The Issue The issues in this bid protest are whether, in making a preliminary decision to award a public contract, Respondent acted contrary to a governing statute, rule, policy, or project specification; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact On May 18, 2004, Respondent School Board of Broward County ("School Board" or "SBBC")2 issued Request for Proposals No. 2021-24-01 (the "RFP") to solicit offers on a contract for the design and construction of a middle school (the "Project"). Proposals were submitted by Petitioner Magnum Construction Management Corporation, d/b/a MCM Corp. ("MCM"); Intervenor James P. Pirtle Construction Company, Inc. ("Pirtle"); Seawood Builders, a Division of Catalfumo Construction, LLC ("Seawood"); Stiles Construction Co. ("Stiles"); James A. Cummings, Inc. ("Cummings"); and Skanska USA Building, Inc. ("Skanska"). SBBC opened these six proposals on August 31, 2004. In accordance with the evaluation procedure set forth in the RFP, the proposals were reviewed by a Consultant's Review Committee ("CRC"), whose task was to evaluate the proposals and prepare a "short list" of between three and six firms for the School Board, which would make the final determination. At its first meeting on September 14, 2004, the CRC rejected Skanska's proposal as nonresponsive for failing to submit an original bid bond. On September 30, 2004, the CRC met again and, after deliberating, decided to place the five remaining proposers on the "short list." Following the CRC's review, the evaluation proceeded pursuant to Section 1.21 of the RFP, which states: The Facilities and Construction Management Division will forward to the Superintendent of Schools the completed short-list of the Proposer's Submittal. The Superintendent will then forward the Short- List to The School Board of Broward County, Florida for its use in the interview and final selection of the successful Proposer(s). The short list of [sic] will be forwarded to the School Board of Broward County, Florida unranked. The short-listed firms shall present their design solutions to The School Board of Broward County, Florida. Short-listed firms will be notified of the time and place for their respective presentations. Proposer may utilize any media for their presentations, but shall restrict their presentations to 30 minutes total (5 minutes for set-up, 10 minutes for presentation, and 15 minutes for questions and answers). At the conclusion of the Proposer's presentation to the Board, Board Members may ask questions concerning the presentation, the Proposer's assembled Design/Build team, and the Design Criteria Professional's assessment of the Proposer’s submittal or topic of the Board Member's choice [sic] preliminary design concept for the project, including means and methods. At the conclusion of the presentation and interview of all short-listed firms, The School Board of Broward County, Florida will deliberate and utilize the short-listing evaluation criteria and point schedule to finalize a selection of the successful Proposer. The Board reserves the right to award a contract for the project or award no contract (reject all submittals). During and at the conclusion of the presentation and interview of all short- listed firms, the School Board of Broward County, Florida will assign points to each Proposer utilizing the above evaluation criteria and rank them according to their scores. The firm receiving the most points by a Board Member will be considered the first choice of that Board member. The firm that receives a majority of the first choice votes may be awarded the contract.[3] In the event of a tie, a voice vote will be taken until the tie is broken. The Board reserves the right to award a contract for the project or award no contract. The "evaluation criteria and point schedule" referred to in Section 1.21(D) and (E) are found in Section 1.20, which provides as follows: The School Board of Broward County, Florida's final selection will be based on the Selection Criteria Score Sheet. Evaluation Criteria Maximum Points Profile & Qualifications of Proposer's Team 6 Proposed Project Scheduling 7 Past Work Performance and References 10 Site Design 7 Building Design 23 Cost proposal 25 S.I.T. Award 15 MBE Participation 7 Total Points Possible 100 The School Board of Broward County, Florida will award points up to a maximum, for evaluation criteria numbers listed above as based upon an evaluation of the Proposer's submittal and presentation. On October 12, 2004, the School Board held a special meeting to discuss the procurement with staff, hear the presentations of the short-listed proposers, and grade the proposals. Eight board members participated.4 One subject that generated considerable discussion was the "S.I.T. Award," an evaluation criterion worth 15 points. The S.I.T. Award (the acronym stands for School Infrastructure Thrift) was based on a mathematical calculation that left no room for discretion. Points were awarded on a predetermined scale according to the percentage by which a proposer's base proposal amount fell below, or exceeded, the Project's established budget as a function of cost per student station. Because the allowable cost per student station is $15,390 and the Project calls for 1,998 student stations, the budget, for purposes of the S.I.T. Award, is $30,749,200. As the School Board's staff had determined before the special board meeting on October 12, 2004, MCM's base proposal amount is 15.48 percent below the S.I.T budget. The cost of Cummings' proposal is 11.36 percent below the budget, Pirtle's about three percent below $30.7 million, Seawood's roughly equal to the budget, and Stiles' proposal 12 percent above the established budget. On these percentages, using the scoring scale prescribed in the RFP, MCM and Cummings were entitled to 15 points apiece in the S.I.T. Award category, Pirtle seven points, Seawood six points, and Stiles zero points. The School Board was informed of these scores before its members graded the proposals on the seven remaining criteria. After the proposers had made their presentations, the board members individually assigned points to the proposals. MCM received the highest aggregate score (713), followed by Pirtle (705), Cummings (698), Seawood (668), and Stiles (541). Pirtle, however, received the most first choice votes of any proposer——four. Cummings received two first choice votes, and MCM and Seawood were each ranked first by one member. The following table depicts the rankings by member: Budnick Carter Gallagher Kraft Parks Rubinstein Wexler Williams 1 Seawood MCM Pirtle Pirtle Cummings Pirtle Cummings Pirtle 2 MCM (-1) Cummings MCM/Seawood (-4) Seawood MCM (-2) MCM (-1) MCM (-1) Cummings 3 Cummings Pirtle Cummings Pirtle Cummings Pirtle/Seawood MCM 4 Pirtle Seawood Cummings MCM Seawood Seawood Seawood 5 Stiles Stiles Stiles Stiles Stiles Stiles Stiles Stiles The parenthetic numbers in the second row show by how many points MCM trailed the first choice. Although Pirtle did not receive a majority of the first choice votes, the School Board nevertheless voted to award the contract to Pirtle.5 Pirtle has argued that MCM lacks standing to maintain this protest because MCM came in tied (with Seawood) for third—— behind Pirtle and Cummings, respectively——according to the number of first choice votes each proposal received. While the RFP does not specify a procedure for ranking the proposals behind the number one choice, the method suggested by Pirtle is inconsistent with the RFP's plain language, which is clearly intended to ensure that the contract is awarded to the first choice of a majority of the board members. To determine second place, the proper question is not, Who had the most first choice votes after Pirtle? but rather, Who would be the first choice of a majority if Pirtle were unavailable? To begin to answer the relevant question, Pirtle must be removed from the rankings of the respective members, and each proposer below Pirtle moved up a spot. When this is done, the rankings look like this: Budnick Carter Gallagher Kraft Parks Rubinstein Wexler Williams 1 Seawood MCM MCM/Seawood Seawood Cummings MCM Cummings Cummings 2 MCM Cummings Cummings MCM Cummings MCM MCM 3 Cummings Seawood Cummings MCM Seawood Seawood Seawood Seawood 4 Stiles Stiles Stiles Stiles Stiles Stiles Stiles Stiles 5 What the foregoing table shows is that without Pirtle, there is no clear favorite, but essentially a three-way tie between Seawood, MCM, and Cummings. Under the RFP, the School Board would need to take a voice vote until one of the three commanded majority support. That, of course, did not occur in the event. Therefore, it is impossible to determine, on the instant record, which proposer was the School Board's second choice (or third or fourth choice, for that matter). On October 15, 2004, MCM timely filed a notice of intent to protest the School Board's preliminary decision to award Pirtle the contract. MCM followed its notice of intent with a formal written protest, which was timely filed on October 25, 2004. MCM's protest rests on two pillars. The first is a contention that the School Board employed an unstated evaluation criterion, namely a preference for builders who had previously done work for SBBC. The second is an argument that Pirtle's proposal is materially nonresponsive for failing to comply with the RFP's directives on M/WBE participation.6 The findings that follow are pertinent to MCM's specific protest grounds. Regarding the alleged unstated evaluation criterion, it is undisputed that the RFP does not expressly disclose that past work for SBBC will or might count for more than similar work for another school district. The RFP does, however, contain a clear and unambiguous statement of experiential preferences, in Section 1.1(E), which states: The School Board of Broward County would prefer to select a Design/Builder with proven successful experience in the Design and Construction of 3 school projects completed within the past 5 years in the State of Florida. This sentence enumerates five discrete experience- related preferences, which are that, (1) in the past five years, the builder should have (2) designed and built school projects (3) on three occasions, (4) in the State of Florida, (5) each of which was a proven success. The list of experiential preferences in Section 1.1(E) is clearly exclusive, meaning that it does not purport to include other similar or related preferences, but rather is intended to identify all such preferences. This is demonstrated by the absence of any language, such as "including but not limited to" or "among other things," manifesting an intention to include other matters that are ejusdem generis7 with the items listed. Notice, too, that of the five experiential preferences, three are purely objective. Specifically, preference nos. 1, 3, and 4 (as numbered herein) are simply matters of historical fact that either happened or did not happen, for reasons wholly extrinsic to the mind of any School Board member. Moreover, the satisfaction of these three experience-related preferences is not a matter of degree: the desired quality is either objectively present, or it is absent; there is no discretionary middle ground. The upshot is that, as between two proposers who, as a matter of fact, have experience satisfying preference nos. 1, 3, and 4, no qualitative distinction can rationally be drawn as to those particulars. The other two experiential preferences, in contrast, are infused, in varying degrees, with elements of subjectivity. Thus, preference no. 2 allows the individual evaluator some discretion to determine what constitutes a "school project" and, more important, to distinguish qualitatively between one "school project" and another. Preference no. 5 is even more subjective, for "success," like beauty, is in the eye of the beholder. Rational distinctions could be drawn, therefore, between one proposer and another, based on personal (i.e. subjective) assessments of the relative "success" of the respective builders' prior "school projects."8 In evaluating the five short-listed proposals, seven of the eight participating board members9 did, in fact, award more points (on some criteria) to proposers that previously have built schools for SBBC (namely Pirtle, Cummings, and Seawood), while deducting or withholding points (on some criteria) from proposers who have not previously done work for SBBC (MCM and Stiles), based on each proposer's status as a former SBBC- contract holder or a newcomer to SBBC contracting.10 This strong parochial preference most dramatically affected the scoring of the Past Work Performance and References criterion, although some board members also considered a proposer's past work for SBBC (or lack thereof) in scoring Profile & Qualifications of Proposer's Team and even Proposed Project Scheduling.11 The preference for builders having previous business experience with SBBC had a palpable impact on the scoring and was likely decisive. Although it is impossible to quantify precisely the effect of the parochial preference, its influence can easily be seen in a comparison of the scores awarded, on the criterion of Past Work Performance and References, by the seven board members who favored SBBC-experienced builders: MCM Cummings Pirtle Stiles Seawood Budnick 7 10 10 3 8 Gallagher 3 5 10 6 8 Kraft 7 9 10 9 9 Parks 9 10 10 9 10 Rubinstein 5 10 10 8 6 Wexler 7 10 10 8 8 Williams 5 9 10 5 5 As the table shows, Pirtle, who has performed the most work for SBBC of any of the five competitors, received the maximum score from all seven of the board members who employed the parochial preference. Cummings, whose previous work for SBBC is significant but less extensive than Pirtle's, received an average score of 9 in the past work category. Seawood, which has performed some construction work for SBBC in the past, but not as much as either Pirtle or Cummings, received an average score of 7.71. Stiles and MCM, neither of which has done construction work for SBBC, received average scores of 6.86 and 6.14, respectively. At bottom, MCM and Stiles received, in the past work category, at least a point less, on average, than the lowest-ranked of the three builders having previous experience with SBBC. Given that three board members (Budnick, Rubinstein, and Wexler) ranked MCM just one point below their respective first choices, the parochial preference could well have determined the result even if its application produced only a small scoring discrepancy in a single evaluative category. One aspect of the preference for SBBC-experienced builders needs to be repeated for emphasis. The preference was manifested not only as an advantage conferred on builders having such experience, but also as a disadvantage imposed on builders lacking previous experience with SBBC. Builders having worked for SBBC received more points, for that reason, than they would have been awarded, had their previous projects been performed for owners other than SBBC, whereas builders who had not worked for SBBC received fewer points than they would have received, if their previous projects had been built for SBBC. The parochial preference, in other words, operated as a two-edged handicap, making it doubly powerful. In fact, the preference was so strong that SBBC experience was not, for seven evaluators out of eight, simply a factor to be considered in evaluating a builder's past work; it was effectively a condition of, or a prerequisite to, receiving the total possible points of 100. That is, the effect of the preference was such that unless a builder had previous experience with SBBC, the builder could not receive 10 points in the past work category from most of the board members, regardless of how extensive——and how successful——its experience in building schools for others had been. In sum, it is determined that the School Board used an undisclosed preference for builders having experience with SBBC in scoring and ranking the proposals, and that the use of this preference had a material effect on the evaluation——probably even deciding the outcome. Indeed, but for the use of this undisclosed preference, there is a good chance (though it is not certain) that MCM would have been the first choice of a majority of the board members. Whether the School Board's conduct in this regard requires that the proposed award to Pirtle be set aside will be taken up in the Conclusions of Law below. Turning to MCM's other principal contention, it is alleged that Pirtle's proposal deviated materially from the RFP's specifications because Pirtle allegedly failed to comply with the minimum requirements for minority participation in the Project. On the subject of minority participation, the RFP states, in relevant part: The School Board of Broward County, Florida is committed to affirmatively ensuring a substantial increase in the awarding of construction subcontracts to Minority Businesses. Design/Build firms selected to participate in this RFP must . . . have M/WBE subcontracting goals[,] and [the successful firm must] fully participate in the MBE Program. The M/WBE Contract Goal Range for this project is 20-22 percent. The Proposer should attempt to fulfill the goal with the following ethnic distributions: African American 6-8 percent Hispanic: 4-5 percent White Female 4-6 percent Other 0-3 percent The School Board encourages the use of minority subcontractors in excess of the minimum goal ranges established for this project. Section 00030, page 2. In addition, Section 1.13 requires that the following M/WBE-related information be submitted with a proposal: Document 00466 – Statement of Commitment [containing the proposer's pledge to comply with the M/WBE program] Document 00470 – Letter of Intent: M/WBE Subcontractor Participation [from each certified minority business that has agreed to participate in the Project, describing the subject of the subcontract and the dollar amount thereof] Separate Section with a sub tab: M/WBE Participation Briefly discuss how the Proposer will address the M/WBE participation goals. Identify proposed M/WBE team members, their role, and their anticipated percentage of participation. Include past experience with the team. Proposers shall submit evidence of dollar ($) participation for the past two (2) years, both internal and agency documentation of its M/WBE utilization, and, evidence of any M/WBE outreach, internship, and apprenticeship programs it conducts. Proposers, if awarded a contract, shall submit monthly M/WBE Utilization reports on forms provided by The School Board of Broward County, Florida, M/WBE Compliance Office, with each request for payment. Such reports shall also include evidence of dollar participation for the past 2 years, both internal and agency documentation of its M/WBE utilization, and evidence of any M/WBE outreach, internship, and apprenticeship programs it conducts. The foregoing language, which is contained in an addendum to the RFP that was issued on June 16, 2004, supplanted provisions in the first release of the RFP that would have required proposers to submit even more information relating to the satisfaction of M/WBE goals. Pirtle's proposal clearly complied with Sections 1.13(G) and 1.13(H)(1)(a)-(c) of the RFP. Where Pirtle fell short, according to MCM, was on the requirement to submit letters of intent from minority subcontractors. Pirtle did, in fact, attach a couple of letters of intent to its proposal——but these showed minimal minority participation, far below the prescribed range of 20-22 percent. MCM contends that proposers were required to submit letters of intent documenting minority participation meeting the M/WBE goals for the Project. Put another way, it is MCM's position each proposer needed to line up most or all of its minority subcontractors before submitting a proposal. The School Board asserts that proposers were not required to submit all of their letters of intent, but merely some letters as the fruit of good faith efforts to reach the mandated M/WBE goals.12 The evidence supports the School Board's contention that this was indeed the operative interpretation and understanding of Sections 1.13(G) and 1.13(H). Under this interpretation, a proposal such as Pirtle's that included some letters of intent would be deemed responsive; a paucity or plethora of letters of intent would then be a factor for the evaluators to consider in scoring MBE Participation, a selection criterion worth seven points. Whether the plain meaning of Section 1.13(H) supports MCM's or the School Board's position, or alternatively whether the School Board's interpretation is clearly erroneous, is a legal question that will be addressed below.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered that rescinds the proposed award to Pirtle. In addition, while recognizing that the choice of remedies for invalid procurement actions is within the agency's discretion, it is nevertheless recommended that a meeting be convened for the purposes of reassigning points to each proposer using the published selection criteria, re-ranking each proposer according to its respective scores, and awarding the contract to the firm that receives a majority of the first choice votes. DONE AND ENTERED this 21st day of March, 2005, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 21st day of March, 2005.
Findings Of Fact Exception to Finding of Fact Number 1 is accepted, but not materially dispositive of the issues presented. Intervenor suggests that the Hearing Officer erroneously found that the dispute arose "when the Board and DNR took a position that Clam Bayou . . . is a part of the Pine Island Sound Aquatic Preserve." The dispute arose when a DNR planning manager took the position that Clam Bayou was in the preserve. (Petitioner's Exhibit #4) This determination was made before the June 12, 1991 Cabinet Meeting, when the Board of Trustees ratified their intent to include Clam Bayou in the preserve when the preserve was created in 1970. This finding was made independently of the Hearing Officer's legal conclusions and, to the extent the Hearing Officer misstated the facts, the misstatement has no bearing on the ultimate issue of whether Clam Bayou is a part of the preserve. Exception to Finding of Fact Number 2 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (TR 96) Exception to Finding of Fact Number 5 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #13) Exception to Finding of Fact Number 6 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. Exception to Finding of Fact Number 7 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #`s 12 and 13) Exception to Finding of Fact Number 8 is accepted to the extent that between 1968 and 1972, Clam Bayou was physically connected to Pine Island Sound via Blind Pass. This exception has been incorporated into revised Finding of Fact 8. Exception to Finding of Fact Number 9 is accepted and the principles set forth in the exception have been incorporated into the amended Finding of Fact 9. Exception to Finding of Fact Number 10 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. 9. Exception to Finding of Fact Number 11 is accepted. 10. Exception to Finding of Fact Number 12 is accepted. 11. Exception to Finding of Fact Number 14 is accepted. 12. Exception to Finding of Fact Number 15 is accepted. 13. Exception to Finding of Fact Number 17 is accepted. Exception to Finding of Fact Number 18 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #3, 6-A, 6-B and 10-B) Exception to Finding of Fact Number 19 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #3, 6-A, 6-B and 10-B) Exception to Finding of Fact Number 20 is accepted. EXCEPTIONS TO CONCLUSIONS OF LAW EXCEPTION TO CONSIDERATION OF THE RECOMMENDED ORDER BY THE GOVERNOR AND CABINET Intervenor's exception to consideration of the Recommended Order by the Governor and Cabinet is rejected. The transcript of the June 12, 1991 Cabinet meeting clearly shows the Governor and Cabinet's intent to have the issues in this case determined by a hearing officer. Although Petitioners and Intervenors presented brief oral argument to the Cabinet, no evidence was received and the Cabinet did not review the resolution and legal description, or all of the maps, photographs, or various other exhibits presented at hearing. The Cabinet did not make any findings of fact or conclusions of law with regard to this agenda item, and did not reach a conclusion as to the proper interpretation of the legal description or as to a finding of the actual intent of the Board of Trustees at the time the resolution was adopted. EXCEPTIONS TO OTHER CONCLUSIONS OF LAW Intervenors have asserted several exceptions to the conclusions of law contained in the Hearing Officer's Recommended Order. This order will address those exceptions in the format as presented in Intervenor s exceptions. Ambulatory Boundaries. This exception is rejected without reaching the merits because a conclusion of law as to ambulatory boundaries is not necessary or applicable to the determination of this matter. Clam Bayou's Presence in the Aquatic Preserve in 1970 The "Headlands Rule". This exception is rejected without reaching the merits because, as recognized by the Hearing Officer, a conclusion of law as to the Headlands Rule is not necessary or applicable to the determination of this matter. The Hearing Officer recognized that the headlands rule was never intended to be applied to the aquatic preserve: [S]trict application of the "Headlands Rule" was never intended and should not be applied in this case in construing the entire boundary, else numerous of the coves, inlets, bays, and other water bodies opening into Pine Island Sound would be excluded from the preserve. The evidence ... concerning the Board's intent establishes that such a result was not intended. (Recommended Order, Conclusions of Law, p. 22) The "Separate Name" Theory. This exception is rejected without reaching the merits because a conclusion of law as to a Separate Name Theory is not necessary or applicable to the determination of this matter. Maps of the Preserve. This exception is rejected. There is competent substantial evidence in the record to support the Hearing Officers's conclusion that the intent of the drafters of the legal description was to exclude Clam Bayou from the preserve.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Respondent agency finding that Clam Bayou and the proposed construction site at issue and referenced in the above Findings of Fact be deemed to be without the boundaries of the Pine Island Sound Aquatic Preserve. DONE AND ENTERED this 9th day of December, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 10th day of December, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 91-3249R AND 91-3770 Petitioner's Proposed Findings of Fact 1-7. Accepted. 8. Accepted, except that the maps are not exactly identical since Petitioner's Exhibit No. 3 is a stippled or shaded map and the map recorded in the Lee County Public Records at Book 648, page 736, in evidence, is not actually shaded or stippled. 9-29. Accepted. Respondent's Proposed Findings of Fact 1-3. Accepted. Accepted, but not as being materially dispositive of the issues presented. Accepted. 6-12. Accepted. Accepted, but not in itself materially dispositive. Rejected, as not in accordance with the preponderant weight of the evidence. Accepted. 16-17. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant weight of the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant weight of the evidence. Accepted. Accepted, but not materially dispositive of the issues presented. Accepted, but not materially dispositive of the issues presented and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself materially dispositive of the issues presented. Accepted, but not itself materially dispositive of the issues presented. Accepted. Accepted, but not materially dispositive of the issues presented standing alone. Accepted, but not materially dispositive of the issues presented standing alone. Accepted, but not materially dispositive of the issues presented standing alone. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Intervenor's Proposed Findings of Fact (City of Sanibel) 1-2. Accepted. Accepted, but not materially dispositive in this de novo proceeding. Accepted, but not materially dispositive of the issues presented. Intervenor's Proposed Findings of Fact (Ralph Clark, et al.) Accepted, but not materially dispositive, given the de novo nature of this proceeding. Accepted, but not materially dispositive of the issues presented. Rejected, as not in accordance with the preponderant weight of the evidence. COPIES FURNISHED: Ken Plante, Esq. General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, FL 32399-3000 Kenneth G. Oertel, Esq. OERTEL, HOFFMAN, ET AL. 2700 Blair Stone Road P.O. Box 6507 Tallahassee, FL 32314-6507 John Costigan, Esq. Edwin Steinmeyer, Esq. Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Robert D. Pritt, Esq. City of Sanibel 800 Dunlop Road Sanibel, FL 33957 Mark A. Ebelini, Esq. HUMPHREY & KNOTT, P.A. 1625 Hendry Street Ft. Myers, FL 33901
Findings Of Fact Petitioner filed Application No. 13-31-0286 on or about December 4, 1972, with the Florida Board of Trustees of the Internal Improvement Trust Fund, for a dredge and fill permit. This application was amended by the Petitioner on August 19, 1975, and again on October 8, 1975. The application as amended was admitted into evidence as Exhibit No. 14. The Mean High Water Line as depicted by the Petitioner on the application, Exhibit No. 14, is acceptable and correct and was stipulated and agreed to by the parties as being a correct depiction of the Mean High Water Line. Petitioner is the owner of approximately 350 acres of land adjacent to and in the Biscayne Bay Aquatic Preserve, located in Sections 21 and 22, Township 52 South, Range 42 East, Dade County, Florida. Approximately 192.8 acres of this land is below the Mean High Water Line and is part of the Biscayne Bay Aquatic Preserve. Petitioner, in the application, seeks to fill approximately 63.2 acres of submerged land below the Mean High Water Line for the purpose of constructing part of a planned 36-hole public golf facility. Less than 18 holes of the proposed golf facility are located on the filled area. The historical background detailing the acquisition by the Petitioner of the above 350 acres is set forth accurately in paragraphs 4, 5, 6; 7, 9, 10, 11, 13, 14 and 15 of Exhibit No. 2, admitted herein, entitled Petitioner's Statement. Therefore, those matters of a factual nature set forth in the aforementioned paragraphs are adopted as though set forth in full herein. Those matters of a conclusive nature, legal or factual, set forth in the aforementioned paragraphs are neither accepted nor rejected except as may be specifically provided herein. The Petitioner is obligated to pay off its General Obligation Bond Issue by which it acquired the 350 acres from Interama. This debt service will cost the Petitioner approximately $950,000 annually through the year 2001, and is paid out of ad valorem tax revenue. This debt constitutes a serious burden upon the taxpayers and citizens of the City of North Miami. There is a need in the North Miami area for the type of recreational facility proposed. At present, the only public golf course in the area is a 9- hole facility which is one of the busiest in the country. The lands owned by Petitioner in the Biscayne Bay Aquatic Preserve and subject of this hearing support a mangrove forest system, composed predominantly of red (Rhizophora mangle) and white (Languncularia racemosa) mangroves, with occasional black mangroves (Avicennia germinans). Prior to mosquito ditch excavation, which occurred approximately 35 years ago, the mangrove forest occupied only the southeastern portion of the acreage, while the remaining area probably supported sawgrass and marshgrass communities. The increase in salinity caused by mosquito ditches promoted the expansion of the mangrove community. Presently, the historical mangrove forest is the best developed portion of the system. The red mangrove trees reach heights in excess of 40 feet and the soil is composed of a deep layer of mangrove mulch. In contrast, the soil beneath the mangroves that invaded the marsh land after mosquito ditching, is primarily marl with a relatively thin organic layer of recent origin. Tidal waters flow onto the site through two 60-inch culverts under NE 135th Street, located on the southeastern perimeter of the property. Water flows north through three mosquito control ditches. The ditch along the eastern boundary terminates a short distance north of the historical forest. The north- south ditches are relatively deep and open, whereas the east-west ditches are filled with silt. Many of the latter are 1 foot to 1.5 feet deep at high tide. While tidal waters flow onto the site, these internal restrictions to flow limit circulation over much of the site. The historical mangrove forest on the subject property is well developed and highly productive. That part of the mangrove forest induced by the mosquito ditches is less well developed and not as productive. However, it is not unproductive. The mangrove forest area proposed for filling by the Petitioner, in terms of forest productivity, produces approximately 2 tons of material per acre annually. This compares to approximately 4 tons per acre annually by the well developed historical forest. The growth and development of both the historical and induced mangrove forests is inhibited somewhat by the restricted flow of tidal water into the forests, which, in turn, is caused by the NE 135th Street Causeway and the silting referred to in paragraph 7. Mangroves thrive on good flow and circulation. Therefore, if the flow and circulation of tidal waters is improved, the mangrove forest will improve. The filling of part of the mangrove forest, together with the dredging of the canals sought to be dug by the Petitioner, and the proposed additional opening in NE 135th Street, would enhance the flow and circulation in the historical forest and probably aid its further development. That same dredging and filling would completely destroy 63.2 acres of the existing, healthy, induced mangrove forest. There is no evidence that the induced mangrove forest proposed for filling is in a fatal state of deterioration. Rather, the question is one of how rapidly or slowly that mangrove forest will develop. Without improved flushing, its development will be slow. Apparently, if the flushing of the induced mangrove forest proposed for filling is improved, its development will be much more rapid. In either case, it apparently will eventually attain, given existing conditions, that stage of development presently enjoyed by the historical forest. The construction of one additional culvert in the NE 135th Street causeway will cost approximately $20,000. The Petitioner does not own the right-of-way to NE 135th Street which would be used in constructing an additional culvert. The owner of that right-of-way appears to be Dade County, which entity is not a party to this proceeding. The Petitioner has an agreement with a private entity known as Munisport, whereby Munisport is to develop and operate the proposed recreational complex, including the golf courses, with the attendant dredging and filling. According to the agreement, at the end of 30 years, the City would own the complex free of any other interest. With regard to the golf courses, the City, throughout their operation, would receive a guaranteed minimum of $86,000 annually, plus a percentage of the fees received by Munisport. As testified to by the City Manager, once the recreational complex is in full operation, the City hopes to receive from it $100,000 to $200,000 annually. The City Manager characterized this as having a small effect upon the financial burden borne by the taxpayers and citizens of the City of North Miami with regard to the bond debt. There was not sufficient evidence presented to establish that, for engineering, environmental, or economic reasons, the golf courses could not be reduced in size or redesigned to eliminate that part to be placed in the Biscayne Bay Aquatic Preserve. Witnesses for the City stated that the City had gone as far as it could in redesigning the project, but no evidence, other than that pertaining to the bond debt, was presented to show why the City took that position. The impact of altering the water storage capacity and volumetric tidal prism within the wetland area, as proposed, can only be adequately assessed by conducting a hydrographic survey. (See Composite Exhibit No. 25.) Such a survey has not been conducted. The Petitioner's application does not involve a public navigation project. The evidence presented does not establish that it is a public necessity that 63.2 acres of mangrove forest in the Biscayne Bay Aquatic Preserve be destroyed by dredging and filling so that part of a public golf course might be constructed. The evidence presented fails to show that the proposed dredging and filling is necessary for the preservation of the Biscayne Bay Aquatic Preserve. The proposed dredging and filling may enhance the quality of approximately 130 acres of mangrove forest in the Preserve, but it will do so by the destruction of 63.2 acres of mangrove forest, also in the Preserve. Viewing the total impact of the proposed dredging and filling on the Preserve, there is no showing that such dredging and filling is necessary to enhance the quality or utility of the Preserve. There was no showing that the 63.2 acres of mangrove forest to be dredged and filled is hazardous to the public health or lacking in aesthetic quality or utility.
The Issue Whether Petitioner, Gateway Farms, LLC, is entitled to payment from Landscape Service Professionals, Inc., and the Gray Insurance Company, as Surety, pursuant to sections 604.15 through 604.34, Florida Statutes (2015), for the purchase of trees; and, if so, in what amount.
Findings Of Fact The Parties Gateway is a producer and seller of agricultural products, including slash pine trees. Gateway operates tree farms on 200 acres in five different locations in Columbia, Alachua, and Suwannee Counties. David Hajos is the owner and principal operator of Gateway. Mr. Hajos has 17 years of experience in growing, harvesting, and selling pine and other species of trees in Florida. Respondent Landscape is a Florida licensed dealer in agricultural products, pursuant to chapter 604. Landscape is a full-service landscape business located in Tamarac, Florida. Sandy Benton has been the president of Landscape for 18 years. Respondent, Insurance Company, filed a denial of the claim and was represented at hearing by Landscape’s counsel. Gateway has been doing business with Landscape for many years, with no indication of prior problems relating to the quality of trees provided. Lynn Griffith, Landscape’s plant and soil expert, considers Gateway to be a competent and professional grower. The Setting At all relevant times, Landscape was a contractor responsible for installing landscaping at the Palm Beach County Solid Waste Authority (SWA) site on Jog Road in Palm Beach County, Florida. Pursuant to orders placed by Landscape, Gateway sold a total of 148 slash pines for use at the SWA site. The invoices for those pines are dated January 22 and 23, and February 9 and 16, 2015. Upon their arrival at the site, authorized personnel of Landscape received, inspected, and accepted the 148 slash pine trees. No problems or concerns were expressed regarding the delivery or condition of the slash pines. The Dispute Giving Rise to this Proceeding Between 20 and 30 of the trees ordered from Gateway were intended as replacement trees for the approximately 150 slash pines provided by six other vendors that had been planted by Landscape, and then died. When the dead trees were removed by Landscape, pine beetles were observed infesting the trees. Within several weeks of planting, 58 of the slash pines purchased from Gateway began to show signs of decline, resulting in their eventual death. Landscape consulted with the Palm Beach County Extension Service and industry professionals as to the cause of the death and decline of the slash pine trees, who undertook an investigation into the same. Slash pine trees are very sensitive and can be easily stressed. Stress can be caused by a variety of factors including: transplanting; harsh handling; bark exposure to sunlight, including superficial wounds to the bark; too much or too little water; or planting too deeply. The stress will cause a tree to emit chemicals that attract beetles, which inhabit the trees and may kill a stressed tree within a week or two of the infestation. In March 2015, Lynn Griffith, an agricultural consultant, conducted an SWA site visit. Mr. Griffith noted that a majority of the planted pines were healthy, but there were some that were not doing well; some had holes in them indicative of a pine beetle infestation. In his report dated March 12, 2015, Mr. Griffith opined on the impact of the ambrosia (pine) beetle infestation on the slash pines: The quantities of boreholes in some of the dead or declining pines would lead me to conclude that borers could be a primary cause of death, but in other cases the number of holes was low, indicating the pine decline was initiated by other factors. In an e-mail dated April 24, 2015, Ms. Benton advised Gateway (and JWD Trees, another supplier of slash pines to the SWA site) that the cause of the death and decline of the slash pine trees were because the two suppliers failed to properly prepare them in the nursery, and had sold them to Landscape with root systems inadequate to support the normal performance of the plant. At hearing, Ms. Benton’s opinion regarding the cause of death of the pines was echoed by John Harris, accepted as an expert in landscape economics and arborism. Mr. Harris’s opinion centered on only one possible explanation for the trees’ demise: a failure to have an adequate root system or an inability of the roots to generate new growth. Typically, this is caused by improper “hardening off” of the root system by the grower. However, on cross-examination, Mr. Harris acknowledged that while pine beetles typically infest stressed trees, if the beetle population builds up enough in an area they will attack otherwise healthy trees. At hearing, Mr. Hajos testified that the pine trees he supplied to Landscape had been properly hardened off for a period of six weeks: Hardened off is a process when you dig a tree and you hold it until it starts to regenerate new roots, so instead of just digging it up and selling it we dig it up and hold it under optimal irrigation and nursery conditions before we ship the tree. Mr. Hajos further testified that any trees that are going to die due to the stress of being dug out of the ground will die during the hardening off process. Mr. Hajos attributed the death of the Gateway trees to several factors, including stress caused by improper lifting of the trees during loading and unloading, stress caused by a delay in planting the trees after they arrived at the SWA site, and the pre-existing pine beetle infestation. Mr. Hajos examined a photograph received in evidence and explained that it showed a tree being improperly lifted by Landscape personnel during unloading. The photograph showed the strap around the tree trunk doing the primary lifting. The result is that rather than distributing the pressure between the trunk and the strap on the root ball, the root ball will be loosened, which will stress the tree. Mr. Hajos testified that he was aware that the Gateway trees that had been delivered to the SWA site were left on the ground for days before being planted. This testimony was corroborated by Landscape’s Daily Job Report log which reflected the delivery of the first load of Gateway pines to the SWA site on January 23 and 24, 2015, but that planting of those trees did not begin until January 29, 2015. On one occasion, a Landscape truck that had picked up trees from Gateway, broke down in Ocala on its return trip to Palm Beach County and had to return to the Gateway site in High Springs. There, the trees were unloaded, and then reloaded onto a different truck where they were delivered two days later to the SWA job site. This inordinate delay and additional loading and unloading further stressed the trees. Once Landscape became aware that it had a beetle infestation at the SWA site, it began a preventative spray program. However, once a pine beetle has entered the bark of a pine tree preventative spraying will be ineffective at eradicating the pest. Newly planted pine trees at the SWA site were not sprayed on the day of planting, thereby providing the pine beetles an opportunity to infest the new trees. Guy Michaud was Landscape’s job foreman at the SWA site. Mr. Michaud has been in the business of planting trees since 1983, and has worked for Landscape for 14 years. Mr. Michaud could not testify with certainty that the Gateway trees died of inadequate roots, as opposed to a beetle infestation. None of the other species of trees sold by Gateway for use at the SWA site experienced problems. Based on the totality of the evidence, it is more likely than not that a combination of factors contributed to the SWA slash pine deterioration, including delays in planting the trees after delivery, rough handling, and the beetles. None of these causes are attributable to the actions of Gateway. Likewise, the greater weight of the evidence does not support a conclusion that the trees sold by Gateway to Landscape were non- viable nursery stock. Subsequent to filing its claim in the amount of $13,462.30 with the Department, Gateway received a payment of $5,528.84 from Landscape. Thus, the unpaid balance due Gateway for the 58 slash pines is $7,933.46. Gateway is entitled to payment in the amount of $7,933.46 for the slash pine trees it provided to Landscape. Besides the amount set forth above, Gateway claims the sum of $50.00 paid for the filing of the claim against Landscape and its bond. The total sum owed to Gateway by Landscape is $7,983.46.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services approving the claim of Gateway Farms, LLC, against Landscape Professional Services, Inc., in the total amount of $7,983.46 ($7,933.46 plus $50 filing fee); and if Landscape Professionals Services, Inc., fails to timely pay Gateway Farms, LLC, as ordered, that Respondent, The Gray Insurance Company, as Surety, be ordered to pay the Department of Agriculture and Consumer Services as required by section 604.21, Florida Statutes, and the Department reimburse the Petitioner as set out in section 604.21, Florida Statutes. DONE AND ENTERED this 18th day of March, 2016, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 18th day of March, 2016.
The Issue The central issue in this case is whether Petitioner's request to modify permit no. 5601095728 should be approved or denied.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Petitioner, William Schulman, as trustee, is the owner of a parcel of real property consisting of approximately ten acres located on Hutchinson Island in St. Lucie County, Florida. On July 3, 1986, Petitioner was issued permit no. 5601095728 and became authorized to fill 1.5 acres of impacted wetlands in accordance with specifications and drawings which had been approved by the Department. Petitioner was required to provide mitigation in connection with the permit which included: the installation of culverts to allow tidal circulation to adjacent wetlands; scraping down a .5 acre area and planting smooth cordgrass; and dredging an area approximately sixty feet wide to allow an access to the Indian River. Petitioner has performed the above-described mitigation. The permit also required Petitioner to execute and record a Conservation Easement which included the .5 acre to be scraped and planted with cordgrass. This easement has not been recorded in accordance with the permit guidelines. Instead, Petitioner sought to modify the permit to allow an additional 1.5 - 2.0 acres to be filled. This proposed area encompassed the smooth cordgrass and an area of mangroves which were to be part of the conservation easement. By letter dated July 10, 1987, Petitioner provided drawings to the Department to further identify the area subject to the requested modification. The proposed modification would result in the permanent loss of white mangrove and cordgrass marsh. This marsh is connected to Class II waters (Indian River) via the dredged opening described in paragraph 2. Petitioner's ten acre parcel is bounded to the north by the platted Windmill Village subdivision; to the east is a commercial area which fronts on SR A-1-A; to the southwest of the property is a diked area known as Impoundment 12; to the west is a man-made lake referred to as "Black's Lake" at the hearing; and further to the west is the Indian River. As part of the original mitigation, Petitioner dredged a sixty foot opening connecting Black's Lake to the Indian River. The culverts required by the original mitigation connected Black's Lake to Impoundment 12, Petitioner's parcel to Black's Lake, and Impoundment 12 to the Indian River. As mitigation for the modification sought, Petitioner has proposed to provide four additional culverts to connect Impoundment 12 with Black's Lake. The record in this cause is unclear as to the present ownership of Impoundment Further, no owner has given consent to the proposed installation of additional culverts. The mitigation proposed for Impoundment 12 is not on Petitioner's property. As additional mitigation for the modification, Petitioner has proposed to provide two culverts which would connect a ditch on Petitioner's property to Black's Lake. On September 4, 1987, Petitioner provided materials from the St. Lucie County Mosquito Control District to the Department in support of the requested modification. The information suggested that with the installation of additional culverts, the tidal activity within Impoundment 12 would be improved and would thereby eliminate most of the mosquito breeding within that area. On October 14, 1987, the Department notified Petitioner of its intent to deny the modification to permit no. 5601095728. Thereafter, Petitioner timely filed for a formal review and these proceedings resulted. By stipulation, the parties agreed that the Department has jurisdiction of the project and the proposed modification to the permit. The proposed mitigation seeks to increase tidal exchange within Impoundment 12. Petitioner has not offered evidence to illustrate how the mitigation would directly benefit Petitioner's property. The tidal replication in Black's Lake is approximately 90 percent of that within the Indian River. The tidal replication within Impoundment 12 is approximately 60 percent of that within Black's Lake. Petitioner anticipates that the addition of culverts connecting Black's Lake to Impoundment 12 would increase the tidal exchange to the impoundment. Impoundment 12 consists of approximately 120 acres. Due to a dike which divides the property, only 80 + or - acres would be affected by the proposed mitigation. To effect 100 percent tidal replication within Impoundment 12 the dike separating it from the Indian River to the west would have to be removed. Since that solution is highly unlikely, authorities have sought to achieve tidal exchange via 40' culverts which are 30 inches in diameter and which have been placed to breech the dikes surrounding the impoundment. The most desirable locations for these culverts would be directly connecting Impoundment 12 to the river. That is not Petitioner's proposal. Petitioner proposes to connect Impoundment 12 with additional culverts to Black's Lake. The opening to the river from the lake would not be increased. Consequently, it is unlikely the replication within the lake will increase. The sole objective of Petitioner's proposed mitigation would simply cause more water to tidally flow from the lake to Impoundment 12. Increased flow to Impoundment 12 would enhance the likelihood of achieving tidal inundation which would make mosquito breeding less frequent. While it is expected that the Mosquito Control District would have to continue applying larvicide to Impoundment 12, its use may be less often. Optimally, tidal inundation would occur at least once a week. Currently, Impoundment 12 receives this desired inundation only during the fall season when the waters are high enough to flood the remote areas. Increasing the number of culverts would also increase the points of access and would allow the water to move more slowly through the openings. While there is no evidence to establish the locations for the placement of the proposed culverts, in theory, the placement would be to maximize the tidal exchange. A slower exchange through the culverts would benefit organisms moving through the system. The slower rate would also enhance the use of the passages by fish. To be lost by the modification are .5 acre of smooth cordgrass and 1.25 - 1.50 acres of mature, functioning mangroves. The mangroves are predominantly of the white variety with some reds scattered. They are approximately 20 feet in height. If allowed to remain undeveloped, it is anticipated that the cordgrass area will aid in the recruitment of additional mangroves. Mangroves provide several benefits to estuarine systems. The leaf litter is a primary source of food for organisms in the lower end of the food chain such as fish and crabs. Fish, birds and mammals use mangroves for cover from predators. Birds also use the mangroves for perching and nesting and feed on insects and crabs associated with the trees. Mangroves in Impoundment 12 and the Petitioner's property (which will be lost by the modification) currently provide these benefits. It has not been demonstrated that the increased tidal flow to Impoundment 12 will quantitatively improve the benefits offered by mangroves to the existing system. Smooth cordgrass is a food source for birds, fish and mammals. Not only do organisms feed on the cordgrass, but they also feed on the leaves and seeds of the associated growth of spike rush and fungus. Mammals use the cordgrass for cover and some birds nest there. The following listed birds have been identified on Petitioner's property and Impoundment 12: snowy egret and little blue heron, which are species of local concern, and the brown pelican which is on the federal list of endangered species. Also observed at the location was the roseate spoonbill. Mammals identified on the Petitioner's property included raccoon, marsh rabbit and rat. The loss of the Petitioner's mangroves and cordgrass will decrease the habitat area currently used by mammals, fish and birds. Moreover, the mangrove population on Hutchinson Island is on the decline. Wetland areas have been decreasing due to development over the last 20 years. Numerous dredge and fill projects previously permitted by the Department have allowed filling of mangrove areas. Fish currently inhabiting the area which are expected to be adversely affected by the loss of the mangroves and ditch area include: snook (a species of special concern), tarpon, mojarra, and striped mullet. The increased water flow to Impoundment 12 does not offset this loss. Windmill Village By The Sea Homeowners Association, Inc., is a nonprofit corporation consisting of property owners occupying approximately 46 duplexes to the north of Petitioner's property. The 13 individual intervenors (Sophie Holler, Jackson and Mildred Gray, Terry and Norine Young, Einer Nielsen, Richard and Alphild Chase, Jack and Pat Donohue, and Robert and Lynn Chandler) are homeowners on Aqua Ra Drive north of and contiguous to Petitioner's property.
The Issue The issue to be determined in this case is whether the amendments to the Manatee County Comprehensive Plan (Manatee Plan) adopted by the Board of County Commissioners of Manatee County via Ordinance No. 13-10 on December 5, 2013, are “in compliance,” as defined in section 163.3184(1)(b), Florida Statutes (2013).
Findings Of Fact The Parties Katie Pierola is a resident and landowner in Manatee County. Mrs. Pierola made timely objections and comments to Manatee County on the 2013 Amendments. Greg Geraldson is a resident and landowner in Manatee County. Mr. Geraldson made timely objections and comments to Manatee County on the 2013 Amendments. Manatee County is a political subdivision of the State and has adopted the Manatee Plan, which it amends from time to time pursuant to section 163.3184, Florida Statutes. Robinson Farms is a Florida corporation doing business in Manatee County and owning real property in the County. It owns the property affected by the 2013 Amendments. The 2013 Amendments The 2013 Amendments would amend the Future Land Use Map of the Manatee Plan to change the future land use classification of approximately 20 acres of land owned by Robinson Farms from RES-1 to RES-3. The land is described by metes and bounds in Exhibit A to Ordinance No. 13-10. It is located on the north side of 9th Avenue Northwest, about 600 feet east of 99th Street. The RES-1 classification allows one dwelling unit per acre (du/a). The RES-3 classification allows up to three du/a. The General Introduction chapter of the Manatee Plan, Section D – Special Plan Interpretation Provisions, would be amended to add the following new text: D.5.16 Ordinance 13-10 (ROBINSON FARMS PLAN AMENDMENT) The 20± acre property identified as the Robinson Farms Plan Amendment and designated RES-3 on the Future Land Use Map pursuant to Manatee County Ordinance No. 13-10 shall be limited to a maximum of thirty eight (38) residential units. Coastal Evacuation Area and Coastal High Hazard Area All 20 acres of the Robinson Farms property is within the Coastal Evacuation Area (CEA). The CEA is defined in the Manatee Plan as: The evacuation Level A for a Category 1 hurricane as established in the regional evacuation study applicable to Manatee County, as updated on a periodic basis. Future Land Use Element (FLUE) Policy 2.2.2.4.2, which addresses the purposes of the CEA, states in part: To limit population in the Category 1 hurricane evacuation area requiring evacuation during storm events. To limit the amount of infrastructure, both private and public, within the CEA Overlay District and thereby limit magnitude of public loss and involvement in mitigating for loss of private infrastructure to Manatee County residents. To, through exercise of the police power, increase the degree of protection to public and private property, and to protect the lives of residents within the CEA, and reduce the risk of exposing lives or property to storm damage. All but 4.68 acres is within the Coastal High Hazard Area (CHHA). The CHHA is defined in the Manatee Plan as: The geographic area below the Category 1 storm surge line as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model, pursuant to applicable law, as updated on a periodic basis. FLUE Policy 2.2.2.5.2, which addresses the purposes of the CHHA, repeats the same purposes that are set forth above for the CEA. Relevant Goals, Objectives, and Policies Goal 4.3 of the Coastal Element of the Manatee Plan is: Protection of the Residents and Property Within the Coastal Planning Area from the Physical and Economic Effects of Natural Disasters Coastal Element Objective 4.3.1 states: Limit development type, density and intensity within the Coastal Planning Area and direct population and development to areas outside the Coastal High Hazard Area to mitigate the potential negative impacts of natural hazards in the area. Coastal Element Policy 4.3.1.1 states: Direct population concentrations away from the Coastal Evacuation Area FLUE Policy 2.2.2.4.5(a), which addresses development restrictions in the CEA, states: Prohibit any amendment to the Future Land Use Map which would result in an increase in allowable residential density on sites within the Coastal Evacuation Area. FLUE Policy 2.2.2.4.4(a) states, in part: The area designated under the CEA Overlay District on the Future Land Use Map shall also be subject to all goals, objectives and policies for any land use category overlaid by the CHHA District, except where policies associated with the CEA Overlay conflict with such goals, objectives and policies. In this event, policies associated with the CHHA Overlay District shall override other goals, objectives and policies. FLUE Policy 2.2.2.5.5(a), which addresses development restrictions in the CHHA, states: Prohibit any amendment to the Future Land Use Map which would result in an increase in allowable residential density on sites within the Coastal High Hazard Area Overlay District. FLUE Policy 2.2.2.5.4(a) states that, in the event of a conflict between CHHA policies and other policies in the Manatee Plan, the CHHA policies shall override. Data and Analysis Petitioners contend that the 2013 Amendments are not based on best available data and analysis as required by Florida Administrative Code Rule 9J-5.005(2). However, that rule was repealed in 2011. Section 163.3177(1)(f) requires that plan amendments be based on “relevant and appropriate data and analysis.” This section explains: To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. Petitioners contend that the proposed reclassification of the Robinson Farms property from RES-1 to RES-3 does not react appropriately to the data which show the Robinson Farms property lies within the CEA and CHHA. However, as explained in the Conclusions of Law, it is not the mapping of the CEA and CHHA that creates a conflict with the 2013 Amendments. The conflict is created by the policies which address future land uses in the CEA and CHHA. Internal Consistency Petitioners contend that the 2013 Amendments make the Manatee Plan internally inconsistent with Coastal Element Objective 4.3.1 and Coastal Element Policy 4.3.1.1 which require “population concentrations” to be directed away from the Coastal Evacuation Area. No evidence was presented by Petitioners or by Manatee County on the County’s interpretation of the term “population concentrations.” However, FLUE Policy 2.2.2.4.5(a) prohibits any increase in residential density in the CEA. Therefore, assuming as we must that the Manatee Plan is internally consistent, it follows that “population concentrations” in Coastal Element Objective 4.3.1 and Policy 4.3.1.1 means any increase in residential density. Because the 2013 Amendments increase residential density in the CEA, they are inconsistent with this objective and policy. Because the 2013 Amendments would amend the Future Land Use Map to increase allowable residential density on a site within the CEA they are inconsistent with FLUE Policy 2.2.2.4.5(a), which prohibits any amendment to the Future Land Use Map that would increase allowable residential density on sites within the CEA. Because the 2013 Amendments would amend the Future Land Use Map to increase allowable residential density on a site within the CHHA they are inconsistent with FLUE Policy 2.2.2.5.5(a), which prohibits any amendment to the Future Land Use Map that would increase allowable residential density on sites within the CHHA. Competing Policies Manatee County and Robinson Farms argue that there are other policies in the Manatee Plan, such as those that discourage urban sprawl and encourage infill in the Urban Core Area, which the County must weigh along with the policies discussed above. The County contends that it weighed these conflicting policies and reached a fairly debatable determination that the 2013 Amendments are consistent with the Manatee Plan. Contradicting this argument are FLUE Policy 2.2.2.4.4(a) and FLUE Policy 2.2.2.5.4(a), which state that the CEA and CHHA policies shall override any conflicting goals, objectives, and policies in the Manatee Plan. Urban sprawl, infill, and other policies of the Manatee Plan cannot be invoked to avoid the specific prohibitions in FLUE Policies 2.2.2.4.5(a) and 2.2.2.5.5(a) against any amendment to the Future Land Use Map that would result in an increase in allowable residential density on sites within the CEA and CHHA. Density Offsets Manatee County and Robinson Farms argue that the County’s reduction in dwelling units in other parts of the CHHA over the past several years is a valid consideration in determining whether an increase in residential density on the Robinson Farms property is permissible despite the prohibition in FLUE Policy 2.2.2.5.5(a). In support of their argument, they cite Department of Community Affairs v. Leeward Yacht Club, LLC, DOAH Case No. 06-0049GM, 2006 WL 2497934 (Nov. 16, 2006). However, the Leeward Yacht Club case involved the comprehensive plan of Lee County, which did not prohibit increases in residential density in the CHHA. In contrast, the Manatee Plan quite plainly prohibits “any amendment” to the Future Land Use Map that would increase residential density in the CHHA. Previous Proceedings These same parties were involved in a dispute regarding an earlier proposed amendment to the Manatee Plan to reclassify property owned by Robinson Farms from RES-1 to RES-3. The 2010 Amendment was different in that it affected 28 acres (which encompasses the 20 acres in the 2013 Amendments). The 2010 Amendment would have increased the residential density on the 28 acres from 28 dwelling units to 105 dwelling units, all in the CEA. It would have added 56 dwelling units to the CHHA. Petitioners challenged the amendment and an evidentiary hearing was held before Administrative Law Judge D.R. Alexander (DOAH Case No. 11-0009GM). On April 13, 2011, Judge Alexander entered a Recommended Order which recommended that the 2010 Amendment be determined not in compliance because: The amendment was not based on relevant and appropriate data because the most current SLOSH model results were not used; The amendment was inconsistent with FLUE Policy 2.2.2.4.5(a) which prohibits any increase in residential density in the CEA. The amendment was inconsistent with Coastal Element Objective 4.3.1 and Policy 4.3.1.1 which require that population and development be directed to areas outside the CHHA. The Recommended Order went to the Administration Commission, which ultimately dismissed the case when Manatee County rescinded Ordinance No. 10-02 and the 2010 Amendment. In Manatee County Ordinance No. 11-035, which was the ordinance used to rescind the 2010 Amendment, the Board of County Commissioners determined that the 2010 Amendment was internally inconsistent with FLUE Policy 2.2.2.4.5(a), Coastal Element Objective 4.3.1, and Coastal Element Policy 4.3.1.1 because the amendment increased residential density in the CEA and CHHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission issue a final order determining that the 2013 Amendments adopted by Manatee County Ordinance No. 13-10 are not in compliance. DONE AND ENTERED this 8th day of July, 2014, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2014. COPIES FURNISHED: James A. Minix, Esquire Manatee County Attorney's Office Post Office Box 1000 Bradenton, Florida 34206 Edward Vogler, II, Esquire Vogler Ashton, PLLC 2411-A Manatee Avenue West Bradenton, Florida 34205-4948 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Peter Antonacci, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128
Findings Of Fact Urbanek owns land in and adjacent to Town Lots 93 and 94, Highland Beach, in Section 28, Township 46 South, Range 43 East, Palm Beach County, Florida. The real estate in question is located on the eastern shore of the Intra-Coastal Waterway approximately 2,000 feet south of the mouth of the C-15 Canal. Urbanek seeks a permit under Chapters 403 and 253, Florida Statutes, and water quality certification under Public Law 92-500, to dredge approximately 24,500 square feet of shoreline and shallow nearshore area, while installing approximately 240 linear feet of bulkhead and ten mooring piles, and constructing a marginal dock and piers for the use of future residents. The application also includes filling approximately 60,000 square feet of tidally connected ditches and wetlands to allow the construction of a high density residential development. On January 19, 1976, DER received a short form application for a permit from Urbanek pursuant to Subsection 17-4.28 (4)(a), Florida Administrative Code. On March 10, 1976, Urbanek received from DER a request for additional information. This occurred 51 days after Urbanek's original application for permit. Urbanek forwarded the requested additional information to DER on April 22, 1976, and April 30, 1976. On May 12, 1976, DER notified Urbanek that the project must be submitted using standard permitting procedures along with the incorporation of certain recommendations made by DER's field inspector. On June 9, 1976, Urbanek was notified by DER that his application had been forwarded to Tallahassee with a recommendation for denial on two grounds. First, that the application did not meet the criteria for short form applications and second, that the proposed project would eliminate valuable submerged and wetland habitats. On July 27, 1976, Urbanek was notified by DER's Tallahassee office that his application was received on January 1976, and that the application was incomplete. The notification requested additional information. On September 22, 1976, DER notified Urbanek that processing of his application was discontinued because required data was not sent by Urbanek to DER. Urbanek was further advised that processing of the application," would be continued upon receipt of the necessary information. On January 20, 1977, Urbanek submitted another modified permit application to DER. On February 28, 1977, DER sent Urbanek notice of receipt of the application once again requesting additional information be submitted. On March 4, 1977, Urbanek forwarded the requested information to DER. On April 1, -1977, DER forwarded to Urbanek its notice of intent to deny and the proposed order of denial of the permit application. On April 15, 1977, Urbanek petitioned DER for a hearing pursuant to the provisions of Section 120.57, Florida Statutes. The area of the project, prior to the turn of the century, was a fresh water wetland. However, salt water intrusion from the permanent opening of the Boca Inlet in south Palm Beach County in the early 1900's paved the way for colonization of mangroves in the Spanish River Basin, now the Intra-Coastal Waterway. As the human population increased in Palm Beach County, the mangroves were destroyed in order to afford living spaces. As a result, approximately 77 percent of the mangroves in Palm Beach County have been removed. One of the last remaining mangrove areas in southern Palm Beach County is located on a strip of land which borders the eastern side of the Intra-Coastal Waterway. The applicant's project site represents a portion of that strip. The project site fronts 230 feet-of the Intra-Coastal Waterway and extends approximately 670 feet eastward to State Road A1A. The property is intersected by three mosquito control ditches which run perpendicular to the Intra-Coastal Waterway but do not connect with it, and by six lateral ditches which extend from north to south and adjoin the property to the south. The project site is thus divided into eighteen parcels of land or "islands" and a fringing shoreline area. A survey conducted on October 13, 1977, and October 18, 1977, revealed the emergent areas between the ditches to be vegetated by mostly white mangroves, with canopies ranging from fifteen to forty-five feet in height. Numerous white and red mangrove seedlings plus a few scattered black mangrove seedlings indicate that the area may be changing from a predominantly white mangrove to a mixed mangrove community throughout the project site. Batis and Sesuvium were found and Australian Pines and Brazilian Pepper were observed only in areas where spoil from dredging activities was placed on the emergent area. There are approximately seven to eight thousand trees, including seedlings, in the project area. The mangrove system at the project site was characterized as a very productive system by Dr. G. Alex Marsh, an expert in Estuarine Ecology, who testified for DER. Dr. Arnold Banner of the United States Fish and Wildlife Service concurred with Dr. Marsh that the eradication of the productive system would result in the removal of a significant source of food and habitat. The evidence shows that a wetland habitat such as the project site affords approximately 535 pounds of fishing products per year with a dollar value of $8,000 per acre to the public. Petitioner argues that it would be in the public interest to bulkhead and fill the subject property because rodents would be eliminated, trash and debris would no longer collect on the property and that further erosion of the property would be prevented. However, Urbanek has failed to establish with substantial competent evidence that there actually exists a rodent problem on the subject property. The evidence does establish that trash and debris collect among the root system of the vegetation and that severe erosion has occurred on the property from wave action created by vessels moving through the Intra- Coastal Waterway. Urbanek has failed to establish with substantial competent evidence that the proposed project will not degrade water quality, cause violation of water quality standards or criteria or cause pollution. In fact, no evidence was submitted whatsoever by Urbanek which would tend to prove any of these three preconditions to the granting of the requested permit. Nonetheless, DER's failure to act on the permit application within the time limits prescribed by Subsection 120.60 (2), Florida Statutes, as amended in 1976, mandates the issuance of the requested permit.
The Issue Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioner in the amount of $5,560.08 for limes grown by Petitioner and picked and sold by Respondent Southeast?
Findings Of Fact Petitioner Joyce McKiness is a grower of limes in Homestead, Florida. Respondent Southeast Grove Management, Inc., (hereinafter "Southeast") goes to individual groves and picks the limes, then brings them to the packing house where they are graded, sized, and shipped to be sold at prices according to size. When the recipient of the limes pays Southeast after receipt of the limes, Southeast ascertains what prices were paid for the limes, and then calculates its costs and pays the grower the difference. Between the weeks ending March 4 and July 8, 1988, Southeast picked 1,165.1 bushels of limes grown by Petitioner. There is no dispute as to the number of bushels of Petitioner's limes picked by Southeast. Petitioner disputes Southeast's calculations as to the price which Southeast received for the limes, the percentage of the limes picked by Southeast which `graded out' for sale, and the amount of picking and inspection fees charged by Southeast. Petitioner bases the price that she claims Southeast received for the limes, for the eight separate pickings in question in this cause, on her belief that 1988 lime prices were 25% higher than 1987 lime prices. She, therefore, added 25% to the prices of limes picked in 1987 for the same months. No competent, substantial evidence was offered in support of Petitioner's belief. In one instance, Southeast paid her a higher price per bushel than she claims. Petitioner claims that 80% of each picking was saleable citrus. Southeast's records reflect that Petitioner was given credit for 80% of her limes on one of the eight pickings. For the remainder of the pickings, however, Southeast gave her credit for as little as 45.4% of the bushels picked and as high as 99.7% of the bushels picked. No competent, substantial evidence was offered to justify Petitioner's selection of 80% for all eight pickings. The 80% figure selected by Petitioner allows for no differences in the amount of marketable limes from each picking, and there is no evidence to support the proposition that no matter when during the season the limes are picked exactly 80% of them will be marketable. No competent, substantial evidence was offered as to how Petitioner computed the picking and inspection fees paid by Southeast, which fees were then deducted by Southeast from the sale price of the limes before crediting Petitioner with the balance of the sale price. In two instances, the picking and inspection fees charged by Southeast were less than what Petitioner claims they should be. Southeast admits that for lime pool #809 for the week ending March 4, 1988, it owes petitioner the amount of $393.36.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding that Southeast Grove Management, Inc., is indebted to Petitioner Joyce McKiness in the amount of $393.36 and that such monies should be paid to her within fifteen days from the entry of the Final Order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of January, 1990. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30 day of January, 1990. COPIES FURNISHED: Cliff Willis Florida Farm Bureau Mutual Insurance Company 1850 Old Dixie Highway Homestead, Florida 33033 Don Reynolds c/o Aaron Thomas, Inc. 11010 North Kendall Drive, Suite 200 Miami, Florida 33176 Joyce McKiness 20350 Southwest 346th Street Homestead, Florida 33034 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Benjamin S. Schwartz, Esquire #1 CenTrust Financial Center 36th Floor 100 Southeast 2nd Street Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
The Issue The issue is whether Largo Bayside, Inc., is entitled to a permit to alter mangroves on property it owns in Key Largo, Florida.
Findings Of Fact Largo Bayside, Inc., owns a condominium development located in Key Largo, Florida. There is a water body immediately outside the condominium units which is bounded by the mangrove berm which is approximately 4 acres in size. Florida Bay is on the other side of the berm. The view of Florida Bay is, to some extent, obstructed by the mangroves. Largo Bayside proposes to trim an area of mangroves in the center of the berm that is approximately two acres wide down to a height of 13 feet above grade, in order to provide its condominium owners with an improved view of Florida Bay. The berm's forest is 95 percent black mangroves. There are some red mangroves on the edges of the berm. The black mangroves are highest near the shore, and at the north end of the berm where they are approximately 25 feet high. About one half of the mangroves are not above the proposed trimming height of 13 feet. There is some wildlife at the site, but there is no nesting community of birds. Boat traffic from a nearby marina on Key Largo tends to keep birds from nesting there, although they do roost there. The proposed trimming will change the structural diversity of the mangrove forest which could result in a slight reduction in the diversity of the fauna. There is no reason to believe that there would be fewer birds roosting the mangroves after trimming. The applicant has agreed to a number of special conditions which the Department proposed on April 22, 1988, which will mitigate any environmental damage resulting from the trimming. These include: No alteration shall occur within a 120 feet of the north property line or within the section of the mangrove forest within 100 feet of the dock along the northeast side of the marina. This limits the trimming to the entire mangrove forest, but will permit improved visual access for all of the condominium units. There shall be no alteration of red mangroves, nor of any mangrove with an unaltered height of 20 feet or greater. Mangroves will be trimmed to height of 13 feet above grade. The pruning shall be limited to those branches and mangrove trunks less than 2 inches in diameter. all large branches, stems and limbs will be removed by hand from the forest after trimming to greatest extent practical. Fallen leaves and small trim debris will remain on the forest floor and all trimming shall be done by hand. By accepting the buffer zones along the north property line and the dock along the northeast side of the marina, Largo Bayside has given up the ability to exercise an exemption from the mangrove alteration rules, Rule 17- 27.060(2), Florida Administrative Code, which would have allowed it to trim all the mangroves to 75 percent of their original height. The permit that the Department proposes to issue allows some trees to be trimmed to less than 75 percent of their original height, but prohibits red mangroves from being trimmed. On balance, the extent of the mangrove alteration permitted is much less than what would have been allowed if Largo Bayside had merely exercised the exemption that is available to it. The mangrove alteration will have no impact on water quality or an adverse impact on fish or other wildlife.
Recommendation It is recommended that the Secretary of the Department of Environmental Regulation enter a final order issuing Permit 441398145 to Largo Bay Side, Inc., to trim mangroves adjacent to its property with the special conditions contained in the Notice of Intent to Issue which had been served on the applicant on April 22, 1988. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of January, 1989. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th of January, 1989. APPENDIX The following are my rulings on the proposed findings of fact submitted by the petitioners pursuant to Section 120.59(2), Florida Statutes (1987). Rulings on DER's proposed findings of fact. Covered in finding of fact l. Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 4b. Covered in finding of fact 4a. Covered in finding of fact 5. Covered in finding of fact 6. Covered in finding of fact 3. COPIES FURNISHED: Leland D. Egland 13340 North Calusa Club Road Miami, Florida 33186 Michael Halpern, Esquire 209 Duval Street Key West, Florida 33040 Richard Grosso, Esquire State of Florida, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary State of Florida, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel State of Florida, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The proposed addition to the existing commercial docking facilities in the Pine Island Sound Aquatic Preserve would consist of approximately 5,000 square feet of additional overwater structure. The effects of such a facility on the marine ecosystem were described in expert testimony. The structure would cut off penetration of light to the bottom and the organisms living below. The resultant change in the biota under the dock would reduce the number of sedentary species, that is to say those species that remain essentially stationary in a given area, and would increase the number of errant species, that is to say those species which move from place to place. This change in the existing ecosystem directly affects the food chain and ultimately adversely affects commercial and sports fishing. Other negative impacts on the area due to the proposed construction would be increased boat traffic, sewage, introduction of petroleum products into the waters and an increase in the number and size of boats docking in the area thereby expanding the shaded area beyond that of the dock itself. Though the actual amount of damage to the preserve from both the shading effect and usage as a whole cannot be quantified without appropriate natural asset inventroy and study, some amount of damage would occur to the biological integrity of the area. The proliferation of docks within the Aquatic Preserve along with the cumulative impact of such construction must be considered as a potential threat to the Preserve. The cumulative impact and extent of damage which might occur as a result of the proposed construction must be determined through the conduct of a study developing a management plan for the Preserve, balancing present and future needs and values. Each individual Petitioner owns waterfront property within the Pine Island Sound Aquatic Preserve. Because of the potential negative impact of the proposed project and its cumulative impact with other projects on waterfront property, each Petitioner would be materially affected by the granting of this lease. No use or management criteria, ultimate or incipient, for the Pine Island Sound Aquatic Preserve have been adopted. However, since December, 1975, DNR has been engaged in the process of adopting such rules for the Biscayne Bay Aquatic Preserve. Once adopted, these rules will serve as a model for rules to be promulgated for the other aquatic preserves including Pine Island Sound Aquatic Preserve. No studies have been conducted by DNR of Pine Island Sound Aquatic Preserve. There is no inventory of available commercial docks, boat traffic, ingress or egress within the Preserve. The proposed rules for the Biscayne Bay Aquatic Preserve are not presently being applied to aquatic preserve leases.
