, Tr. 1088; Jackson, Tr. 991; Respondent's Exhibit 739). The County's expert Hall found that the cost data he used for his $21.4 million proportionate share estimate in the year 2000 were considerably more refined than data often used to calculate proportionate shares for DRIs and that it was the best data available from FDOT and the County for specific construction projects. (Hall, Tr. 3343-44). Most of the WGC criticisms of the road costs used by the County were directed at estimated costs before they were updated for actual bid costs. The principal witness who leveled these criticisms, Hill, had never done a DRI proportionate share calculation and had no road design or road engineering experience in Lee County. Hill estimated costs calculated by the County were too high based on actual bids and on cost data in a March 1989 road impact fee study prepared by Kimley-Horn, an engineering consulting firm used by the County. Hill selected the Kimley-Horn data as the best estimate of cost in instances where there was no bid. However, the author of that study established that the cost numbers in the study should not be used to calculate a proportionate share except as a gross check against other estimates. (Hill, Tr. 1064-65, 1066-70, 1092-93; C. Swenson, Tr. 1348-49; WGC Exhibit 101). WGC witness Jackson also criticized the county engineer's costs used by County witness Hall because those costs were not further broken down for each road segment along Daniels Road per lane mile. However, the county engineer established that it was not appropriate to calculate a lane mile per cost by dividing the cost per centerline line mile by the number of lanes on a road segment because a cost per lane mile needed to be based on actual engineering analysis of the work being done. In addition, further understanding of design and engineering factors would be needed to refine further the costs used for Daniels Road. Witness Jackson acknowledged that he had done no significant study of design plans for the Daniels Road widening, although he proposed a reduction in the proportionate share for Daniels Road on a lane mile basis. Like witness Hall, WGC witness Hill used a uniform cost per mile for all Daniels Road segments and indicated that was a legitimate approach if the cost per mile were based on actual bids, as Hall's was. In a proportionate share estimate offered by witness Jackson during the final day of hearing, Jackson assumed a uniform cost per mile for Daniels Road, just as Hall did. (Brown, Tr. 2552-53; Hall, Tr. 3155; Jackson, Tr. 3562-63, 3573, 3578; WGC Exhibit 101). WGC witness Jackson also questioned whether costs used by Hall for S.R. 82 were "somewhat" too high because they assumed a uniform cost for segments in the heart of downtown Fort Myers and those near downtown. However, Jackson did not independently estimate what the cost should be, did not adjust 1986 or 1987 FDOT cost estimates for S.R. 82 for inflation and did not study property values along S.R. 82 concerning right-of-way. State road costs in general may exceed county costs due to more stringent bidding and engineering factors. (Jackson, Tr. 3564-65, 3580-81; Hall, Tr. 3285, 3587). Impact of Gateway by DRI trips v. "With and Without" Methodology WGC witness Jackson contended that the traffic impacts of a DRI should be assessed using a "with and without" approach rather than the DRI trips method used by the County. He based this contention in part because the "with and without" method is a better way of assessing "new" trips added to the roadway as a result of the DRI. However, Jackson himself in his work has used a DRI trips approach rather than the "with and without" method to calculate a DRI proportionate share. (Jackson, Tr. 3554-57, 3568-69). Jackson never submitted a proportionate share calculation using the "with and without" method to County staff and WGC introduced no evidence of the monetary effect of that method of analysis on the total proportionate share assessed by the County in 1989 or redetermined by County witness Hall in October 1990. Moreover, he agreed with the County and SWFRPC that the DCA proportionate share formula, on which the County formula is based, does not use the difference between "with and without" trip projections (variously called "impact trips" or "travel demand" by WGC witnesses and counsel) as the measure of a DRI's traffic impact. The DCA and County formula call for determination of DRI trips (trips with an origin or destination in the DRI) and use of that number in the proportionate share calculation. (M. Swenson, Tr. 1682; Jackson, Tr. 990, 3569- 70 Crawford, Tr. 2842-43; Hall, Tr. 3108-09; Loveland, Tr. 2961-62; Horner, Tr. 2878). The FDOT recommends the DRI trips approach to assess impact instead of the "with and without" method. One major problem is that the "with and without" method fails to identify trips leaving or entering the DRI on roads at its front door. (Faris, Tr. 860, 914-15, 934-35). The SWFRPC staff generally does not accept the use of the "with and without" methodology to assess DRI impacts because it identifies the effect of diversion of traffic due to a DRI rather than specific DRI volumes on each roadway. The "with and without" approach tends to understate the impact of the DRI on roads near the DRI. In the case of the Omni DRI, for example, the "with and without" approach showed a major DRI would result in fewer trips right at the DRI's front door. (Loveland, Tr. 2943; Horner, Tr. 2878-80, 2915, 2917, 2925-26). The "without project" trip volumes and "with project" volumes represent two entirely different traffic projections assuming different land uses. The difference does not equal DRI trips on any particular road link. The "with and without" method could operate so that multiple DRIs could set up a domino theory in which each DRI evades responsibility to mitigate a major portion of traffic coming to a DRI destination. (Hall, Tr. 3108-12; Respondent's Exhibit 737). Concepts related to "new" versus "old" trips, including trips diverted to the DRI, are not relevant when FSUTMS modeling is used. The model looks at sophisticated land use interactions and determines how many trips there will be on each road link in the future, eliminating the need to focus on trips existing today. The model also makes the concept of a diverted trip unnecessary to consider in looking at future impacts. WGC witness Jackson also assumed in an impact fee calculation he prepared, where a determination of percentage of "new" trips was required as an input factor, that 100% of trips generated by Gateway Areas 1 and 2 would be "new." He further agreed that FSUTMS takes diverted trips into account and that County witness Hall's final proportionate share determination of $21.4 million should not be adjusted to reflect the concept of new trips versus old trips. (Hall, Tr. 3338-40, 3048-49, 3088-90; C. Swenson, Tr. 1352-53, 1435-36; Faris, Tr. 861-62; Jackson, Tr. 819, 1001-02, 3582) Division of Proportionate Share by Two From the outset of the Gateway Area 2 application preparation process in April 1988, it was a WGC internal goal or desire of considerable importance to keep transportation mitigation using a DRI proportionate share approach below the amount of impact fees, which are charged all new County developments. WGC was preoccupied with this subject throughout 1988 and 1989. From November 1988 through 1989, WGC witness Jackson prepared numerous memoranda and analyses for WGC comparing proportionate share contribution estimates with anticipated road impact fees owed by Gateway for Areas 1 and 2. The proportionate share estimate by Jackson rose from $500,000 to $14 million during this time period. In some of these analyses, Jackson advised his client that current road impact fees should cover all WGC proportionate share contribution requirements In July 1989, Jackson's highest proportionate share estimates for Areas 1 and 2 were still slightly lower than anticipated impact fees, both of which were in the $13.5 - $14 million range. Jackson's proportionate share estimate was shared with the County for the first time in a July 25, 1989 letter to the county administrator from WGC's executive vice-president who maintained that traffic mitigation should not exceed impact fees. During the same November 1988 to July 1989 timeframe there was no discussion between WGC and Jackson about dividing the proportionate share in half. (Jackson, Tr. 757-58, 760-63, 779-99, 1024; Anderson, Tr. 2024-25, 2032-34; Respondent's Exhibits 156, 175, 209, 212, 218, 260, 264, 295, 296, 306, 317, 334, 360, 368-370 and 602) In mid-September 1989, Jackson visited the County's offices and his staff and subconsultant inputted FSUTMS data into proportionate share spread sheets. He was aware at that time that the DRI trips approach, not the "wish and without" method, was going to be used by the County to calculate proportionate share. During this same timeframe, the County had created spread sheets determining proportionate share dollar amounts owed by WGC. A County spread sheet available by September 21, 1989, showed that the County proportionate share had reached $17 million (if not divided by two) more than impact fees. On September 15, 1989, Jackson proposed for the first time to County staff that the proportionate share should be divided by two if the County wanted to use DRI trips. (Johnson, Tr. 1490-91, 1494; Jackson, Tr. 802-04, M. Swenson, Tr. 1675-76; Respondent's Exhibit 459). By memorandum dated September 19, 1989, Jackson argued the proportionate share should be divided by two because the DRI was responsible for only one end of a DRI trip. Although a County staff person agreed to division by two in a September 21, 1989 letter, the staff person did not discuss the content of that letter with anyone before he wrote it. The staff person based his decision on an inaccurate conclusion from questions he asked others about the model. Based on further discussions with experts and study of model workings, the staff member later concluded he was wrong. A full staff consensus was subsequently reached that the proportionate share should not be divided by two and the final decision was up to the Board of County Commissioners. Standard county policy is not to divide DRI proportionate share calculations in half. (Gilbertson, Tr. 272 6-28, 2730-31, 2745-47; M. Swenson, Tr. 1627-28; Jackson, Tr. 977-78; Segal-George, Tr. 1192; Gibbs, Tr. 2234-35; Respondent's Exhibits 454 and 459). The DCA, SWFRPC and County experts all reject the divide by two approach for a number of reasons. The DCA considered and rejected it during consideration of its DRI transportation policy rule because it is an impact fee methodology, not a DRI exaction methodology. The County agrees that division by two is an impact fee principle that is not properly applied to DRI proportionate share calculations. It is one of the simplifying assumptions used in impact fees that assumes there will be an impact-fee-paying development at each end of the trip. However, that is often not the case, so the impact fee tends to undercharge. The SWFRPC staff also rejects division by two because to do so would provide a double benefit since the proportionate share approach already only imposes a proportionate share charge for DRI trips if they are significant (greater than 5%) on a road segment that will operate at an "adverse" level of service. Transportation planners for SWFRPC since 1984 have never seen this type of division by two approved for a DRI. (Beck, Tr. 1981-82; Nicholas, Tr. 3399-3400, 3402; Daltry, Tr. 2636-37; Horner, Tr. 2884; Loveland, Tr. 1211, 2948). The County's expert Hall also found it completely inappropriate to divide by two and was not aware of any transportation consultant in Florida that had used that approach to assess DRI transportation impacts. A proportionate share charge is only imposed on adversely operating roads where DRI trips are significant and those limitations naturally reduce or eliminate proportionate share costs as DRI trips get farther away from the DRI. Based on Hall's October 1990 proportionate share calculation, this effect resulted in a proportionate share charge for only about half, or 53%, of all miles traveled by DRI trips. It is logical to divide by two for impact fees due to simplifying and averaging assumptions used, but not for site-specific DRI proportionate share assessments that focus on charging the DRI for DRI trips occurring near the DRI on roads that will fail. Other County experts concurred in this assessment. At hearing, WGC witness Jackson also corrected any implication in his written testimony that Gateway was charged a share for all DRI trips rather than only for those where the significance and adversity tests were met. (Hall, Tr. 3115-20, 3345-46; Crawford, Tr. 2759-60; C. Swenson, Tr. 1356-57; Jackson, Tr. 825, 946-49, 966- 67, 985-86). Division by two was also out of WGC witness Jackson's realm of experience until this case. Of the more than fifteen DRIs he has worked on, none involved division by two of a proportionate share calculated using the FSUTMS model. Finally, WGC expert witness Mierzejewski conceded there are no state or regional public agencies that espouse his view that if a proportionate share method is used, the proportionate share should be divided between both ends of the trip. (Jackson, Tr. 808; Mierzejewski, Tr. 1162-63). i. Gas Tax Credit Issue The County rejected witness Jackson's suggestion in 1989 that gas taxes attributable to development of Gateway Areas 1 and 2 should be deducted from the proportionate share. WGC expert Fishkind also argued that the present value of gas tax credit should be deducted from the proportionate share. However, there is no such deduction provided for in the DCA's DRI transportation policy rule. Indeed, during the rule adoption proceeding, DCA rejected the idea that the gas tax credit should be subtracted from the proportionate share because there was no way to assure that those funds would be allocated to address the site-specific impacts of a DRI. (Fishkind, Tr. 1238-41; Jackson, Tr. 737-38, 965, 3559-60, 3571; Beck, Tr. 1977-78). County expert Nicholas established that there should be no deduction from the proportionate share for gas taxes so long as WGC receives impact fee credit for the total proportionate share contribution. Impact fees include a credit for gas taxes. Giving both impact fee credit and separate gas tax credit for payment of proportionate share would give the same gas tax credit twice. The County was the first local government in the State to create a transferable impact fee credit program so the impact fee credits above those Gateway can use should be valuable and marketable to other developers. Finally, it is noted that gas taxes attributable to Gateway Areas 1 and 2 could "dribble" in over the next 25 years and thus not be available to provide road improvements by the time they are needed. Gateway did not appear willing to wait 25 years for road improvements to be phased in. (Nicholas, Tr. 3402-03, 3424-25, 3473-77, 3479, 3384-85, 3441, 3533-36, 3467-68, 3533-36; C. Swenson, Tr. 1340-41, 1401-02) 1989 Area 2 DO Issues DCA Concerns DCA witnesses identified two areas of concern in the 1989 DO on appeal: (a) a condition on page 19 of the DO requiring Gateway to pay to correct certain roads after 1995 without attribution of the road deficiency to Gateway; and (b) a condition on page 17 of the DO requiring Gateway to undergo further DRI review although it may have mitigated for road impacts. On September 5, 1990, the County modified its position in this proceeding by abandoning (deleting) the two provisions opposed by DCA. (Bittaker, Tr. 1446-48, 1460-61; Spikowski, Tr. 1825-27; Respondent's Exhibits 606 and 742). Impact Fee Credit The County should grant Gateway impact fee credits for the full proportionate share imposed if it exceeds impact fees and both exactions are imposed for the same need. The County's revised position, as reflected in its exhibit 742, gives full credit and thus resolves the issue. It is noted, however, that the County would continue not to give credit for approximately $1 million for obligations for which no credit was given under the Area 1 DO. (Nicholas, Tr. 3390, 3519, 3527-28; Spikowski, Tr. 1804-05, 1904-05; Respondent's Exhibit 742). Monitoring of Actual Traffic Conditions related to traffic monitoring involve an area where local governments may be more stringent than the DCA transportation rule or regional policies. Standard SWFRPC practice is to monitor all significantly impacted roads using the 5% significance test. The 1989 DO contained a list of intersections and roadways to be monitored. Monitoring is needed to see if WGC may be responsible for road improvements beyond those for which it has paid by means of a proportionate share. There are a number of roads for which no proportionate share would be imposed because traffic is not significant or the road would not operate adversely, but where conditions are being approached. It is possible that over the course of actual development of Gateway Areas 1 and 2 that those conditions will be reached, thus triggering a need for mitigation. If so, in order for WGC to continue development, improvements needed to restore an acceptable level of road service must be made by the public, WGC or other entities (the staging approach). However, any additional costs would be paid by WGC only if, despite best efforts today to identify future road impacts, additional roads fail and Gateway's impact on such roads is significant under the 5% significance test. As reflected in witness Hall's testimony, the County has receded from its original position and now proposes to monitor only those roads and intersections where the significance and adversity conditions are being approached and on roads immediately adjacent to Gateway. They include Daniels Road, Metro Parkway, S.R. 82 and Colonial Boulevard, all having proximity to where the proposed development will have the greatest impact. By monitoring only those roads, the County has insured that there is no overlap or double assessment of mitigation. (Beck, Tr. 1970; Loveland, Tr. 2950; Spikowski, Tr. 1805, 1911-17, 1934-35; Hall, Tr. 3135-37; Respondent's Exhibits 606 and 742) While recognizing that DRI development orders often contain requirements for traffic mitigation that are open-ended based on monitoring, WGC witness Fishkind criticized this element of the 1989 DO and suggested that it would cause WGC difficulty in obtaining bank financing for its development. However, he did not know if WGC relies on this type of financing for its development. Even so, the County's abandonment of its more stringent monitoring requirements substantially reduces its open-endedness. Moreover, witness Fishkind acknowledged that open-endedness is a general statewide consequence of modern "concurrency" requirements. Finally, the record establishes that developers and local governments have found ways to assure sufficient certainty so that front-end development financing can be obtained. (Fishkind, Tr. 1250-52, 1301, 1304-05; Nicholas, Tr. 3436-43). Five-Year Traffic Reanalysis The 1989 DO includes a reanalysis of the Gateway Areas 1 and 2 proportionate share in five years and a potentially greater proportionate share but no lesser one. There are sound transportation planning reasons for a five- year review based on new conditions and such re-reviews are not uncommon for DRIs. One particular reason for re-review in 1995 in this case is because both Daniels Road and Colonial Boulevard are projected to operate at unacceptable levels of service by 1995 and by 2000 and it is reasonable to anticipate that further improvements may have been identified by 1995. However, rather than mandate a 1995 re-review for a ten-year approval as required in the 1989 Area 2 DO, County planners believed it fair to give WGC a choice of a five-year approval for one-half the proposed Area 2 development or a full ten-year approval without mandatory review. However, proportionate shares assessed for those periods would not be refunded. The proportionate share "pipelining" approach is designed to collect those funds up front and actually spend them expeditiously for road construction. The DCA proportionate share rule does not provide for any refund of "pipelined" dollars paid at the beginning of a phase. This concession by the County resolves an issue raised by WGC. (Hall, Tr. 3125, 3128; Nicholas, Tr. 3436-37; Spikowski, Tr. 1803-04; Beck, Tr. 1968, 1980; Respondent's Exhibits 742, 896 and 897). Concurrency Requirements Upon further consideration, the County staff determined that if WGC pays a proportionate share toward improvement of certain roads, WGC should be granted "concurrency" protection for its contribution to those improvements on those roads. The 1989 DO provided no such protection. On September 5, 1990, the County abandoned its original position and took the position that WGC has met concurrency provisions for the roads where a proportionate share is imposed in witness Hall's October 1990 spread sheet to the extent of the road capacity considered in assessing the proportionate share. Full transportation concurrency for roads, such as Daniels Road, where additional improvements are still needed to serve the proposed Area 2 development in the year 2000, cannot be determined until later. (Spikowski, Tr. 1798-99, 1805, 1907-08, 2139-40; Respondent's Exhibits 606 and 742). Colonial Boulevard Extension Credit After the 1989 DO was rendered, the County determined that credit should be given to WGC for amounts assessed or paid by WGC under an October 11, 1989, agreement between landowners, including WGC, and the County to fund the extension of Colonial Boulevard from I-75 to S.R. 82. By making such a concession, the County has resolved an issue raised by WGC. (Hall, Tr. 3131-32; Respondent's Exhibits 742 and 819). Restrictions on Additional Applications to Five-Year Periods On September 5, 1990, the County agreed to amend the 1985 DO and the 1989 Area 2 DO to provide that future Area Master Plan increments of development, either as new AMPs or additions to Areas 1 and 2, must have buildout dates of no less and no greater than five years. Additions to Areas 1 and 2 may be submitted every three years and, in all instances, the County may permit more frequent applications if unique circumstances warrant in the public interest. The 1989 DO included a five-year phasing concept, but the restrictive amendment would make it more precise. (Spikowski, Tr. 1799-1801; Gibbs, Tr. 2140). The 1985 DO contemplated development of nine areas within Gateway over a forty-year period, or an average increment of just under five years in length. The inclusion of original Areas 2-5 in a single Area 2 violated the spirit and intent of that arrangement. There are numerous general and specific reasons why a five-year phasing approach is appropriate. In the planning field, five-year planning periods have been used historically throughout the United States in conjunction with revenue cycles. Five years is the period of time most commonly used by the planning profession. Five year planning periods are used in the County for the County's capital improvement program, FDOT and MPO transportation improvement plans and DRI development orders. The five year period is particularly appropriate for estimating road impacts and needed mitigation because land use assumptions and cost data are more accurate in the five year horizon. In fact, FDOT recommended in 1984, after reviewing the original Gateway DRI application, that only "tentative conceptual approval" should be granted subject to and dependent on the results of incremental transportation impact analyses every five years. In addition, because it takes five to seven years to plan and build a major road, the five year period provides a realistic view of whether roads actually may be built during a five year development phase. More fundamentally, as the Gateway Area 2 case illustrates, determining mitigation beyond five years involves assumptions subject to debate and the mitigation required for a ten-year period may be too high for developer acceptance. These considerations indicate that the five-year period is an appropriate one to use in the AMP process and fulfills the 1985 DO's finding that the AMP process should "logically and rationally coordinate the phasing of development with available facilities." (Gibbs, Tr. 2132-34, 2255-56; Starnes, Tr. 2439-41; Spikowski, Tr. 1792-94, 1799-1801, 1877; Respondent's Exhibits 22, 63, 742 and 809). The proposed five-year phasing approach also gives WGC adequate flexibility to plan and structure its development program. WGC can elect a ten- year approval under the County's restrictive amendment and still apply for a new AMP development approval as early as 1995. It can apply for additions of residential units and non-residential square footage in Areas 1 and 2 in three years. If WGC has developed all approved uses in shorter periods, it can seek relief from the County under the proposed special circumstances provision giving the County great latitude to accept and approve an AMP application early. While initial start-up may be slow, in the five-year Area 1 phase from 1985-90 WGC had sold perhaps two hundred of the 1,850 dwelling units approved in Area 1, raising questions about WGC's need for further early approvals. This restrictive amendment resolves an issue raised by WGC. (Spikowski, Tr. 1800, 1879-81; Koste, Tr. 615; Schmoyer, Tr. 90). WGC has also recognized in its own planning the viability of five- year planning periods and the need to address changes as development proceeds. In the original ADA, WGC stated: Complete development of Gateway is anticipated to require 40 years, commencing in 1985. For purposes of discussion, the 40- year phasing of Gateway has been separated into eight 5 year periods for Residential, Business, and School classifications . Data shown are estimated for 5-year phasing periods for residential dwelling units, business acreage, and number of schools by type. In addition, WGC witness Schmoyer testified: The Community Plan consists of planning areas showing generalized land areas. Each area is to be developed in accordance with the Area Master Plan Program set forth in the 1985 development order for the Gateway DRI. Dividing the property into planning areas allows the flexibility needed to meet the constantly changing needs of an evolving community. As each area master plan is submitted to the County for review and approval, specific information is provided such as the precise location and character of residential units ... plus the locations and types of facilities required by a thriving community. (WGC Exhibit 3; Schmoyer, Tr. 82). Additional Improvements to Colonial Boulevard and Daniels Road As previously found, portions of Colonial Boulevard and Daniels Road are projected to fail even after six-laning. Therefore, it is appropriate to impose a requirement that WGC mitigate for its significant impacts on those roads when additional improvements are identified. On September 5, 1990, the County proposed to impose a proportionate share of the cost of those additional improvements on WGC, which is in relation to its use of the capacity of those roads. This restrictive amendment resolves an issue raised by WGC. (Spikowski, Tr. 1805-06; Respondent's Exhibit 742). Other Revisions The position taken by the County on September 5, 1990, contains other conforming changes to Areas 1 and 2 transportation conditions in the 1989 DO. It also updates provisions of the 1985 DO to lodge the county engineer's transportation review responsibilities in the Board of County Commissioners, to replace a required proportionate share agreement with DO conditions, and to require WGC to propose traffic mitigation in the TIS. All such changes are found to be reasonable and appropriate. (Spikowski, Tr. 1801-02; Gibbs, Tr. 2138; Respondent's Exhibit 742). Inflation Index If a revised Gateway Area .2 DO allows payment of a portion of the proportionate share by WGC after 1990, as the County now proposes if a year 2000 development program is used, then those future payment amounts should be adjusted for inflation at the time of payment. The year 2000 program allows payment over the first six years of the ten-year Area 2 development phase. The appropriate inflation index to use is the state highway construction cost index published in the Engineering News-Record (McGraw-Hill). (Crawford, Tr. 2768-69; Spikowski, Tr. 1804; Respondent's Exhibit 742). Substantial Deviation By its position taken on September 5, 1990, the County also proposed to find that, due to the fact that the Gateway Area 2 application addressed new, additional or previously unreviewed substantial impacts, such as road impacts, there is a substantial deviation to the 1985 original DO, but if the proposed conditions are met, the application may be approved. The SWFRPC planner who coordinated SWFRPC review of the original Gateway DRI application established that the application did not include the detailed information for Area 2 required for DRI review and that the Area 2 transportation impacts under 1989 road conditions could be different than those originally reviewed. Gateway Area 2 will require improvements beyond the six-laning of Daniels Road by 1995 or 2000, for example, while the SWFRPC's 1984 impact assessment projected that six lanes were all that would be needed by 2010. (Spikowski, Tr. 1607, 1892; Burr, Tr. 2692, 2695-96, 2710-11; Respondent's Exhibits 22 and 742). WGC Alternate Mitigation Proposals During the course of this proceeding, WGC witnesses discussed at least five different approaches to the determination of appropriate mitigation for the transportation impacts of Gateway Areas 1 and 2. They included: A so-called regional planning council method of division of a proportionate share by two; The DCA rule proportionate share method; A method correlating projected WGC trips to a percentage of projected County road costs in the year 2000; Road impact fees including an independent fee assessment for Gateway; and The proportionate share variation of the DCA rule used by Lee County, previously described. Only the last two methods were shown to be potentially applicable to this case. These proposed approaches are discussed below. (Kendig, Tr. 266-67; WGC Exhibit 46). Regional planning council division by two method WGC witness Kendig suggested that the SWFRPC had a mitigation method resulting in a $15.9 million proportionate share. However, this suggestion was disavowed by SWFRPC staff and other witnesses. One premise for the $15.9 million proportionate share is apparently a calculation by County staff in 1989 using a 1% rather than 5% significance test which determined that the WGC proportionate share for Areas 1 and 2 would be approximately $31 million. A second premise for the $15.9 million amount is apparently a statement in a November 2, 1989 memorandum by SWFRPC staff concerning proportionate share issues. The memorandum contains a statement at the bottom of the first page that "the act of `cutting in half' is only appropriate when 100% of all trips are counted for their full length." However, it was explained that the statement is meant to require assessment of all DRI trips (not just those that were significant at 5% or more) over their full length of travel, even on roads not operating at an adverse level of service, and that the memorandum was not an endorsement of the proposed method. (Spikowski, Tr. 1937-39; Jackson, Tr. 741- 42, 978-79; Loveland, Tr, 1206-07; Daltry, Tr. 2637-38, 2645). WGC's Calculations Under DCA Rule Under the DCA DRI transportation policy rule, the County was specifically authorized to impose greater monetary mitigation than the required proportionate share contribution minimum under the DCA rule. The "DCA rule" proportionate share of $14.6 million calculated by WGC witness Jackson on August 31, 1990, using assumptions taken from DCA witness Bittaker and of $12 million determinined by Jackson on the last day of hearing are questionable and inapplicable. (Jackson, Tr. 1006, 3560-61, 3571-72; WGC Exhibit 95). The August 31, 1990, calculation underestimates the proportionate share by failing to cumulate the impacts of Gateway trips from 1990 to 2000 as should have been done. That understatement on one road link alone was shown to be $850,000. This calculation also ignores significant environmental, permitting, and right-of-way cost and acquisition problems related to an assumed four-lane improvement on Penzance Road. The analysis inexplicably assumes also that all Gateway DRI trips will be removed from major portions of Daniels Road and put on Penzance Road. The only improvement to Penzance Road presently under consideration is an extension of a two-lane road. Even that improvement will be extremely controversial environmentally, due to a proposed crossing of the Six Mile Cypress Slough. Permitting for another road crossing of the Six Mile Cypress Slough took twelve years and permitting related to this route has not begun. Problems with the proportionate share calculation under the DCA rule proposed by Jackson also included a $1 million per mile understatement of the actual cost of improving Daniels Road as determined by witness Brown. (Jackson, Tr. 777, 1008-13, 1015-23, 3572-73; Segal-George, Tr. 1185, 1189; Brown, Tr. 2521, 2535-36; Hall, Tr. 3062-63; Respondent's Exhibit 739). Mitigation as Percentage of Year 2000 Road Costs Another mitigation method suggested by WGC was to assess WGC $12.4 million as a percentage of total costs for new roads needed in the County for growth between 1987 and 2000, because Areas 1 and 2 trips would constitute 5% of new trips in the County during that time period. However, the supporting testimony and mathematical assumptions used by WGC witnesses Kendig and Jackson for this calculation were confusing and questionable and County witnesses identified a number of infirmities in that approach. Moreover, it is noted that no regulatory agency in the State has ever used this methodology in analyzing proportionate share mitigation. Accordingly, the proposed mitigation method should not be used. (Kendig, Tr. 256-64; Jackson, Tr. 709, 744, 956-61; C. Swenson, Tr. 1357-58; Hall, Tr. 3048; WGC Exhibit 42). WGC's Independent Impact Fee Analysis At final hearing, WGC witness Jackson maintained that the best method of determining the transportation mitigation owed for Gateway Areas 1 and 2 was by independent impact fee calculation approach provided for under the 1989 and 1990 Lee County road impact fee ordinances and that the resulting dollar mitigation was $14.6 million. The 1989 impact fee ordinance established specific criteria and procedures to be followed when a developer proposes to use an independent impact fee calculation rather than standard impact fee rates. However, witness Jackson did not have the information needed to do an independent calculation in accordance with the ordinance and did not submit any such calculation in accordance with the ordinance before final County action on the Area 2 DO in December 1989. (Jackson, Tr. 751-52, 795-96, 799-800, 973; WGC Exhibits 85 and 94; Respondent's Exhibits 564 and 891). The calculation proposed by Jackson makes assertions that did not go through the required pre-review procedure established by the ordinance and lacks supporting documentation that should be subjected to review. Indeed, the ordinance established a rational administrative procedure for such calculations and does not allow for adjustment outside its terms. (Nicholas, Tr. 3420-21, 3458-61). DRI Proportionate Share v. Impact Fee Mitigation Both sides agree that the DRI proportionate share approach under the DCA rule and the County variation and the impact fee approach are two different methods unlikely to produce the same dollar amount mitigation requirements. WGC representatives were aware of this during review of AMP 2. Other County DRIs have had proportionate share mitigation imposed that was greater than County impact fees. One such example is the Airport Expansion DRI which had a proportionate share that was $5 million more than impact fees. (Jackson Tr. 811; C. Swenson, Tr. 1354-56, 1389-90; Hall, Tr. 3118-19, Nicholas, Tr. 3391-92; Anderson, Tr. 2031; Spikowski, Tr. 1810-13; Respondent's Exhibit 682). The proportionate share approach is preferable for DRI transportation mitigation because it is site-specific and precise, focused on DRI traffic near the DRI and the identification of specific roads that are significantly impacted by traffic reasonably attributable to the DRI. This approach also considers the fact that trips to and from the DRI will congregate around the DRI, cause the most congestion there, and therefore result in needed mitigation where those trips are traveling. The nature of the proportionate share approach moots WGC's argument that development of Gateway will not alter total County growth since a theoretical shift of new population to a DRI should also theoretically result in fewer road needs in less developed portions of the County. (Hall, Tr. 3119, 3328, 3346-47; Kendig, Tr. 253). The DCA firmly believes that a DRI proportionate share approach is preferable to local road impact fees to mitigate a DRI's road impacts. This is because impact fees and a DCA rule proportionate share calculation can differ, DRI exactions are site-specific, and different mathematical formulas are used. For example, while the impact fees charged a DRI in one location versus another could be the same, the proportionate share calculation for that same DRI could differ by several million dollars. (Beck, Tr. 1978-79, 1981). Impact fee methodology is based on simplified averaging assumptions that do not relate to the impact of a particular project on any particular roads and that do not consider the actual conditions of those roads. It is important to consider specific levels of service on specific roads to determine the total magnitude of the problem. The impact fee approach in the County only calculates the hypothetical lane miles that are projected to be used by a project. Moreover, the impact fee formula does not identify specific links that will have trips on them from a DRI or look at whether a road is operating beyond capacity. Further, the impact fee ordinance does not fund any particular roads or implement any County long-range road improvement plan. Finally, while a proportionate share approach tries to be project specifics an impact fee uses averages. (Hall, Tr. 3118-19, 3142, 3346-47; C. Swenson, Tr. 1364-65, 1431; Jackson, Tr. 972, 980-81; Mierzejewski, Tr. 1146-47, 1179-80; Fishkind, Tr. 1285) Impact fees are based on averages and several simplifying assumptions: all new developments are average; all types of development proceed evenly; roads can be built one foot at a time as fees are collected; site- specific or development-specific problems are handled at development or DRI approval stage because they are assumed away at the later building permit stage when impact fees are collected; and each new development sends its trips to a destination where another impact fee is paid. The impact fee approach allocates the fair share cost of road facilities on a road capacity basis for an average road, whereas a DRI proportionate share looks at specific improvements needed. (Nicholas, Tr. 3400-02, 3439-40, 3506-07). When the DCA developed its DRI transportation policy rule, and since that time, it has been lobbied by various interests to adopt an impact fee approach to DRI mitigation but that approach has always been rejected. The reasons for rejection include the fact that impact fees are calculated only to mitigate local impacts while a DRI must mitigate regional impacts. Proportionate share "pipelining" also causes road improvements to occur more expeditiously than impact fees which are paid at the building permit stage and which must be pooled until there is enough money to fund a road improvement. Also, impact fees can be spent anywhere in an impact fee benefit district, while proportionate share "pipelining" generally results in improvements of roads near the DRI. (Beck, Tr. 1963, 1979, 1980-81, 1997-98). It was established that the County did not adopt its impact fee ordinance as the sole method of transportation impact mitigation. The ordinance was intended to be in addition to other County regulatory activities, including DRI regulation. (Nicholas, Tr. 3413-16; WGC Exhibit 85). There are a number of general reasons, including the project-specific nature of a proportionate share, why the dollar amounts calculated under the DRI proportionate share approach and an impact fee differ. A proportionate share contribution for a DRI includes mitigation of regional impacts and logically requires mitigation above local impact fees for local roads. Even if there is no local impact fee a DRI must mitigate its regional transportation impacts through the DRI process. In practice, private developers also find that DRI exact ions commonly exceed impact fees because they may cover both regional and local impacts and impact fees are only charged for local road impacts. In fact, the transportation mitigation required for Gateway Area 1 was a DRI proportionate share exceeding impact fees. The Area 1 DO also made it clear that the proportionate share should be imposed, even if an independent impact fee calculation reducing standard fees was performed. (Crawford, Tr. 2841-42; Beck, Tr. 1964, 1973, 1978-79; Hopping, Tr. 2608; Jackson, Tr. 778; Respondent's Exhibit 107). There are additional reasons why impact fees and DRI proportionate share calculations may vary. The County impact fee ordinance was designed to keep fees as low as possible. The road construction and right-of-way costs assumed in the most recent County impact fee study are conservative due to exclusions of a number of items from the cost base, including road projects with high environmental mitigation costs, toll facilities, urban interchanges, and business damages to and damages for destruction of buildings on right-of-way property. Indeed, the impact fee average costs for construction and right-of- way may be 20 to 40 percent below median, based on those factors. On the other hand, a DRI proportionate share may be greater because it is designed to pay for the cost of major improvements up front in exchange for development approval in advance of actual road capacity. (Nicholas, Tr. 3383; C. Swenson, Tr. 1345-47, 1350-51, 1364-65, 1371, 1432). County witness Hall identified three site-specific reasons that account for the present value difference between impact fee and DRI proportionate share amounts for Gateway, all relating to the roads in the vicinity of Gateway. First, Interstate 75 to the west of Gateway functions like a "Great Wall of China" where it is easy to travel along the top but difficult to pass through. There are only three crossings of I-75 available in Gateway's vicinity. Second, there is no traditional grid pattern of streets in Gateway's vicinity. Those grids are essential to disperse traffic, but expensive to implement. Third, the roads that have surrounded Gateway and need to be improved as a result of its and other development are two-lane roads. These three factors call for very expensive solutions, which an independent impact fee method cannot address because it does not focus on specific roads and their locations and conditions. (Hall, Tr. 3044-48). When inflation is taken into account, the difference between the DRI proportionate share and impact fees for Gateway Areas 1 and 2 is relatively narrow. This finding comports with the testimony of County witnesses Nicholas, C. Swenson and Hopping. (C. Swenson, Tr. 1353-54; Nicholas, Tr. 3393-98; Hopping, Tr. 2618; Respondent's Exhibits 731, 891, 896 and 897). L. Affordable Housing The original DO granted to WGC the right to develop 19,932 dwelling units subject to the following housing condition found in paragraph 51: WGC shall cause to be provided a range of housing types to be addressed during the Area Master Plan review. The amendment to the original DO adopted on January 4, 1990, provided the following conditions relative to housing in paragraph J: WGC will provide a full range of housing types in Area 2, in conformance with the Lee Plan definition of New Community. WGC shall ensure that appropriate levels of low and moderate income housing will be provided within Gateway. When 1990 census results are available (approximately 1992), these results shall be analyzed to determine if a minimum of 10% of all new and existing housing units are attainable to low and moderate income families (utilizing the Census Bureau definition). If the County determines that this cannot be verified, then Gateway Areas 1 and 2 shall be required to provide the appropriate levels of such housing. WGC contends that the condition in paragraph 2. is unwarranted and that the County has no basis for imposing this condition on a previously approved DRI, particularly in light of the condition in paragraph 51 of the original DO. In its revised position adopted on September 5, 1990, the County proposed that approval of Area 2 be conditioned on amending paragraph 51 of the 1985 DO Condition to read as follows: WGC shall demonstrate to the satisfaction of the Board of County Commissioners the existence of, or cause to be provided a range of housing types (e.g., a full mix of housing types for a full range of household incomes, including low and moderate incomes) that will enable people to find adequate housing reasonably accessible to their places of employment within the Gateway community. The County would further condition approval of Area 2 on making the requirement applicable for all future development approvals. (Respondent's Exhibits 606 and 742). This compromise proposal is reasonable and is supported by the evidence because it: Removes the 10% countywide affordable housing criterion, which is no longer a requirement of the County's comprehensive plan; Ties together housing and employment, like the statutory criterion for DRI review (Subsection 380.06(12)(a)5., F.S.) which is currently the subject of emerging DCA policy; Is consistent with the linkage between housing and employment which is a basic rationale for Gateway's New Community classification under the County's comprehensive plan; and Recognizes the advantage of using current census data, among others, during each incremental review. (Cook, Tr. 2337, 2344, 2351; Keyes, Tr. 1519-20, 1563; Beck, Tr. 2006-09; Spikowski, Tr. 1802-03, 1806; Starnes, Tr. 2451, 2507, 2510-11; Kendig, Tr. 216, 218, 224-225; Schmoyer, Tr. 118-119). Airport-Related Restrictions The Southwest Florida Regional Airport (the airport) in Lee County officially opened in May 1983, before approval of the Gateway DRI. It is located on approximately 3,515 acres to the southeast of the Gateway DRI. The original 1977 master plan for the airport recommended establishment of airport noise/hazard zones near the airport and they were adopted as part of Lee County Ordinance No. 78-12. A portion of the property now owned by WGC was included in a zone category prohibiting residential development. Those zones were delineated by quarter-, half- and full section lines to reflect the fact that they were based on annual average, not peak season, noise conditions and to avoid splitting small parcels between zones. In 1985 and 1987, the airport conducted a Federal Aviation Regulations Part 150 Noise Compatibility Study, which also recommended adoption of airport noise zones to restrict development in areas around the airport based on noise contours. (Barnes-Buchanan, Tr. 2059- 60; WGC Exhibit 17; Respondent's Exhibits 682 and 697). The Lee County Port Authority (Port Authority) reviews developments in the vicinity of the airport for issues related to land use and noise compatibility and use of navigational airspace under various state and federal laws. In agreements for airport funding, the Port Authority has assured the federal government that it will restrict land uses near the airport for compatibility with airport operations. These regulations mandate that the Port Authority prevent airport hazards, which are structures or land uses that obstruct airspace needed for aircraft flights or that are otherwise hazardous to aircraft. (Barnes-Buchanan, Tr. 2049-50, 2053-54). The County has implemented the federal and state requirements by adopting the 1987 Airport Part 150 Noise Compatibility Study, 1989 amendments to its local comprehensive plan under Chapter 163, Florida Statutes, and 1989 zoning code amendments in Ordinance No. 89-31. (Barnes-Buchanan, Tr. 2042, 2053- 54; Respondent's Exhibits 236, 410 and 697). The 1989 County local comprehensive plan adopted January 31, 1989, included a land use policy establishing airport noise zones as overlay designations on the future land use map. Zone 2 does not allow mobile homes. Zone 3 does not allow residential uses, churches, libraries, schools, hospitals, correctional institutions, or nursing homes. The policy also provides that prior to issuance of all building permits and development orders in Zones 2 and 3, noise and avigation easements must be dedicated to the County by the property owner. (Respondent's Exhibit 236). In developing the avigation easement concept, the County recognized that, although the location chosen for the airport was remote, it was important that the airport have room for expansion. In determining what kind of regulations to impose on land uses near the airport, the County decided that, rather than forbidding certain types of development, it would allow less noise sensitive development as an alternative. The County has regulations that may deny noise sensitive development incompatible with the airport to protect the public health, safety and welfare. Indeed, WGC concedes that the County also can prohibit construction of tall structures due to their adverse effects on flight safety, human safety and radar interference. (Spikowski, Tr. 1920; Barnes-Buchanan, Tr. 2071-72; Dolan, Tr. 658). The Part 150 study and 1989 comprehensive plan provisions were implemented through August 31, 1989 zoning code amendments in Ordinance No. 89- 31, which substantially revised Section 483 of the zoning code. The purposes of the regulations in Section 483 of the zoning code include promotion of the "maximum safety of aircraft" at county airports, the "maximum safety of residents and property" near the airports, establishment of building height standards for lands beneath aircraft flight paths and regulation of land uses in airport noise zones. The County declares that airport obstructions that may be hazardous to aircraft operations and persons and property in their vicinity are public nuisances and that it is necessary to the public health, safety and welfare that the creation of airport obstructions and incompatible land uses in the airport noise zones be prevented. (Barnes-Buchanon, Tr. 2053-54, 2080; Respondent's Exhibit 410; WGC Exhibit 112). A portion of the 1989 zoning code amendments creates airport noise zones in the vicinity of the airport, with Zones 2 and 3 implementing the land use restrictions contained in the 1989 comprehensive plan. The locations of Zones 2 and 3 are determined by legal descriptions contained in the zoning code, which followed the quarter-, half- and full-section approach in the 1978 county regulations for the same reasons. These legal descriptions are based on noise contours in the 1987 Part 150 study. The zoning amendments also require execution and recordation of a noise and avigation easement to the County before issuance of building permits or subdivision platting in Zones 2 or 3. (Barnes- Buchanan, Tr. 2060-61, 2069; Dolan, Tr. 586-87; Respondent's Exhibit 410; WGC Exhibit 112). Under the 1978 County noise zones, which remain in effect in addition to the 1989 zoning code designations, a portion of Gateway along its southern boundary has been and is located in Zone 3, prohibiting residential and other noise sensitive uses. The 1978 noise zones were expanded under the 1987 Part 150 study to include areas based on a different noise contour. A portion of Gateway along its eastern boundary also currently lies within Airport Noise Zone 2 under the 1989 comprehensive plan and zoning code. (Barnes-Buchanan, Tr. 2057, 2069, 2081-82; WGC Exhibit 115). The avigation easement required under the comprehensive plan and zoning code has several public purposes, including assurance of noise and other compatibility of neighboring land uses, regulation of tall structures and airport hazards, and provision of notice of airport operations to prospective buyers. A form that has been used as an "Avigation Easement and Release" provides for the grant by the landowner of a perpetual avigation easement and right of flight through navigable airspace above the owner's property and, separately, the release of claims by the landowner as a result of airport operations or aircraft activities and noise levels. The easement regulates land uses on the ground by precluding landowners from interfering with aircraft flights over the property. The release is intended to cover normal airport and aircraft operations. (Barnes-Buchanan, Tr. 2068A, 2072, 2085-86, 2091-92; WGC Exhibit 31; Respondent's Exhibit 721). The 1989 Area 2 DO on appeal included certain airport-related conditions. They implemented the 1989 comprehensive plan and zoning amendments by requiring that "[p]rior to the issuance of all building permits and development orders in Airport Noise Zones 2 and 3 (as defined in the 1989 Lee Plan) noise and avigation easements must be dedicated to Lee County." This language in the 1989 Area 2 DO was mutually agreed to by the Port Authority staff and WGC, and WGC anticipated such conditions. Indeed, WGC representatives had assumed as early as March 1988 that the airport would want to impose avigation easements as conditions of the next Gateway AMP. Language included in the final 1989 DO and a statement concerning inclusion of avigation easement language as required in the comprehensive plan were read over the telephone to WGC's manager of operations by Port Authority staff and WGC agreed the language was acceptable. (Barnes-Buchanan, Tr. 2048-49, 2053, 2062-64; Fisher, Tr. 2093- 98; Widmer, Tr. 1746-47; Anderson, Tr. 2034-35; Dolan, Tr. 582-83; Respondent's Exhibits 350, 356, 371, 381 and 895). At final hearing, WGC raised questions about the location of Airport Noise Zones 2 and 3 on the Gateway property. However, WGC failed to avail itself of any administrative remedies available to seek changes to the location of Noise Zones 2 and 3 on Gateway property. Although WGC brought the issue to the attention of Port Authority staff in November 1988, or prior to adoption of the 1989 comprehensive plan, it did not make a written request to adjust the noise zones then, did not file an administrative challenge to the comprehensive plan concerning location of the noise zones, did not seek a variance from the zoning amendments locating noise zones, and did not indicate problems with the location of the noise zones after adoption of the comprehensive plan on January 31, 1989. (Dolan, Tr. 561-63, 572-76, 588-89, 670-71; Barnes-Buchanan, Tr. 2069- 70, 2072-73) None of the maps presented by WGC at hearing showing noise contour lines relating to Noise Zones 2 and 3 was based on the Part 150 Study, although one WGC map (WGC Ex. 113) was so labelled. In fact, the WGC maps were based on unmonitored contour lines from the 1990 airport master plan update, which are conceptual lines that have not been adopted by the FAA as part of the Part 150 study. The last monitored noise contour lines are in the 1987 Park 150 study, which was used for the legal descriptions contained in the 1989 Zoning Code amendments. WGC conceded that the best existing monitored information is in the 1987 Part 150 Study, which contains a map of those noise contours. (Dolan, Tr. 584-88, 593-97, 654; Barnes-Buchanan, Tr. 2070-71, 2078-79; Respondent's Exhibit 697; WGC Exhibits 17, 113-115). The current designation of certain Gateway lands as Noise Zone 3, as carried forward from the 1978 zoning regulations, is based on inclusion of a northern general utility runway in the airport layout. The Noise Zone 3 designation on Gateway can be removed once the FAA approves the Port Authority's recommendation to remove that runway. Until then, it is prudent for planning purposes to ensure the Zone 3 protection. WGC concedes that the Noise Zone 3 issue is moot once the FAA acts to implement the Port Authority's recommendation and that WGC has not actively asked for deletion of the Noise Zone 3 overlay. (Barnes-Buchanan, Tr. 2069-70, 2081-82; Dolan, Tr. 589-90, 670). The land uses proposed in the AMP 2 application for Gateway lands included in Noise Zone 3 under the comprehensive plan are business and commercial uses, as allowed in that zone. The proposed land uses included in Noise Zone 2 are a utilities site, a park site, multi-family residential, commercial and school uses, all of which are allowed. If there is any error in mapping of Noise Zones 2 or 3 in Gateway, WGC knows of no logic for changing the proposed land uses in either zone and no proposals to do so were made. WGC presented no quantification of damages to WGC's property interest as a result of the avigation easement in favor of the County. (Dolan, Tr. 659-61). To clarify its intent concerning avigation easements, the County has proposed to incorporate a change providing that only the effects of normal airport operation, aircraft activities and noise levels would be covered by the easement. (Spikowski, Tr. 1807; Respondent's Exhibit 742). Other 1989 Development Order Conditions Fiscal Conditions Doctor Nicholas, the County's outside fiscal expert who provided fiscal analysis to the County in the development of the 1984 comprehensive plan testified: It became clear very early in the planning process that Lee County had more areas designated for development than were required to accommodate the anticipated growth and that it would be economically infeasible for Lee County to attempt to provide publicly financed infrastructure to a sprawled form of development. This policy decision ultimately led to the comprehensive planning classification of Gateway as a "New Community" requiring private, not public, provision of infrastructure. (Nicholas, Tr. 3372-75). In reviewing WGC's original ADA, County staff determined that neither it nor subsequent submittals had demonstrated that Gateway would be developed as a freestanding economic unit and would not impose negative fiscal impacts on the County, as required by the New Community provision of the Comprehensive Plan. Therefore, paragraph 46 of the 1985 Gateway DO provided that: WGC shall demonstrate with each Area Master Plan submittal that Gateway will not impose a negative fiscal impact upon the County. The first Area Master Plan will be based upon projections; subsequent Area Master Plan[s] shall include appropriate data from previously approved Area Master Plan[s] to support compliance with this condition. (Respondent's Exhibits 63 and 809). The DO Amendment for Area 1 added Condition H, "[c]onsistent with Gateway Development Order Condition No. 46:" WGC shall be required to monitor fiscal impact and present evidence of fiscal neutrality as part of its next Area Master Plan submittal, but in no case later than 5 years from the effective date of approval of Area Master Plan 1. Should Gateway not be determined to be fiscally neutral or fiscally positive, WGC will be required to remedy the deficiency prior to approval of the next Area Master Plan. The assumptions to be monitored include, but are not limited to: The number of dwelling units built and other constructed improvements and their sales prices; Percentage of units receiving homestead exemption and other applicable exemptions; The number of undeveloped acres and their value as assessed by the Lee County Property Appraiser; Factors relating to property taxes (assessment ratio, cost of sale factor, millage rate); Factors relating to expenditures (per capital expenditures for capital and operating); Factors relating to revenues; Cost factors relating to parks (acquisition and development cost per acre and acreage standards for parks); Rate of commercial development as compared to the initial projections; and The accuracy of the fiscal model used by WGC for projecting costs and revenues for the Gateway development. By its terms, this requirement applies to Area 2 and possibly "the next Area Master Plan." (Respondent's Exhibit 107). WGC's fiscal analysis for Area 2, dated April 19, 1989, stated: It is premature to monitor the fiscal impacts from Area 1 since there are certificates of occupancy only for the model center and offices. Until more construction activity occurs, monitoring should be delayed. Fairly soon after WGC submitted the Area 2 fiscal analysis its economic consultant discovered an error in the development absorption period used (20 years instead of 10 years). However, WGC decided not to call the error to the attention of the County during its review of Area 2. The error was corrected shortly before final hearing in the instant case. (Fishkind, Tr. 122 3-5, 1265- 6; WGC Exhibits 103 and 104). In the staff report to the Local Planning Agency dated June 5, 1989, County staff analyzed the WGC fiscal analysis for Gateway AMP 2 as follows: Gateway's economic consultant has done an analysis of the fiscal impacts of the project using a range of variables in response to staff questions. Although staff generally accepts the various computer runs, there are still outstanding concerns and questions: Any computer model is only as accurate as the variables used in the calculations. In the case of a long term project such as Gateway, the major assumption is that the project will be constructed and sold as it is currently phased, planned and priced. In other words, the fiscal impact model assumes from the beginning the project will be an economic success. If this assumption is accurate, the project will, after 3 to 5 years, be yielding a net positive cash flow to local government. However, the future fiscal impacts are difficult to predict due to changes in taxable values, residential and commercial development variables, and the project phasing and construction period. If any of these items should change significantly, the fiscal impact of the project could be very different. Gateway has a requirement (Area 1 Development Order Condition 46) to perform a fiscal analysis for each area when submitted and to monitor the fiscal impacts of previously submitted areas. It is not possible to monitor Area 1 because there has been no substantive construction for use in the fiscal impact model. When originally submitted, the phasing schedule estimated that by 1990 there would be 2,080 dwelling units and 119 acres of commercial development existing in the project. DRI projects typically do not meet their phasing schedules, and this invalidates the fiscal impact model. As part of the DRI annual monitoring report required by Chapter 380, Florida Statutes, Gateway should provide sufficient information to allow staff to update the fiscal impact model rather than having to wait until the submission of the next area plan in addition to the existing monitoring requirement. The applicant's consultant has added one variable not generally used by staff. The variable is the tax dollars generated by the undeveloped land that is part of the project. The addition of this variable has the effect of causing the project to demonstrate a net positive cash flow much sooner than it normally would. The fiscal impact model uses average county values and assumes that all locations of all projects in the county are equivalent when, in fact, they are not. For the above reasons staff recommends that there be no further Area Master Plan submittals until Areas 1 and 2 have been developing for at least three to five years and there is sufficient information to monitor and update the impacts from Areas 1 and 2. (WGC Exhibit 128). In the staff report to the County dated July 31, 1989, County staff abbreviated their comments on the fiscal analysis as follows: Gateway's economic consultant has done an analysis of the fiscal impacts of the project using a range of variables in response to staff questions. The concern with fiscal impact analysis is the long-term build-out of the project. Gateway has a requirement (Area 1 Development Order Condition 46) to perform a fiscal analysis for each area when submitted and to monitor the fiscal impacts of previously submitted areas. It is not possible to monitor Area 1 at this time because there has been no substantive construction for use in the fiscal impact model. When originally submitted, the phasing schedule estimated that by 1990 there would be 2,080 dwelling units and 119 acres of commercial development existing in the project. DRI projects typically do not meet their phasing schedules. Gateway has provided language that would allow for monitoring at five-year intervals until it is determined that fiscal neutrality occurs. Staff is reviewing this language, which initially appears to resolve this issue. (WGC Exhibit 133). At the December 11, 1989, final County hearing leading to adoption of the 1989 DO for Gateway Area 2, WGC's economic consultant stated that: The last thing I would offer for your consideration is that this project generates a rather large fiscal surplus of the county budget after accounting as best we can for fiscal impacts. That was one of the conditions that this Commission required of Area One and now requires of Area Two. And we have a monitoring provision in the development order that as soon as there is support development to monitor we'll be able to get a better appreciation on what it is. But the numbers are -- the positives are quite large. I'm confident after monitoring that's how the equation will turn out. The County responded by adding Paragraph 46b. to the 1985 DO: 46b. If staff can not determine at the time of the Area Master Plan submittal whether or not Gateway will impose a negative fiscal impact upon the County, due to the lack of available data or lack of agreement on the fiscal model, then WGC shall submit a fiscal monitoring analysis in five years from the date of the most recent Area Master Plan approval, and every five years thereafter, until staff has sufficient data to undertake a valid analysis on the fiscal neutrality issue. WGC accepted this treatment of the issue. (Gibbs, Tr. 1248; Respondent's Exhibits 588 and 606). There is general agreement that, in the long run, Gateway's overall fiscal impact on the County should be positive. Although the point that it becomes positive has not yet been shown through monitoring, WGC suggested that any general revenue surplus could be used by the County to offset Gateway's road impacts. WGC also acknowledged, however, that the County could have higher priorities to which such funds may be devoted. WGC's fiscal analysis, dated September 13, 1990, points out that, at least in the short run, the County's expenditures, like those of local governments throughout much of Florida, substantially exceed revenues. The general policy throughout the federal, state and local governments is that transportation should be financed through user fees and "that general taxation should not be used to finance transportation unless there is a clear and extraordinary benefit accruing to the general public." The County does not utilize ad valorem tax revenues to build roads. (Koste, Tr. 611; Fishkind, Tr. 1228, 1296; Spikowski, Tr. 1857; Nicholas, Tr. 3365-66, 3368, 3382-83, 3428-30; Respondent's Exhibits 10 and 236). In its petition filed in this case, despite its earlier agreement, WGC asserted that paragraph 46.b. "goes far beyond the substantive scope of review of an area master plan under the Gateway DRI Development Order." Accordingly, in an effort to be fair to WGC, the County has proposed a less stringent requirement which deletes paragraph 46.b. and states in lieu thereof: "Condition H of Master Plan 1 shall also apply to Area 2." (Gibbs, Tr. 2305-06; Respondent's Exhibit 742). WGC's corrected fiscal analysis for Area 2 dated September 13, 1990, and submitted at hearing in the instant case, remains a projection and does not purport to contain the monitoring data required for Area 1. WGC conceded that its projections for non-residential development at Gateway are "aggressive". It is reasonable, therefore, to leave Condition H of the Area Master Plan 1 DO Amendment applicable to Area 2 as proposed by the County. In addition to proposing a revision for fiscal conditions, County planning staff has proposed other minor changes to the 1989 DO on appeal, which are set forth in respondent's exhibit 742. (Gibbs, Tr. 2305-06; Fishkind, Tr. 1276-76; WGC Exhibit 104; Respondent's Exhibit 742). Abandonment of DRI In the 1989 DO which was appealed, the County added a condition to the 1985 DO related to the abandonment of the Gateway DRI. It provided that if no significant development activity occurred for five years, the DRI would be required to cease development pending further County consideration. After further examination of state regulations concerning abandonment, County planners concluded that this condition was unnecessary, and the County has subsequently proposed to delete this condition. This proposal resolves an issue raised by WGC. (Spikowski, Tr. 1803, 1888; Respondent's Exhibit 742). Protective Services The 1989 Area 2 DO on appeal contained a provision limiting credits toward impact fees imposed for police, fire and emergency medical protective services to 57% of the value of any land dedicated by WGC for such purposes. After further consideration, County planners concluded that provisions related to impact fee credits for land dedications by WGC for provision of these services should be instead subject generally to the credit provisions of the protective services impact fee ordinance. The County now proposes to delete the 5% limitation and provide that WGC would be eligible for impact fee credits based on the fair market value of protective services sites dedicated under the terms of impact fee ordinances addressing protective services needs. This resolves an issue raised by WGC. (Spikowski, Tr. 1806; Respondent's Exhibits 606 and 742). Roadway Maintenance The 1985 DO contained a provision requiring that WGC or a Community Development District created by WGC pay for operation and maintenance of all roads within the Gateway DRI, except for arterial and collector roads built as a result of the Lee County Official Trafficways Map. The 1989 DO on appeal modified this provision to require the County to pay the operation and maintenance costs for arterial roads serving a countywide function and shown on the Official Trafficways Map, while leaving responsibility for operation and maintenance of other arterial up to future Board determination. To address this issue raised by WGC, the County has now proposed to reinstate the original 1985 DO condition, which was unchallenged by WGC. (Respondent's Exhibits 505, 742, and 809). General Governmental Facilities and Park Site Hearing Procedures The 1989 Area 2 DO contained provisions related to procedures for locating sites within Gateway for general governmental facilities and park sites. These provisions established that if WGC and County staff could not agree on location of such sites, the issue would be sent to the County's Hearing Examiner for resolution. The County has proposed to add procedural details for appeals to the Hearing Examiner making it clear that such proceedings will be administrative appeals like others governed by the provisions of the Lee County Zoning Ordinance. (Spikowski, Tr. 1806-07; Respondent's Exhibits 606 and 742). Wildlife and Vegetation Condition The parties have agreed that a stipulation and agreement dated September 6, 1990, resolves the appeals in regard to the vegetation and wildlife condition.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission adopt an amended final development order for Gateway Area 2 approving the application subject to conditions. Those conditions should incorporate the proposed September 5, 1990 revisions to the County's 1989 Area 2 Development Order, including the County's October 1990 determination of the required transportation proportionate share contribution and the further payment option described in conclusion of law 213. Respectfully submitted this 14th day of January, 1991, 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 14th day of January, 1991. APPENDIX Petitioner WGC: 1-2. Partially adopted in finding of fact 5. 3. Rejected as being unnecessary. 4-5. Partially adopted in finding of fact 5. 6. Covered in preliminary statement. 7-8. Rejected as being unnecessary. 9-12. Covered in preliminary statement. Partially adopted in finding of fact 15. Partially adopted in finding of fact 1. 15-16. Partially adopted in finding of fact 15. 17-21. Partially adopted to the extent they are consistent with findings of fact 11 through 25. 22-28. Adopted in conclusion of law 203 to the extent the undersigned found the project is not an AMDA. 29. Partially adopted in finding of fact 15. 30. Partially adopted in finding of fact 11. 31. Partially adopted in finding of fact 15. 32. Partially adopted in finding of fact 20. 33-34. Partially adopted in finding of fact 16. 35-36. Partially adopted in finding of fact 19. 37. Partially adopted in finding of fact 42. 38. Partially adopted in finding of fact 38. 39. Partially adopted in finding of fact 17. 40. Partially adopted in finding of fact 18. 41. Partially adopted in finding of fact 19. Rejected as being a conclusion of law. Partially adopted in finding of fact 18. 44-46. Partially adopted in findings of fact 17-25. 47. Partially adopted In finding of fact 32. 48. Partially adopted in finding of fact 35. 49. Partially adopted in finding of fact 42. 50. Partially adopted in finding of fact 38. 51-52. Partially adopted in finding of fact 37. 53-58. Partially adopted in finding of fact 38. 59-63. Partially adopted in finding of fact 64-65. Partially adopted in finding of fact 9. Rejected as being contrary to the more credible evidence. Rejected as being unnecessary. 68-69. Rejected as being a conclusion of law. Covered in conclusion of law 201. Rejected as being contrary to the more credible evidence. 72-77. Partially adopted in finding of fact 1. Rejected as being unnecessary. Rejected as being contrary to the more credible evidence. 80-81. Rejected as being unnecessary 82-83. Partially adopted in finding of fact 193. 84-86. Partially adopted in findings of fact 183-192. 87-105. Partially adopted in findings of fact 164-167. 106-111. Partially adopted in findings fact 168-181. 112-116. Partially adopted in finding of fact 194. 117-119. Partially adopted in finding of fact 196. 120. Rejected as being contrary to the evidence. 121-127. Partially adopted in finding of fact 195. 128-131. Partially adopted in findings of fact 132-134. 132-137. Partially adopted in finding of fact 196. 138-140. Partially adopted in finding of fact 197. 141-315. Partially adopted in findings of fact 43-163. Petitioner DCA: 1. Partially adopted in finding of fact 2. 2-3. Partially adopted in finding of fact 5. 4. Partially adopted in finding of fact 17. 5. Partially adopted in finding of fact 20. 6-7. Partially adopted in finding of fact 32. 8. Partially adopted in finding of fact 35. 9. Partially adopted in finding of fact 63. Rejected as being unnecessary. Partially adopted in finding of fact 44. Partially adopted in findings of fact 97-99. 13-14. Partially adopted in findings of fact 94-95. Partially adopted in findings of fact 96-97. Partially adopted in findings of fact 61-100. Partially adopted in finding of fact 82. Partially adopted in finding of fact 92. 19-20. Partially adopted in finding of fact 130. 21. Rejected as being a conclusion of law. 22-23. Partially adopted in finding of fact 19. 24. Partially adopted in finding of fact 154 25-27. Partially adopted in findings of fact 72 and 155. 28. Partially adopted in finding of fact 95. 29-30. Partially adopted in finding of fact 96. Covered in preliminary statement. Rejected as being contrary to the more credible evidence. Note -- Where proposed findings have been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, not supported by the more credible evidence, or a conclusion of law. Respondent: Respondent's proposed findings of fact have been substantially adopted in this Recommended Order. COPIES FURNISHED: Douglas M. Cook, Secretary Florida Land and Water Adjudicatory Commission Carlton Building, Room 415 Tallahassee, FL 32399-0001 Charles L. Siemon, Esquire Andrew C. Stansell, Esquire Laura E. Peck, Esquire 2 East Camino Real Boca Raton, FL 33432 Peter D. Doragh, Esquire 11691 Gateway Boulevard Fort Myers, FL 33913 M. D. Adelson IV, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 Gary P. Sams, Esquire Elizabeth C. Bowman, Esquire Diana M. Parker, Esquire O. Box 6526 Tallahassee, FL 32314 David E. Bruner, Esquire 1114-B North Collier Boulevard Marco Island, FL 33937 James G. Yeager, Esquire 1831 Hendry Street Fort Myers, FL 33901
The Issue The issue in this proceeding is whether the Respondent’s decision to award a community transportation provider contract to the Intervenor is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The Commission is an independent entity established by Section, 427.012, Florida Statutes (2007). It is housed, administratively and fiscally, within the Florida Department of Transportation. The purpose of the Commission is to coordinate and set policy for transportation services provided to the “transportation disadvantaged.” It also is the entity that awards contracts to service providers in the coordinated transportation system. The term “transportation disadvantaged” is defined in Section 427.011(1), Florida Statutes, as: Those persons who because of physical or mental disability, income status, or age are unable to transport themselves or to purchase transportation and are, therefore, dependent upon others to obtain access to health care, employment, education, shopping, social activities, or other life- sustaining activities, or children who are handicapped or high-risk as defined in § 411.012. Section 427.0155, Florida Statutes, sets forth the powers and duties of a community transportation coordinator as follows: Execute uniform contracts for service using a standard contract, which includes performance standards for operators. Collect annual operating data for submittal to the commission. Review all transportation operator contracts annually. Approve and coordinate the utilization of school bus and public transportation services in accordance with the transportation-disadvantaged service plan. In cooperation with a functioning coordinating board, review all applications for local government, federal and state transportation disadvantaged funds, and develop cost-effective coordination strategies. In cooperation with, and approved by, the coordinating board, develop, negotiate, implement, and monitor a memorandum of agreement including a service plan, for submittal to the commission. In cooperation with the coordinating board and pursuant to criteria developed by the Commission for the Transportation Disadvantaged, establish priorities with regard to the recipients of non-sponsored transportation disadvantaged services that are purchased with Transportation Disadvantaged Trust Fund moneys. Have full responsibility of transportation services for the transportation disadvantaged as outlined in § 427.015(2). Work cooperatively with regional workforce boards established in Chapter 445 to provide assistance in the development of innovative transportation services for participants in the welfare transition program. In addition to the Commission, independent, local metropolitan planning organizations or designated official planning agencies carry out the transportation planning process required by 23 U.S.C. § 134. See 23 U.S.C. § 134(d)(1); § 427.015(1), Fla. Stat. Each metropolitan planning organization or designated official planning agency serves an urbanized area with a population of at least 50,000 individuals. In this case, the Central Florida Regional Planning Council (CFRPC) is the metropolitan planning organization or designated official planning agency covering the multi-county area of Hardee, Highlands, and Okeechobee Counties in Florida. As such, the CFRPC recommends to the Commission a single community transportation coordinator to serve Hardee, Highlands, and Okeechobee Counties. See 23 U.S.C. § 134(d)(1); § 427.015(2), Fla. Stat. A community transportation coordinator may be a not- for-profit entity, a for-profit entity or a public body such as a county commission. A community transportation coordinator may personally provide transportation services to the transportation disadvantaged within its service area or contract with other entities for the provision of those services. In either event, because the coordinator’s duties include payment of transportation providers, there is an expense or cost associated with the provision of those transportation services to the community coordinator. The payment of the expense or estimate of such expense is part of the coordination services of the community coordinator. Since 1993, Veolia has been the community transportation coordinator for Hardee, Highlands, and Okeechobee Counties. The current contract expired on June 30, 2008. On October 16, 2007, the Commission issued Request for Proposal (RFP #10-07-01) entitled “Request for Technical, Cost and Rate Proposals for the Community Transportation Coordinator Under Florida’s Transportation Disadvantaged Program in Hardee, Highlands, and Okeechobee Counties, Florida” (RFP). The contract to be awarded by the Commission through the RFP was a five-year contract. The contract only concerned the provision of coordination services. The contract did not include the actual carrier services. As indicated, however, payment of the estimated or actual expense or cost for future transportation services remained part of the overall expense or cost of the requested coordination services. Section I, B of the RFP states, in pertinent part: The following is the anticipated schedule for the selection of the firm or agency as the designated Community Transportation Coordinator (CTC). If there are changes in the meeting dates, each agency/firm that submits a letter of interest/proposal will be notified. * * * * * * Mandatory Pre- Proposal Conference November 8, 2007 Proposal Due (Deadline) December 6, 2007 3:00 p.m. EST Proposal Opening December 6, 2007 3:00 p.m. EST Proposer Presentations to Selection Committee January 4, 2008 Final Action on Recommendation by Central Florida Regional Planning Council January 9, 2008 Florida Commission for the Transportation Disadvantaged Final Selection Meeting Date Unknown Possibly February /March * * * * * * Section I, C of the RFP states, in pertinent part, as follows: * * * 2. The issuance of this request for proposals constitutes an invitation to present proposals from qualified and experienced proposers. The CFRPC reserves the right to determine, in its sole discretion, whether any aspect of the statement of proposal satisfactorily meets the criteria established in this request for proposal, the right to seek clarification from any proposer, . . . ,and the right to reject any or all responses with or without cause. . . . * * * 8. It is the responsibility of the proposer to prepare the proposal as clearly as possible in order to avoid any misinterpretation of the information presented. Proposals will be reviewed solely on the basis of the information contained therein. Modifications or changes cannot be made to the proposals after they are opened. * * * 13. The criteria for evaluation of the proposals is provided in Section III (Evaluation Criteria/Proposal Rating Sheet). Only these criteria will be used to determine the best response. * * * Section I, D of the RFP states in part: The response to this Request for Proposal will be as follows: 1. Community Transportation Coordinator Only - The Central Florida Regional Planning Council is requesting proposals for the Community Transportation Coordinator only. Proposers who are interested in providing some or all of the transportation trips as a carrier will be expected to competitively compete with other operators to provide that portion of service. The Council will assist the CTC in conducting a Request for Qualifications/Request for Proposals process for selection of carriers prior to service start up on July 1, 2008. * * * Section I, H of the RFP states, in part, as follows: The CFRPC’s Executive Director will appoint a selection team of at least three employees who have experience and knowledge of the coordinated transportation system. Each selection team member will assign points to the proposal using criteria listed in Section III (Evaluation Criteria/Proposal Rating Sheet). Selection team members will assure that each proposal has been rated fairly, impartially and comprehensively. * * * Section K of the RFP specified that proposers “must” use the Florida CTD standardized rate calculation model to determine rates and rate structures for service delivery. The CTD rate calculation model was designed to produce a rate which accounts for the costs associated with providing coordination services and transportation services. As indicated earlier, the contract in this case only asked for prices pertaining to coordination services. Section III of the RFP contains the Evaluation Criteria/Proposal Rating Sheet. The rating sheet states, in part: EVALUATION CRITERIA/PROPOSAL RATING SHEET Each proposal submitted will be evaluated on listed criteria. Evaluation Committee members will use this proposal rating sheet to assign point values to items in Section II using the following scale (the weighing for each criterion has been assigned): 6 Excellent 5 Very Good 4 Good 3 Adequate 2 Fair 1 Poor 0 Not addressed 1. GENERAL The following items must be included in the submitted proposal. Any proposal with a “no” response on any of the following questions will be rejected without further consideration. After the above general introductory language, Section 1 of the rating sheet then lists four criteria that have yes or no responses. The remainder of Section 1 of the rating sheet lists seven categories and subcategories of evaluation criteria along with the total possible points for each category. The categories for evaluation were Management Resources (24 points), Proposer’s Experience (30 points), Financial Capacity to Undertake Project (30 points), Demonstration of Transportation Coordination Ability (42 points), Demonstration of Transportational Coordination Operational Ability (18 points), Vehicle Acquisition (18 points), and Rate Proposal (6 points). The category for Demonstration of Transportational Coordination Operational Ability required the committee members to evaluate and score a proposer’s “transition plan describing the process needed to ensure a smooth change-over.” The employees who would comprise the selection committee were to be employees of CFRPC. In this case, the selection committee consisted of Marcia Staszko, Kathryn Hall, Helen Sears, and Shannon Brett. Therefore, under the RFP, each committee member could award a total of 168 points on a proposal and each proposal could score a maximum of 672 points. Veolia and MV were the only two vendors that submitted responses to the RFP. On December 6, 2007, Ms. Staszko opened Veolia and MV’s responses and distributed them to the other three selection committee members. She also instructed the other selection committee members to preliminarily score Veolia and MV’s proposals but not to finalize their scores until after the oral presentations by representatives of Veolia and MV on January 4, 2008. As set forth in the time table of the RFP, the selection committee members met on December 19, 2007, in order to discuss any questions or concerns that had arisen during the evaluations of the proposals. The December 19th meeting was noted on page 3 of the RFP documents. However, the RFP did not specify where or at what time the December 19, 2007, meeting would occur. Likewise, the RFP did not specify the purpose of the December 19, 2007 meeting. The evidence demonstrated that the purpose of the meeting was to discuss any issues or questions which the individual evaluators had regarding the RFP requirements or the RFP process. The evidence further demonstrated that no final decisions were made regarding the scoring of the parties’ proposals and that no evaluator finalized their individual score regarding the parties’ proposals. Given this lack of finality and the fact that the meeting was limited to the processes of the RFP, the December 19, 2007, meeting was not required to be noticed within the parameters of the Florida Sunshine Law, Section 286.011, Florida Statutes. In its proposal, MV submitted a rate for coordination services of $2.47 per trip for all five years of the contract. Veolia submitted a rate proposal for coordination services of $2.99 per trip until July 1, 2009, at which time the rate would increase to $3.05 per trip. As indicated earlier, the RFP required the proposers to use the CTD rate model to calculate the rate submitted by that proposer. The RFP included a compact disk for use with the model and referenced a web site where the model could be obtained. The RFP also included historical data which could be used in the CTD model. The model’s general use is to calculate a rate based on the provision of both coordination services and transportation services. The calculation in the model includes categories of business costs or expenses of the provider such as salaries and payments made to the actual transportation carriers. The evidence showed that the payment of costs to the carriers are part of the coordination services requested under the RFP and a legitimate cost, or estimate thereof, should be included in any rate calculation for coordination-only services. These costs are not insubstantial and range from $150,000.00 to $300,000.00 a year. Additionally, the use of the rate calculation model ensures that a proposer’s rate for coordination services is based on a budget that includes all of the duties of a transportation coordinator. Prior to the submission of its bid, MV submitted a written question regarding the use of the CTD model. MV asked: The RFP indicates that the current CTC is a broker that only handles the 'administrative' part of the delivery system. When responding with pricing in the RFP, are we expected to base our rates only on this function, or as a total including the service delivery functions? If it is the latter, are we expected to negotiate rates for potential providers in advance of the proposal submittal? Unfortunately, MV did not receive a response to its question and submitted its bid without using the CTD rate calculation model. MV used the rate calculation model as a guideline for including relevant cost data in its proposal. However, MV did not include cost data or estimated cost data regarding the payment of transportation costs to transportation carriers. The exclusion of such data, when such payments are required as part of the coordination services, could potentially lower the rate MV proposed. MV disclosed its non-use of the CTD model in its proposal. The evidence was not clear on what data MV did not include in its rate proposal. On the other hand, Veolia did use the rate calculation model and submitted the model’s calculation as part of its proposal. Veolia made some adjustments to its proposed rate due to the fact that the RFP was requesting a rate proposal only for coordination services. Again, the evidence was not clear what adjustments were made by Veolia to its rate proposal. However, the evidence showed that Veolia did include an expense or cost for the payment of transportation services to carriers. In effect, the inclusion of the transportation expense could potentially increase the rate proposed by Veolia. Ms. Staszko, as well as other committee members, was uncertain whether MV’s failure to use the CTD model was responsive to the RFP. As a result, she contacted Commission staff members and sought guidance on the CTD model issue. The Commission staff members instructed Ms. Staszko that MV’s rate calculation did not render its answer unresponsive since the RFP was only for coordination services. However, that instruction ignored the clear language of the RFP specifications and resulted in a comparison of rates which were not based on a uniform method of calculation. During the December 19, 2007, meeting, Ms. Staszko informed the other committee members of the instructions she received from the Commission’s staff. Ms. Staszko did not instruct other selection committee members how they should score the rate portion of MV’s proposal. That determination was left up to the individual judgment of each selection committee member. In this case, Ms. Staszko awarded MV five out of a possible six points for its rate proposal. She deducted one point because MV did not fully utilize the standardized rate calculation model set forth in the RFP. She awarded a five to Veolia because she considered MV’s rate proposal to be lower. Ms. Hall considered MV’s failure to use the CTD model, but awarded six points on MV’s rate proposal. She also awarded six points to Veolia. Ms. Sears awarded four points to MV because it did not use the rate calculation model. She awarded a score of six to Veolia. Ms. Brett awarded five points to MV and five points to Veolia because she felt both proposals were “sufficient.” In sum, MV received a cumulative score of 20 points and Veolia received a cumulative score of 22 out of 24 possible points on their respective rate proposals. However, even though Veolia received a higher overall score than MV, the higher score cannot offset the impact of the Commission’s attempt to waive the requirement of the rate model. The committee did not have the information necessary to compare MV’s rate with Veolia’s because expense data for transportation carriers was not reported or estimated by all the proposers. This lack of uniformity was material and not waivable by the Commission. Section I-1 of the RFP required each proposer to “provide a transition plan describing the process needed to ensure a smooth startup, July 1, 2008.” Each of the evaluators was to use her own judgment in awarding zero to six points for a proposer’s transition plan. Rather than setting forth any explanation pertaining to the transition from its current contract to the one for which it was competing, Veolia responded that this aspect of the RFP was not applicable to its proposal. Veolia’s statement was clearly non-responsive to the sub-category requesting a transition plan. Veolia’s proposal did not take into consideration the fact that transportation provider contracts would have to be sought or renewed at the termination of this contract. Similarly, Veolia’s response did not mention transition plans should Veolia not be awarded the contract. On the other hand, MV provided a detailed transition plan in its proposal. A comparison of the two clearly shows that MV’s transition plan was superior to Veolia’s. During the December 19, 2007 meeting, the other selection committee members questioned Ms. Staszko about Veolia’s response, and Ms. Staszko stated that she did not consider Veolia’s answer to be responsive to the RFP’s inquiry about a transition plan. However, Ms. Staszko did not instruct the other selection committee members how they should score this aspect of Veolia’s proposal. Ms. Staszko awarded zero points to Veolia on its transition plan. She awarded MV five points on its transition plan. Ms. Hall’s rating sheet reflects that she initially awarded Veolia six points for its transition plan. At some point after discussions on the subject, she changed her score to zero and then three points. Ms. Hall awarded six points to MV for its transition plan. Ms. Sears was also dissatisfied with Veolia’s transition plan and awarded zero points to Veolia for its transition plan. She awarded MV four points. Likewise, Ms. Brett awarded zero points to Veolia for its transition plan. She awarded six points to MV. However, in scoring Veolia’s non-response to the transition plan sub-category, the committee did not recognize the fact that Veolia’s proposal was non-responsive to the RFP. The response was essentially a negative answer to one of the categories that Section III of the RFP stated in bold and underlined language should be materially addressed in a proposal. Finally, as indicated earlier, the RFP required at least three committee members who have knowledge and experience of the coordinated transportation system. The RFP did not require expertise regarding the coordinated transportation system. Ms. Staszko is the CFRPC’s Program Director. She has been with the transportation program since its inception in 1979. As director, she is the person primarily responsible for the transportation disadvantaged program in Hardee, Highlands and Okeechobee Counties and was primarily responsible for writing the RFP. She also was responsible for overseeing the process for procuring the contract at issue in this case. All of the parties to this proceeding agree that Ms. Staszko possesses an extensive amount of knowledge about the coordinated transportation system for the “transportation disadvantaged in Hardee, Highlands and Okeechobee Counties and is well qualified to evaluate responses to the RFP at issue in this proceeding. Ms. Hall has been the Program Coordinator for the CFRPC since October of 2007. In that position, she works with the Director of the Transportation Disadvantaged Program. Prior to becoming the CFRPC’s Program Coordinator, Ms. Hall spent 27 years working as the CFRPC’s executive assistant. During those 27 years, she gained knowledge and experience about the coordinated transportation system and the issues facing it. She also gained knowledge and experience through her time as the coordinator for that program. Ms. Hall is clearly qualified to serve on the selection committee. Ms. Sears is a principal planner at the CFRPC. She has maintained that position for over two years. During her time with the CFRPC, Ms. Sears has worked on a series of projects relating to transportation issues in the Central Florida region. Her transportation planning experience was primarily related to the issue of concurrency of infrastructure, like roads and sewers, and fair share arrangements among developers and various governmental entities for providing such concurrency. In general, her experience did not relate to coordinated transportation systems. Prior to working for the CFRPC, Ms. Sears worked with a national engineering and consulting firm for six years. During her employment at the engineering firm, Ms. Sears gained experience in public and private projects relating to general transportation planning and experience in public contract procurement. Indeed, the evidence demonstrated that Ms. Sears did not have any more than passing knowledge about, and no significant experience with, coordinated transportation systems. Given these facts, Ms. Sears did not meet the requirement of the RFP that committee members have knowledge and experience with coordinated transportation systems. Ms. Brett is employed by CFRPC as a Senior Planner. She has held that position since about June of 2007. During her time with the CFRPC, Ms. Brett has worked on procuring capital improvements for local municipalities, organized a long-term comprehensive plan for infrastructure development, taken part in a series of projects assigned to her by the CFRPC’s Director, and has been responsible for a different RFP pertaining to the acquisition of marketing services for the CFRPC. None of her experience appears to be in the area of transportation or transportation for the disadvantaged. Prior to working for the CFRPC, Ms. Brett was employed as a city manager administrator in Hallandale Beach, Florida. During the course of her seven years with Hallandale Beach, Ms. Brett was involved with hundreds of procurement requests and served on dozens of evaluation committees. Again, none of Ms. Brett’s experience appears to be in the area of transportation or transportation for the disadvantaged. In sum, the evidence demonstrated that only two selection committee members met the requirement of the RFP that the selection committee be comprised of “at least three employees who have experience and knowledge of the coordinated transportation system.” Indeed, Ms. Staszko was aware of the lack of experience and knowledge on the selection committee and attempted to find potential committee members outside of the CFRPC. Her attempts were not successful. On January 4, 2008, Veolia and MV made oral presentations to the selection committee. Following those presentations, the committee members met privately to discuss their scoring and submit their scores for each item set forth in the RFP. Ultimately, the committee members scored the proposals of MV and Veolia. All of the committee members rated MV’s proposal slightly higher than Veolia’s proposal. Ms. Staszko awarded 138 points to MV and 134 points to Veolia. Ms. Hall awarded 165 points to MV and 163 points to Veolia. Ms. Sears awarded 134 points to MV and 132 points to Veolia. Ms Brett awarded 144 points to MV and 142 points to Veolia. When added together, the committee awarded 571 points to Veolia and 581 points to MV. Given the closeness of the scoring and the importance of understanding the information provided by the CTD rate model, the requirement in the RFP of experience and knowledge is material and not waivable by the Commission. The evidence was clear that this RFP had a number of problems associated with its process. Most importantly, the attempted waiver of at least two material requirements of the RFP related to the use of the model calculation and the knowledge and experience of the committee members. Compounding the difficulties is the fact that Veolia’s proposal was not responsive to the RFP. Given this myriad of problems, the Commission should reject all bids and begin the RFP process anew.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Commission enter a final order rejecting all proposals and re-issuing its RFP. DONE AND ENTERED this 9th day of July, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 9th day of July, 2008. COPIES FURNISHED: Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Michael E. Riley, Esquire Mary-Jo Lewis-Wilkinson, Esquire Amy W. Schrader, Esquire Gray Robinson, P.A. Post Office Box 11189 Tallahassee, Florida 32302-3189 Seann M. Frazier, Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32302 Lisa Bacot, Executive Director Florida Commission for the Transportation Disadvantaged 605 Suwannee Street Mail Stop 49 Tallahassee, Florida 32399 John T. Hoeft, Esquire Vice President and General Counsel Veolia Transportation Services, Inc. 14275 Midway Road, Suite 200 Addison, Texas 75001
The Issue At is sue in this proceeding is whether Petitioner possesses the requisite good moral character for certification as a correctional officer.
Findings Of Fact Background In June 1988, Respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, acting on a tip from local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (Metro Dade Corrections), had in its employ a number of correctional officers who were not certified, undertook a review of the employment records of Metro Dade Corrections. As a result of this review, Respondent identified 363 individuals, including Petitioner, who were employed by Metro Dade Corrections as correctional officers but who had not been certified by Respondent. On August 10-11, 1988, personnel employed by Respondent visited the Metro Dade Corrections personnel office and audited the personnel file maintained by Metro Dade Corrections of each of the 363 individuals in question, including Petitioner's personnel file. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that Metro Dade Corrections had failed to apply for certification on behalf of the 363 officers. Over the course of their two-day visit, employees of Respondent worked with employees of Metro Dade Corrections to complete the documentation on each file. Variously, they prepared registration forms and affidavits of compliance and assembled other missing documentation, such as birth certificate and fingerprint cards. The 363 completed applications for certification were returned to Tallahassee by Respondent for processing. The vast majority of the individuals were certified; however, Respondent declined, for reasons hereinafter discussed, to certify Petitioner. The Pending Application Petitioner has been employed by the Metropolitan Dade County Department of Corrections and Rehabilitation (hereinafter called Metro Dade Corrections) as a correctional officer since June 24, 1985, without benefit of certification. As part of the pre-employment process, Petitioner submitted to Metro Dade Corrections an affidavit dated June 24, 1985, which provides in pertinent part: I fully understand that, in order to qualify as a law enforcement or correctional officer, I must fully comply with the provisions of Section 943.13, Florida Statutes, as follows: * * * Be of good moral character. I further understand that by executing this document I am attesting that I have met the qualifications as specified. ... On August 8, 1982, Petitioner was arrested by Metro Dade Police and charged with the crime of Aggravated Battery in connection with an injury sustained by one Willie Milton during the course of a shoot-out between Mr. Milton and Petitioner at Mr. Milton's home. Petitioner entered a plea of not guilty to the charges. The case against Petitioner was closed on January 4, 193, after the State Attorney dropped the charges. All records of the arrest were sealed and the arrest was expunged from the Petitioner's records by order of court of competent jurisdiction dated November 16, 1988. Metro Dade Corrections, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, Metro Dade Corrections routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. At the time Petitioner began employment on June 24, 1985, Metro Dade Corrections had completed its investigation into Petitioner's background and was aware of Petitioner's prior arrest and the circumstances surrounding the arrest. Metro Dade Corrections concluded that Petitioner possessed the good moral character required for certification. Fred Crawford, the Metro Dade Corrections director, executed an affidavit of compliance on June 24, 1985, that contained the following sworn statement: I hereby certify that I have collected, verified, and am maintaining on file evidence that the applicant has met the provisions of Section 943.13(1)-(8) and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. There is no evidence that a complete application package for Petitioner's certification was prepared in 1985. Respondent did not receive a complete application for certification on Petitioner's behalf until August 11, 1988. On August 11, 1988, Metro Dade Corrections, as the employing agency, submitted to Respondent a complete application package for certification of Petitioner as a correctional officer. This was the first application for certification submitted on Petitioner's behalf. By letter dated November 7, 1988, Respondent notified Petitioner that his application for certification was denied because Petitioner did not possess the requisite good moral character for certification as a correctional officer. Respondent gave the following as its reasons for concluding that Petitioner lacked good moral character: You unlawfully committed an aggravated battery upon Willie Milton by shooting the said Willie Milton with a pistol firearm. You have unlawfully and knowingly possessed and introduced into your body cannabis. There was no evidence presented at the final hearing of any possession or use of cannabis by Petitioner. The incident involving Petitioner and Willie Milton occurred on August 8, 1982. On the night of the incident Petitioner was ordered to report to his work as a security officer with the Veterans Administration to work a late evening shift. Consequently, Petitioner dressed in his uniform and carried his firearm. Prior to going to work, Petitioner took his two children to the grocery store to get the children food. While returning from the grocery store at approximately 11:00 P.M., Petitioner's daughter saw her mother's car at the residence of Mr. Milton. Petitioner and the mother of these two children had been divorced on February 2, 1982, but still lived in the same house for economic reasons. Petitioner and his former wife shared parental responsibility of the children. Petitioner's daughter believed that a Ms. Milton lived in the house where she had seen her mother's car. The daughter mistakenly told Petitioner that a Ms. Milton lived there. Petitioner needed to discuss baby-sitting arrangements for the children with his ex-wife so he parked his car on the street by the Milton house and left the children in the car while he approached the Milton house. Petitioner was carrying his firearm because he did not want to leave it in the car with the children. Petitioner did not know Mr. Milton and was not trying to cause trouble with him. Petitioner approached the Milton house, knocked on the door, identified himself as Elizabeth Wilson's ex-husband, and asked to speak to her. Mr. Milton opened the front door took two or three steps away from the door and fired a firearm at Petitioner. Petitioner returned fire in the direction of Mr. Milton only after being shot at first by Mr. Milton. Several shots were fired by both Petitioner and Mr. Milton. Mr. Milton sustained a bullet wound to the leg during the exchange of gunfire. At the time of the hearing, Petitioner was 43 years of age and had worked as a Correctional Officer since June 24, 1985. Petitioner's job performance evaluations with Metro Dade Corrections have been satisfactory or above. Petitioner has received several commendations for his service with Metro Dade Corrections. Prior to his service with Metro Dade Corrections, Petitioner served in the U.S. Army with distinction where he had a top secret security clearance. Petitioner also had a good record as a security officer for the Veterans Administration. Petitioner's reputation is that she is a dependable, reliable, and trustworthy individual who possesses high moral character. Following the denial of his request for certification as a correctional officer on November 7, 1988, Petitioner timely requested a formal hearing by the election of rights form he filed with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Department of Law Enforcement, Division of Criminal Justice standards and Training issue a Final Order which approves Petitioner's application for certification as a correctional officer. DONE and ENTERED this 5th day of July, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 5th day of July, 1989. APPENDIX The proposed findings of fact submitted on behalf of Petitioner, individually, are addressed as follows: Addressed in paragraph 5. Addressed in paragraph 6. Addressed in paragraph 9. 4-5. Rejected as subordinate to the findings reached. 6-11. Addressed in paragraphs 7 and 14-18. Rejected as unnecessary to the conclusion reached. Rejected as recitation of witness testimony and as being subordinate to the conclusion reached. Addressed in paragraph 17. 15-18. Rejected as being subordinate to the finding of paragraphs 17 and 18. 19. Addressed in paragraphs 16-17. 20-26 Rejected as being unnecessary to the conclusions reached. 27-36. Rejected as being recitation of witness testimony and not finding of fact. 37. Addressed in paragraph 14. 38-44. Rejected as being subordinate to the conclusion reached. 45-48. Addressed in paragraph 7. 49-50. Rejected as being unnecessary to result reached. 51-52. Rejected as being subordinate to the conclusion reached. 53-58. Addressed in paragraph 19, so far as relevant. 59-65. Addressed in paragraph 19, so far as relevant. 66-78. Rejected as recitation of testimony and as being subordinate to the conclusion reached The proposed findings of fact submitted for petitioner on the generic record are addressed as follows: 1-14. Rejected as recitation of witness testimony, and not findings of fact. The matters have, however, been addressed in paragraph 7 so far as deemed necessary to the result reached. 15, 16, 18-20. Addressed in paragraphs 1-4. 17. Rejected as unnecessary to the result reached. 21. Addressed in paragraph 7, otherwise rejected as unnecessary to the result reached in a legal conclusion. 22-27. Rejected as subordinate to the conclusion reached. 28. Rejected as misleading and not supported by competent proof. 29-36. Rejected as being subordinate to the conclusion reached or not supported by competent evidence. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: 1-2. Addressed in paragraphs 11-12. Addressed in paragraph 11. Rejected as being unnecessary to the result reached. 5-9. Rejected as being unnecessary to the-result reached. 10. Addressed in paragraph 18. 11-17. Rejected as being contrary to the weight of the evidence. 18-24. Rejected as being unnecessary to the result reached. Rejected as being based solely on hearsay evidence. Addressed in paragraph 7. Addressed in paragraph 5. COPIES FURNISHED: Kathryn Knieriem Estevez, Esquire 10680 Northwest 25th Street Miami, Florida 33172 Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lee Kraftchick, Esquire Assistant County Attorney in and for Dade County Metro Dade Center 111 N.W. First Street, Suite 2810 Miami, Florida 33128 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, Esquire General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for determination is whether Petitioner satisfies the eligibility requirements in Subsection 121.081(1)(f), Florida Statutes (2005), to purchase past service credit in the Florida Retirement System (FRS).
Findings Of Fact Petitioner was employed as a State Certified Paramedic by Harbor City Volunteer Ambulance Squad, Inc. (HCVAS), in Brevard County, Florida, from sometime in December 1976 through September 30, 1999. From October 1, 1999, through the date of the formal hearing, Petitioner was employed as a county employee in an identical capacity with Brevard County Fire Rescue (BCFR). Petitioner's employment with HCVAS and BCFR was continuous, with no break in service. Petitioner performed identical services with HCVAS and BCFR and had identical duties and responsibilities. At BCFR, Petitioner received credit for 80 percent of the seniority and leave accrued while Petitioner was employed with HCVAS. From sometime in October 1992 through September 30, 1999, HCVAS furnished emergency and non-emergency ambulance service in an area the parties refer to as the central part of Brevard County, Florida, that is legally described in Petitioner's Exhibit A (the service area). HCVAS furnished ambulance service pursuant to a contract with the Brevard County Board of County Commissioners (the County). HCVAS was an independent contractor with the exclusive right to provide ambulance service in the service area. The County, rather than HCVAS, provided emergency ambulance service for that part of the County outside the service area. A company identified in the record as Coastal Health Services provided non-emergency ambulance service outside the service area. HCVAS was an "employing entity which was not an employer under the [FRS]," within the meaning of Subsection 121.081(1)(f), Florida Statutes (2005). HCVAS was a private, non-profit company rather than a government entity. However, employees of HCVAS were not volunteers, but were full-time employees of HCVAS. HCVAS paid its employees, including Petitioner, from funds received from the County. The County retained exclusive control of communication and dispatching of emergency calls for the entire County, including the service area. The County required HCVAS to maintain communication equipment that was compatible with the central communication system. On October 1, 1999, the County effected an "assumption of functions or activities" from HCVAS within the meaning of Subsection 121.081(1)(f), Florida Statutes (2005). The County allowed the contract with HCVAS to expire on September 30, 1999. On April 13, 1999, the County authorized BCFR to provide emergency ambulance service to the service area previously served by HCVAS. The County also authorized the county manager to purchase rescue units and equipment and required the county manager to give first priority to units and equipment of HCVAS. Eligibility for HCVAS employees such as Petitioner to participate in the FRS arose through the assumption of HCVAS functions by the County. The County did not employ HCVAS employees, including Petitioner, as a result of competitive selection. The primary conditions of employment for HCVAS employees such as Petitioner were that each HCVAS employee must apply for employment with the County no later than May 29, 1999; possess a valid Florida driver's license; and pass a criminal background check. The County directed its Public Safety Department (Department) to give special consideration to HCVAS employees, including Petitioner, by hiring as many HCVAS employees as possible. Applications for employment from the general public were to be accepted only if employment positions remained unfilled after placing all qualified HCVAS employees in available positions. Approximately 95 HCVAS employees, including Petitioner, applied for employment with the County. The County employed approximately 90 of the 95 applicants. The five applicants who were not employed were rejected because the applicants either did not possess a valid Florida driver's license or did not pass the criminal background screening. Rejection of an applicant required approval of two supervisors. On October 1, 1999, the County recognized past service with HCVAS by new employees such as Petitioner. The County credited each new employee with seniority, annual leave, and sick leave based on a contractual formula negotiated with the labor union equal to 80 percent of seniority, annual leave, and sick leave earned while employed by HCVAS. On October 1, 1999, former HCVAS employees employed by the County, including Petitioner, became entitled to participate in the FRS system through the "assumption of functions or activities" by the County from HCVAS "which was not an employer under the system" within the meaning of Subsection 121.021(1)(f), Florida Statutes (2005). On the same date, Petitioner became a member of the special risk class of FRS and is "entitled to receive past-service credit . . . for the time" Petitioner "was an employee of [HCVAS] . . . the "other employing entity." On November 6, 2003, Petitioner applied to purchase credit in the FRS for his past service with HCVAS. On December 23, 2003, Respondent denied Petitioner's request on the ground that a "merger, transfer or consolidation" of functions between units of government did not occur. On January 8, 2004, Petitioner provided Respondent with a written reply. The reply explained that the application to purchase credit for past service was based on the County's assumption of functions or services by an employing entity that was not an employer under the FRS and not on a merger, transfer, or consolidation of functions between units of government. By letters dated April 16 and May 25, 2004, Respondent issued written statements of proposed Final Agency Action. On April 16, 2004, Respondent based its proposed agency action on the express ground that a "merger, transfer or consolidation" had not occurred when the County undertook emergency ambulance service in the service area. On May 25, 2004, Respondent added the additional ground that an assumption of functions did not occur between governmental units because HCVAS was a "not-for- profit corporation" and not a "unit of government."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's application to purchase credit in the FRS for past service with HCVAS. DONE AND ENTERED this 31st day of January, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 31st day of January, 2006. COPIES FURNISHED: Robert B. Button, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Adrienne E. Trent, Esquire Allen & Trent, P.A. 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Alberto Dominguez, General Counsel Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000
The Issue Whether the proposed site falls within an "improved commercial or residential area?"
Findings Of Fact Salter seeks a permit to erect a sign on the north side of Interstate Highway 10 about .15 mile west of State Road 291 in Escambia County. The proposed site is outside the city limits of Pensacola in an unzoned area of Escambia County. In the vicinity of the proposed site, commercial and/or industrial facilities are so situated that, if the facility owned and operated by Energy Services of Pensacola, a gas utility owned by a local governmental entity, is also deemed commercial or industrial, a permit should be issued. The parties stipulated to the foregoing facts.
The Issue Whether the Order of Probable issued in the instant case should be dismissed because the statutory provisions it alleges that Respondent violated were not listed in the sworn citizen complaint upon which it was based. If not, whether Respondent committed the violations alleged in the Order of Probable Cause. In the event one or more violations were committed, what penalty or penalties should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations set forth in the parties' January 17, 2006, Supplement to Pre-Hearing Joint Stipulation1: Respondent is an experienced Broward County politician. Her first run for public office was in 1984, when she sought a seat on the Broward County School Board. The next election for public office in which she participated as a candidate was the 1988 race for the District 5 seat on the Broward County Commission. She won that election and also won elections in 1992, 1996, and 2000 to keep the seat. District 5, the district that Respondent represented on the Broward County Commission, is in the southwest portion of the county. Water Taxi provides its waterborne, "transit-style" passenger transportation services in the eastern portion of the county, on the Intracoastal Waterway (from Oakland Park Boulevard to the 17th Street Causeway) and on the New River (to as far west as the River House Restaurant, which is west of Andrews Avenue). At all times material to the instant case, Water Taxi sold advertising space on the sides of its boats. It charged, per advertisement, $200 per month per boat with a 12-month contract. A "premium" was charged for rentals of less than 12 months. Water Taxi did not rent all the advertising space available on the sides of its boats. It had "more empty space than anything else and more unpaid advertising than paid." During the time that Respondent served on the Broward County Commission2 she voted (favorably) on matters that came before the commission involving Water Taxi and its sister company, Canal Boats, Inc. (which Robert Bekoff also owned and operated). These matters are described below. At its June 12, 2001, meeting, the commission considered the following agenda item concerning a "sole source agreement" between the county and Canal Boats, Inc.: MOTION TO APPROVE sole source agreement between Broward County and Canal Boats, Inc. for the purchase of eight hybrid-electric ferry boats and ADA improvements at landings in the amount of $2,021,700 ($237,500 for each of the eight ferry boats delivered, plus $121,700 for ADA improvements at landings) and authorize the Chair and Clerk to execute same. The agreement shall start on date of execution and shall terminate one year from that date. Respondent moved the agenda item, saying: I am so excited to see this. I think that-- well, I think most of the benefit will certainly be in Fort Lauderdale and perhaps the other coastal communities as it moves up. I think you know that most of us have lived here for a very long time, and we think the City of Fort Lauderdale slogan rather was the Venice of America. I think this is so clever. I think it's cost efficient. I think it helps with the congestion on our roads, and it's so subtropical South Florida that I'm delighted. And I think it's just a great idea, just a great idea. Real pleased and excited. The motion passed. At its September 25, 2001, meeting, the commission considered the following agenda item concerning a "sole source agreement" between the county and Water Taxi: MOTION TO APPROVE AND AWARD sole source agreement between Broward County and Water Taxi, Inc. (Water Taxi) for the lease of eight wheelchair accessible, passenger ferries by Broward County to Water Taxi for the operation of ferry services in Broward County at a cost of $10.00 per ferry per year, and authorize the Chair and Clerk to execute same. The term of this agreement shall begin on the date of execution and shall remain in effect for a period of three years, with options to renew for two years and a five year term upon written approval of the contract administrator. The motion passed, and the agreement was executed by the county. Among the agreement's provisions were the following: 2.2.3 WATER TAXI shall use the ferries to provide ferry service on a fixed route basis as set forth herein and for no other purpose of whatsoever kind; provided, however, WATER TAXI, may provide substitute vessels of the same quality and service capability with prior approval of the Contract Administrator. WATER TAXI convenants that it shall not permit the ferries to be used by any person, firm, entity or corporation other than WATER TAXI and its agents. 8.22 ADVERTISING WATER TAXI may display advertising provided such advertising shall be of a reputable character, shall conform to recognized commercial standards and shall not conflict with the laws of the United States or the State of Florida or any political subdivision thereof, and shall generally conform to the aesthetics and display environment in which the advertising is promoted.[3] COUNTY reserves the right to approve all proposed advertising to ensure that advertisements placed pursuant this Agreement are in good taste, are displayed in a safe, satisfactory, and professional manner, and do not detract from or impair the public image and reputation of COUNTY.[4] Advertisements objectionable to COUNTY shall at the request of COUNTY, be immediately removed (within 24 hours of notice to WATER TAXI by the CONTRACT ADMINISTRATOR) at WATER TAXI'S own expense. In the event WATER TAXI fails to remove such material promptly, COUNTY may remove it or cause it to be removed, and WATER TAXI shall reimburse COUNTY for all costs of removing it, and of storing or otherwise disposing of it. COUNTY shall not in any way be held liable or responsible for any damages to the material resulting from its removal, stowage, or disposal pursuant to this provision. At its December 4, 2001, meeting, the Commission considered and approved the following agenda item pertaining to Water Taxi: MOTION TO ADOPT a Resolution of the Board of County Commissioners of Broward County, Florida authorizing the Commission Chair and Clerk to execute and file a Joint Participation Agreement with the Florida Department of Transportation (FDOT) in the amount of $300,000 to provide assistance to Broward County to offset the marketing and advertising expenses of providing ferry transit services in Broward County; and providing for an effective date. MOTION TO ADOPT an unanticipated revenue resolution within the Capital Grant Fund (4510) for the Mass Transit Division, in the amount of $300,000 ($150,000-FDOT and $150,000-Water Taxi, Inc. (Water Taxi)), providing for marketing, advertising, and signage for ferry/water bus service in Broward County. MOTION TO APPROVE Amendment to Agreement between Broward County and Water Taxi, Inc. for ferry service in Broward County, to provide for Small Disadvantaged Business Enterprise (SDBE) Action Program Goals as related to Water Taxi's marketing Plan; and authorize the Chair and Clerk to execute same. All terms and conditions of the original agreement remain unchanged. At its January 27, 2004, meeting, the commission considered the following agenda item affecting Water Taxi: MOTION TO ADOPT Resolution 2004-41 of the Board of County Commissioners of Broward County, Florida, authorizing the Mayor and Clerk to execute and file a Joint Participation Agreement (JPA) with the Florida Department of Transportation (FDOT), District 4, in the amount of $259,000 to provide funding to offset the costs of increasing the frequency on the scheduled Water Bus service; and providing for an effective date. MOTION TO ADOPT unanticipated revenue Resolution 2004-43 to increase the Capital Grant Fund (4510) for the Mass Transit Division, in the amount of $259,000 providing operating assistance to Broward County for increasing frequency on the Water Bus service. The agenda item was approved "with the caveat that the vendor w[ould] specify the Water Bus service schedule." The minutes of the meeting reflect that, to start the commission's discussion of the agenda item, Respondent spoke in flattering terms about the "water bus becom[ing] part of [the county's] mass transit system" and that she subsequently engaged in a public colloquy with Mr. Bekoff, who was present at the meeting, concerning the agenda item. At its June 15, 2004, meeting, the commission considered and approved the following agenda item involving "sole source agreements" with Canal Boats, Inc., and Water Taxi: MOTION TO APPROVE sole source determination and agreement between Broward County and Canal Boats, Inc. (Canal Boats), limited solely to reimbursement, for the purchase and installation of 18 Americans with Disabilities Act (ADA)-compliant landings, up to a maximum amount not to exceed $720,000, for the Mass Transit Division; and authorize the Mayor and Clerk to execute same. The contract period shall start on date of execution and end no later than 24 months from that date. . . . MOTION TO APPROVE sole source determination and second amendment to an agreement between Broward County and Water Taxi, Inc. (Water Taxi) for Ferry Service in Broward County; providing for the lease and maintenance of 22 ADA-compliant landings by Water Taxi at $10 each per year for use in the Water Bus/Ferry service; providing for the option by Water Taxi to purchase the 22 landings at fair market value at the end of the ten-year term; providing for the purchase of the passenger ferries by Water Taxi at the termination of the original five-year term and five-year option at fair market value; extending the term of the agreement for an additional two years; and authorize the Mayor and Clerk to execute same . . . . At this same meeting, the commission considered and approved the following additional agenda item Respondent had sponsored: MOTION TO ADOPT Resolution 2004-566 of the Board of County Commissioners of Broward County, Florida authorizing the Mayor and Clerk to execute a Joint Participation Agreement (JPA) with the Florida Department of Transportation (FDOT), District 4, in the amount of $1,010,000; to provide funding for the purchase/construction of four hybrid- electric biodiesel water bus vessels; and providing for an effective date. The term of this JPA is effective from date of execution through June 30, 2005. (No County matching funds are being expended on this project. Canal Boats, Inc. is providing the 50.5% cash match of $510,000; as required by FDOT.)(Commission Districts 4 and 7)(Commissioner Parrish) MOTION TO ADOPT unanticipated revenue Resolution 2004-567 to increase the Capital Fund (4501) for the Mass Transit Division, in the amount of $500,000; to fund the purchase/construction of four hybrid- electric , biodiesel water bus vessels (Commissioner Parrish) MOTION TO APPROVE agreement among Broward County, Water Taxi, Inc., and Canal Boats, Inc. for the purchase of water buses (two of which shall be titled to the County and two to Water Taxi) in the total amount of $1,010,000, commencing on the date of execution by all parties and terminating 12 months from that date; and authorize the Mayor and Clerk to execute same. (Commission Districts 4 and 7)(Commissioner Parrish) MOTION TO APPROVE third amendment to agreement between Broward County and Water Taxi, Inc. (Water Taxi) for ferry service in Broward County; providing for the lease by County of two water buses and the dedication of two water buses by Water Taxi, at $10 each per year, for use in the operation of the ferry service; providing for the option by Water Taxi to purchase from the County the two water buses based on fair market value as determined by the County; and authorize the Mayor and Clerk to execute same. (Commission Districts 4 and 7)(Commissioner Parrish) The "third amendment to [the] agreement between Broward County and Water Taxi, Inc. (Water Taxi) for ferry service in Broward County" referred to in this agenda item was executed by the county on June 15, 2004. This "third amendment" amended Sections 2.2.1 and 2.2.8 of the original agreement and further provided that, as did the prior amendments, that "[e]xcept as otherwise set forth herein, the terms and conditions of the Agreement remain unchanged and in full force and effect between the parties." Respondent originally intended to run for re-election in 2004 for her District 5 seat on the Broward County Commission. On April 3, 2003, she filed with the Broward County Supervisor of Elections a completed and signed Statement of Candidate form, which read as follows: I, Lori Nance Parrish, candidate for the office of Broward County Commission, Dist #5, have received, read and understand the requirements of Chapter 106, Florida Statutes. Respondent was provided by the Supervisor of Elections with a Handbook for Candidates prepared by the Florida Division of Elections. The handbook provided the following information regarding in-kind contributions: Definition An in-kind contribution is anything of value made for the purpose of influencing the results of an election (Rule 1S-3.004, F.A.C.). Exceptions Money; Personal services provided without compensation by individual volunteers; or Independent expenditures, as defined in section 106.011(5), F.S. Endorsements of three or more candidates by political committees or political parties. In-kind contributions are subject to contribution limitations. Valuation of In-Kind Contributions Any person who makes an in-kind contribution to a candidate, at the time of making the contribution, must advise the candidate of the fair market value of the contribution. Reporting of In-Kind Contributions The campaign treasurer must report the value of all in-kind contributions on the campaign treasurer's report. The campaign treasurer must also report the sum of all in-kind contributions during each reporting period in the space provided on the report. The handbook also stated the following regarding "[c]ontribution [l]imits to [c]andidates": A candidate may not accept contributions until he or she files the Appointment of Campaign Treasurer and Designation of Campaign Depository (Form DS-DE 9) with the filing officer before whom the candidate qualifies. For the purposes of accepting a contribution, the primary election and general election are considered separate elections. A candidate may not accept a contribution in excess of $500 from any one person per election, provided the candidate is an opposed candidate and the contribution received is within the timeframe applicable to each election. At all times material to the instant case, Respondent was fully aware that, as the handbook indicated, Florida law required that "the value of all in-kind contributions [be reported] on the campaign treasurer's report," and it prohibited an opposed candidate from "accept[ing] a contribution in excess of $500 from any one person per election." In April of 2004, Respondent decided that, instead of running for re-election, she would seek election to the county- wide office of Broward County Property Appraiser (that had been held by Bill Markham until his death).5 On April 14, 2004, Respondent filed with the Broward County Supervisor of Elections a completed and signed Statement of Candidate form, which read as follows: I, Lori Nance Parrish, candidate for the office of Broward County Property Appraiser, have received, read and understand the requirements of Chapter 106, Florida Statutes. That same day, Respondent filed with the Broward County Supervisor of Elections paperwork effectuating the appointment of Robert McGrath, CPA, as treasurer, and herself, Roberta Young, CPA, and Anthony DeMeo, as deputy treasurers, for Respondent's campaign for Broward County Property Appraiser. In addition to Mr. McGrath, Ms. Young, and Mr. DeMeo, there were numerous other people who helped Respondent in her campaign for Broward County Property Appraiser. The vast majority were volunteers who were not paid for their services. The campaign had an unusually large network of volunteers (by Broward County standards), numbering in the hundreds. Among these volunteers were Mr. McGrath; Gregory Durden and John Milledge (both of whom were involved the campaign's sign placement and erection efforts); Neil Sterling (the campaign chair); and Ron Gunsberger and Barbara Miller (both of whom were responsible for "polling, message production, [and] mail"). Other volunteers included, among others, a "volunteer campaign manager for strategy" and "two volunteers who coordinated the [other] volunteers." Those campaign workers who were paid included Judith Stern (a local political consultant); Larry Griswold (a political consultant from California); and Wally Eccelston, Elliott Silverstein, Pam Hackett, Jasmine Barnaby, and Kelly Brown (all of whom were "paid coordinators" "in charge of supplies and calling volunteers to get coverage for events"). In addition, there was one "paid staffer," Yvonne Brown. Yvonne Brown was (and still is) Respondent's daughter-in-law. She was responsible for, among other things, purchasing supplies and taking care of Respondent's campaign correspondence, including preparing and sending out thank you notes to campaign contributors. She spent a considerable amount of time performing these services. For her work, she was paid $15 an hour plus expenses. Notwithstanding all of the assistance she received, Respondent played an active role in the day-to-day management of her campaign for Broward County Property Appraiser. She made final decisions and "coordinate[ed] the [campaign's] various activities." Respondent wrote 90 to 95 percent of the checks drawn on the campaign account. She was also involved in the receipt of campaign contributions (both in-kind and monetary). Whenever she was made aware that an in-kind contribution had been made to the campaign, Respondent asked the contributor for the contributor's name, address, and occupation and further asked the contributor to place a value on the contribution. She would then provide (in written form) the information she had received from the contributor to Mr. McGrath (so that he would be able to include it in the campaign treasurer's report that needed to be filed) and to Yvonne Brown (so that she would be able to prepare and send out an appropriate thank you note to the contributor). Respondent also provided to Mr. McGrath and Yvonne Brown written information concerning monetary contributions made to the campaign of which she was aware. Mr. McGrath would "have somebody input th[e] information [Respondent gave him regarding in-kind and monetary contributions made to the campaign] into a computer program" that produced a campaign treasurer's report. Respondent's campaign used campaign signs, bumper stickers, and car magnets in an effort to increase her name recognition and the "visibility" of her candidacy. Her campaign signs could be found throughout the county. They were placed in yards and windows and on private land, buildings, storefronts, cars, trucks, trailers, and boats, among other places. There were approximately 5,000 "yard signs," 10,000 bumper stickers, and several "large banner type signs . . . made out of plastic material" available for distribution. In addition, 500 2' x 8' signs were ordered for the campaign. They were ordered from Artype, Inc., on or about May 17, 2004, by Ms. Stern, with Respondent's verbal authorization. Respondent issued a check in the amount of $5,955 from her campaign account to pay for these signs. Pursuant to arrangements that Ms. Stern had made with Thomas McDonald, the president of the civil engineering firm of Craven, Thompson & Associates (Craven), the 500 2' x 8' signs ordered by Ms. Stern were delivered to and stored at a Fort Lauderdale warehouse owned by Craven. Mr. McDonald gave a campaign volunteer, Mr. Milledge, a key to the warehouse. Mr. Milledge made a copy of the key, which he gave to another campaign volunteer, Mr. Durden. Copies of the key may also have been given to others working on Respondent's campaign. A key was not needed to gain access to the warehouse during Craven's business hours. Campaign workers and others who wanted to get into the warehouse to obtain a sign needed only to "knock on the [warehouse] door" and they would be let in by a Craven employee. The campaign did not have a "sign manager" who was in charge of the distribution of signs. Anyone who wanted a 2' x 8' sign could simply go to the warehouse and pick one up. There was no record or log of any kind kept regarding the signs that were picked up and removed from the warehouse. Respondent never went to the warehouse to obtain a sign or for any other purpose. Mr. Bekoff wanted to display Respondent's campaign signs on the sides of Water Taxi's boats (where paid advertising was placed) to express his support of Respondent's candidacy. He did not go to the warehouse to obtain the signs; rather, while in a "group situation," he asked "somebody" whom he believed "would be able to provide them" to get them for him. The record evidence does not clearly and convincingly establish the identity of the person to whom this request was made, nor the connection, if any, this person had to Respondent's campaign (although the record evidence does establish that the person in question was not Respondent, Ms. Stern, Mr. McDonald, Mr. Durden, or Mr. Milledge). The record evidence does not clearly and convincingly establish that Mr. Bekoff told this person that it was his intention to display the signs on the sides of Water Taxi's boats. Sometime after Mr. Bekoff made his request, ten 2' x 8' signs were delivered to Water Taxi's offices, and they were subsequently installed on the sides of Water Taxi's boats. The signs were displayed on Water Taxi's boats for a period of six to eight weeks during the months of July and August of 2004. They were removed from the boats following the primary election, which Respondent won. Mr. Bekoff was not asked by anyone to display Respondent's signs on Water Taxi's boats. It was his own idea. This was not the first time that Mr. Bekoff had displayed, "of [his] own choice" without being asked to do so, the campaign signs of a candidate he supported on Water Taxi's boats. He had done so on "a lot" of occasions. Consistent with his prior practice, Mr. Bekoff did not provide Respondent's campaign with any notice that the signs were being displayed on Water Taxi's boats, nor did he provide the campaign with an estimate of the value of the use of the boats for this purpose. Respondent's campaign treasurer's reports covering the period from July 1, 2004, to August 26, 2004, including amendments thereto (which will be referred to collectively hereinafter as the "Questioned Reports") make no reference to any contributions or expenditures relating to the use of Water Taxi's boats to display Respondent's campaign signs. Respondent's F1 Campaign Treasurer's Report covering the period from July 1, 2004, though July 23, 2004, was filed with the Supervisor of Elections on July 30, 2004. It included a list of itemized contributions and itemized expenditures. No in-kind contributions, nor any contributions from, or expenditures to, either Mr. Bekoff or Water Taxi were listed. The report contained the following certification signed by both Mr. McGrath and Respondent: I certify that I have examined this report and it is true, correct and complete. Respondent's F2 Campaign Treasurer's Report covering the period from July 24, 2004, though August 6, 2004, was filed with the Supervisor of Elections on August 12, 2004. It included a list of itemized contributions and itemized expenditures. No in-kind contributions, nor any contributions from, or expenditures to, either Mr. Bekoff or Water Taxi were listed. The report contained the following certification signed by both Mr. McGrath and Respondent: I certify that I have examined this report and it is true, correct and complete. Respondent's F3 Campaign Treasurer's Report covering the period from August 6, 2004, though August 26, 2004, was filed with the Supervisor of Elections on August 30, 2004. It included a list of itemized contributions and itemized expenditures. No in-kind contributions, nor any contributions from, or expenditures to, either Mr. Bekoff or Water Taxi were listed. The report contained the following certification signed by both Mr. McGrath and Respondent: I certify that I have examined this report and it is true, correct and complete. An Amendment to Respondent's F1 Campaign Treasurer's Report, an Amendment to Respondent's F2 Campaign Treasurer's Report, and an Amendment to Respondent's F3 Campaign Treasurer's Report were subsequently filed. No mention was made in these amendments to either Mr. Bekoff, Water Taxi, or any in-kind contribution made by Mr. Bekoff or Water Taxi. Like the original reports, the amendments each contained the following certification signed by both Mr. McGrath and Respondent: I certify that I have examined this report and it is true, correct and complete. At the time she signed the certifications on the Questioned Reports, Respondent believed, in good faith, that the Questioned Reports were "true, correct and complete." On September 23, 2004, Sandra Steen filed with the Commission a "confidential complaint" against Respondent (Steen Complaint). The complaint was submitted on one of the Commission's pre-printed complaint forms. Section 3. of the form read as follows: Please state on this form or on additional sheets, the specific facts and actions that you believe are a violation of a provision of Chapters 104, 106, or Section 105.071, Florida Statutes. The Commission has no jurisdiction to investigate other sections of the Florida Elections Code.[6] Also, please include: -the specific section or subsection that you believe was violated, -the names, addresses, and telephone numbers of persons you believe may be witnesses, and -a copy or picture of all political advertisements you mention in your statement or any other evidence that supports your statement. In this section of the form, Ms. Steen typed in the following: Item One. Mrs. Parrish accepted in-kind contributions in excess of $500 from Water Taxi, Inc. This company contributed $500 to her campaign on April 8, 2003. See attached page from her reports. Water Taxi, Inc. runs 13 boats called the Water Bus. The company sells advertising on the Water Bus for $200 per month per boat sign. Beginning in July, 2004 through the election on August 31, 2004, Water Taxi, Inc. had "People for Parrish" signs on each side of at least ten boats. See attached disk containing photographs taken on August 27 and 28 at Water Taxi's home base and at various locations underway. The value of this in kind contribution is 10 boats x 2 signs x 2 months x $200 or $8,000. Candidate Parrish's reports do not show th[ese] contributions. Mrs. Parrish must have known about this because of an article in New Times dated August 5, 2004. Mrs. Parrish's reports do not show expenditures to Water Taxi, Inc. This violates Section 106.07(4)(a)5 and 106.08(1). Item Two. Mrs. Parrish sent an advertisement stating that her opponent: "MARKHAM JR. is using a GOP-financed dirty tricks committee to LIE about Lori Parrish's record." This accuses Mr. Markham of making expenditur[e]s for his campaign other than through his treasurer contra Sec. 106.021(3); 104.271. Respondent did not know or suspect at any time prior to receiving a copy of the Steen Complaint that her campaign signs had been displayed on Water Taxi's boats or that Water Taxi sold advertising space on its boats. In the latter part of July of 2004, Respondent had had a brief telephone conversation about her infant granddaughter, Kaylee, with her daughter-in-law, Yvonne Brown, Kaylee's mother, during which Ms. Brown had related to Respondent that Kaylee had apparently seen one of Respondent's campaign signs on a "little boat" in the Intracoastal Waterway in Fort Lauderdale and that Kaylee had reacted by repeatedly saying "nonny," which was what Kaylee had been taught to call Respondent. During this telephone conversation with Respondent, Ms. Brown had not used the words "Water Taxi," nor had she said anything to lead Respondent to believe that "the little boat" that Kaylee had seen was one of Water Taxi's boats.7 Some time after receiving a copy of the Steen Complaint, Respondent commenced a thorough and time-consuming investigation of her own into the allegations made in item 1 of the complaint. She did not remember having any forewarning or knowledge concerning the display of her campaign signs on Water Taxi's boats, but she wanted to "dig through everything [she] had," including e-mails and written correspondence, and to speak with campaign workers before unequivocally denying that she had such forewarning or knowledge.8 Upon the completion of her investigation, Respondent was confident that, before receiving a copy of the Steen Complaint, she had not known anything about her campaign signs being displayed on Water Taxi's boats and had not engaged in any wrongdoing in connection with such display. The Commission, however, determined that there was probable cause to believe otherwise, and, on June 3, 2005, issued the Order of Probable Cause described above. Ms. Steen had also filed a complaint with the Commission against Water Taxi. The complaint was filed on November 15, 2004, and on June 3, 2005, the Commission issued an Order of Probable Cause finding that there was probable cause to charge Water Taxi with the following violations: Count 1: During the period from approximately July 1, 2004 through August 30, 2004, Respondent violated Section 106.055, Florida Statutes, by making an in-kind contribution and failing to place a value on the in-kind contribution equal to its fair market value at the time of making such contribution, when Respondent displayed Lori Parrish's campaign signs on its boats. Count 2: During the period from approximately July 1, 2004 through August 30, 2004, Respondent violated Section 106.08(1), Florida Statutes, by making a contribution to a candidate in excess of $500 for each election, when Respondent made an in-kind contribution in the amount of $8,000 by displaying Lori Parrish's campaign signs on its boats. The case against Water Taxi was resolved by consent order signed by Mr. Bekoff on June 24, 2005, and approved by the Commission on August 26, 2005. The consent order provided that "[t]he Commission staff and Respondent [had] stipulate[d] that all elements of the offenses charged in the Order of Probable Cause c[ould] be proven by clear and convincing evidence," and it contained the following "penalty": PENALTY WHEREFORE, based upon the foregoing facts and conclusions of law, the Commission finds that the Respondent has violated the following provisions of Chapter 106, Florida Statutes, and imposes the following fines: Respondent has violated Sections 106.055, Florida Statutes, on one occasion by making an in-kind contribution and failing to place a value on the in-kind contribution equal to its fair market value at the time of making such contribution, when Respondent displayed Lori Parrish's campaign signs on its boats. Respondent is fined $500 for Count 1. Respondent has violated Section[] 106.08(1), Florida Statutes, on one occasion by making a contribution to a candidate in excess of $500 for each election, when Respondent made an in-kind contribution in the amount of $8,000 by displaying Lori Parrish's campaign signs on its boats. Respondent is fined $1,000 for Count 2. The charges against Respondent remain unresolved and are the subject of this administrative proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a final order dismissing all counts of the Order of Probable Cause. DONE AND ENTERED this 12th day of May, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2006.
