The Issue The issue posed for decision herein is whether or not the Respondent properly denied Petitioner's refund request for that portion of his Foresters licensing fee for the period July 1, 1979, through December 31, 1981.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, the following relevant facts are found. John T. Clark, Petitioner, is a licensed Florida Forester and, as such, received during December of 1978 a notice mailed by the Board of Registration for Foresters a license fee request for the period of January 1, 1979, through December 31, 1981. Petitioner timely submitted his license fee for the registration period in question. The Forestry Practice Act expired on June 30, 1979, based upon a veto by the Governor. (Chapter 76-168 as amended by Chapter 77-457, Chapter 6, Florida Statutes, the "Sunset Act".) Petitioner, by letter dated July 2, 1979, requested a refund of the license fee paid for the eighteen-month period of July, 1979, through December, 1981. On October 22, 1979, Gerald A. Lewis, Comptroller, advised Petitioner of the Respondent's notice of intent to deny his refund. That notice alleged in pertinent part that "pursuant to an Attorney General Opinion dated January 27, 197P) (AGO No. 078-14), Section 215.26, Florida Statutes, as construed by Florida Courts, provides that refunds may only be made from the funds benefited and if such fund does not have sufficient monies. . . to make the requested refunds, then the refunds cannot be made absent a specific legislative appropriation or claims bill." Petitioner was then advised that the fund benefited by the license payment did not have sufficient monies to pay the requested refund and, therefore, the request would be denied. Florida Statutes 215.26(1)(a) provides in pertinent part that the Comptroller of the State may refund to the person who paid same . . . any monies paid to the State Treasury which constitute: An overpayment of any tax, license or account due. Petitioner introduced into evidence the financial statement for the Board of Registration for Foresters for the quarter ending October 31, 1979, which indicates that as of October 31, 1979, the Board of Foresters had total net resources available of $17,767.91. (Petitioner's Composite Exhibit 1.) At the time Petitioner remitted his payment, the amount remitted was correct under the laws and applicable rules of the Board of Registration for Foresters then in effect. Rule 211-2.06, Rules of the Board of Registration for Foresters, Florida Administrative Code. However, the parties also further agree that the payment tendered was a regulatory fee (as contrasted to a tax) and was used to defray the cost of regulation, and not as a general revenue producing measure. As such, the monies were deposited in a regulatory trust fund which of course reflects the fact that monies are available in said fund and which, in this instance, can be used as a refund for any overpayments. It is further undisputed that the period of regulation was for a two-year period while the regulation only lasted six months. In view of these factors, Section 215.26(1))a), Florida Statutes, authorizes a refund of an overpayment such as was paid by the Petitioner in this case. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner's refund request of July 2, 1979, be GRANTED. RECOMMENDED this 3rd day of March, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue in this case is whether the land development regulations (LDRs) adopted by Respondent, City of Sunny Isles Beach (City), by Ordinance No. 2002-165 on December 10, 2002, as amended, are in compliance.
Findings Of Fact Based upon the record presented by the parties, the following undisputed findings of fact are determined: The City sits between the Intracoastal Waterway and the Atlantic Ocean in northern Dade County just south of the Town of Golden Beach (Town) and just north of the City of Bal Harbour. It was incorporated in 1997. As required by Section 163.3161, Florida Statutes, on October 5, 2000, the City adopted its first Comprehensive Plan. See Exhibit E. The Plan was amended by Ordinance No. 2002-147 on January 17, 2002. See Exhibit B. The Plan's Future Land Use Map contains a land use category known as Mixed Use-Resort/High Density (MU-R), which is "designed to encourage development and redevelopment within the area east of Collins Avenue for resort style developments catering to tourists and seasonal residents (hotel, hotel/ apartments, vacation resorts and resort style apartments) as well as high quality residential apartments." The category also allows associated retail uses such as restaurants and conference facilities that are internal and accessory to hotel/resort development. Pertinent to this dispute is Policy 15B of the Future Land Use Element (FLUE), which establishes density and intensity standards for the MU-R land use category. More specifically, the policy provides the following standards: This category allows an as-of-right density of a maximum one hundred (100) hotel- apartment units per acre and fifty (50) dwelling units per acre for apartments and a floor area ratio (FAR) intensity of 2.5. The allowable number of hotel rooms is controlled by floor area ratio. Additional residential density and FAR intensity may be permitted for developments that comply with bonus program requirements. Residential densities with bonuses may not exceed eighty (80) units per acre for solely apartments and one hundred twenty five (125) units per acre for hotel- apartments, exclusive of lockout units. (Emphasis added) Under the foregoing policy, a maximum density of 100 units per acre is allowed for hotel-apartment units, a maximum density of 50 units per acre is allowed for apartments, and a floor area ratio (FAR) intensity of 2.5 has been established. However, the underscored portion of the policy authorizes a bonus density and intensity program which allows a developer to exceed the prescribed density and intensity standards for developments "that comply with bonus program requirements." If the bonus density program requirements are satisfied, the policy establishes a cap for the density bonus at 125 hotel-apartment units per acre and 80 residential units per acre. While the policy does not establish a similar cap for the intensity bonus, it essentially defers the amount of the intensity cap and the details of the bonus program to the LDRs, which are to be adopted at a later time. Objective 8 of the Plan provides that the City "shall adopt, maintain, update and enhance development regulations and procedures to ensure that future land use and development in the City of Sunny Isles Beach is consistent with the Comprehensive Plan." Objective 15 of the Plan provides that the "land use densities, intensities and approaches [contained in Policy 15B] shall be incorporated in the Land Development Regulations." Finally, Section 163.3202(1), Florida Statutes, requires that local governments, within one year after submission of their comprehensive plans, "adopt or amend and enforce land development regulations that are consistent with and implement their comprehensive plan." On December 10, 2002, the City approved Ordinance No. 2002-165, which adopted a comprehensive set of LDRs to implement the Plan. See Exhibit C. In 2003, the LDRs were further amended in minor respects by Ordinance Nos. 2003-167, 2003-171, 2003-173, and 2003-178. See Exhibit D. In sum, the LDRs consist of more than one hundred pages of regulations, and except for one of these, Section 703.8.4(i)3, none of the other LDRs directly relates to this dispute. Section 703.8.4(i)3 implements Policy 15B by outlining the criteria and requirements necessary to qualify for additional intensity or FAR through the bonus program. It also establishes a cap on FAR intensity. If the bonus program requirements are satisfied,3 the regulation allows a maximum intensity bonus of 1.5 FAR, or a potential total FAR of 4.0, which exceeds the 2.5 FAR contained in Policy 15B. (Intensity bonuses to increase the FAR can also be obtained through the transfer of development rights under Section 515 of the LDRs. However, those bonuses are not in issue here.) Petitioners include a group of twelve City residents; the Town, which lies adjacent to, and just north of, the City; and two Town residents. There is no dispute that Petitioners will be substantially affected by the LDRs and thus they have standing to bring this challenge. In their Cross-Motion, which essentially tracks the allegations in their Amended Request for Hearing, Petitioners assert that they, and not the City, are entitled to a summary final order in their favor for three reasons. First, they argue that it is beyond fair debate that all of the LDRs, including Section 703.8.4(i)3, are inconsistent with Policies 4A and 4C of the Intergovernmental Coordination Element of the Plan because the City failed to solicit comments from the Town prior to the adoption of the LDRs. Second, they argue that it is beyond fair debate that the City violated Florida Administrative Code Rule 9J-5.005(2)(g) when it adopted Section 703.8.4(i)3. Finally, they contend that it is beyond fair debate that in order to achieve consistency with the Plan, the LDR must not establish a FAR that is beyond the intensity standard (2.5) established in the Plan. Policies 4A and 4C of the Intergovernmental Coordination Element provide as follows: 4A. The City will notify and solicit comments from adjacent jurisdictions and the School Board of any requests for land use amendments, variances, conditional uses or site plan approvals which impact property within 500 feet of a public school or within 500 feet of the boundaries of an adjacent jurisdiction. 4C. The City will notify and solicit comments from adjacent jurisdictions and the School Board of its existing standards or proposed regulations being considered for problematic or incompatible land uses. Nothing in the two policies requires that the City solicit comments from adjacent jurisdictions when adopting the LDRs being challenged here. Rather, these policies specifically address notice and comments as to "land use" changes, not the adoption of LDRs, or to "regulations being considered for problematic or incompatible land uses." Even assuming arguendo that the two policies require some type of prior notice, Petitioners do not dispute the fact (as set forth in the Department's Determination) that prior to the adoption of the LDRs, "the City notified the Town both in writing and orally". (Determination, Finding of Fact 6). Florida Administrative Code Rule 9J-5.005(2) contains general data and analyses requirements for comprehensive plans. Paragraph (2)(g), which Petitioners assert was violated by the City when it adopted Section 703.8.4(i)3, provides as follows: (g) A local government may include, as part of its adopted plan, documents adopted by reference but not incorporated verbatim into the plan. The adoption by reference must identify the title and author of the document and indicate clearly what provisions and edition of the document is being adopted. The adoption by reference may not include future amendments to the document because this would violate the statutory procedure for plan amendments and frustrate public participation on those amendments. A local government may include a provision in its plan stating that all documents adopted by reference are as they existed on a date certain. Documents adopted by reference that are revised subsequent to plan adoption will need to have their reference updated within the plan through the amendment process. Unless documents adopted by reference comply with paragraph 9J-5.005(2)(g), F.A.C., or are in the F.S., the F.A.C., or the Code of Federal Regulations, copies or summaries of the documents shall be submitted as support documents for the adopted portions of the plan amendment. This rule sets forth the manner in which local governments may adopt and incorporate by reference documents into their comprehensive plans. If they choose to do so, they must identify the title and author of the document being incorporated by reference, the edition of the document, and the specific portion of the document relied upon. Whenever an amendment or change to the incorporated document occurs at a future time, the local government must readopt those changes in order for them to be valid and effective. On its face, the rule applies exclusively to the use of incorporated documents in comprehensive plans, or plan amendments, and has no application to LDRs. In the case of Town of Golden Beach et al. v. City of Sunny Isles Beach et al., No. 03-472AP (Fla. 11th Cir.Ct., Appellate Division, June 15, 2004), a copy of which has been submitted as Exhibit G, Petitioners unsuccessfully sought by petitions for writ of certiorari to quash a City Resolution which granted Intervenor's application to construct a condominium at 19505 Collins Avenue, Sunny Isles Beach. The application sought approval of a site plan for the condominium and approval of the use of the property as a receiver site for the transfer of 38,847 square feet of transfer development rights in accordance with the City's LDRs. In that proceeding, Petitioners contended that they were denied due process because the City failed to provide proper notice to neighboring property owners under Section 515.7 of the LDRs; and that the City violated the essential requirements of the law by improperly transferring development rights and additional floor area ratio through bonuses to the developer, in excess of the 2.5 FAR expressly permitted by the City's Plan and LDRs. The court ruled in favor of the City on both issues. The parties agree, however, that a motion for rehearing of that decision has been filed by Petitioners, and the decision is not yet final. Further, the decision does not clearly indicate whether the same consistency arguments raised here were adjudicated in that matter. The notice issue is not the same.
The Issue At issue in this proceeding is whether the amendments to the Collier County Comprehensive Plan adopted by Ordinance No. 99-82 (the "Interim Amendments") are "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties The Petitioners each own property and operate businesses in Collier County. Each Petitioner has members who reside in Collier County. Each Petitioner submitted oral comments to the County regarding the Interim Amendments during the period between transmittal and adoption. The Petitioners timely filed their Petition in this proceeding. The Petitioners are "affected persons" pursuant to Section 163.3184(1), Florida Statutes, and have standing to bring this proceeding. The County is the local government whose land use amendment is at issue in this proceeding. The Department is the state land planning agency with the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes. James A. Brown, as Trustee of the East Naples Land Company, owns property in the County and submitted comments to the County regarding the Interim Amendments during the adoption process. Barron Collier Partnership owns property and operates a business in the County and submitted comments to the County regarding the Interim Amendments during the adoption process. Collier Enterprises, Ltd. owns property and operates a business in the County and submitted comments to the County regarding the Interim Amendments during the adoption process. Consolidated Citrus Limited Partnership owns property and operates a business in the County and submitted comments to the County regarding the Interim Amendments during the adoption process. Pacific Tomato Growers owns property and operates a business in the County and submitted comments to the County regarding the Interim Amendments during the adoption process. Alico, Inc. owns property and operates a business in the County and submitted comments to the County regarding the Interim Amendments during the adoption process. Jack Price owns property, resides and operates a business in the County, and submitted comments to the County regarding the Interim Amendments during the adoption process. Russell Priddy owns property, resides and operates a business in the County, and submitted comments to the County regarding the Interim Amendments during the adoption process. Background On April 6, 1996, the County adopted an Evaluation and Appraisal Report ("EAR") for its Plan. Each local government is required to adopt an EAR once every seven years, assessing its progress in implementing its comprehensive plan. Section 163.3191(1), Florida Statutes. The local government must then amend its comprehensive plan to reflect the data and analysis and recommendations in the EAR. Section 163.3191(10), Florida Statutes. The County adopted its EAR-based amendments on November 14, 1997. The Department reviewed these EAR-based amendments, found that they did not comply with state law, and on December 24, 1997, published a Notice of Intent to find the amendments not "in compliance." The Department then instituted administrative proceedings against the County pursuant to Section 163.3184(10), Florida Statutes. The Florida Wildlife Federation and the Collier County Audubon Society intervened in support of the Department's original not "in compliance" determination. A formal administrative hearing was held over a five- day period in May 1998. On March 19, 1999, a recommended order was entered recommending that all of the challenged EAR-based amendments be determined not "in compliance." The recommended order was forwarded to the Administration Commission for final agency action pursuant to Section 163.3184(10)(b) and (11), Florida Statutes. The Administration Commission entered its Final Order on June 22, 1999. The 1999 Final Order directed the County to take specific remedial actions that would bring the comprehensive plan into compliance, including: rescinding the EAR-based amendments that were not in compliance; adopting certain specifically described remedial amendments; undertaking a comprehensive assessment of all lands in the County designated in the comprehensive plan as Agricultural/Rural, the Big Cypress Swamp Area of Critical State Concern, conservation lands outside the urban boundary, and South Golden Gate Estates (hereinafter referred to as the “Assessment”); and establishing interim development provisions during the Assessment period, including a moratorium on certain types of development, and the designation and mapping of certain specified NRPAs. On November 23, 1999, the County adopted the Interim Amendments, intended to establish the interim development restrictions and provide for the Assessment ordered by the 1999 Final Order. As set forth in detail in the June 29, 2000, order granting the County's Motion in Limine, to the extent that the County merely enacted measures specifically ordered by the Administration Commission, those measures are not within the purview of this proceeding. Only those Interim Amendments that incorporate some measure of County discretion are subject to full "in compliance" analysis. The Interim Amendments Policies 4.9 and 4.10 of the Future Land Use Element of the Plan, enacted as part of the Interim Amendments, provide: Policy 4.9: Prepare a Rural and Agricultural Area Assessment, or any phase thereof, and adopt plan amendments necessary to implement the findings and results of the Assessment, or any phase thereof, pursuant to the Final Order (AC-99-002) issued by the Administration Commission on June 22, 1999. The geographic scope of the assessment area, public participation procedures, interim development provisions, and the designation of Natural Resource Protection Areas on the Future Land Use Map are described in detail in the Agricultural/Rural Designation Description Section. Policy 4.10: Public participation and input shall be a primary feature and goal of the planning assessment effort. Representatives of state and regional agencies shall be invited to participate and assist in the Assessment. The County shall ensure community input through each phase of the Assessment which may include workshops, public meetings, appointed committees, technical working groups, and established advisory boards including the Environmental Advisory Committee and the Collier County Planning Commission in each phase of the Assessment. The Interim Amendments also added the following language to the Future Land Use Designation Description Section, under the "Rural & Agricultural Area Assessment" section of Section II, entitled "Agricultural/Rural Designation:" The Governor and Cabinet sitting as the Administration Commission, on June 22, 1999, issued the Final Order (AC-99-002) pursuant to Section 163.3184(10)(b), Florida Statutes, in Division of Administrative Hearing Case No. 98-0324GM. Pursuant to the Order, Collier County is required to prepare a Rural and Agricultural Assessment (Assessment). This Assessment may be phased. The Geographic Scope of the Assessment Area shall be as follows: Includes: All land designated Agricultural/Rural Big Cypress Area of Critical State Concern Conservation lands outside the Urban Boundary South Golden Gates Estates Excludes: All Urban designated areas Northern Golden Gate Estates The Settlement District The Assessment, or any phase thereof, shall be a collaborative, community-based effort with full and broad-based public participation and assistance from applicable State and Regional agencies. At a minimum, the Assessment must identify the means to accomplish the following: Identify and propose measures to protect prime agricultural areas. Such measures should prevent the premature conversion of agricultural lands to other uses. Direct incompatible uses away from wetlands and upland habitat in order to protect water quality and quantity and maintain the natural water regime as well as to protect listed animal and plant species and their habitats. 3. Assess the growth potential of the Area by assessing the potential conversion of rural lands to other uses, in appropriate locations, while discouraging urban sprawl, directing incompatible land uses away from critical habitat and encouraging development that utilizes creative land use planning techniques including, but not limited to, public and private schools, urban villages, new towns, satellite communities, area-based allocations, clustering and open space provisions and mixed use development. The Assessment, or any phase thereof, shall recognize the substantial advantages of innovative approaches to development which may better serve to protect environmentally sensitive areas, maintain the economic viability of agricultural and other predominantly rural land uses, and provide for the cost efficient delivery of public facilities and services. At the time of the hearing, the County had already commenced the process of conducting the Assessment. Two citizen advisory committees have been organized, each with responsibility for developing recommended land management policies for a specific geographical area within the scope of the Assessment. The Rural Fringe Committee is focusing its attention on that portion of the Assessment area closest to the west coast urban boundaries. The Rural Lands Committee is focusing on the largely agricultural lands in eastern Collier County. Unless the Administration Commission modifies the schedule set forth in the 1999 Final Order, the comprehensive plan amendments resulting from the Assessment must take effect on or before June 22, 2002. In addition to providing for the Assessment, the Interim Amendments impose additional restrictions on the use of land within the Assessment area while the Assessment is underway. These "Interim Development Provisions for the Agricultural/Rural Assessment Area" provide: Amendments based on the Assessment shall be completed by June 22, 2002. Residential and other uses in the Area for which completed applications for development approval, rezoning, conditional use, subdivision approval, site plan approval, or plats were filed with or approved by Collier County prior to June 22, 1999, shall be processed and considered under the Comprehensive Plan as it existed on June 22, 1999. If the County elects to address a specific geographic portion of the Area as a phase of the Assessment, the interim land use controls shall be lifted from the specific geographic area upon completion of the applicable phase of the Assessment and the implementing Comprehensive Plan amendments for that phase becoming effective. Until the Assessment is complete and Comprehensive Plan amendments to implement the Assessment, or any phase thereof, are in effect, the only land uses and development allowable in the area shall be those set forth in the Agricultural/Rural Mixed Use District and the Land Development Code (Section 2.2.2) in effect on June 22, 1999 for the Agricultural/Rural District, except the following uses are prohibited and shall not be allowed: New golf courses or driving ranges; Extension or new provision of central water and sewer service into the Area; New package wastewater treatment plants; Residential development except farmworker housing or housing directly related to support farming operations, or staff housing (12 du/ac) and other uses directly related to the management of publicly-owned land, or one single-family dwelling unit per lot or parcel created prior to June 22, 1999; Commercial or industrial development except gas and telephone facilities, electric transmission and distribution facilities, emergency power structures, fire and police stations, emergency medical stations; Transient residential such as hotels, motels, and bed and breakfast facilities; Zoo, aquarium, botanical garden, or other similar uses; Public and private schools; Collection and transfer sites for resource recovery; Landfills; Social and fraternal organizations; Group care facilities; Sports instructional schools and camps; Asphalt and concrete batch making plants; and Recreational vehicle parks. These interim development standards shall not affect or limit the continuation of existing uses. Existing uses shall also include those uses for which all required permits have been issued, or uses for which completed applications have been received by the County prior to June 22, 1999. The continuation of existing uses shall include expansions of those uses if such expansions are consistent with or clearly ancillary to the existing use and do not require a rezoning or comprehensive plan amendment. These interim development standards mirror those ordered by the Administration Commission in the 1999 Final Order. The Interim Amendments also designated certain areas as Interim NRPAs and added additional limitations on the development allowed within those areas. The Interim NRPAs and accompanying restrictions are as follows: The following areas shall be generally mapped and identified as Natural Resource Protection Areas (NRPAs): Camp Keais Strand, CREW Lands, Okaloacoochee Slough, Belle Meade and South Golden Gate Estates. Natural Resource Protection Areas (NRPAs) are designated on the Future Land Use Map: Within these areas, only agriculture and directly-related uses and one single-family dwelling unit per parcel or lot created prior to June 22, 1999, shall be allowed; These interim development standards shall not affect or limit the continuation of existing uses. Existing uses shall also include those uses for which all required permits have been issued, or uses for which completed applications have been received by the County prior to June 22, 1999. The continuation of existing uses shall include expansions of those uses if such expansions are consistent with or clearly ancillary to the existing use and do not require a rezoning or comprehensive plan amendment; The general location shall be identified on a map as the interim NRPAs and shall be refined as actual data and analysis is made available during the Collier County Rural and Agricultural Area Assessment. Objective 1.3 of the Conservation and Coastal Management Element of the Interim Amendments further explains the County's purpose in establishing the Interim NRPAs and how they would be treated during the Assessment: Pursuant to Administration Commission Final Order AC-99-002 dated June 23, 1999, complete the phased delineation, data gathering, management guidelines and implementation of the NRPA Program as part of the required Collier County Rural and Agricultural Assessment. The purpose of the NRPAs will be to assist State and Federal agencies’ efforts to protect endangered or potentially endangered species (as listed in current “Official List of Endangered and Potentially Endangered Fauna and Flora Florida”, published by the Florida Game and Fresh Water Fish Commission, the predecessor agency of the Florida Fish and Wildlife Conservation Commission) and their habitats. Pursuant to the Administration Commission Final Order, the County has mapped and identified the Camp Keais Strand, CREW Lands, Okaloacoochee Slough, Belle Meade and South Golden Gate Estates as NRPAs, with the express understanding that during the Rural and Agricultural Assessment (Assessment) required by the Final Order, the goal of assisting in the protection of endangered species and their habitat will be further addressed and that appropriate protection measures will be incorporated into the comprehensive plan amendments to be adopted at the conclusion of the Assessment. In the interim, and during the Assessment, a development moratorium as set forth in the Final Order and in Ordinance 99-77 will be in place until comprehensive plan amendments are adopted. The County has determined that the development moratorium, the NRPA boundaries approved November 23, 1999, and the additional restrictions that apply within the existing Area of Critical State Concern provide sufficient protection for these resources on an interim basis until adoption of the final comprehensive program to protect these resources. In selecting the final comprehensive program the County, as part of the Assessment, will evaluate the NRPA program and its criteria and implementation as well as other programs which may better provide adequate protection to the resources. In addition to the Interim NRPAs, the County determined that certain other areas within the Assessment area should be specifically addressed and evaluated as part of the Assessment, thus creating "special study areas" ("SSAs") pursuant to Policy as follows: The Program will, subject to completion of the Assessment and adoption of the comprehensive plan amendments, include the following: Identification of the NRPAs in map form as an overlay to Future Land Use Map. Pursuant to the Final Order, the general areas of Camp Keais Strand, CREW Lands, Okaloacoochee Slough, Belle Meade and South Golden Gate Estates have been mapped and identified as NRPAs on the Future Land Use Map. The areas shall be further refined as the Assessment is implemented as a collaborative and community-based effort. All available data shall be further considered and refined during the Assessment to determine the final boundaries of these NRPAs. As part of the Assessment, the County shall evaluate the merits of including additional areas into these boundaries including, but not limited to, the area of Northern Belle Meade, the area known as the “Stovepipe” to the north, northwest and northeast of the Okaloacoochee Slough and the area southwest of the Okaloacoochee Slough to the southeastern portion of the Camp Keais Strand which is south of Oil Well Road (CR 858). These additional study areas are shown on the Future Land Use Map. Within these study areas, the following shall be the primary focus of additional study: North Belle Meade Study Area: examine the extent to which existing agricultural operations, improvements and facilities have impacted water flow and quality, wetlands and habitat for the Florida panther and other listed species; examine the impacts of abutting urban and Estates development; examine access into the area and connectivity to other habitat as it relates to the Florida panther; examine opportunities for restoration of flow-ways, buffering from abutting development and improvements for listed species habitat through actions to include consideration of the addition of underpasses to Interstate 75; examine the impacts of potential earth mining activities on the above resources; and examine whether use of transfer of development rights would be appropriate in this area and, if so, whether there should be any restrictions on their use; examine the possibility of public acquisition of these properties. Stovepipe Study Area examine the level of existing and permitted agricultural improvements and impacts on listed species and their habitats; examine whether the existing Area of Critical State Concern program affords sufficient protection to listed species and their habitat; examine the possibility of acquisition of these properties by State or Federal programs, including partial acquisition programs, an example of which would be conservation easements; examine whether use of transfer of development rights would be appropriate in this area and if so, whether there should be any restrictions on their use; examine and analyze the Florida panther’s use of agricultural lands and whether such agricultural lands constitute critical habitat for the species; and examine and analyze whether any lands should be restored. Oil Well Road (CR 858) Study Area examine the extent to which existing agricultural and mining operations, improvements and facilities have impacted listed species and their habitat; examine documented movement of the Florida panther in the area; examine and analyze the Florida panther’s utilization of agricultural lands and whether such agricultural lands constitute critical habitat for the species; examine whether use of transfer of development rights would be appropriate for this area and, if so, whether there should be any restrictions on their use: and determine whether the east/west wildlife corridor provided by the Florida Panther National Wildlife Refuge and the Big Cypress National Preserve provides sufficient connectivity to protect the species. In addition to the moratorium referenced above, the County shall give notice to the Florida Department of Community Affairs if all applications to develop or otherwise impact the above special study areas. * * * The County recognizes that the NRPA program is not the only mechanism to protect significant environmental resources and that the NRPAs being established at this time are of an interim nature in conjunction with the development moratorium required by the Final Order. As a consequence, the designation of an area as a NRPA or as part of a special study area is not intended to affect property valuation on specific parcels. It is anticipated that the Assessment will address all of the issues identified above and that the resulting comprehensive plan amendments will provide resource protection measures best suited to meet the goals and objectives of this comprehensive plan. Establishment of Interim NRPA Boundaries The 1999 Final Order directed the County to adopt five areas as Interim NRPAs: the Camp Keais Strand; the CREW Lands; the Okaloacoochee Slough; Belle Meade; and South Golden Gate Estates. The 1999 Final Order does not provide a map or legal description of these five areas. Even aside from the 1999 Final Order, there are no maps or legal descriptions to describe precisely the boundaries of these areas. The evidence established that there is a general understanding of the location of these areas, but that the County necessarily exercised discretion in defining the boundaries of these Interim NRPAs. The term "Natural Resource Protection Area" is not defined in federal or state laws or regulations. The term is a creation of the Collier County Comprehensive Plan, and was first included in the Conservation and Coastal Management Element ("CCME") of the 1989 Plan. The 1989 Plan contained the adopted Goals, Objectives and Policies governing land use and development in the County. The 1989 Plan also included data and analysis that was not adopted as a binding part of the Plan. The unadopted data and analysis in the 1989 Plan included a support document for the CCME. This support document set forth the standards for NRPAs. It designated NRPAs as "eco- systems having extremely important ecological functions," and ranked four subcategories according to "the degree of restrictiveness of protection afforded": Estuaries and Coastal Barrier Areas Water Protection and Conservation Areas Critical Ecological Corridors Rare, Unique and Endangered Habitats. William Lorenz, the County's natural resources director, testified that the County looked at these categories to provide general guidelines for the functions of NRPAs. The County employed an iterative method in developing the Interim NRPA boundaries, with County staff developing, reviewing, and modifying draft maps. Mr. Lorenz testified that there was a good deal of debate among staff members as to the location of the Interim NRPA boundaries. The County also sought the assistance of outside agencies, including the Florida Fish and Wildlife Conservation Commission. James Beever, a biological scientist, was the Conservation Commission's principal liaison with the County for purposes of the Interim NRPA determination. Mr. Beever testified that he did not use the 1989 Plan in making his recommendations because the County asked him to use the best available scientific information, which was not necessarily included in the 1989 Plan. Mr. Beever also testified that he was unfamiliar with the County's development moratorium for rural Collier County at the time he developed his recommendations. The Conservation Commission, through Mr. Beever, recommended a procedure for the delineation of NRPAs: Start with the existing proposed land acquisition boundaries or Florida Panther Recovery Plan boundaries for the designated areas. For the Southern Golden Gate Estates, this will be all that is needed to define that NRPA. For all other areas, such as the Corkscrew Regional Ecosystem Watershed (CREW), expand the NRPA beyond the acquisition boundary when there is existing connected native habitats. Roadways alone do not sever connection, since wildlife underpasses can be incorporated in NRPA criteria. This would "pick up" habitat continua that were not in the original boundaries that may have been drawn strictly on straight section lines. Some examples would be to include: undeveloped areas of Northern Belle Meade, above Interstate 75, that were included in the original study performed by Kim Dryden and myself, connecting the proposed Winding Cypress DRI to the Southern Belle Meade, and including the entire Bird Rookery Swamp system attached to CREW. County staff considered these recommendations and other materials, and arrived at seven "General Guidelines for Delineating NRPA Boundaries": Identify major wetlands systems and regional flow-ways. Incorporate areas having upland native habitat contiguous to the identified major wetland systems and regional flow-ways. Provide for areas containing listed species habitats that are contiguous to the identified wetland systems and regional flow- ways. Include areas that are identified on the 1999 CARL Acquisition List, unless the area is severely impacted. Provide connections to other existing conservation areas. Include areas with minimal fragmentation from existing residential developments and transportation systems. Provide sufficient land area to buffer native habitats from intensive land uses. Applying these criteria, the County transmitted to the Department proposed Interim NRPAs that included 140,564 acres. Almost 125,500 acres of this land is wetlands, accounting for 13% of all wetlands in Collier County. One of the Petitioners' chief contentions was that the boundaries of the Interim NRPAs adopted by the County were significantly smaller than the boundaries proposed by County staff. The Petitioners did not object to any of the lands actually included in the Interim NRPAs; rather, they believed that more lands should be added to them. As to the Camp Keais Strand and Okaloacoochee Slough NRPAs, the biggest point of debate in the County was the amount of agricultural lands that should be contained in the Interim NRPAs. This was debated before the Board of County Commissioners and the Planning Commission, as well as the Environmental Advisory Council. County staff’s initial proposal included more agricultural fields in the Interim NRPAs than the County finally adopted. The County ultimately excluded intensive agricultural lands and mining pits from the Interim NRPA delineations. As to the Camp Keais Strand NRPA, the County ultimately excluded extensive farm and row crop fields, as well as active storm water management systems located on these agricultural lands. Mr. Lorenz testified regarding County staff’s initial recommended NRPAs. County staff initially relied heavily on the Closing the Gaps report and its derivative materials, discussed below. Staff also initially relied upon the South Florida Water Management District’s "Florida Land Use Coverage Classification System" ("FLUCCS"), which is a display of land coverage information from the 1994-1995 database. Staff also coordinated with Mr. Beever, as noted above. County staff initially drew their proposed Interim NRPA boundaries along section and quarter section lines. Mr. Lorenz acknowledged that natural features typically do not follow section and half section lines, and that the boundaries finally selected more closely reflect natural features rather than legal descriptions. ECPO provided County staff with aerial photographs of the land in the eastern Collier County, and Mr. Lorenz had discussions with people who actually farmed that land. The information provided by ECPO was used in determining the interim NRPA boundaries that the County finally adopted. One area eliciting a great deal of evidence at hearing was North Belle Meade, which the FLUCCS map indicates is 90% wetlands. North Belle Meade was excluded from the interim NRPAs for several reasons. First, it is surrounded on three sides by areas of accelerating urban development and is bordered by I-75 on the fourth side. Mr. Beever conceded that the development of North Golden Gate Estates, to the east and north, will greatly reduce the habitat value of North Belle Meade. Mr. Beever also conceded that I-75 is a barrier in the landscape continuum between North Belle Meade and the Belle Meade interim NRPA. Based on his general experience, Mr. Beever did not believe that the interstate prevents panthers from crossing from one area to the other, but he admitted that he had no specific information regarding panthers crossing I-75 between North Belle Meade and Belle Meade. North Belle Meade has not been identified as a habitat conservation area for the Florida panther by the Florida Fish and Wildlife Conservation Commission. Another reason for the exclusion of North Belle Meade was the large number of individual landowners and small parcels platted within the area prior to June 22, 1999. The 1999 Final Order provided that developments approved prior to June 22, 1999, would not be subject to the use restrictions otherwise imposed by NRPA designation. This provision led the County to exclude from the Interim NRPAs those areas with approved developments. In North Belle Meade, landowners could permissibly build a single family residence on each parcel platted before that date, even if the area were designated as an interim NRPA, thus minimizing the utility of the designation. Finally, hydrologic changes have already had significant impact on the native vegetation of North Belle Meade, distinguishing its character from that of those areas adopted as interim NRPAs by the County. The areas designated as Interim NRPAs are large, connected systems. The criteria emphasized connecting areas with native habitat cover, which led to the exclusion from the NRPAs of active agricultural areas located on the outer edges of areas being considered for inclusion. Both Gary Beardsley and Mr. Beever testified that certain wildlife, such as the Florida panther and wading birds, use agricultural areas as habitat, particularly where there is a mosaic of agriculture mixed with native vegetation. They also testified that there is no hard data as to the extent to which such species rely on agricultural areas, or as to the type of agricultural uses that enhance, rather than degrade, the habitat value of lands. Mr. Beever disagreed with the Interim NRPA boundaries established by the County, but he also testified that he would not recommend including within those boundaries areas that have been converted from native to non-native vegetation, particularly active agriculture with heavy hydrological maintenance. The Department reviewed the transmitted NRPA boundaries and issued its Objections, Recommendations, and Comments ("ORC") Report. The ORC Report objected to the exclusion of three areas that appeared to meet the requirements for Interim NRPA designation: North Belle Meade; the "Stovepipe" area to the north, northwest, and northeast of the Okaloacoochee Slough; and the area southwest of the Okaloacoochee Slough that links the Slough to the southeastern portion of the Camp Keais Strand. The County responded by establishing the three SSAs described in Finding of Fact 26 above, covering North Belle Meade, the Stovepipe, and Oil Well Road. The SSAs correspond to the exclusions noted in the ORC Report's objections. Within these areas, the County recognizes the potential for significant natural resource issues, but also recognizes the impact of agricultural and mining activities on those resources. The Petition The Petitioners allege that the Interim NRPA delineations are not "in compliance" for the following reasons: They are not supported by data and analysis, as required by Section 163.3177(6)(a),(8), and (10)(e), Florida Statutes and Rule 9J-5.005(2)(a), Florida Administrative Code; They are not supported by data and analysis regarding the suitability of authorized land development; They fail to ensure adequate protection of natural resources; They are internally inconsistent with the Collier County Comprehensive Plan, particularly CCME Objectives 1.1 and 1.3, and Policy 1.3.1; and They are inconsistent with the State Comprehensive Plan, particularly Section 187.201(10)(a),(10)(b)(1),(10)(b)(3), (10)(b)(5), and (10)(b)(7), Florida Statutes. Data and Analysis The five interim NRPAs specified by the 1999 Final Order all lie outside the urban boundary of the County. The privately owned land in rural Collier County is predominantly in active agricultural use. Tom Jones, director of government affairs and environmental resources for Barron Collier Partnership, described rural Collier County as one of the most intensely farmed areas in southwest Florida. Mr. Jones testified that citrus operations have been in place around the Corkscrew Marsh and Lake Trafford since the 1960s, with expansions occurring in the 1980s and again in the 1990s. Tomato and potato cultivation have been in place for decades south of Lake Trafford along the Camp Keais Strand. Citrus, pasture, and row crops have occupied large expanses of rural Collier County since the end of World War II. These operations are conducted on a large scale. Mr. Jones pointed to one phase of citrus planting by Barron Collier Partnership that covers 4,500 acres. He also indicated that a single stormwater detention area for a tomato farm covers 13 square miles. Publicly owned land is also prevalent in rural Collier County. The area contains Big Cypress National Preserve, the Florida Panther National Wildlife Refuge, Fakahatchee Strand State Preserve, Collier Seminole State Park, and the Cape Romano- - Ten Thousand Islands Aquatic Preserve. Approximately 73% of the land in Collier County is either in public ownership or on an active acquisition list. No evidence was presented at the hearing indicating substantial residential development pressure in rural Collier County. Robert Mulhere, the County's planning director, testified that the established use of the land for agriculture has been under pressure for conversion to "upscale master plan residential golf course communities." The 1999 Final Order recognized this pressure, requiring that the Interim Amendments prohibit golf course development during the assessment period. The Petitioners contend that one of the most important sources of data and analysis relating to the wildlife and wildlife habitat of rural Collier County is Closing the Gaps in Florida's Wildlife Habitat Conservation System, a 1994 publication by individuals working for the Florida Game and Fresh Water Fish Commission (now the Florida Fish and Wildlife Conservation Commission). Closing the Gaps was an effort to map the land cover of the entire state, based on computer analysis of Landsat satellite imagery collected from 1985 to 1989. About 2.72 million acres, or 8% of the land area of Florida, was field inspected using a helicopter equipped with a Loran-C unit. The authors stated that, based on field reports, they estimated the overall accuracy of the land cover map at 80 to 90%, though they also acknowledged that accuracy varies according to the type of land cover being mapped. Ross McWilliams, an environmental consultant testifying on behalf of ECPO, stated that Closing the Gaps is a "good general document" and contains the best available data to someone looking at Florida from a large scale perspective in terms of land forms and types of species. Closing the Gaps states that the portion of Collier County northwest of the Big Cypress National Preserve, consisting of a "mixture of cypress swamp, hardwood swamp, dry prairie, and pineland represents one of the most important wildlife areas remaining in Florida." Closing the Gaps, p. 174. Closing the Gaps finds that nearly all of the Big Cypress Area of Critical State Concern that is not publicly owned is good habitat for the Florida panther, Florida black bear, and the American swallow-tailed kite. Id. Closing the Gaps reports that the privately owned lands west of State Road 29 and north of I-75 support a stable Florida black bear population, and rates much of the privately owned portion of the Big Cypress area as outstanding potential bear habitat, in terms of proximity to conservation areas, extent of roadless areas, diversity of cover types, and the presence of specific cover types. Closing the Gaps, p. 52, 174. Closing the Gaps states that "quick and aggressive action" is required to save the Florida panther from extinction, and cites the conversion of large areas of rangeland and native land cover to agriculture as one the greatest threats to the continued existence of panther habitat. The report singles out citrus development as a threat to subdivide existing, contiguous panther habitat. Closing the Gaps, p. 68. Among its suggestions for protecting natural resources, Closing the Gaps cites acquisition of privately held lands as the most effective and least controversial method, along with the purchase of lesser rights such as conservation easements. Closing the Gaps also urges local governments to protect valuable habitat through their comprehensive plans. Closing the Gaps, p. 191. ECPO agreed that Closing the Gaps is a useful tool for examining Florida's natural resources in terms of habitat and species at a statewide level in order to determine where there may be gaps in the state's conservation programs. However, ECPO convincingly demonstrated that an effort to base local planning decisions on the large scale satellite imagery utilized by Closing the Gaps is a misuse of that document. The text of Closing the Gaps itself contains disclaimers as to the utility of its satellite maps: The maps appearing in this report are intended to provide guidance to decision makers involved in public land acquisition, land use planning, development regulation, and other land conservation efforts. The maps represent our best estimate of those Florida lands that require some form of conservation to ensure that biodiversity is maintained for future generations. However, these maps represent only a snapshot of Florida’s conservation needs at one time. For example, the vegetation map used to create species distribution maps was based on satellite imagery dated 1985-1989; the species occurrence information is current through 1991-1993, depending on the species; and the database of public land boundaries extends only through 1992. As a consequence, some areas identified for protection may already be in public ownership or may no longer support the habitat features or species predicted to occur there, and the maps should not be incorporated into law or rule as inviolate zones in which no development may occur. Rather, the maps should be used as a layer of information when decisions are made concerning land acquisition, land-use planning, and development regulation. Closing the Gaps, p. 1 (Emphasis added). Another portion of Closing the Gaps restates its limitations as a definitive document for local planning purposes: The reader should be aware that the maps represent only a snapshot of Florida’s conservation needs at one point in time. The data on which the maps are based are already out-dated, and they will become increasingly out of date as time goes by. For example, the satellite imagery used for vegetation mapping and habitat modeling was collected between 1985 and 1989. Undoubtedly, some natural areas we identified as needing protection have been destroyed during the time it has taken to collect and analyze the data and publish the results. The temporal nature of the maps has two effects. First, because some areas identified as needing protection may no longer support the habitat features or species expected to occur there, these maps should not be incorporated into law or rule as inviolate zones in which no development may occur. Rather, the maps should be used as a layer of information in the making of decisions concerning land acquisition, land- use planning, and development regulation. Second, as time goes by, new parcels of land come into public ownership, new data become available on the locations of rare species, and the character of the Florida landscape changes. As a result, project maps are continually being updated with new information, and the latest version of the maps actually resides in the computer at the Office of Environmental Services. Therefore, before using the maps in this report for detailed management decisions, users should contact the Office of Environmental Services at the address below for the latest information on lands currently recommended for protection. Closing the Gaps, p. 9 (Emphasis added). Mr. Beever testified that he used Closing the Gaps in making his recommendations on behalf of the Florida Fish and Wildlife Conservation Commission, but conceded that aerial photographs provided by ECPO's consultants were more up to date and accurate. The evidence presented by ECPO demonstrated not only that some of the information in the Closing the Gaps maps is out of date, but that it was inaccurate even at the time the satellite images were made as applied to the relatively small scale of the areas at issue. Parts of the North Camp Keais area that were labeled "other vegetation" in Closing the Gaps were actually in agricultural use. Tim Durham of Wilson Miller, ECPO's consultant, testified that the inaccuracies were a function of attempting to apply habitat models based on the large scale satellite maps in Closing the Gaps to what is actually on the ground in a relatively small area. Mr. Durham stated that "it's almost like static on a T.V. screen. You’re starting to see a bunch of things that aren't really there. The habitat models were assuming habitats that weren't really out there." Mr. Durham found that the satellite imagery in Closing the Gaps provided inaccurate data that some of the agricultural lands contained four or five different habitat types in a tight mosaic. This data would cause a computer model erroneously to classify these agricultural lands as good native habitat. Mr. Beever noted that the Closing the Gaps data is being updated. However, the update continues to assume the correctness of the earlier data, leading the unwary reader to assume that large areas of natural habitat have been converted to agriculture between the years 1986 and 1996, though in fact the lands at issue have been in agricultural use throughout this period. Ross McWilliams, ECPO's environmental consultant, conducted an analysis of Closing the Gaps in comparison to what is actually on the lands in eastern Collier County and concluded that the vegetative land cover set forth in Closing the Gaps contained extensive errors. Mr. McWilliams found that Closing the Gaps mapped thousands of acres of agricultural lands as "scrub and brush." Mr. McWilliams visited 14 specific sites in eastern Collier County rural areas, and found that the "signature" (i.e., the identification of the predominant type of land cover) set forth in Closing the Gaps was incorrect for all 14 sites. The Petitioners also presented evidence that the Interim Amendments do not afford adequate protection to listed species. The exhibits presented by the Petitioners to establish the location and extent of Collier County habitat for the red cockaded woodpecker, wading bird rookeries, bald eagle, black bear, and Florida scrub jay were all based on Closing the Gaps data and thus not entirely reliable. As noted above, Closing the Gaps is not a reliable tool for establishing land cover on the small scale required for local planning purposes. Its findings as to habitat and potential habitat were based on its land cover findings, and therefore also suspect. The Petitioners also presented panther telemetry data to indicate the movement of the Florida panther in Collier County. The telemetry data persuasively demonstrated the presence of panthers in the area, but were inconclusive to establish the number of panthers moving through the area or their precise activity patterns. One of the purposes of the Assessment is to examine the telemetry data in order to better understand the panthers' movement and plan for their protection in the final plan amendments. This points to the overall conceptual problem with the Petitioners' case: it is premature. The Petitioners challenge the Interim NRPAs as not based on a thorough assessment of the County's natural resources, when the 1999 Final Order contemplates that the Interim NRPAs are a necessary prelude to that very assessment. The 1999 Final Order directed that the Assessment will cover virtually all of rural Collier County, and will have a three-part purpose: identify and propose measures to protect prime agricultural areas and prevent premature conversion of agricultural lands to other uses; direct incompatible uses away from wetlands and upland habitat in order to protect water quality and quantity, maintain the natural water regime, and protect listed animal and plant species and their habitats; and assess the growth potential of the Assessment area by assessing the potential conversion of rural lands to other uses, in appropriate locations, while discouraging urban sprawl, directing incompatible land uses away from critical habitat and encouraging development that utilizes creative land use planning techniques, recognizing the substantial advantages of innovative approaches to development that may protect environmentally sensitive areas, maintain the economic viability of agricultural and other predominantly rural land uses, and provide for the cost-efficient delivery of public facilities and services. The concerns raised by the Petitioners at this hearing are the same concerns voiced by the 1999 Final Order, which sets forth the procedures the County is to follow. The Petitioners are in effect asking the County to reach its conclusions as to natural resources issues before it undertakes the Assessment mandated by the Final Order. This request is impracticable. The testimony at the hearing established a broad scope for the Assessment and the amendments that may arise therefrom. The Assessment may result in the expansion of the Interim NRPA boundaries. It may result in the creation of new NRPAs. The County may arrive at a solution for protecting its natural resources that does not involve the designation of NRPAs. Based upon the data available to the County, and keeping in mind their transitional nature, the boundaries defined for the Interim NRPAs are at least fairly debatable. The concerns raised by the Petitioners will be addressed during the Assessment period. Once the Assessment is completed, the Petitioners will have the opportunity to contest the County's finished work product.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order finding the Interim Amendments to be "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 4th day of December, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 4th day of December, 2000. COPIES FURNISHED: C. Laurence Keesey, Esquire R. Bruce Anderson, Esquire Young, van Assenderp, Varnadoe & Anderson, P.A. 801 Laurel Oak Drive, Suite 300 Naples, Florida 34108 Ernest A. Cox, Esquire Patrick W. Maraist, Esquire Gunster, Yoakley, Valdes-Fauli & Stewart 777 South Flagler Drive, Suite 500E West Palm Beach, Florida 33401-6161E Shaw P. Stiller, Esquire Office of the General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Thomas W. Reese, Esquire 2951 61st Avenue, South St. Petersburg, Florida 33712 Martha Harrell Chumbler, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Marjorie M. Student, Esquire Collier County Attorney's Office Administration Building, 8th Floor 3301 East Tamiami Trail Naples, Florida 34112-4902 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
Findings Of Fact Purchase of the Subject Property. The property at issue in this proceeding consists of approximately fifty-two acres (hereinafter referred to as the "Subject Property"). The Subject Property was acquired by Charles L. Parham in 1988 from Forest Hills, Inc. The Subject Property is located in a rural, undeveloped portion of southern Clay County (hereinafter referred to as the "County"). The Subject Property was part of a larger tract of undeveloped, real property known as "Forest Hills." The southwestern corner of Forest Hills is bounded by State Road 100. At the time the Subject Property was purchased it was zoned Agriculture. This classification allowed use of the Subject Property for single-family residential development at a density of one unit per acre. The Subject Property was purchased by the Applicants for development as single-family sites which they intended to sell or rent and to use for their own residential purposes. Access to the Subject Property was obtained through easements (Forest Hills Road and Lone Pine Trail) from State Road 100. It is approximately one and three-quarters of a mile from State Road 100 to the Subject Property. At the time of purchase of the Subject Property by Mr. Parham, Mr. Parham was provided with a certified Boundary Survey map by Forest Hills, Inc. The Boundary Survey was certified by a land surveyor and was dated November 2, 1978. The Boundary Survey provided to Mr. Parham represented the Subject Property as consisting of forty-four tracts of approximately one acre each and four lots of approximately two acres each. Neither the Subject Property nor Forest Hills has ever been platted. That is, there is no plat of record in the Official Records of Clay County, Florida. The Applicants made the erroneous assumption that the Subject Property was platted. They made this assumption because of the Boundary Survey they were provided by Forest Hills, Inc., which depicted the division of the Subject Property into lots. The Applicants also believed that the Subject Property was platted because no one at County offices where they showed the Boundary Map told them differently. The evidence failed to prove, however, that any employee of the County told them that the Subject Property was in fact platted. The evidence also failed to prove that the County was responsible for the assumption of the Parhams that the Subject Property was platted. Development Activities on the Subject Property. The Applicants cleared and graded roads through the easements to the Subject Property. Applicants also maintained two other roads located in Forest Hills: Cactus Hill Road and Lone Pine Trail. The Applicants also cleared and graded two interior roads which dissect Forest Hills. Applicants named the interior roads "Viking Street" and "Valhalla Street". The clearing and grading of roads was performed by Applicants in order to gain access to the Subject Property for themselves and potential renters. The Applicants also cleared part of the Subject Property for their own use. Mr. Parham purchased a bulldozer prior to the purchase of the Subject Property. The bulldozer was purchased for use in developing the Subject Property for use by the Applicants as a residence, for use in developing the Subject Property for rental and for use in Mr. Parham's business. All labor in developing the roads to and on the Subject Property has been provided by Applicants. Expenses for maintenance, repair and use of the bulldozer were incurred by Applicants. Applicants purchased fill dirt and clay which was used in clearing and grading access and interior roads. Prior to the enactment of the Clay County 2001 Comprehensive Plan (hereinafter referred to as the "Plan"), Applicants sold two two-acre tracts to Inger Robertson and to Julian Wood. Although the deeds on the sale of these lots mentioned the tract numbers, they also described the property sold by metes and bounds. The property would not have been described in this manner if the property were part of a platted subdivision. Applicants were left with forty- eight tracts. Inger Robertson applied for and received a mobile home permit for her two-acre parcel in 1990. Applicants also applied for and received mobile home permits for two one-acre tracts. One mobile home was used as their residence. The three mobile home permits issued for part of the Subject Property were issued prior to enactment of the Plan. They were also issued consistent with then existing law allowing single family units on one acre parcels. Petitioners' Alleged Detrimental Reliance. At the time the Applicants obtained their two permits, the Boundary Survey showing the lot division of the Subject Property was shown to County staff and the Applicants' plans with regard to development of the Subject Property were disclosed. At the time of the acquisition of the permits from the County, the Applicants' intended use of, and development plans for, the Subject Property were consistent with County laws. No approval or other permits were required by County law in order for the Applicants to utilize and develope the Subject Property in the manner they intended. They were only required to comply with existing zoning requirements, which restricted residential use of property to one residence per acre. This the Applicants did with regard to their residence and two other tracts. They failed to obtain permits, however, for the other tracts on the Subject Property. The evidence failed to prove that the Applicants' were informed by the County that their proposed use and development of the Subject Property was "approved" or otherwise "authorized." The Applicants have not asserted that the County took any affirmative action which led them to believe that their planned development of the Subject Property was "approved". Instead, the Applicants have asserted that the County was under an obligation to tell them that the Subject Property was not, in fact, platted, and they were required to take certain actions to insure that they could develop the Subject Property as planned. The evidence failed to prove that the County was under any such obligation. The evidence also failed to prove that the Applicants asked County staff what steps they were required to take in order to insure the immediate development of the Subject Property. In 1988, the Applicants informed the County of the naming of the two roads created on the Subject Property and were given street addresses for each of the tracts identified on the Boundary Survey. The Boundary Survey was left with County staff to make a copy of for the County's records. Each of the tracts was identified for the County's 911 emergency telephone service. The assignment of names to the interior streets and street numbers to the lots was consistent with then existing law. These County actions are not the type of actions which would justify a conclusion that density limitations with regard to the Subject Property would not change. Rights That Allegedly Will Be Destroyed. On January 23, 1992, the County's Board of County Commissioners adopted the Plan. Included in the Plan is a Future Land Use Element, including Future Land Use Maps (hereinafter referred to as the "FLUM"). The Subject Property (and all of Forest Hills) is located in an area classified on the FLUM for "Agriculture/Residential Land Use". This designation allows the use of the Subject Property for single-family residential development. Density, however, is limited to one unit per ten acres. As a result of the Plan and the designated land use classification of the Subject Property, the Subject Property may not be developed as one-acre single-family residences. The result of this restricted land use, the number of individual, developable lots on the Subject Property has been reduced. This reduction in developable lots adversely impacts financing of the Subject Property. The Applicants learned of the adoption of the Plan and its impact on the Subject Property in November of 1992 when they attempted to obtain additional permits for the Subject Property.
The Issue The issue in this case is whether the amendments to the Palm Beach County Comprehensive Plan adopted by Ordinances 2008- 048, 2008-049, and 2008-050 are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2008).1/
Findings Of Fact The Parties The Department is the state land planning agency and has the statutory power and duty to review amendments to local comprehensive plans and determine whether the amendments are “in compliance,” pursuant to Section 163.3184, Florida Statutes. The County is a political subdivision of the State and has adopted a comprehensive plan that the County amends from time to time pursuant to Section 163.3187, Florida Statutes. Patricia Curry, Alexandria Larsen, and Sharon Waite own property and reside in Palm Beach County. They made comments to the County regarding the three amendments during the period of time beginning with the transmittal hearing for the amendments and ending with the adoption of the amendments. Patrick Wilson owns property and resides in Palm Beach County, but he presented no evidence at the final hearing to show that he made comments to the County on any of the challenged amendments. Sluggett is the owner of the parcel that is the subject of the amendment adopted by Ordinance 2008-050 (“Sluggett Amendment”). He resides in Palm Beach County on the land affected by the amendment. Coconut Northlake LLC and Northlake Land Group LLC are Florida corporations with their principal place of business in Palm Beach County. Coconut Northlake LLC is the owner of the property that is affected by the amendment adopted by Ordinance 2008-049 (“Northlake Amendment”). Northlake Land Group LLC has an option to purchase the property. Panattoni is a Florida corporation that entered into a contract in 2006 to purchase the property affected by Ordinance 2008-048 (“Panattoni Amendment”). Panattoni was the applicant for the Panattoni Amendment. After the application was filed, Panattoni transferred its rights and obligations under its contracts, including the contract to purchase the Panattoni Property, to Panattoni Development Company, Inc. The Amendments Ordinance 2008-50 (“Sluggett Amendment”) would change the future land use designation of a 64.48-acre parcel located at the northwest intersection of Southern Boulevard and Seminole Pratt Whitney Road (“Sluggett Property”) from Rural Residential 10 (one dwelling unit per 10 acres) to Commercial-Low/Rural Residential 5 (one dwelling unit per five acres). Ordinance 2008-49 (“Northlake Amendment”) would change the future land use designation of a 30.71-acre parcel located on the southwest corner of Coconut Boulevard and Northlake Boulevard (“Northlake Property”) from Rural Residential 20 to Commercial-Low/ Rural Residential 5. Ordinance 2008-48 (“Panattoni Amendment”) would change the future land use designation of a 37.85-acre parcel located on the south side of Lake Worth Road, 1,320 feet east of Lyons Road (“Panattoni Property”) from Low-Residential 2 to Commercial-High with an underlying 2 units per acre. Findings Applicable to all Amendments The County adopted a Managed Growth Tier System in 1999, which places all lands in the County into one of five tier classifications: Urban/Suburban, Exurban, Rural, Agricultural Reserve, and Glades. The tiers are intended to define distinct geographical areas within the County that “allow for a diverse range of lifestyle choices, and livable, sustainable communities.” None of the three amendments propose to change the Tier in which the affected properties are located. The new future land use designations created by the three amendments are allowable land uses within their respective tiers. In the Department’s Objections, Recommendations, and Comments Report, following the transmittal of the three amendments, the Department objected to the amendments for the following reason: These amendments include statements or conditions that would limit development to a certain size, use, or intensity. Without these development limitations, one or more specific facilities (water supply, water and wastewater treatment, and road capacity) would not be available at the adopted level of service standards to serve these sites if they are developed at their maximum development potential. The County has not included these site specific limitations or conditions in a policy in the Future Land Use Element nor included a corresponding and appropriate notation on the Future Land Use Atlas to clearly indicate that development limitations apply to these sites. The County addressed the Department’s objection by agreeing to place notations in its Future Land Use Atlas (FLUA) to indicate that the land uses on the properties affected by the amendments are subject to special limitations and conditions. The three amendments affect properties located near the “Acreage” and “Loxahatchee,” which are areas of antiquated subdivisions that are suburban in nature and home to approximately 50,000 people. When these areas were first platted and developed, they were far to the west of the urbanized areas of the County, and had insufficient commercial uses in or around them to serve the residents. The planning studies that have been conducted for this central-western area of the County have consistently concluded that the area needs more commercial land uses to serve the residential population. Today, there are only about 40,000 square feet of commercial uses in this central-western area of the County. Based on a planning ratio of 35 square feet of commercial uses per capita, about 1.5 million square feet of commercial uses would be needed to serve the residential population. The Palm Beach County Comprehensive Plan requires applicants for a FLUA amendment to demonstrate consistency with Policy 3.5-d of the Future Land Use Element (FLUE), regarding traffic impacts. Policy 3.5-d requires a long-term traffic analysis based on the Metropolitan Planning Organization’s 2025 Long Range Transportation Plan (“Test One”) and a short-term, five-year traffic analysis based on the County’s five-year plan (“Test Two”). Under Test One, if the traffic associated with an amendment to the FLUA would significantly impact a road that is projected to fail to operate at adopted level of service (LOS) standard “D” based on the 2025 Long Range Transportation Plan, the amendment cannot be adopted. In contrast, a failure to meet an LOS standard based on the County’s five-year plan -- Test Two -- can be remedied. Under Test Two, if LOS standards on affected roads would not be maintained, the applicant must commit to make or fund additional road improvements to accommodate the traffic impacts associated with the future land use re-designation. Alternatively, an applicant could be required to develop the land in phases so that the traffic impacts associated with each development phase can be accommodated without exceeding the capacity of the roadways. The County’s income from gas tax sources which are used to fund transportation improvements has decreased due to the nationwide downturn in the economy, and the decrease has affected the timing of some planned transportation improvements. However, the County has not abandoned the scheduled improvements for the roads that are affected by the challenged amendments. Map LU 4.1 of the comprehensive plan depicts the public wellfield protection zones within the County and the Turnpike Aquifer Protection Overlay. These planning zones were established to protect sources of public drinking water. The properties affected by the three amendments are located outside of these protection zones. Petitioners presented no competent evidence that the three amendments, alone or in combination, would harm the sources of public drinking water. Petitioners’ evidence was only sufficient to support the general proposition that more land development increases the potential for contamination of surface water and groundwater. The evidence did not establish that the three amendments, alone or in combination, create a measurable increase in the potential for contamination or pose a foreseeable threat of adverse impact to surface water or groundwater. Petitioners’ expert witnesses conceded that they had insufficient data and had conducted no specific studies to support an opinion that any of the amendments would cause harm to natural resources, generally, or to the aquifer, in particular. Ordinance 2008-50, the Sluggett Amendment2/ The Sluggett Amendment would change the future land use designation of a 64.48-acre parcel located at the northwest intersection of Southern Boulevard and Seminole Pratt Whitney Road from Rural Residential 10 to Commercial-Low/Rural Residential 5. The Sluggett Property is within the Rural Tier. Southern Boulevard and Seminole Pratt Whitney Road are major arterial roadways. The Commercial-Low designation limits building coverage to a maximum of 10 percent. On the Sluggett Property, that would equate to about 280,000 square feet of commercial development. However, the Sluggett Amendment contains a condition that further restricts the intensity of commercial development on the Sluggett Property to 161,000 square feet. Residential density on the Sluggett Property is limited to 15 residential units, and is derived from the allowed density for the 64-acre parcel (12 units), plus three more units which are allowed under the County’s Workforce Housing bonus program. The Workforce Housing bonus program allows an increase in density when some units will be developed as low or moderate income housing. The Sluggett Amendment includes a condition that requires that the commercial and residential development on the Sluggett Property meet a Traditional Marketplace Development form. Traditional Marketplace Development is a development form that requires low intensity commercial and institutional uses, vertically integrated with residential uses, with a pedestrian orientation. This development form is achieved primarily through the design and organization of buildings and public spaces and the dispersal of parking. The Sluggett Amendment limits any single non- residential or commercial single tenant to a maximum of 65,000 square feet. To the north of Sluggett Property are lands classified Rural Residential 5 and Rural Residential 2.5. To the east is Loxahatchee Groves, the County’s newest municipality. Directly south, across Southern Boulevard, is land owned by the South Florida Water Management District. Southeast of the Sluggett Property is the incorporated Village of Wellington. The Sluggett Property is separated from the Acreage community to the west by a stormwater drainage canal and 80- foot-wide stormwater drainage easement managed by Seminole Improvement District. To provide compatibility with the residential areas north of the Sluggett Property, the Sluggett Amendment includes a condition that requires a minimum of ten acres of open space on the northern portion of the Sluggett Property. Because the Sluggett Property is located at the intersection of two arterial roadways, it meets the siting requirement of FLUE Policy 1.4-f for commercial uses in the Rural Tier. In prior planning studies in the central-western area of the County, the Sluggett Property was specifically identified as an appropriate location for neighborhood-serving commercial development. The residential component of the Sluggett Amendment is supported by the Bureau of Economic and Business Research population projections and by other data and analyses in the record. The residential units are also necessary to achieve the preferred Traditional Marketplace Development form. The inclusion of residential units also serves to achieve the County’s objective of increasing workforce housing. The need for the Sluggett Amendment was adequately demonstrated. The Sluggett Amendment is compatible with surrounding land uses. The LOS standard for the affected roads would not be maintained if the Sluggett Property were developed at the maximum commercial intensity allowed under the proposed future land use designation (plus 15 dwelling units). This situation would cause the Sluggett Amendment to fail Test One of FLUE Policy 3.5-d, described above. If development of the Sluggett Property is limited to 161,500 square feet of commercial, Test One is met. Therefore, the Sluggett Amendment limits development of the Sluggett Property to 161,500 square feet or commercial. The Sluggett Amendment includes two other conditions related to traffic to avoid potential roadway failures based on Test Two’s five-year analysis. These conditions limit the development to 46,500 square feet of commercial, “until construction commences on the south approach of the intersection of Southern Boulevard and Big Blue Trace to provide for dual left turn lanes, or one through lane and dual right turn lanes.” The potential traffic impacts associated with the Sluggett Amendment have been addressed in a manner consistent with relevant provisions of the comprehensive plan. Water and wastewater utilities are available to the Sluggett Property and there is adequate capacity to serve the Property. School facilities, emergency medical services, and fire and police services are also available and adequate to serve the Sluggett Property. Although Petitioners suggested that the Sluggett Amendment would cause stormwater drainage problems, no competent evidence was presented to demonstrate that a real threat of stormwater contamination exists or that any comprehensive plan provision related to stormwater would be violated. In their petition for hearing, Petitioners claimed that the Sluggett Amendment meets the definition of urban sprawl, but included no specific factual allegation other than the amendment would allow “strip-type commercial development.” The requirement of the Sluggett Amendment that ten acres of open space be set aside in the northern portion of the property, and the requirement to develop as a Traditional Marketplace Development prevents a strip development, as that term is normally applied in land use planning. The Sluggett Property is somewhat distant from other commercial uses, a consequence of the poorly planned development of the residential subdivisions in the area. The Sluggett Amendment reduces a deficit in neighborhood-serving commercial uses and thereby remedies an existing imbalance of land uses caused by the past urban sprawl. Treasure Coast Regional Planning Council determined that the Sluggett Amendment was consistent with the Council’s Strategic Regional Policy Plan. Petitioners did not show how the Sluggett Amendment causes an inconsistency with any provision of the Strategic Regional Policy Plan. Ordinance 2008-49, the Northlake Amendment3/ The Northlake Amendment would change the future land use designation of a 30.71-acre parcel located on the southwest corner of Coconut Boulevard and Northlake Boulevard from Rural Residential 20 to Commercial-Low/ Rural Residential 5. The Northlake Property is in the Exurban Tier. East of the Northlake Property, along Northlake Boulevard, are the residential communities of Bayhill Estates and Rustic Lakes, which were developed at a density of one unit per two acres and one unit per five acres, respectively. Farther east, is the large, gated golf course development called Ibis, which consists of approximately 2,000 units developed at 1.25 dwelling units per acre. On the north side of Northlake Boulevard is a large tract of agricultural land located in the City of Palm Beach Gardens. Northeast are Osprey Isles and Carlton Oaks, which are residential developments with quarter-acre lots, and a cemetery and land designated for commercial low/office development. South of the Northlake Property, across two-lane Hamlin Road, is the Acreage. Existing and proposed institutional development in the vicinity of the Northlake Property include the adjacent parcel to the east, which is proposed to be developed as a 21,000- square-foot U.S. Post Office and, to the west, the existing Pierce Hammock Elementary School. The comprehensive plan allows development of institutional uses in the Exurban Tier at intensities of up to .20 Floor Area Ratio (FAR). The Northlake Amendment proposes development at less than half that intensity, .08 FAR. The Northlake Property is located in an area that was the subject of a regional planning effort called the Western Northlake Corridor Study (WNCLUS) conducted by the county, the City of West Palm Beach, and the City of Palm Beach Gardens. The WNCLUS was completed in 1998 and is now being updated. In April 2008, an updated, intergovernmental analysis of the need for commercial uses in the study area concluded that the need exceeded the square footage of commercial uses that would be provided by the Northlake Amendment. The Northlake Property is one of the few parcels in the area that meets the commercial land use siting criterion in FLUE Policy 1.3-f, having frontage on an arterial road and a collector road. In their petition for hearing, Petitioners claimed that the Northlake Amendment meets the definition of urban sprawl, but included no specific factual allegation other than the amendment would allow “strip-type commercial development.” The Northlake Amendment only affects one parcel. The amendment would not extend any existing commercial uses on Northlake Boulevard or Coconut Boulevard. The applicant has agreed to record restrictive covenants on parcels owned by the applicant that are west of the Northlake Property, which would remove any potential for their future development for commercial uses. Executed restrictive covenants and easements are being held in escrow by the County Attorney and would be recorded after the approval of the Northlake Amendment. Although the Northlake Property is not integrated with other commercial uses, that situation is a consequence of the poorly planned development of the residential subdivisions in the area. The Northlake Amendment reduces a deficit in neighborhood-serving commercial uses and thereby remedies an existing imbalance of land uses caused by past urban sprawl. The residential density allowed by the Northlake Amendment (one dwelling unit per five acres) conforms with the adjacent residential densities, which range from one unit per five acres to one unit per 1.25 acres. The Northlake Amendment is compatible with surrounding land uses. If the Northlake Property were developed at the maximum commercial intensity of 133,000 square feet, LOS standards on affected roadways would likely be exceeded. Therefore, the Northlake Amendment includes a condition that limits development to 106,566 square feet of commercial. Water and wastewater utilities are available to the Northlake Property and there is adequate capacity to serve the property. School facilities, emergency medical services, fire and police services are all available and adequate to serve the Northlake Property. The Treasure Coast Regional Planning Council reported that it considered the Northlake Amendment to be inconsistent with the Strategic Regional Policy Plan, “unless and until the County updates the WNCLUS in coordination with the Cities of Palm Beach Gardens and West Palm Beach.” The Council did not identify any specific provision of the Strategic Regional Policy Plan with which the Northlake Amendment was inconsistent. The Council issued its comments without the opportunity to consider subsequent data and analysis that are included in the record of this case. For example, after the Council issued its report, the City of Palm Beach Gardens expressed support for the Northlake Amendment. In addition, the County planning staff’s objections to the Northlake Amendment, which appeared to be the primary basis for the Council’s finding of inconsistency, were subsequently refuted by the County’s Planning Director. Ordinance 2008-48, the Panattoni Amendment4/ The Panattoni Amendment would change the future land use designation of a 37.85-acre parcel located on the south side of Lake Worth Road, and 1,320 feet east of Lyons Road, from Low- Residential 2 to Commercial-High with an underlying 2 units per acre. The Panattoni Property is within the Urban/Suburban Tier. The Urban/Suburban Tier is described in the Plan as “urban levels of service.” The Urban/Suburban Tier is expected to accommodate about 90 percent of the County’s population. The Panattoni Property is also within the County’s Urban Service Area. The Urban Service Area is the area in which the County anticipates the extension of urban services through the long range planning horizon. The properties to the north, south, east, and west are designated Low Residential 2. There is an existing residential community to the west. The properties to the north, south, and east are vacant. The Panattoni Amendment requires the property to be developed as a Lifestyle Commercial Center. The Lifestyle Commercial Center is similar to a Traditional Marketplace Development, being a mixed-use, pedestrian-friendly form of development. The Panattoni Amendment meets the commercial land use siting criteria in FLUE Policy 1.2-k. The county planning staff anticipated that the surrounding vacant properties would be developed at a higher density than two units per acre through one or more of the county’s density bonus programs. The Panattoni Amendment includes a condition that at least five percent of the project must be designated as public open space as squares, greens, or plazas. Parking must be dispersed through the site. The interconnected vehicular and pedestrian circulation system must provide on-street parking and access to transit stops and off- site pedestrian and bicycle systems where feasible. The Panattoni Property be developed with building mass and placement to provide a spatial definition along streets. Additionally, the design must incorporate human-scale elements along streets and in common areas that includes seating, landscaping, lighting and water or art features. No single tenant can exceed 100,000 square feet and cannot not be a “big box.” The Panattoni Amendment would not result in strip development. The Panattoni Amendment is compatible with surrounding land uses. Petitioners testified that a number of stores in the area have closed as evidence that the area does not need additional commercial uses. A window survey of empty stores is not an accurate way to evaluate vacancy rates, in particular, or the need for commercial uses, generally. Panattoni provided an adequate justification and demonstrated need for the 396,000 square feet of commercial uses authorized by the Panattoni Amendment. The Panattoni Property is located in the tier in which the County has indicated it wants most of its development to occur. Petitioners presented no evidence that the Panattoni Amendment would cause urban sprawl. There are adequate public services and infrastructure to accommodate the Panattoni Amendment. The potential traffic impacts associated with the Panattoni Amendment were reviewed under the Test One and Test Two analyses. As to Test One, the traffic analysis shows that affected roads will not meet the LOS standard in 2025 at the maximum development intensity. Therefore, the Panattoni Amendment includes a condition that the development must be limited to 396,000 square feet of commercial use. As to Test Two, the traffic analysis shows that all roads will operate at the adopted LOS standard if the project is limited to 65,000 square feet until construction has commenced for the recommended improvements at Lake Worth Road/Turnpike interchange. Therefore, the Panattoni Amendment includes this condition on the development. Construction of the improvements has already commenced. The Treasure Coast Regional Planning Council determined that the Panattoni Amendment is consistent with the Strategic Regional Policy Plan. Petitioners did not show how the Panattoni Amendment causes an inconsistency with any provision of the Strategic Regional Policy Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the amendments adopted by Palm Beach County by Ordinances 2008-48, 2008-49, and 2008-50 are "in compliance." DONE AND ENTERED this 21st day of October, 2009, in Tallahassee, Leon County, Florida. 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 21st day of October, 2009.
Conclusions This. cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On June 22, 2009, the Department published its cumulative Notice of Intent to find the Hernando County comprehensive plan amendment adopted by Ordinance No. 2007-24 on December 12, 2007, and the remedial amendments adopted by Ordinance 2009-03 on May 12, 2009, in compliance with the Local Government Comprehensive Planning and Land Development Regulation Act, Ch. 163, Part II, Florida Statutes (the “Act”). On July 15, 2009, pursuant to Section 163.3184(9), Florida Statutes, the Department forwarded Brooksville Quarry LLC’s Petition for Administrative Hearing to the Division of Administrative Hearings. The case was assigned DOAH case number FINAL ORDER No. DCA09-GM-289 09-3746GM. On August 3, 2009, a Notice of Hearing was entered for September 1 and 2, 2009. On August 10, 2009, Brooksville Quarry, LLC, filed a Notice of Voluntary Dismissal without Prejudice. There are no other Petitioners in this case, and the time has expired for filing petitions for hearing. Therefore, no disputed issues remain to be resolved. The Florida Supreme Court held that “[a] case is ‘moot’ when it presents no actual controversy or when the issues have ceased to exist.” Godwin v. State, 593 So. 2d 211, 212 (Fla. 1991). A moot case generally will be dismissed. Id.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD. OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER No. DCA09-GM-289 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to, each of the persons listed below on this day of , 2009. Agency Clerk By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Linda Loomis Shelley, Esquire Karen Brodeen, Esquire Jacob D. Varn, Esquire Fowler White Boggs PA PO Box 11240 Tallahassee, FL 32302 Geoffrey Kirk, Esquire Assistant County Attorney Hernando County 20 North Main Street, Suite 462 Brooksville, Florida 34601-2850 By Hand Delivery Lynette Norr Assistant General. Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100
The Issue Whether the Petitioner, Willis Phillips, may challenge the specifications of the invitation to bid at issue in this proceeding? Whether the Petitioner has standing to challenge the Department of Health and Rehabilitative Services' proposed award of lease number 590:2166 to the Intervenor, Rutherford Rentals, Inc.?
Findings Of Fact The Department issued an Invitation to Bid for Existing Facilities, lease number 590:2166 (hereinafter referred to as the "ITB"), seeking to rent office space in Madison, Florida. Responses to the ITB were to be filed with the Department by 2:00 p.m., March 6, 1990. Included as part of the ITB was a map of the City of Madison (hereinafter referred to as the "Map"). Joint Exhibit 1. On page 1, paragraph 3, of the Bid Submittal Form which was included as part of the ITB it was indicated that "[s]pace to be located in Madison, Florida within boundaries depicted in the attached map (Attachment B.) Bidder to mark location of site on map Attachment B." The ITB referred to the Map as a "Map showing bid zone boundaries." See page 4 of the ITB. The Map was labeled as "Attachment B" and included the following language at the bottom of the Map: "WITHIN CITY LIMITS WITH EXCEPTIONS OF UNDESIRABLE LOCATIONS AS INDICATED." The Map included two areas within the City of Madison which were cross- hatched. At the bottom of the Map the word "UNDESIRABLE" had been written in black. This word only appears below the larger of the two cross-hatched areas. The Department intended to exclude any office space located within both of the cross-hatched areas on the Map. The Petitioner spoke by telephone with Robert Smith, a Facilities Services Managers Assistant for the Department, prior to submitting a response to the ITB. The Petitioner initiated the conversation. Based upon this conversation, the Petitioner was aware that property located within either of the cross-hatched areas on the Map was excluded from consideration under the ITB. The property which the Petitioner intended to offer to the Department in response to the ITB is located in the smallest of the two cross-hatched areas on the Map. The Petitioner was informed by Mr. Smith that the property located within the smaller cross-hatched area was excluded as undesirable. Mr. Smith informed the Petitioner that he could not submit a response to the ITB offering to rent property located in the small cross-hatched area. The exclusion from consideration of property located in the areas within the City of Madison which were located in the two cross-hatched areas of the Map could have been more clearly designated. The Department's designation of the excluded areas, however, was not ambiguous. It was clear that the Petitioner's property was located in an excluded portion of the City of Madison and that the Petitioner was aware of the exclusion of his property. Despite the Petitioner's knowledged that his property was located within an excluded area, the Petitioner submitted a response dated March 6, 1990, to the ITB proposing property located in the smaller cross-hatched area. In the Petitioner's response to the ITB he did not indicate the location of his property on the Map. Instead, the Petitioner submitted a different map of a portion of the City of Madison which included his property. Rules 10-13.006 and 10-13.007, Florida Administrative Code, require that protests of the bid specifications of the Department must be filed within 72 hours of receipt of notice of the bid specifications. The ITB did not indicate that persons adversely affected by the ITB could challenge the specifications of the ITB or that any such challenge had to be filed within 72 hours of receipt of notice of the ITB. The following statement appears of the last page of the Bid Submittal Form included with the ITB and submitted by the Petitioner: I hereby certify as owner, officer, or authorized agent that I have read the Invitation to Bid Package and all its attachments, and agree to abide by all requirements and conditions contained therein. . . . This certification was signed by the Petitioner. The Department decided to award the lease to the Intervenor. The Department determined that the Petitioner's bid should be rejected because the proposed property was located in an excluded area. The Petitioner filed a Formal Protest and Petition for Formal Administrative Hearing on April 23, 1990, with the Department. The Petitioner challenged the Department's proposed award of the lease to the Intervenor and asserted that he was the lowest and best bidder. The Petitioner did not challenge the specifications of the ITB. The Department filed a Motion to Dismiss on Mazy 4, 1990. The Petitioner filed a Motion for Leave to File Amended Petition and an Amended Formal Protest and Petition for Formal Administrative Hearing on May 14, 1990. For the first time, the Petitioner challenged the specifications of the ITB.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting the Department's Motion to Dismiss and dismissing with prejudice the Formal Protest and Petition for Formal Administrative Hearing filed by the Petitioner. DONE and ENTERED this 12th day of July, 1990, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1990. APPENDIX The Petitioner and the Department have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1-2 See 9. 3-5 Not supported by the weight of the evidence. 6 6-7. 7 and 11 Not relevant. 8-10 and 12-15 These proposed findings are consistent with Ms. Goodman's testimony. Ms. Goodman's opinions, however, are not supported by the weight of the evidence. Although this proposed finding of fact is generally true, the weight of the evidence failed to prove that the Petitioner was not aware that both cross-hatched areas were excluded areas. See 9. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2 and hereby accepted. 3 5-8. 4 7. 5 6. 6 12. 7 9. 8 13 and 17. 9 4. 10 12. 11 17. 12 15. 13 16. 14 18 and hereby accepted. 15 20. 21 and hereby accepted. 22 and hereby accepted. Hereby accepted. Cumulative. Hereby accepted. Copies Furnished To: John C. Pelham, Esquire Gary Walker, Esquire Post Office Box 13527 Tallahassee, Florida 32317-3527 John L. Pearce, Esquire District Legal Counsel Department of Health and Rehabilitative Services 2639 North Monroe Street Tallahassee, Florida 32303-2949 Clay A. Schnitker, Esquire Post Office Drawer 652 Madison, Florida 32340 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0500
Findings Of Fact Based upon the stipulated facts of the parties, as filed with the Division of Administrative Hearings on December 14, 1987, the following relevant facts are found: 1/ On October 31, 1985, the DER received from Agrico dredge and fill Application No. 531120329. On May 8, 1986, the DER sent to Agrico a Notice of Completeness indicating that Application No. 531120329 was complete as of April 24, 1986. On July 22, 1986, J. W. Landers, Jr. executed on behalf of Agrico a Waiver of 90 Day Time Limit, indicating that the waiver expired on August 1, 1986. On or about July 28, 1986, DER personnel discussed with Agrico representatives the possible withdrawal of Application No. 531120329 as one of the conditions for the issuance of a permit for Application No. 531093999. The DER failed to take action to approve or deny Application No. 531120329 on or before August 2, 1986. On August 12, 1986, the DER issued Permit No. 531093999. On August 23, 1986, Booker Creek Preservation, Inc. and Manasota-88, Inc. filed a Motion to Intervene Into Ongoing Environmental Licensing Proceeding and Petition For Formal Administrative Proceeding challenging the Department's issuance of Permit No. 531093999 and rendering that Permit to the status of intended agency action. This proceeding was assigned DOAH Case No. 86-3618. DOAH Case No. 86-3618 was scheduled for hearing on April 28-30, 1987. By letter date March 2, 1987, Agrico withdrew Permit Application No. 531093999. On May 8, 1987, the DER sent to Agrico a letter directing Agrico to publish public notice of the DER's intent to issue Permit No. 531120329 pursuant to Section 120.60(2), Florida Statutes. On May 26, 1987, the DER received from Agrico a letter indicating that the public notice was published as required. Manasota-88, Inc. timely requested an administrative hearing challenging the proposed issuance of Permit Number 531120329.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that Permit Number 531120329 be issued to Agrico Chemical Company as of August 2, 1986, and that the petition filed by Manasota-88, Inc. challenging this permit be DISMISSED. Respectfully submitted and entered this 18th day of February, 1988, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1988.
The Issue Whether the Appellant, Edward M. Mitchell, has demonstrated that development rights in certain real property he owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. On or about September 23, 1980, Mr. Mitchell entered into an agreement to purchase 6.141 acres of property (hereinafter referred to as the "Property"), located just north of Interstate 10, on the east side of North Meridian Road, Leon County, Florida. The Property was to be purchased from Textron Petroleum Products, Inc. The following "additional provision" was included in the agreement entered into for the purchase of the Property: Buyer to have 30 days from date hereof within which to obtain such permits as he deems necessary. If Buyer cannot obtain the same, he shall give written notice thereof within said time limit and the contract shall be null and void. If such written notice is not given within such period, this contingency shall be deemed waived. In 1980, the Property was zoned C-1, neighborhood commercial. Under C- 1 zoning, neighborhood commercial, up to 69,000 square feet of commercial space could be placed on the Property based upon a restriction of 85% impervious surface. Mr. Mitchell wanted to insure that he could obtain the permits necessary to develop the Property consistent with C-1 zoning before he purchased the Property. On or about November 3, 1980, the real estate broker involved in the purchase of the Property, sent a letter to Bob Speidel of Environmental Services of Leon County. In the letter Leon County was informed of the pending sale of the Property and the contingency of "Mr. Mitchell being able to obtain a permit to develop the tract by clearing the land, constructing a retention pond and filling the remaining land to a usable elevation." On or about November 7, 1980, an Application for Permit for Clearing and Development was filed on behalf of Mr. Mitchell. This permit was the only permit required in 1980 to develop the Property. The evidence failed to prove, however, that it was the only permit required to develop the Property immediately before the adoption of the 2010 Comprehensive Plan. On or about November 14, 1980, a Clearing and Development Permit, number 1113 (hereinafter referred to as "Permit 1113"), was issued on the Property by the Leon County Department of Public Works, Division of Environmental Services. Permit 1113 specifically provided that Mr. Mitchell was authorized by the permit "to make changes in this land proposed to be subdivided, developed or changed in use by grading, excavating, removal, alteration or destruction of the natural top soil, as hereinafter located and described." The specific use Mr. Mitchell planned to put the Property to and the manner of developing the Property were not specified in Permit 1113 or the application therefore. On or about December 23, 1980, Mr. Mitchell purchased the Property for $44,211.92. Mr. Mitchell would not have purchased the Property for the price paid if it had not been zoned C-1 or if he had not obtained Permit 1113 or a similar permit. The weight of the evidence failed to prove that Mr. Mitchell informed Leon County prior to his purchase of the Property what specific use the Property would be put to or that Leon County ever approved any specific type of development of the Property. Development of the Property. Sometime between 1980 and 1985, Mr. Mitchell cleared the Property. In June, 1985, Mr. Mitchell applied with the Florida Department of Environmental Regulation for a General Permit for New Stormwater Discharge Facility Construction. In October, 1985, the permit was approved. When the Property was cleared some of trees were removed which should not have been removed. Therefore, in July, 1985, Mr. Mitchell agreed to replant trees on the Property. In August, 1985, Mr. Mitchell was issued a Tree Removal Permit for the trees that had already been removed. Mr. Mitchell brought fill (approximately five feet) onto the Property and did substantial grading of the Property. The elevation of the Property was increased from 108 feet to 112-113 feet. Storm water drainage was designed and installed on the Property. The storm water pond was built to accommodate 65,000 to 70,000 square feet of construction. Leon County was aware of this fact. In order to maximize use of the Property a Leon County employee informed Mr. Mitchell that he could place the retention pond on an abutting parcel of property. Consequently, Mr. Mitchell purchased an adjoining parcel of real estate. Mr. Mitchell has not obtained a storm water permit, a building permit or site plan review or approval for the Property. Mr. Mitchell has worked closely with officials of Leon County before and after his purchase of the Property. Mr. Mitchell retained an engineer to prepare a site plan for the Property. The site plan was prepared consistent with C-1, neighborhood commercial zoning, 85% impervious surface and off-site retention. The weight of the evidence failed to prove that Leon County was made aware of the site plan. Mr. Mitchell would not have done the site work or purchased the abutting parcel of property except for the C-1, neighborhood commercial zoning of the Property and the issuance of Permit 1113. The weight of the evidence failed to prove that Mr. Mitchell informed Leon County after his purchase of the Property what specific use the Property would be put to or that Leon County ever approved any specific type of development of the Property. Change in Position or Obligations and Expenses Incurred by Mr. Mitchell. Mr. Mitchell spent $44,211.92 to purchase the Property based upon the zoning on the Property and the issuance of Permit 1113. The work performed on the Property after it was purchased by Mr. Mitchell was performed primarily by Mitchell Brothers, Inc., a company owned by Mr. Mitchell. The "value" of the work performed by Mr. Mitchell was in excess of $250,000.00. The evidence failed to prove what the actual cost of the work performed was to Mr. Mitchell. Mr. Mitchell acquired the abutting parcel of property in reliance on the zoning on the Property, Permit 1113 and a suggestion of an official of Leon County. The abutting property costs several thousand dollars. The evidence failed to prove, however, that the suggestion of the Leon County official concerning the purchase of the abutting property constituted a representation of Leon County that the Property could be developed in a particular manner. It was merely a solution offered to a problem of Mr. Mitchell which Mr. Mitchell was free to reject or accept. The suggestion also only confirmed that the Property could be developed under the current zoning. Development of the Property under the 2010 Plan. Under the 2010 Comprehensive Plan, the Property is located in an area designated as "lake protection." Only minor commercial uses would be permitted in such an area. Under the 2010 Comprehensive Plan, the Property may be developed with a maximum of 20,000 square feet of retail (non-office) space. Additionally, one dwelling unit per two acres of property could also be used for residential purposes. Therefore, the Property could be developed by building three residences on the Property in addition to the 20,000 square feet of retail space. Only approximately one-third of the site work that has been performed on the Property would be needed to develop only 20,000 square feet of commercial space on the Property and the purchase of the abutting property would not have necessary. Procedure. On or about November 2, 1990, Edward M. Mitchell filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County. By letter dated January 2, 1991, Mr. Mitchell was informed that his Application was incomplete. By letter dated January 18, 1991, Mr. Mitchell provided the additional information requested. By letter dated January 25, 1991, Mr. Mitchell was informed that Leon County intended to deny his Application. Mr. Mitchell requested a hearing before the Staff Committee of Leon County by letter dated January 30, 1991. On February 11, 1991, a hearing was held to consider the Application before the Staff Committee. By letter dated February 13, 1991, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Mr. Mitchell that the Application had been denied. On February 22, 1991, a Notice of Appeal was filed by Mr. Mitchell appealing the decision to deny the Application. By letter dated March 1, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on May 24, 1991.
