The Issue Whether Sugarloaf Shores Section C Extension is a "major development" as defined by Section 6-222, Monroe County Code, and (in connection with Intervenor's amended plat proposal and dredge and fill application) should undergo major development review pursuant to Chapter 6, Article VII, Monroe County Code.
Findings Of Fact Sugarloaf Shores Section C Extension is a subdivision located in Section 2, Township 67 South, Range 27 East, Sugarloaf Key, Monroe County, Florida. (Prehearing Stipulation, Para. (e), No. 1). The plat of Sugarloaf Shores Section C Extension, shows 76 residential building lots and five deadend canals (connecting to Upper Sugarloaf Sound or Cross Key Channel) and a canal of approximately 900 feet paralleling the mean high water line of Upper Sugarloaf Sound; it was approved by Monroe County on July 5, 1972, and is recorded in Monroe County Plat Book 6, page 93. The subdivision contains 38.9 plus acres. (Prehearing Stipulation, Para. (e), No. 2; Joint Exhibit No. 1). Lloyd A. Good, Jr., purchased Sugarloaf Shores Section C Extension on October 8, 1973, and is the current owner and developer of the subdivision. (Prehearing Stipulation Para. (e), No. 3). At the time of his purchase, the land had been cleared. An east-west canal of approximately 600' in length and 50' in width had been excavated but unopened to Upper Sugarloaf Sound. A north-south canal or borrow pit of approximately 200' in length and 50' in width had also been excavated. Fill obtained from these excavations had been placed on the property. He subsequently placed approximately 800 yards of additional fill on the Southeast corner of the property. (Testimony of Good) The platted subdivision is landward of the mean high water line and contains a mixture of upland and wetland vegetation. A berm rises along the front of the property between Allamanda Drive and the existing (plugged) canal. The northern part of the property contains white, black, and red mangroves, red grape, a hardwood hammock, and a salt water marsh characterized by key grass, salicornia, and white and black mangroves. The western part of the property contains fresh water wetlands characterized by spike rush. The area south of the existing canal contains more mangroves and is permeated by transitional wetland or fresh water wetland plant species, with the higher elevations containing Lower Keys hardwood hammock species such as poison wood, black tooth and Jamaican dogwood. The salt marsh and black mangroves are subject to inundation from tidal exchange; the fresh water wetlands are subject to rain water flooding. (Testimony of Dennis) In 1973, Lloyd Good was familiar with regulatory restrictions on the use of wetland areas. As a Philadelphia attorney, he had "practiced in wetland areas in New Jersey . . . and . . . knew that the concept of deadend canals at that time was not feasible." (TR.65) He had decided to amend the original plat (and change the development plan) even before he purchased Sugarloaf Shores Section C Extension because he believed that under existing environmental laws the platted deadend canals would not be permitted. (TR.65) So he hired engineers to design a development plan acceptable to the U.S. Army Corps of Engineers and other governmental agencies having regulatory jurisdiction over dredge and fill activities in wetland areas. Because of other business interests, he temporarily halted work on the project between late 1973 and 1975. From 1975 to 1980, he worked with permitting officials from federal, state, and local regulatory agencies in an effort to devise a development plan for Section C Extension which would meet regulatory standards. In 1980, he hired a consultant to obtain the necessary federal, state, and local permits needed to carry out his revised development plan. Monroe County permitting officials told him not to apply for any local dredge and fill, or land clearing permits until he first obtained the required federal and state permits. (Testimony of Good) In 1980, Lloyd Good applied for a joint U.S. Army Corps of Engineers/Florida Department of Environmental Regulation permit to perform the dredging and filling necessary to carry out his revised development plan. In 1983, after extensive negotiation, both agencies issued him the required dredge and fill permits. The Department of Environmental Regulation permit was conditioned on Mr. Good obtaining Monroe County approval of an amended plat of Sugarloaf Shores Section C Extension conforming to the federal and state permits. (Joint Exhibit No. 21, Testimony of Good) During his initial discussions with Monroe County officials in 1981, Lloyd Good proposed rezoning the property to permit multiple-family residences; if rezoned, he expected that the project would be required to undergo "major development" review as defined by the Monroe County Code. But after meeting with members of the Sugarloaf Property Owners Association and discovering that they were violently opposed to multi-family development," (TR.73) he decided to retain the single-family nature of the original development and not seek a zoning change. Monroe County officials told him that by retaining the original zoning his development activities would not be subject to the "major development" review process. (Testimony of Good) On May 10, 1983, Lloyd Good submitted an application to Monroe County for authorization to dredge 42,400 plus/minus cubic yards of submerged lands, wetlands and uplands for roads and fill needed to develop residential lots within the Sugarloaf Shores Subdivision in accordance with his newly revised development plan. His application conformed to the federal and state permits already issued. (Prehearing Stipulation Para. (e) No. 4; Joint Exhibits No. 2 and 6) Mark Robinson, the county biologist assigned to review the dredge and fill application and prepare a biological report, asked Lloyd Good to have the state and federal permits amended to address several of his concerns. Mr. Good obtained the requested permit amendments, then asked that the biological report be completed. (Testimony of Good) On August 25, 1983, Dr. Jeffrey M. Doyle, Director of the Monroe County Planning and Zoning Department, issued an administrative ruling declaring Sugarloaf Shores Section C Extension to be a "major development" under the Monroe County Code. As grounds, he cited Section 6-222(1), which defines a "major development" project as a subdivision containing five acres or more of land or water, and Section 6-222(7)(b), which grants discretionary authority to zoning officials and the County Commission to designate an activity or use as a "major development" project if it "reflects sufficient scope, scale and size to justify its being designated . . . in order to ensure its reasonable implementation, if approved, and its proper review prior to such approval." Under his administrative ruling, the dredge and fill application would be subject to the comprehensive review procedures which apply to "major developments." (Joint Exhibit Nos. 32, 5) On September 21, 1983, Lloyd Good appealed Dr. Doyle's administrative ruling to the Monroe County Board of Adjustment. The issue before the Board of Adjustment (and subsequently before the County Commission) was whether Mr. Good's proposed dredge and fill activity (for the purpose of constructing the revised subdivision) was a "major development" as defined by the Monroe County Code, and whether compliance with "major development" review procedures was required before county dredge and fill permits could be issued. (Prehearing Stipulation, Para. (e) No. 6; Joint Exhibit No. 8). On November 2, 1983, the Monroe County Board of Adjustment upheld Dr. Doyle's decision and determined that the Section C Extension subdivision (to be created by the dredging and filling) was a "major development" under Chapter 6- 222(7)(b), Monroe County Code. (Prehearing Stipulation, Para. (e) No. 7; Joint Exhibits No. 11 and 12). On November 23, 1983, Lloyd Good appealed the Board of Adjustment's decision to the County Commission. (Prehearing Stipulation, Para. (e) No. 8; Joint Exhibit No. 13). On January 27, 1984, the County Commission, sitting as the Board of Appeals, adopted Resolution No. 042-1984, reversing the Board of Adjustment's decision of November 2, 1983. The resolution (giving no specific reasons for the reversal) remanded the matter to the County Planning and Building Department for normal processing of the related dredge and fill permits. It did not grant or deny any development or dredge and fill permit; it simply ordered that Lloyd Good's dredge and fill application would be reviewed under normal permitting procedures, not the more comprehensive procedures applicable to "major development" projects. (Prehearing Stipulation, Para. (e), No. 9; Joint Exhibit No. 14) The DCA did not appeal this resolution to a circuit court (within 30 days of its adoption) or to the FLAWAC (within 45 days of its transmission). The DCA did not challenge or question the County Commission's decision (that the proposed dredge and fill activities would not undergo "major development review") until it appealed the Commission's subsequent resolution granting the dredge and fill permit. (Testimony of Good, Dennis) On June 4, 1984, Lloyd Good submitted to the Monroe County Building Department 13 copies of a proposed amended plat for the Sugarloaf Shores Section C Extension. The amended plat incorporated his new development plan and reflected the dredging and filling approved by state and federal permits. (Prehearing Stipulation, Para. (e), No. 10; Joint Exhibit Nos. 18 and 21). On July 13, 1984, the County Commission adopted Resolution No. 195- 1984 approving Lloyd Good's application to dredge and fill. The resolution was transmitted to the DCA on July 27, 1984, which appealed it to the FLAWAC by notice filed September 10, 1984. 1/ The appealed resolution directs that the applied-for permit be issued subject to Lloyd Good's subsequent filing of an amendment to the Sugarloaf Shores Section C Extension plat. (Prehearing Stipulation, Para. (e), Joint Exhibit No. 19) Thereafter, on September 7, 1984, the County Commission adopted Resolution No. 224-1984, approving an "Amended Plat for Sugarloaf Shores Section C Extension." The DCA also appealed this resolution to FLAWAC by separate notice filed October 31, 1984. (Prehearing Stipulation, Para. (e), No. 12; Joint Exhibit Nos. 21, 22) The amended plat approved by Resolution No. 224-1984, replaces the original plat with a fundamentally new and different development plan. It alters the location of roads; eliminates the proposed deadend canals (except for the existing "plugged" canal); provides for wetland preservation areas in Tracts A, B, C, D, and F, and for the construction of a six-acre boat basin fronting the property on Upper Sugarloaf Sound; and reduces the number of single family residential lots from 76 to 55. RU-1 zoning is retained. The new development plan is preferable to the original plan in terms of environmental impact. The amended plat was processed in the same manner as all new plats in Monroe County. (Joint Exhibits No. 1, 21; Testimony of Dennis) The record is devoid of any documented expenditures made by Lloyd Good in reliance on County Commission approval of the original or amended plat.
Recommendation Based on the foregoing it is RECOMMENDED that pursuant to Section 380.07(4), Florida Statutes (1983), the Florida Land and Water Adjudicatory Commission enter an order: Reversing Resolution Nos. 195-1984 and 224-1984, because these resolutions approved development activities prior to their undergoing the "major development" review required by Section 6-222(1) and (6), Monroe County Code, as incorporated by Rules 27F-9.06 and 27F-9.17, Florida Administrative Code; Declaring the proposed Sugarloaf Shores Section C Extension a "major development" within the meaning of Section 6-222(1) and (6), Monroe County Code, and requiring the two development activities which would create it to undergo "major development" review prior to any approval; and Declaring that after undergoing the required "major development" review, these development activities would be eligible for approval, but that the disposition of the appeals in the instant cases does not reach the substantive issue of whether the proposed development should ultimately be approved, or disapproved. See, Section 380.08(3), Florida Statutes (1983). DONE and ORDERED this 21st day of January, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. 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 21st day of January, 1986.
Findings Of Fact On or about August 11, 1987, an application for conditional use approval to allow on-premises consumption of alcoholic beverages (2COP) was filed on behalf of Leland Farnsworth for property located at 2838 Gulf to Bay Boulevard in Clearwater, Florida. The property is zoned general commercial (CG) and single family residential (RS-8). A public hearing before the Planning and Zoning Board was held on September 1, 1987. The Planning and Zoning Board voted 4-1 to grant conditional use approval for this application. A timely appeal was taken by Petitioners on September 15, 1987. Petitioners are surrounding property owners whose property is located within five hundred feet of the subject property. With this application, Farnsworth seeks approval for on-premises consumption of alcoholic beverages since he intends to convert the use of the property from a motel to a restaurant and bar. The parties stipulated that the property in question is within five hundred feet of several residences, including Petitioners'.
Findings Of Fact FEC is the owner and developer of the project at issue in this proceeding, an industrial park to be located on 322.1 acres in Section 32, in the Town of Medley, in northwestern Dade County, Florida. Not at issue in this proceeding is the related but separate project planned by FEC for construction in Section 6, an unincorporated area of Dade County, lying immediately southwest of the property at issue. FEC proposes 5,193,570 gross feet of floor space for the project, to be constructed in six phases. Seventy-four percent of the floor area is to be completed or under construction within the first five years of the park's operation. Expected uses of the park, when completed, are expected to fall into four general categories: Distribution, comprising 792,516 square feet; wholesale trade, 2,509,018 square feet; manufacturing, 873,520 square feet; and offices and services of 1,017,515 square feet. There is no specification of what types of industries will be located in the project, or what types of chemicals or materials each may handle. FEC has applied for and received various approvals of the proposed industrial park. On June 6, 1983, the South Florida Regional Planning Council ("RPC") recommended approval of the FEC proposal, with conditions. On August 1, 1983, the town council of Medley adopted Resolution No. C-426, which approved and issued a development order for a development of regional impact for the project. Before the issuance of the Medley development order, Metropolitan Dade County adopted its own development order, Resolution No. Z-114-83, on June 23, 1983, approving the development proposed for Section 6 in the unincorporated area of the county. In September, 1983, DCA appealed the Medley development order. On October 3, 1983, the RPC voted not to appeal that order. The proposed project is located in an industrialized and largely unsewered area. The FEC property surrounds or abuts numerous out parcels within Section No. 32, which are served only by septic tank disposal systems, unlike the sewer system planned for the FEC development. The Northwest Wellfield is located about three miles to the southwest of the proposed FEC industrial park at its closest point to Section 32, and about four miles from the furtherest reach of the park. The wells of the Northwest Wellfield form a line about two miles west of the Florida Turnpike, and four miles southwest of Medley. The wellfield presently comprises 15 wells, each 42 inches in diameter, fully penetrating the Biscayne Aquifer to a depth of about 70 feet. The county has equipped each well with a two-speed pump capable of producing ten million gallons per day (MGD) at low speed, and about 15 MGD at high speed. Current maximum capacity of the wellfield is about 225 MGD. The county holds a valid consumptive use permit from the South Florida Water Management District authorizing an average pumpage of 50 MGD. The county has applied for a permit to increase the pumpage to 180 MGD. The county is presently pumping the wellfield at the rate of 140 MGD to offset the reduction in pumpage from the Hialeah and Miami Springs wellfields as a consequence of the discovery of contamination in those fields. The Hialeah and Miami Springs wellfields are currently pumping at a rate varying from three to ten MGD. The Northwest Wellfield, completed in 1983, at a cost to the public of $38,000,000, is located within the Biscayne Aquifer, which underlies all of southeastern Florida, including all of Dade County, from north of Boca Raton to the northwest area of Monroe County. The Biscayne Aquifer is a highly permeable, unconfined shallow aquifer composed of limestone and sandstone. The aquifer is a regional resource, serving as a sole source of potable water for the approximately 1.8 million residents of Dade County. Because of its cavernous nature, the aquifer has high vertical and horizontal permeabilities, permitting both rapid infiltration of rainfall as recharge to the aquifer, and rapid drainage through canals. Recharge to the aquifer is primarily from rainfall. In the latter part of the dry season, however, the main recharge to the aquifer results from infiltration from canals fed from water conservation areas. Net recharge from rainfall to the aquifer ranges from 8 to 20 inches per year. Because of wide fluctuations in annual rainfall amounts in South Florida, recharge from canals to the wellfield is important. The South Florida Water Management District operates an intricate system of canals, levees, control structures, and large water conservation areas for flood control, water conservation, and salinity control. These systems significantly affect water levels in the Biscayne Aquifer, including the area around the Northwest Wellfield. The levees impound fresh water and prevent overland sheet flow from the Everglades eastward through agricultural and urban areas. The complex system of interconnected canals provides necessary drains for the urban coastal areas in the wet season and transfers water from the conservation areas during the dry season to replenish water in the aquifer removed by various municipal and county wellfields. Water levels in the canals are controlled by opening or closing control structures during the wet season to prevent flooding in urban agricultural areas, and leaving the structures closed during the dry season to conserve fresh water and limit saltwater intrusion. Canal levels usually reach their seasonal lows in May. In the vicinity of the Northwest Wellfield, the system of levees and canals provides a substantial amount of recharge to the wellfield. The canal most significantly affecting water levels in the Northwest Wellfield is the Snapper Creek Canal, a borrow canal running immediately east of and parallel to the Turnpike, about two miles east of the wellfield. The Snapper Creek Canal borders the western line of the FEC property in Section No. 6 and lies about one mile west of Section No. 32. The terms "cone of influence" or "cone of depression" are terms applied to the area around a well from which the well draws water. Before a well commences pumping, ground water fills the pores and fractures in underground rock formations to a water level at which the fluid pressure of the ground water equals the atmospheric pressure exerted from above. Pumping the well reduces the fluid pressure of the ground water in the vicinity of the well, and results in a cone of depression or influence. Viewed from above, a drawing of a hydrologic cone of depression appears roughly circular, centered on the pumping well. A cross section of the cone would show an inverted shallow cone in the upper aquifer, whose lowest point coincides with the intersection of the cone where it enters the well. Pumping the well creates a down gradient for water below the area of the cone to flow toward the well. A "hydrologic cone of influence" is that point marking the outer bounds of the influence of a pumping well at a given point in time. A "regulatory cone of influence" arbitrarily fixes the location of the cone as a zone in which activity is regulated. The extent of a regulatory cone depends upon policy decisions taking into account the margin of safety deemed necessary for the protection of a well, regardless of the actual location of the hydrologic cone and technology available to protect ground water. The generally accepted value adapted by most regulatory agencies for the "regulated cone of influence" of a wellfield is the 0.25 foot draw-down line. This is so because it is also generally accepted that, with proper engineering practices and proper annual inspections, potential contaminants be generated and stored within this regulated cone of influence without inordinate risks of contamination to the underlying aquifer. The extent of a hydrologic cone of influence varies continuously, and is dependent upon the characteristics of the involved aquifer, such as its ability to transmit and to retain water, as well as the pattern and the amount of rainfall in the area, and the effect of nearby streams or canals. In addition, the rate of pumping of a well controls the extent of the cone of influence under any given set of aquifer conditions. Dade County regulates land uses in the area of the Northwest Well field according to whether property falls within the projected cone of influence of the field. In March, 1981, Dade County adopted an ordinance prohibiting the handling, use, transportation, disposal, storage, discharge, or the generation of hazardous materials in an area west of the Florida Turnpike, defined as being within 210 days travel time for a hypothetical particle of contamination to the Northwest Wellfield. That initial protective zone lay entirely to the west of the Turnpike, and included neither Section 6 nor Section 32. As a result of further study and computer modeling, the county subsequently adopted Ordinance No. 83-82 on September 20, 1983, amending the map of the cone of influence for the Northwest Wellfield, and adopting new regulations requiring the use of sewers instead of septic tanks in industrial areas. The amended map projected a cone of influence that greatly expanded the protective zone around the wellfield, and included both Section 6 and Section 32. The regulatory cone of influence selected by Dade County does not conform to the hydrological cone of influence, but excepts instead the area around the well depressed by 0.25 feet or more from the original unpumped surface. The county based its modeling of the regulatory line on an assumed pumpage of 150 MGD for the Northwest Wellfield, which is approximately equal to its present pumpage, and 75 MGD from the Miami Springs, Hialeah, and Preston wellfields, which is approximately ten times the current combined rate of pumpage for those fields. In addition, in running its computer model, the county conservatively assumed the highly unlikely condition for the aquifer--a 210-day period during which the aquifer would receive no recharge from rainfall. This "worst case" condition has never occurred during this century. In addition to this assumption, the county's computer modeling also ignored the substantial contraction of the cone during every wet season because of rainfall recharge, and omitted consideration of recharge to the wellfield from canal systems in the area. Within the line defined by its regulated cone of influence, Dade County currently bans all use, handling, generation, and transportation of hazardous materials. The cone of influence currently contained in the county's ordinances includes all of Section 32, including FEC's proposed project. Dade County Ordinance No. 83-82 is considered an interim regulation, intended to remain in force while Dade County continues to gather information concerning the aquifer in the vicinity of the Northwest Wellfield under pumping conditions. Since the enactment of the wellfield protection ordinance, Dade County has initiated a study to formulate a more detailed management plan for the wellfield. Dade County is conducting the study and generally implementing its environmental regulation and wellfield protection through its Department of Environmental Resources Management (DERM). DERM's powers extend into municipal areas, such as Medley, as well as throughout the unincorporated area of Dade County. The agency has a budget in excess of $5 million annually. Both within the municipalities and throughout the unincorporated areas of Dade County, DERM reviews building permit applications of all industries expected to potentially discharge chemicals into sewer systems. DERM requires all such industries to obtain an annual permit under Section 24-35.1 of the Dade County Code, and to install pretreatment facilities to ensure that no unsafe chemicals are discharged directly into sewers. In addition, DERM requires that all users or generators of hazardous materials throughout Dade County follow best management practices, including ground water monitoring, when appropriate. A special section of the agency focuses on the enforcement of hazardous materials regulation. In addition, Dade County has initiated a hazardous waste cleanup fund, a liquid waste transporter's permit ordinance, and regulation for underground storage facilities for hazardous materials. Further, Dade County has adopted Resolution No. R-114-84, which incorporates a non-exclusive list of numerous hazardous materials subject to regulation under the wellfield protection ordinance and other regulations. The more credible evidence of record in this cause establishes that even should Dade County remove the current ban on hazardous materials in Section 32, the proposed industrial park, as restricted by the Medley development order, would pose no significant threat of contamination to the Northwest Wellfield. As modeled under realistically conservative assumptions, including pumpage rated far exceeding the presently permitted legal rate of 50 MGD, the Northwest Wellfield hydrological cone of influence would reach into Section 32 for no more than one or two months per year, at the end of the dry season. For most of the year, the Snapper Creek Canal will act as a natural recharge boundary for the Northwest Wellfield. The canal would normally carry sufficient water northward from the Tamiami Canal to maintain a pressure head in the canal, driving water into the aquifer on both sides, replenishing the water drawn by the wellfield in the area west to the canal, and holding the cone of influence at the west side of the canal. On the east side of the canal, ground water would resume its natural flow to the southeast or east, unaffected by pumping in the Northwest Wellfield. During the dry season, the recharge mound in the Snapper Creek Canal would diminish, and the cone of influence could gradually expand, possibly recharging Section 32 for a month or two at the end of the dry season. As soon as the rainy season commenced again, however, the canal would fill up rapidly and resume its function as a recharge boundary. The more credible evidence establishes that it is highly unlikely that ground water contaminants originating from Section 32 would ever reach the Northwest Wellfield. Ground water moves only a few feet or even inches per day in the Biscayne Aquifer. Because Section 32 is located three to four miles from the Northwest Wellfield, the gradient to the wells in the cone of influence in Section 32 is extremely slack. In the driest of droughts, a hypothetical plume of contaminants beneath Section 32 would move only slightly towards the wellfield. At the return of the wet season, the gradient draining ground water from Section 32 eastward to the Miami Canal would be very steep and would rapidly flush any contaminants away from the wellfield and its cone of influence. The Medley development order imposes several restrictions on the development which protect the Northwest Wellfield from any threat of potential contamination from the proposed industrial park. The development order requires the removal of all exotic vegetation and the planting of native species to reduce the demand for water and the use of fertilizer, a potential contaminant; restricts irrigation in the project to the use of non-potable water from onsite lakes and wells; obligates FEC to construct, or provide $600,000 to the Dade County Fire Department for construction of, a fire station according to county specifications within the primary response district for Section 32, to improve the fire department's capability to respond quickly to any spill of hazardous materials; requires FEC to submit to the RPC, Dade County and Medley a detailed management operation plan within six months of the date of issuance of the development order; and further requires that FEC submit a hazardous material spill contingent fee and response plan to the RPC, Dade County, and Medley within one year of the date of the development order. The development order contains detailed criteria for the management/operation plan, including inspections, monitoring, and the use of best management practices designed to minimize the risk of contaminating ground water. Further, these requirements include approval of specific standards for hazardous materials accident prevention, mitigation, and response; adequate pre-treatment facilities to assure segregated retention of hazardous waste and their removal and disposal in accordance with local, state, and federal requirements; that all facilities be readily open for inspection by Medley and DERM; and appropriate storage and accurate labeling of hazardous materials. The order also requires that FEC receive review and approval of its plans by the RPC, Medley, and Dade County. The RPC will, if deemed appropriate, in the course of review, impose its customary policy of ground water monitoring for a project using or generating hazardous materials. The development order provides that whatever wellfield protection regulations Dade County might adopt after further monitoring of the Northwest Wellfield will apply to the FEC project in Section 32. The RPC compiled, and Medley adopted, in the development order, "Table 22" as a tool for determining the types of land uses that should be excluded from locating in the proposed industrial park. In the event Dade County were to remove the present ban on hazardous materials in Section 32, the Medley development order requires that every firm and industry listed in Table 22 desiring to locate in the development to apply to RPC, Dade County, and Medley for a waiver of restriction on hazardous materials, based upon the tenant's demonstration that its use of appropriate best management practices or other measures will adequately protect the environment. These applications would be reviewed on a case-by-case basis to determine the adequacy of proposed protected measures. This condition is imposed in the development order in addition to existing local, state, and federal permitting requirements. Further, Dade County also independently requires the use of best management practices, including monitoring when appropriate, by any industry using hazardous materials in Dade County. In summary, the evidence in this cause establishes that the current ban imposed by Dade County on the use, handling, generation, and transportation of hazardous materials in Section 32, when viewed in the context of the existing hydrological system in the area and the conditions imposed upon FEC in the Medley development order, combine to demonstrate the lack of a permanent ban on hazardous materials in Section 32 will pose no significant threat to the Northwest Wellfield. There is no evidence of record in this proceeding to demonstrate that the proposed project is in any way inconsistent with an existing state land development plan, any local land development regulation, or the regional planning council report.
Findings Of Fact The Concerned Citizens of West Escambia County, Florida, is an unincorporated neighborhood association begun in the Spring of 1978. It has been concerned with local sewage and flood water problems. Many of the Citizens' members live in the LiFair subdivision abutting the Fairfield Village project on the south. FFV is a 72-unit low income federally subsidized housing project planned for development on a 7.47 acre site. The site is located on the west side of Fairfield Drive between Jackson Street and the Lillian Highway (U.S. 98) in Escambia County. On February 1, 1980, DER issued permit number CS17-25848 for the construction of a dry sewage collection system to serve Fairfield Village. That permit contained conditions 15, 16 and 17 which state: This permit does not authorize the connection of this collection to the Avondale STP. Separate authorization for the actual connection of this col- lection system to the Avondale STP is required from this department. Such authorization shall be applied for by separate letter to the Department. This permit shall not be construed to infer any assurance that the necessary authorization for connection shall be granted. Any such authorization shall be granted only when adequate treatment in accordance with rules, regulations, and issued permits of the Department is available for any flows transported by by the collection system. The system shall be inspected for any sediment debris and flushed prior to connection to the Escambia County sewer system. Subsequently on March 20, 1980, Paul F. McCartney on behalf of FFV requested that the above conditions be lifted as the moratorium on new connections to the ATP had been lifted. On January 1, 1980, C. H. Wigley, Jr., Director of Utilities for Escambia County gave notice that the two-year moratorium on new sewer taps into the ATP was lifted. This action was the result of a planned diversion of approximately 300,000 gallons per day (GPD) from the ATP to the Warrington Treatment Plant. DER on April 1, 1980, gave notice of its intent to remove conditions 15, 16 and 17 from FFV's permit. Petitioner on April 9, 1980, filed its petition for an administrative hearing on DER's proposed action. The anticipated waste water discharge from FFV is approximately 22,000 GPD. As a result of the 300,000 GPD diversion from the ATP to the Warrington Plant, there is more than adequate treatment capacity at the ATP for handling the FFV inflow. The ATP operates under DER permit number TP17-2080 issued on April 4, 1978 and has operated within its designed capabilities of 1,000,000 GPD since August, 1979. There is no showing that a connection of the FFV transmission line to the ATP will cause any violation of the plant's permit conditions. Evidence was presented by Petitioners that sewage lines in the Citizen's neighborhood frequently overflow. There was no showing however that any instance of overflow was caused by the ATP exceeding its operating capacity. It is more likely that their neighborhood sewage problems result from blockages in the transmission lines or result from pump-outages at the lift station between their neighborhood and the treatment plant. No showing was made that the connection of FFV to the ATP would adversely affect sewage collection in the LiFair subdivision. The monthly operating reports submitted to DER by the ATP were shown to be accurate. DER may reasonably rely on them in determining whether the requested permit modifications should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order authorizing the modification of permit number CS17-25848 by eliminating conditions 15, 16 and 17. It is further RECOMMENDED that the Petition of the Concerned Citizens of West Escambia County, Florida, be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this day of 18th of December, 1980. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1980. COPIES FURNISHED: Artice L. McGraw, Esq. CETTI & McGRAW 26 East Garden Street Pensacola, FL 32501 P. Michael Patterson, Esq. 26 East Garden Street Pensacola, FL 32501 William W. Deane, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Alan C. Sheppard, Esq. EMMANUEL SHEPPARD & CONDON Seventh Floor, Century Bank Tower Post Office Drawer 1271 Pensacola, FL 32596
Conclusions On October 7, 2011, an Administrative Law Judge (“ALI ”) of the Division of Administrative Hearings entered an Order Closing File and Relinquishing Jurisdiction to the Department.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9. 030()(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, 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. DCA11-GM-168 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 Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this Laas of March 2012. By U.S. Mail: James E. White, Esq. Florida Bar No. 679461 WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L. Attorneys for Respondent 200 E. Broward Blvd., Suite 1900 Fort Lauderdale, FL 33301 Telephone: (954) 763-4242 Telecopier: (954) 764-7770 By Filing with DOAH: The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison St., MSC 110 Tallahassee, Florida 32399-4128
The Issue Whether the proposed Florida Administrative Code Rules 28-20.110, 28-20.120, and 28-18.210 are invalid exercises of delegated legislative authority.
Findings Of Fact Parties Petitioner, Florida Keys Citizens Coalition, Inc. ("FKCC"), is a non-profit Florida corporation whose address is 10800 Overseas Highway, Marathon, Florida 33050. The primary purpose of FKCC is to "protect the quality of life of the citizens of the Florida Keys." The primary emphasis of the organization involves issues related to the carrying capacity, the limits of the infrastructure, and the environmental qualities of the Florida Keys. Consistent with its purpose, FKCC opposes regulations which it believes will diminish the quality of the natural habitat in Monroe County and the City of Marathon and hinder safe and efficient emergency evacuation. FKCC has been involved in previous Monroe County litigation, including participating as a party to at least two formal administrative challenges to the 2010 Monroe County Comprehensive Plan (Monroe County Comprehensive Plan). Petitioner, Last Stand, Inc., is a non-profit Florida corporation whose address is Post Office Box 146, Key West, Florida 33041-0146. The primary purpose of Last Stand is to preserve and protect the quality of life in the City of Key West, the Florida Keys, and their environs, with particular emphasis on the natural environment. To that end, Last Stand opposes regulations that it believes diminishes the quality of the natural habitat in the Florida Keys and regulations that hinder safe and efficient emergency evacuation in the Florida Keys. Last Stand is an organizational member of FKCC. Moreover, many individual members of Last Stand are also members of FKCC. A substantial number of members of both FKCC and Last Stand live, work, and/or engage in various recreational activities in the City of Marathon or in nearby areas. For example, a substantial number of members of both of those organizations regularly use and enjoy the nearshore waters of Monroe County for recreational water activities, such as boating, diving, snorkeling, and/or swimming.3 A substantial number of members of both organizations also regularly use and enjoy terrestrial habitats in Monroe County, including the City of Marathon, for recreational activities such as hiking and bird-watching. A substantial number of the members of both FKCC and Last Stand may be adversely affected or impacted by the issues which are in dispute in this proceeding. Moreover, the issues in this proceeding are germane to the purposes of both FKCC and Last Stand. Also, both FKCC and Last Stand regularly represent their members' interests in formal administrative hearings and local commission meetings relative to environmental and growth management issues. Respondent, Administration Commission, consists of the Governor and Cabinet and is empowered to adopt, by rule, any enactment, amendment, or rescission of a land development regulation or element of a local comprehensive plan in the Florida Keys area. Respondent, Monroe County, is a local county government within the Florida Keys Area of Critical State Concern ("ACSC"). Respondent, City of Marathon, is a municipality within the Florida Keys ACSC. Intervenor, the DCA, is the state land planning agency responsible for the general supervision of the administration and enforcement of the ACSC program. As the state planning agency, the DCA is authorized to propose changes to local comprehensive plans and land development regulations within an ACSC for adoption by the Administration Commission. Economic Base of Florida Keys Tourism is the economic base of the Florida Keys. Moreover, the basis for the Florida Keys' tourism is a healthy natural environment that supports fishing, diving, water sports, boating, bird-watching habitat, visiting endangered species habitat, and other related activities. History of the Florida Keys ACSC The Florida Keys area is designated as an ACSC and consists of, unincorporated, Monroe County, the City of Layton, the City of Key Colony Beach, the Village of Islamorada, and the City of Marathon. See § 380.0552(3), Fla. Stat. (2004).4 The City of Key West has been separately designated as an ACSC pursuant to Florida Administrative Code Rule Chapter 28-36. The Florida Keys were originally designated by the Administration Commission in 1975 and re-designated by the Legislature in 1986. The legislative intent section and the Principles for Guiding Development, as set forth in Subsections 380.0552(2) and (7), Florida Statutes, together require an effective land use management system that protects the natural environment and character of the Florida Keys, maintains acceptable water quality conditions, ensures adequate public facility capacity and services, provides adequate affordable housing, supports a sound economic base, protects constitutional property rights, and requires adequate emergency and post- disaster planning to ensure public safety. During the past 20 years, the growth management process has been implemented in essentially two phases. The first phase involved developing, adopting, and implementing the first comprehensive plans and regulations under the new designation. These plans and regulations were adopted by the county and cities in the mid-1980s. The 1986 plan established a growth management system that substantially increased protection of natural resources and began to reduce the over-allocation of density in the Florida Keys. It also achieved the long-term protection of North Key Largo. However, several major problems were not adequately addressed by the 1986 plan, including maintaining evacuation capability, water quality protection, sewage treatment, stormwater treatment, and community character. In addition, although the plan required a focal point plan for Big Pine Key, this planning process did not result in a viable plan that adequately protected the Florida Keys deer. The required open space ratios proved difficult to maintain within habitats once development occurred, resulting in fragmentation of habitat. The second phase involved the planning process undertaken in the early 1990s to meet the requirements of the Growth Management Act and to update the plan based on lessons learned in implementing the 1986 plan. In developing, reviewing, and litigating the Monroe County Comprehensive Plan, the following critical issues emerged involving how to: maintain acceptable hurricane evacuation capability; retrofit existing development and provide new development with adequate wastewater and storm water facilities, including, where appropriate, upgrading of on-site systems; determine the carrying capacity of the Keys to withstand the impacts of additional land development and modify state and local plans, regulations and programs so that the carrying capacity is not exceeded; provide an adequate supply of affordable housing while maintaining acceptable hurricane evacuation and protecting the environment. In 1996, the Administration Commission adopted a rule which included a cap of 255 residential units per year for Monroe County. The rule also adopted a five-year Work Program into the Monroe County Comprehensive Plan with the local governments to construct sewage treatment facilities, replace cesspits, and purchase land to protect natural habitat. Monroe County, the City of Marathon, and the DCA were required to submit reports to the Administration Commission each year "documenting the degree to which the Work Program objectives for that year [had] been achieved." The rule contemplated that if the local governments did not make "substantial progress" towards accomplishing the tasks of the Work Program, the unit cap for new residential permits would be reduced by at least 20 percent for the following year. The Administration Commission found a lack of "substantial progress" in 1999 and adopted a rule which reduced the annual allocation of residential permits by 20 percent and extended the five-year Work Program to seven years. The Administration Commission found "substantial progress" had been accomplished in 2001 and began rulemaking to restore the permit allocation. However, the rule was challenged, and since the Administration Commission found a lack of "substantial progress" in 2002, the Commission adopted a revised rule which did not restore permits. The Carrying Capacity Study The 1996 Administration Commission rule amended the Monroe County Comprehensive Plan to require the completion of a carrying capacity analysis. The carrying capacity analysis shall be designed to determine the ability of the Florida Keys ecosystem, and the various segments thereof, to withstand all impacts of additional land development activities. The analysis shall be based upon the findings adopted by the Administration Commission on December 12, 1995, or more recent data that may become available in the course of the study, and shall be based upon the benchmarks of, and all adverse impacts to, the Keys land and water natural systems, in addition to the impact of nutrients on marine resources. The carrying capacity analysis shall consider aesthetic, socioeconomic (including sustainable tourism), quality of life and community character issues, including the concentration of population, the amount of open space, diversity of habitats, and species richness. The analysis shall reflect the interconnected nature of the Florida Keys' natural systems, but may consider and analyze the carrying capacity of specific islands or groups of islands and specific ecosystems or habitats, including distinct parts of the Keys' marine system. (Ref. 1991 Stip. Settlement Agreement). Agencies: County, DCA, DEP, DOH, DOT, GFC, SFWMD, NMS, SFRPC, EPA, USFWS, Army COE, and other interested parties to include representatives of environmental organizations and development interests. The Florida Keys Carrying Capacity Study ("FKCCS") was completed over a period of six years. Six million dollars was allocated by the DCA and the United States Army Corps of Engineers to produce the Monroe County Sanitary Wastewater Master Plan, the Stormwater Management Plan, and the FKCCS. The contractor, URS Corporation, completed the FKCCS and the Carrying Capacity/Impact Assessment Model ("CCIAM"), a separate component to be used in forecasting land use scenarios. A panel of external experts was used to peer review the scope of work. In September 2002, the study was completed. The National Research Council of the National Academy of Sciences ("Council") reviewed the CCIAM and FKCCS and, as a result of its review, adjustments were made to the CCIAM. The Council's review concluded that overall, due to data constraints and other issues in certain portions of the CCIAM, the model proved insufficient to develop a comprehensive carrying capacity framework that would allow for undisputable determinations of whether future development scenarios fall within the carrying capacity of the Florida Keys. The marine module, the most data- deficient, was subsequently removed from the CCIAM. The FKCCS recommended four main guidelines for future development in the Florida Keys: Prevent encroachment into native habitat. A wealth of evidence shows that terrestrial habitats and species have been severely affected by development and further impacts would only exacerbate an already untenable condition. Continue and intensify existing programs. Many initiatives to improve environmental conditions and quality of life exist in the Florida Keys. They include land acquisition programs, the wastewater and stormwater master plans, ongoing research and management activities in the Florida Keys National Marine Sanctuary, and restoration efforts throughout the Florida Keys. If further development is to occur, focus on redevelopment and infill. Opportunities for additional growth with small, potentially acceptable, additional environmental impacts may occur in areas ripe for redevelopment or already disturbed. Increase efforts to manage the resources. Habitat management efforts in the Keys could increase to effectively preserve and improve the ecological values of remaining terrestrial ecosystems. Partnership Agreement While preparing the Assessment Report for 2003, the DCA Secretary concluded that the existing policy direction, consisting of imposition of the Work Program by the Administration Commission and reduction of residential permits, due to lack of substantial progress, was not sufficient to solve the problems facing the Florida Keys. The Assessment Report described difficulties and delays in implementing the Work Program. Most of the sewage treatment facilities contemplated by the Work Program were not constructed and valuable upland habitat continued to be developed. On December 16, 2003, the Administration Commission concluded that Monroe County had not made substantial progress and directed the DCA "to determine changes that would be necessary to the comprehensive plan to fully implement the requirements of the Work Program[,] as well as habitat protection provisions." The Administration Commission also accepted the staff recommendation that it "determine substantial progress has been made for the City of Marathon, and that some permits will be provided back to the City of Marathon," the number to be determined at the Administration Commission's January 27, 2004, meeting. The DCA approached the Florida Keys local governments and community-based organizations and proposed a Partnership Agreement to "begin implementation of the Work Program associated with the Florida Keys Protection Act." The DCA Secretary addressed the governing boards of the Florida Keys' local governments concerning the proposed Partnership Agreement. Monroe County, the City of Marathon, and the Village of Islamorada adopted resolutions supporting the partnership proposal. By letter dated February 25, 2004, the DCA Secretary requested that the Governor, as a member of the Administration Commission, authorize the Administration Commission staff to initiate rulemaking to amend the Comprehensive Plans of Monroe County and the City of Marathon. According to the letter, this action was requested based upon a series of significant commitments made by each of these local governments which addressed issues related to habitat protection, affordable housing, wastewater and stormwater management projects, land acquisition, and nutrient credits. The letter also noted the following: A complete follow-through on these commitments would mean over $410 million would be spent in the coming years to address these issues in the Florida Keys. Habitat protection will be increased, environmentally-sensitive hammock and pinelands would be purchased, new wastewater and stormwater management projects would be initiated, and 230 units of affordable housing would be made available for residents of the Florida Keys. * * * In essence, we have developed proposals that allow additional units primarily for affordable housing in the Florida Keys, but also would ensure the most pressing issues will be jointly addressed by local and state government. Consistent with the February 25, 2004, letter, the Partnership Agreement consists of commitments by the Florida Keys' local governments and several state agencies to address habitat protection, wastewater and stormwater treatment, affordable housing, and hurricane evacuation. At its March 9, 2004, meeting, the Administration Commission accepted the DCA's recommendation to initiate rulemaking to implement the Partnership Agreement. The Proposed Rules 29. Proposed Rules 28-18.210, 28-20.110, and 28-20.120 were published in the Florida Administrative Weekly on July 16, 2004.5 According to the published notice, the purpose of Proposed Rule 28-18.210 is to amend Policy 101.2.14 of the Marathon Comprehensive Plan to address building permit allocations by increasing the annual residential permitting cap and specifying allocations authorized for market rate and affordable housing, restoring certain allocations authorized for market rate and affordable housing, authorizing certain unused rate of growth ordinance allocations to roll forward, and deleting the requirement for nutrient credits upon a date certain. The notice also provides that the Proposed Rule amends the Work Program set forth in Policy 101.2.14 of the Marathon Comprehensive Plan to establish Year Eight and Year Nine to address tasks not yet completed in the original Work Program. The published notice states that the purpose of Proposed Rules 28-20.110 and 28-20.120 is to amend Policy 101.2.13 of the Monroe County Comprehensive Plan to address building permit allocations by increasing the annual residential permitting cap and specifying allocations authorized for market rate and affordable housing, restoring certain allocations previously reduced to be targeted for affordable housing, authorizing certain unused rate of growth ordinance allocations to roll forward, and deleting the requirement for nutrient reduction credits upon a date certain. The notice also provides that the proposed rules amend the Work Program in Policy 101.2.13 of the Monroe County Comprehensive Plan to establish Work Program provisions for Year Eight, Year Nine, and Year Ten to address tasks not yet completed in the original Work Program. Finally, the notice states that the Proposed Rule amendments address the adoption of necessary land development regulations. The published notice cites Subsection 380.0552(9), Florida Statutes, as the specific authority for the Administration Commission's promulgating the Proposed Rules and Section 380.0552, Florida Statutes, as the law implemented. Petitioners challenge portions of Proposed Rule 28-18.210, which will amend the Marathon Comprehensive Plan and portions of Proposed Rules 28-20.110 and 28-20.120,6 which will amend the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations on the basis that they constituted invalid exercises of delegated legislative authority. Petitioners contend that the proposed rules should comply with Section 380.0552 and Chapters 163 and 380, Florida Statutes, and, therefore, should be analyzed for such compliance in this proceeding. Notwithstanding Petitioners contention to the contrary, for the reason stated in paragraph 199 below, Proposed Rules 28-18.210, 28-20.110, and 28-20.120 will be analyzed based on their consistency with Section 380.0552, Florida Statutes, because that is the provision which the proposed rules explicitly purport to implement. The published notice does not specify the subsection of Section 380.0552, Florida Statutes, that the proposed rules implement. However, the parties agree that the proposed rules must be consistent with Subsection 380.0552(7), Florida Statutes, which set forth the Principles for Guiding Development. Restoration/Increase of ROGO Allocations The Comprehensive Plans for Monroe County and the City of Marathon include a Permit Allocation System, under which Monroe County was originally allocated 255 permits per year for new residential units. As noted in paragraph 18 above, in 1999, the Administration Commission determined that substantial progress on the Work Program had not been accomplished and adopted a rule reducing the annual allocation of permits by 20 percent. After the incorporation of the Village of Islamorada and Marathon, and a voluntary reduction by the Village of Islamorada, the current annual allocation of residential development permits is 158 for Monroe County, 24 for Marathon, and 14 for the Village of Islamorada. Proposed Rule 28-20.110(1) amends Policy 101.2.13 of the Monroe County Comprehensive Plan by increasing the annual unit cap of 158 to 197, thereby restoring the original level of permits issued for new residential development under the Rate of Growth Ordinance ("ROGO"). The proposed rule requires that "[e]ach year's ROGO allocation of 197 new units shall be split with a minimum of 71 units allocated for affordable housing in perpetuity and market rate allocations not to exceed 126 new units per year." Proposed Rule 28-18.210 amends Policy 101.2.14 of the Marathon Comprehensive Plan by increasing the maximum number of permits for new residential units from 24 to 30 per year, thereby, restoring the original level of permits per year for new residential development under ROGO. The proposed rule requires that "[e]ach year's ROGO allocation of 30 units shall consist of 24 market rate and 6 affordable units" and that the affordable housing "remain as affordable housing in perpetuity." In addition to restoring the number of permits for new development to the original levels, Proposed Rule 28-20.110 amends the Comprehensive Plans of Monroe County and Marathon to restore available permit allocations that were unused in previous years and to allow unused ROGO allocations to be allocated in subsequent years. Proposed Rule 28-20.110 adds a new provision to the Monroe County Comprehensive Plan, providing that "effective July 12, 2004, 140 ROGO allocations, which represent unused reductions for ROGO Years Nine through 12, and 25 units lost in Year Ten due to lack of nutrient credits, are reallocated to the County exclusively for affordable housing purposes." Proposed Rule 28-18.210 adds a provision to the Marathon Comprehensive Plan that "effective July 12, 2004, 65 ROGO allocations, which represent unused ROGO allocations for ROGO Years 9 through 12, are to be reallocated to the City exclusively for affordable housing." Advancing/Borrowing Nutrient Credits The existing Comprehensive Plans of Monroe County and the City of Marathon include a nutrient credit system. According to the Monroe County Comprehensive Plan, nutrient reduction credits are earned when existing treatment systems are upgraded. The amount of nutrient reduction credits earned correlate to the type of treatment system to which an old system is upgraded. Thus, if a treatment system is upgraded to the "best centralized system" or the "advanced wastewater treatment system," Monroe County would earn the most nutrient credits possible. For example, elimination of a cesspit by connection to a centralized advanced wastewater treatment system earns 1.5 nutrient credits, and the elimination of a substandard on-site disposal system by connection to a centralized secondary treatment system earns 0.5 nutrient credits. Under the existing Comprehensive Plans of Monroe County and the City of Marathon, development permits for new residential development can only be issued if a nutrient reduction credit has been earned. The requirement that adequate nutrient credits be earned prior to issuance of permits is to mitigate for nutrient impacts of new residential development. However, Proposed Rules 28-18.210 and 28-20.110 provide that Monroe County and the City of Marathon will be permitted to "borrow" nutrient credits from the pool of nutrient credits that are anticipated from the construction and/or completing of sewage treatment facilities. The existing Comprehensive Plans of Monroe County and the City of Marathon provide that nutrient reduction credits are earned by the construction of the Little Venice system according to the schedules prescribed in the Comprehensive Plans. The schedules in the Comprehensive Plans provide that "213 of the total credits estimated to be available from the full operation of the system shall be earned when the wastewater permit is issued, the design/build contract for the system has been fully executed and construction of the system has commenced." The Comprehensive Plans also provide that all the remaining available credits shall be earned when the construction of the Little Venice System is complete, the collection system lines have been installed, and the final total of credits available from the operation of the systems has been calculated. Proposed Rules 28-20.110 and 28-18.210 amend the Comprehensive Plans of Monroe County and Marathon by allowing 213 of the total credits estimated to be available from the full operation of the Little Venice system to be earned, effective July 13, 2003. The proposed rules also provide that when the Little Venice system is completed, "[t]he total credits available shall be reduced by the 213 [credits] advanced in the year 2003." Proposed Rule 28-20.110 amends the Monroe County Comprehensive Plan by allocating 41 nutrient credits for market rate units and 193 nutrient credits for affordable housing units to Monroe County. The Proposed Rule 28-20.110 provides that the 41 nutrient credits will be subtracted from the nutrient credits subsequently earned from hookups to the Key West Resort Utilities Wastewater Facility ("Key West Resort Utilities"). The 193 nutrient credits will be subtracted from hookups to the Key West Resort Utilities, Bay Point, and Key Largo Wastewater Facilities. Repeal of Nutrient Reduction Provision As described in paragraph 42 above, the existing Comprehensive Plans of Monroe County and the City of Marathon have mandatory nutrient provisions that require nutrient credits to be earned prior to issuance of a permit for new residential units. Proposed Rules 28-20.110 and 28-18.210 amend the Comprehensive Plans of Monroe County and the City of Marathon by repealing the mandatory nutrient credit provisions. Pursuant to the proposed rules, "effective July 13, 2005, no nutrient credits shall be required if the local government has made satisfactory progress as determined by the Administration Commission in meeting the deadlines established by the Work Program as adopted by rule after March 15, 2004." Challenges to Increase/Restoration of Permits, Advancing Nutrient Credits, and Repeal of Nutrient Reduction Provision Petitioners contend that the increase in new residential permits is arbitrary and capricious and contravenes the law implemented because it will increase development even though the identified thresholds for growth in the Florida Keys--water quality, terrestrial habitat, and evacuation times-- have been exceeded and will "worsen" the water quality. Petitioners challenge the provision which allows the borrowing or awarding of nutrient credits before wastewater projects are completed as arbitrary and capricious, because it will allow a net increase in the nutrient impacts into the nearshore waters of the Florida Keys and will "worsen" the water quality. Proposed Rules 28-20.110(1) and 28-18.210 increase the number of permits for new residential units from the preceding years. However, the number of permits to be issued under the Monroe County Comprehensive Plan has not increased. Rather, the permits will be issued in a shorter time frame and without being subject to the previous conditions. Even though increased development could result in an increase in the nutrient impacts into the nearshore waters of the Florida Keys, the adverse effect of such nutrient loading is offset by the adequate treatment of wastewater and stormwater runoff. To address the problem of nutrient loading, the Proposed Rules 28-20.110 and 28-18.210 extend the years of the Work Programs and include in those programs tasks, such as construction and completion of wastewater facilities, as well as financing for those projects. Based on the commitments of Monroe County and the City of Marathon in the Partnership Agreement, there is a reasonable expectation that the projects included in the Work Program of the Proposed Rules will be completed. When completed, the wastewater treatment facilities will provide nutrient credits. In anticipation of the completion of the wastewater treatment facilities, Proposed Rules 28-20.110 and 28-18.210 restore the annual permits for new residential units to their original levels and allow previous unused ROGO allocations to be allocated. The Proposed Rules provide that the nutrient credits for these allocations will be borrowed from the pool of nutrient credits that are anticipated from the planned construction and completion of wastewater facilities. Petitioners' contention that the repeal of the mandatory nutrient reduction credit provision is arbitrary and capricious and contravenes the law implemented because such repeal allows the water quality to worsen, is inconsistent with the "no net nutrient" provision of the Comprehensive Plans and is unjustified given that the nutrient pollution has increased since the nutrient credit provisions were adopted. Petitioners also contend that the repeal of the nutrient credit provision is arbitrary and capricious because the repeal is effective on a date certain without further action and without regard for whether it is justified. Proposed Rules 28-20.110 and 28.18-210 repeal the mandatory nutrient reduction credit provisions of the Comprehensive Plans, but the condition precedent to the repeal is the Administration Commission's making a determination that Monroe County and the City of Marathon have "made satisfactory progress . . . in meeting deadlines established by the [new] Work Program." This determination must be made prior to the repeal going into effect. Presumably, the tasks in the Work Program for which satisfactory progress must be made are those relevant and reasonably related to and which result in nutrient credits. Contrary to Petitioners' assertion, the repeal of the mandatory nutrient credit provision does not automatically become effective on the date prescribed in the proposed amendments. Instead, the repeal is contingent on Monroe County's and the City of Marathon's making "satisfactory progress." The term "satisfactory" is not vague as asserted by Petitioners. In the context of Proposed Rules 28-20.110 and 28-18.210, "satisfactory" would be given its common and ordinary meaning, which is "sufficient to meet a demand or requirement."7 Annual Reporting Requirement The existing Comprehensive Plans for Monroe County and the City of Marathon provide that "beginning September 30, 2003, and each year thereafter, [the respective local government] Monroe County and the [DCA] shall report to the Administration Commission documenting the degree to which the Work Program objectives have been achieved." Proposed Rules 28-20.110 and 28-18.210, will modify the annual reporting requirements in the Monroe County and Marathon Comprehensive Plans. The proposed amended provision, which is underlined, and the existing provision are as follows: Beginning September 30, 2003, and each year of the work program thereafter, Monroe County and the Department of Community Affairs shall report to the Administration Commission documenting the degree to which the work program objectives for that year have been achieved. The report for years seven and eight shall be combined and provided to the Administration Commission by September 30, 2005. The Commission shall consider the findings and recommendations provided in those reports and shall determine whether substantial progress has been achieved toward accomplishing the tasks of the work program. Petitioners contend that the proposed rules, which delete the requirement for Monroe County and for the City of Marathon to submit the September 2004 progress report to the Administration Commission, are arbitrary and capricious. Petitioners assert that by deleting the requirement for the 2004 annual progress report, the proposed rules fail to establish an annual safeguard that is required to ensure that the environmental conditions and infrastructure limitation that the annual Work Program is designed to resolve, do not worsen. The proposed rules delete the requirement that Monroe County and Marathon submit their respective reports in September 2004 and delay submission of that report by a year. The time spent negotiating the Partnership Agreement and the proposed changes to the Monroe County Comprehensive Plans and the Land Development Regulations left little time for Monroe County and the City of Marathon to implement the new Work Programs. Moreover, the DCA and the Administration Commission would have had too short a time period in which to judge whether Monroe County and Marathon had made substantial progress. By combining the reports for Years Seven and Eight of the Work Program, the Administration Commission can expect a meaningful report on Monroe County's and the City of Marathon's progress in implementing their respective Work Programs. Monroe County Work Program Under Proposed Rules Proposed Rule 28-20.110 amends the Work Program Policy 101.2.13 of the Monroe County Comprehensive Plan by adding Years Eight, Nine, and Ten to the existing Work Program. Many of the tasks included therein address and are related to wastewater facilities, habitat protection, affordable housing, and hurricane evacuation and implement the Partnership Agreement. Year Eight of the Work Program requires that Monroe County and other designated agencies perform the specified tasks and provide, in relevant part, the following: Year Eight (July 13, 2004 through July 12, 2005) Review and revise (as necessary) the Conservation and Natural Areas Map. Initiate acquisition strategy for lands identified outside the Conservation and Natural Areas identified as worthy of protection. Begin public hearings for Conservation and Natural Areas boundaries. Conclude public hearings for the adoption of the amended Conservation and Natural Areas Boundaries. Adopt an ordinance to implement a moratorium on ROGO/NROGO applications that involves the clearing of any portion of an upland tropical hardwood hammock or pinelands habitat contained in a tropical hardwood hammock or pinelands patch of two or more acres in size located within a Conservation and Natural Area. Adopt amendments to the comprehensive plan and land development regulations to enact overlay designations, and eliminate or revise the Habitat Evaluation Index, and modify the ROGO/NROGO system to guide development away from environmentally sensitive lands. Amend land development regulations to prohibit the designation of Conservation and Natural Areas (Tier 1) as a receiver site for ROGO exempt development from sender sites; and to further limit clearing of upland native habitat that may occur in the Natural Areas (Tier I) and the Transition and Sprawl Reduction Area (Tier II) upon designation by the County. Develop Land Acquisition and Management Master Plan and address both funding and management strategies. Provide $40 million in financing secured by infrastructure tax for wastewater facilities. Begin construction of wastewater plants or laying of collection lines for Baypoint, Conch Key and Key Largo Trailer Village/Key Largo Park. Ensure the connection for up to 1,350 EDUs [equivalent development units] at Stock Island to Key West Resort Utilities. Complete the Lower Keys and Key Largo feasibility study. Complete projects identified in the Storm Water Management Master Plan. Evaluate and implement strategies to ensure that affordable housing remains affordable in perpetuity for future generations. Establish a partnership with non-profit organizations in order to construct affordable housing using additional state funds. Identify potential acquisition sites for affordable housing proposals and include in the Land Acquisition Master Plan. Provide up to $10 million in bond financing from the Tourist Impact Tax for acquisition of land for workforce housing and affordable housing sites. Complete a comprehensive analysis of hurricane evacuation issues in the Florida Keys and develop strategies to reduce actual hurricane clearance times and, thereby, reduce potential loss of life from hurricanes. As discussed below, several of the tasks in Year Eight of the Work Program implement parts of Goal 105 of the Monroe County Comprehensive Plan. Goal 105 reads: Monroe County shall undertake a comprehensive land acquisition program and smart growth initiatives in conjunction with its Livable CommuniKeys Program in a manner that recognizes the finite capacity for new development in the Florida Keys by providing economic and housing opportunities for residents without compromising the biodiversity of the natural environment and the continued ability of the natural and man-made systems to sustain livable communities in the Florida Keys for future generations. Goal 105, also referred to as the "Smart Growth Goal," provides a framework to implement the FKCCS and a 20-year land acquisition program. The initial phase of implementing Goal 105 calls for the drafting and adoption of "Tier Maps" to be used as guidance for the Monroe County's Land Acquisition Program. Pursuant to Policy 105.2.1 of the Monroe County Comprehensive Plan, the Tier maps will designate and map properties into one of the following three general categories for purposes of Monroe County's Land Acquisition Program and the smart growth initiatives: Natural Area (Tier I); Transition and Sprawl Reduction Area (Tier II); and Infill Area (Tier III). Tier I property is property where all or a significant portion of the land is characterized as environmentally sensitive by policies of the Monroe County Comprehensive Plan and applicable habitat conservation plan. Tier I is to be designated as a Natural Area. New development is to be severely restricted in Tier I. Tier II is any geographic property where scattered groups and fragments of environmentally-sensitive lands, as defined by the Comprehensive Plan, may be found and where subdivisions are not predominantly developed. New development is to be discouraged in Tier II, which is to be designated as Transition and Sprawl Area. Tier III is property where a significant portion of land is not characterized as environmentally sensitive, as defined by the Monroe County Comprehensive Plan, where existing platted subdivisions are substantially developed, served by complete infrastructure facilities, within close proximity to established commercial areas or where a concentration of non-residential uses exist. New development and re-development are to be highly encouraged in Tier III, which is to be designated as Infill Area. Petitioners contend that Task A, which requires Monroe County to "review and revise [as necessary] the Conservation and Natural Areas ["CNA"] Map, vests unbridled discretion to the County to amend the CNA map without adequate standards or criteria." Further, Petitioners assert that Task A does not identify the purpose for which the CNA map is to be used. Based on this assertion, Petitioners contend that Task A is arbitrary and capricious and contravenes law. Task A will assist in the implementation of the Comprehensive Plan by requiring Monroe County to review and revise the CNA map. In reviewing Task A, it is clear that the county must adhere to the criteria prescribed in Goal 105 of the existing Monroe County Comprehensive Plan. When Task A is read together with Goal 105 and its related policies, it is clear that the purpose of Task A is to provide guidance for the Monroe County Land Acquisition Program. As a part of the review and revision process, the Partnership Agreement, which Task A implements, provides that the Monroe County staff should prepare the CNA map utilizing Florida Marine Source Resources Institute ADID maps, the most recent aerial photographs, site visits as necessary, and obtain input from DCA and the public. Moreover, when Task A is read with Task B, and other relevant parts of the Monroe County Comprehensive Plan, it is clear that a CNA map is to be used to implement Goal 105 of the Monroe County Comprehensive Plan, which is related to land acquisition and "smart growth initiatives." Petitioners assert that Task B, which requires Monroe County to "initiate acquisition strategy for lands identified outside the [CNA] boundaries," is arbitrary and capricious and contravenes the law implemented, because it provides no standards or criteria. Task B is consistent with Policy 105.2.1 of Goal 105 of the Monroe County Comprehensive Plan. The Partnership Agreement consistent with Goal 105 provides that Monroe County will identify lands outside the CNA boundaries for acquisition and target for purchase appropriate environmentally-sensitive lands that are contained within upland habitat of two acres or more outside the CNA. Task C requires Monroe County to "begin public hearings for [CNA]." Task D requires Monroe County to conclude the public hearings for adoption of the amended [CNA] boundaries. Petitioners contend that Tasks C and D are arbitrary and capricious and contravene the law implemented, because they do not require that an end result be achieved as a result of these public meetings. When the provisions of Task C and Task D are read together, with Goal 105 and the relevant provisions of the Partnership Agreement, it is clear that the end result sought as a result of the public hearings is to receive public comment regarding the identification of lands to be included in the CNA. Furthermore, this is a reasonable meaning of Tasks C and D in light of the well-known purpose of public hearings. Petitioners challenge Task E, which requires Monroe County to "adopt an ordinance to implement a moratorium on ROGO/NROGO applications that involves the clearing of any portion of an upland tropical hardwood hammock or pinelands habitat contained in a tropical hardwood hammock or pinelands patch of two or more acres in size located within a [CNA]." The purpose of the moratorium is to prevent impacts to native habitat until Monroe County adopts permanent regulations and amendments. Petitioners contend that Task E of Year Eight of the Work Program, which requires Monroe County to "adopt an ordinance to implement a moratorium on ROGO/NROGO applications that involve the clearing of any portion of an upland hardwood hammock or pinelands habitat contained in a tropical hardwood hammock or pinelands patch of two acres or more . . . within a [CNA]," is arbitrary and capricious and contravenes the law implemented. Petitioners assert that the criteria for the interim ordinance required fails to protect all hammock and pineland, does not protect enough hammock to ensure that the carrying capacity of the Florida Keys terrestrial habitat to sustain degradation and loss is not exceeded, does not require that the interim protections last until replaced by permanent ones, and does not apply to ROGO-exempt allocations. The criteria for the interim ordinance required by Task E is reasonable and will result in strengthening habitat protection in the areas specified in that provision. The fact that Task E authorizes the adoption of an ordinance that protects less than "all" hammock and pineland, does not make the proposed rule arbitrary and capricious, nor does the proposed rule contravene the law implemented. Petitioners contend that Task F, which requires Monroe County to "[a]dopt amendments to the comprehensive plan and land development regulations to enact overlay designations, and eliminate or revise the Habitat Evaluation Index ["HEI"], and modify the ROGO/NROGO system to guide development away from environmentally sensitive lands," is arbitrary and capricious and contravenes the law implemented. Petitioners claim that the standard set forth in Task F, "to guide development away from environmentally sensitive lands," is no more specific than is statutory language. Petitioners assert that the proposed rule should specify (1) habitat types, patch sizes and other characteristics of the areas to which regulations will apply, and (2) the exact nature of the regulation (i.e. a prohibition on direct or secondary impacts, the application of negative points or open space rations, etc.) that will be relied upon to guide development away from such areas. Task F requires Monroe County to adopt amendments to the Comprehensive Plan and Land Development Regulations to enact the overlay designations requiring Monroe County to implement Policy 105.2.2 of the Monroe County Comprehensive Plan. Task F will implement Goal 105 of the Monroe County Comprehensive Plan. This task will identify areas to which future development will be directed. Also, the overlay designations will give property owners more certainty with respect to whether they can or cannot develop their property. The requirement in Task F, that the HEI be reviewed or eliminated, is reasonable in light of Goal 105 of the Monroe County Comprehensive Plan. The HEI is currently used by Monroe County to evaluate the environmental sensitivity of land and its suitability for development and acquisition. The HEI requires lot-by-lot evaluations, which fail to take into account secondary impact of development and has resulted in the loss of valuable habitat. The Tier System in Goal 105 is designed to move Monroe County away from the existing HEI. Implementation of Goal 105 requires that the existing HEI be eliminated or revised. Task G of Year Eight of the Work Program requires Monroe County to "amend land development regulations to prohibit the designation of [CNA] (Tier 1) as a receiver site for ROGO exempt development from sender sites; and to further limit clearing of upland native habitat that may occur in the [CNA] (Tier I) and the Transition and Sprawl Reduction Area (Tier II) upon designation by the County." Petitioners contend that Task G is arbitrary and capricious and contravenes the law implemented because it fails to permanently protect even that habitat which Monroe County claims is most important to protect, allows the geographic scope of the contemplated rules to be defined in the future without stated criteria or standards, and allows an unnecessary delay in the adoption of protections which the data and legal requirements demonstrate should have been adopted two years earlier. Task G is intended to strengthen protection of habitat by adopting land development regulations to prohibit development in specified areas and to further limit clearing in designated areas. Goal 105, specifically, provides guidance as to the standards that such regulations must follow in Policy 105.2.1 of the Monroe County Comprehensive Plan. Petitioners contend that Task K of Year Eight of the Work Program requiring Monroe County to ensure the connection for up to 1,350 units at Stock Island to Key West Resort Utilities, is arbitrary and capricious and contravenes the law implemented. Petitioners charge that the requirement in the proposed rule is vague and could be met by simply connecting one home to the referenced wastewater utility to remedy a documented, serious water quality problem. When the purpose of Task K is considered, the reasonable meaning of the provision is that the task requires that Monroe County connect approximately 1,350 units to the designated facility. Petitioners contend that Task M of Year Eight of the Work Program, which requires Monroe County to "complete projects identified in the Stormwater Management Master Plan," is arbitrary and capricious and contravenes the law implemented. In support of this contention, Petitioners assert that the Proposed Rule does not identify the name or number of stormwater projects that are to be completed. Petitioners argue that by referring only to "projects," without specifying the name or number of the projects to be completed, the Proposed Rule may require that only a minimum of two projects be completed. The reasonable interpretation of Task M is that Monroe County is required to complete all the remaining projects identified in the Stormwater Management Master Plan. This meaning is supported by a review of related tasks in the previous years of the Work Program. For example, Year Six of the Work Program required Monroe County and other designated agencies to "initiate construction of selected projects as identified in the Stormwater Management Master Plan." Year Seven of the Work Program required that Monroe County and other agencies "continue implementing selected projects identified in the Stormwater Management Master Plan." Petitioners contend that Task P in Year Eight of the Work Program, which requires Monroe County to "provide up to $10 million in bond financing from the Tourist Impact Tax for acquisition of land for workforce housing and affordable housing sites," is arbitrary and capricious and contravenes the law implemented. As a basis for this contention, Petitioners claim that Task P sets a vague requirement which could be met by simply providing $1.00 in bond financing to provide a need which the State and Monroe County claim is important enough to justify the permitting increase allowed by Proposed Rules 28-18.210 and 28-20.110. Contrary to Petitioners' assertions, the requirement to provide $10 million in bond financing could not be met by providing $1.00 in bond financing. The $10 million figure represents the approximate amount of bond financing that will be provided. For the reasons stated above, it is not possible to include an exact amount in this Work Program requirement. The Work Program for Year Nine provides that the following tasks be done between July 13, 2005, through July 12, 2006: In coordination with the Florida Key Aquaduct Authority and Key Largo Sewer District, initiate the process to obtain $80 million in bond financing secured by connection fees. Secure site for lower Keys and Key Largo wastewater facilities. Petitioners contend that Task A for Year Nine for the Work Program, which requires that Monroe County, "in coordination with the Florida Keys Aqueduct Authority and the Key Largo Sewer District, initiate the process to obtain $80 million in bond financing secured by connection fees," is arbitrary and capricious and contravenes the law implemented. Petitioners contend that Task A, which requires that Monroe County only "initiate" the process necessary to obtain the required bond financing, and does not require that the funds be secured and dedicated to actual improvements, delays funding to remedy a critical water quality problem. The reasonable meaning of the provision in Task A, that Monroe County will initiate the process to obtain "80 million in bond financing secured by connection fees," is that Monroe County will take all steps legally necessary to accomplish obtaining the bond financing. Petitioners contend that Task B of Year Nine of the Work Program, which requires Monroe County to "secure a site for lower Keys and Key Largo wastewater facilities," is arbitrary and capricious and contravenes the law implemented, because it delays an important remedy to a critical water quality problem. Task B reasonably requires that one of the first steps that must be taken prior to constructing any wastewater facility is to secure a site. Irrespective of the need for the wastewater facilities specified in Task B, unless a site is secured, no construction can occur. Proposed Rule 28-20.110(1), which amends Policy of the Monroe County Comprehensive Plan by adding Year Ten to the Work Program, provides the following: Year Ten (July 13, 2006 through July 12, 2007) Award Contract for design, construction, and operation of lower Keys and Key Largo wastewater facilities. Begin construction of the lower Keys and Key Largo wastewater plants. Initiate connections to lower keys and Key Largo wastewater systems. Complete construction and hookups for Bay Point, Conch Key and Key Largo Trailer Village/Key Largo Park. Obtain $80M in bond financing secured by connection fees Petitioners contend that Task A, which requires Monroe County to award a contract for design, construction, and operation of the lower Florida Keys and Key Largo wastewater facilities, is arbitrary and capricious and contravenes the law implemented, because it delays an important remedy to a critical water quality problem. Petitioners also contend that Task D, which requires that construction and hookups for specified areas be completed, and Task E, which requires Monroe County to obtain $80 million in bond financing secured by connection fees, are arbitrary and capricious and contravene the law implemented. That Tasks A, D, and E are required to be completed in Year Ten of the Work Program, between July 13, 2006, and July 12, 2007, is reasonable in view of the steps that must be taken prior to completing the responsibilities provided in those tasks. Petitioners contend that Task B, which requires Monroe County to "begin construction of the lower Florida Keys and Key Largo Trailer Village/Key Largo Park wastewater plants" between July 13, 2006, and July 12, 2007, is arbitrary and capricious and contravenes the law implemented. Petitioners assert that this portion of Proposed Rule 28-20.110 delays an important remedy to a critical water quality problem and does not require the completion of construction or the hookup and operation of the necessary facility. Task B of the Work Program, to begin construction of the lower Florida Keys and Key Largo wastewater plants, reasonably and logically follows the task in the preceding work year that required Monroe County to secure a site for the lower Florida Keys and Key Largo wastewater facilities. Given this chronology, it is reasonable that Task B does not require that the specified wastewater facilities be completed and fully operational the same year that construction begins. Petitioners contend that Task C of Year Ten of the Work Program, which requires Monroe County and Largo Sewer District to "initiate connections to lower Keys and Key Largo wastewater systems," is arbitrary and capricious and contravenes the law implemented. As a basis for this contention, Petitioners assert that Task C does not require the completion of connections and operation of the system, but requires only the undefined "initiation" of connections. Task C, which requires Monroe County to "initiate connections" to the lower Florida Keys and Key Largo wastewater facilities, is not arbitrary and capricious. Given the purpose of this task, this provision reasonably requires Monroe County to begin connecting units to the wastewater facilities. Even without a precise number, the reviewing agencies can evaluate the Work Program for Year Ten, including Task C, and determine if Monroe County has made substantial progress. City of Marathon Work Program Under Proposed Rules Proposed Rule 28-18.210 adds Year Eight and Year Nine to the existing Work Program in Policy 101.2.14 of the Marathon Comprehensive Plan. The tasks in the Work Program, many of which implement the Partnership Agreement, include tasks related to the construction of wastewater facilities, affordable housing, and hurricane evacuation. Year Eight of the Work Program of the Marathon Comprehensive Plan include, in relevant, part the following tasks: Year Eight (July 12, 2004 through July 12, 2005) Begin construction of wastewater collection lines for Little Venice Phase II by December 2004. Work with the Florida Keys Aqueduct Authority to initiate bond financing for citywide sewer facilities and to develop a schedule of events necessary to initiate process by December 2004. Develop and advertise a Request for Proposal for the design, construction, operation of Marathon Central Wastewater System by December 2004. Obtain necessary bond financing (60% of projected sewer cost) secured by connection fees by December 2004. Award contract for design, construction and operation of Marathon Central Wastewater System by December 2004. By January 2005, identify potential acquisition sites for affordable work force housing. Establish a partnership with non- profit organizations in order to construct affordable housing using additional state funds. Evaluate strategies to increase the time that affordable housing remains affordable; establish a maximum sales price for work force housing and establish a ceiling on down payments that are not subsidized by public programs; and amend comprehensive plan and/or land development regulations. * * * Develop a map or list of real estate numbers of lots containing environmentally sensitive lands in need of acquisition and submit to the Department of Community Affairs by July 2004. Assist the state in land acquisition efforts by establishing a land acquisition advisory committee to prioritize proposed acquisitions by July 2004. Complete a comprehensive analysis of hurricane evacuation issues in the Florida Keys and develop strategies to reduce actual hurricane clearance times and thereby reduce potential loss of life from hurricanes. Year Nine of the Work Program of the Marathon Comprehensive Plan includes in relevant part the following tasks: Year Nine (July 13, 2005 through July 12, 2006) Begin construction of Phase I of Marathon Central Wastewater System by January 2006. Evaluate wastewater master plan and indicate areas, if any, that will not receive central sewer. For any area that will not be served by central sewer, develop a septic tank inspection program and begin implementation of the program by September 2005. * * * E. Develop and implement a Building Permit Allocation System that discourages and limits development in environmentally sensitive areas within the proposed Marathon comprehensive plan by July 2005. Petitioners contend that Proposed Rule 28-18.210(1), which establishes the Work Program for Years Eight and Nine, is arbitrary and capricious and contravenes the law implemented, because it fails to adopt regulation and plan changes, or requires same, to protect terrestrial habitat to the extent shown necessary in the Carrying Capacity Study. The mere fact that the proposed Work Plan for Years Eight and Nine of the Marathon Comprehensive Plan does not address habitat protection, does not make those provisions arbitrary or capricious. Neither does it mean that they contravene law. In this case, it reflects that the Work Plan emphasizes other issues relevant to the City of Marathon Comprehensive Plan. Siting Utilities and Public Facilities The siting of public facilities in Monroe County is governed by existing Policy 101.12.4 in the Monroe County Comprehensive Plan. According to that policy, Monroe County requires that an "analyses be undertaken prior to finalizing plans for the siting of any new or significant expansion (greater than 25 percent) of any existing public facility," and that the analyses include "an assessment of needs, evaluation of alternative sites and design alternatives for the selected sites and assessment of direct and secondary impacts on surrounding land uses and natural resources." With regard to the assessment impacts on surrounding land uses and natural resources, existing Policy 101.12.4 provides the following: The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach berm areas, units of the coastal barrier resources system, undisturbed uplands (particularly high quality hammock and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, consistent with 105.2.1 offshore islands, and Conservation Land Protection Areas. Proposed Rule 28-20.110(2) amends existing Policy 101.12.4, which deletes the term "Conservation Land Protection Areas" from the category of areas included as environmentally sensitive areas, as quoted above, and replaces it with the term, "Natural Areas (Tier I)." Proposed Rule 28-20.110(2) also adds the following provision to existing Policy 101.12.4. Except for passive recreational facilities on publicly owned land, no new public community or utility facility other than water distribution and sewer collection lines or lift stations, and the existing Key Largo Wastewater Treatment Facility, shall be allowed within the Natural Areas (Tier I) unless it can be accomplished without clearing of hammock or pinelands. Exceptions to this requirement may be made to protect the public health, safety and welfare, if all the following criteria are met: No reasonable alternatives exist to the proposed location; and The proposed location is approved by a super-majority of the Board of County Commissioners. Petitioners contend that Proposed Rule 28-20.110(2), discussed above, is arbitrary and capricious and contravenes the law implemented. Petitioners assert that the Proposed Rule allows the siting of public facilities in terrestrial habitats (CNA or Tier I) and also allows water distribution and sewer collection lines or lift stations to be built as a matter of right in a CNA or Tier I, contrary to the findings of the Carrying Capacity Study. Petitioners also contend that the provision in the Proposed Rule, discussed above, is vague, because it refers to the term "natural areas," but is intended to mean CNAs. In the recent past, a decision to site a sewage treatment facility in an environmentally sensitive hammock elicited considerable controversy. Ultimately, Monroe County and the DCA agreed that public facilities should not be located on environmentally sensitive land. The proposed change to Policy 101.12.4 strengthens the policy by requiring approval of a super majority of the Monroe County Board of County Commissioners (County Commission) for an exemption. This also adds specificity to the policy and provides more protection for natural areas and, thus, improves protection of environmentally- sensitive habitat. Contrary to Petitioners' assertion, the term "natural area" is not vague. The Monroe County Comprehensive Plan currently includes Goal 105, which describes a detailed land classification system. "Natural Area (Tier I)" represents natural areas that can be targeted for acquisition and is an updated term. On the other hand, the term "Conservation Land Protection Areas" refers to lands targeted for acquisition by federal and state agencies. ROGO Exemption for Public Facilities Both Monroe County and Marathon have a "Rate of Growth Ordinance," also known as ROGO. A site proposed for development is ranked based on the environmental sensitivity of the property and receives negative points for greater environmental sensitivity. A site proposed for development can also receive positive points for such things as providing its own water system or elevation above the minimum flood insurance elevation. Monroe County and the City of Marathon award their annual allocation of development permits to the top-scoring sites. Proposed Rule 28-20.110 will make several modifications to the ROGO point allocation system in the Monroe County Comprehensive Plan. Existing Policy 101.3.4 of the Monroe County Comprehensive Plan provides that "public facilities shall be exempted from the requirements of the Permit Allocation System for new non-residential development." The existing policy also provides that certain development activity by enumerated federally tax-exempt, not-for-profit organizations "may be exempted from the Permit Allocation System by the County Commission after review by the Planning Commission upon a finding that such activity will predominantly serve the County's non- transient population." Proposed Rule 28-20.110(3) amends existing Policy 101.3.4 by requiring that the County Commission make an additional finding as a condition of exempting certain development activity by certain federally tax-exempt not-for- profit organizations from the Permit Allocation System. Pursuant to the proposed rule, the County Commission must also find that the "development activity is not planned within an area proposed for acquisition by governmental agencies for the purpose of resource protection." Petitioners contend that the provision of Proposed Rule 28-20.110(3), discussed above, is arbitrary and capricious and contravenes the law implemented in that the development activities of the federally tax-exempt, not-for-profit organizations covered by the proposed rule allows development activity on some environmentally-sensitive areas and is inconsistent with the Carrying Capacity Study. Existing Policy 101.3.4 allows development activity by not-for-profit organizations without a permit allocation because such development does not include overnight accommodations which might impact hurricane evacuation. Since a permit allocation was not necessary, such development was not affected by the negative points awarded for development in an area proposed for acquisition for resource protection. However, some not-for- profit organizations proposed development in environmentally- sensitive areas. The proposed change will prevent ROGO-exempt development on such lands and improve the protection of environmentally-sensitive habitat. Lot Aggregation Existing Policy 101.5.4, of the Monroe County Comprehensive Plan addresses the issue of lot aggregation and provides that "points shall be assigned to Allocation Applications for proposed dwelling units, which include a voluntary reduction of density permitted as of right within subdivisions (residential units per legally platted, buildable lots) by aggregating vacant, legally platted, buildable lots." This policy sought to reduce density within subdivisions by awarding or assigning positive points to applicants who aggregated two or more contiguous, vacant, legally buildable lots. The existing policy motivated and allowed applicants to purchase any contiguous property in order to be awarded additional points and, thus, increased their chances of receiving an allocation, even if the lots were in areas targeted for public acquisition for resource protection. Proposed Rule 28-20.110(4) amends Policy 101.5.4, Subsection 3, by prohibiting the awarding of points to Allocation Applications "for lot aggregation within those areas proposed for acquisition by public agencies for the purpose of resource protection." Petitioners assert that the proposed rule is arbitrary and capricious and contravenes the law implemented because it fails to adequately protect terrestrial habitat to the extent shown necessary in the Carrying Capacity Study. The basis of Petitioners' assertion is that under Proposed Rule 28-20.110(4), an applicant can get positive points for aggregating habitat, if the area is not proposed for acquisition by public agencies for the purpose of resource protection. Proposed Rule 28-20.110(4) will direct applicants seeking to be awarded additional points for "lot aggregation away from areas proposed for acquisition by public agencies for resource protection and, thereby, improve protection of terrestrial habitat. Clearing of Native Vegetation Existing Policy 205.2.7 of the Monroe County Comprehensive Plan provides that the "clearing of native vegetation shall be limited to the immediate development area." Under the existing policy, an applicant with aggregated lots would demand to clear a portion of both lots, so that a large portion of all of the lots would be cleared. Proposed Rule 28-20.110 amends existing Policy 205.27.7 by adding the following provision relating to the clearing of vegetation areas where Allocation Applications have received points for lot aggregation: For applications that receive points for lot aggregation under the Permit Allocation System for residential development, clearing of vegetation shall be limited to the open space ratios in Policy 205.2.6 or 5,000 square feet, whichever is less. The clearing of vegetation for ROGO applications that receive points for lot aggregation is also addressed in Proposed Rules 28-20.120(4), which adds a new provision, Regulation 9.5-347(e), to the Monroe County Land Development Regulations. That new provision is as follows: Section 9.5-347 (e) Lot Aggregation and Clearing: For ROGO applications that receive points for lot aggregation under Section 9.5-122.3 (a)(3), clearing of vegetation shall be limited to the open space ratios in paragraph (b) above or five-thousand (5,000) square feet, whichever is less. Petitioners contend that Proposed Rules 28-20.110(b) and 28-20.120(4) are arbitrary and capricious and contravene the law implemented, because they do not prohibit clearing of aggregated lots and are inconsistent with the Principles Guiding Development and with the Carrying Capacity Study. Notwithstanding Petitioners' assertions, even though the proposed rules do not prohibit all clearing of native vegetation, they will limit the amount of clearing for applicants who receive a ROGO allocation based upon lot aggregation. Under Proposed Rule 28-20.120(4), the clearing will be limited to an amount necessary to construct a reasonably-sized house. Technical Coordination Letter Proposed Rule 28-20.110(5), which will add a new policy, Policy 101.5.11, to the Monroe County Comprehensive Plan, provides the following: If not listed in the document "Parcels Not Located in Threatened and Endangered Species Habitat and Not Subject to FWS Consultation", or involving minor development activity exempted by the U.S. Fish and Wildlife Service (USFWS)", any application for a ROGO or NROGO allocation shall contain a technical coordination letter from the USFWS. The County shall consider the recommendations of the USFWS's technical coordination letter in the issuance of the subject permit, except that if a low-effect habitat conservation plan is required by USFWS, the mitigation requirements of that plan shall be incorporated in the conditions of the permit. As a result of federal litigation, the U.S. Fish and Wildlife Service ("USFWS") created a list of "Parcels Not Located in Threatened and Endangered Species Habitat and Not Subject to FWS Consultation." Monroe County and the DCA have developed the practice of requiring a technical coordination letter from the USFWS for development on parcels that are not on that list or are not otherwise exempt from USFWS review. Proposed Rule 28-20.110(5) incorporates into the Monroe County Comprehensive Plan a current practice that resulted from federal litigation. Monroe County Land Development Regulation 9.5-120 Proposed Rule 28-20.120(1) adds the phrase "species of special concern" to the following terms defined in Section 9.5-120(b) of the Monroe County Land Development Regulation as shown by the underlining: (1) "Known habitat of threatened/endangered animal species or species of special concern"; (2) "Potential habitat of threatened/endangered animal species" or species of special concern; and (3) Wide-ranging threatened/endangered animal species or species of special concern. This proposed change will conform the land development regulations to the Monroe County Comprehensive Plan by expanding the list of species that result in negative points under the Permit Allocation System to include "species of special concern." Existing Regulation 9.5-120(b) includes in the definitions of "known habitat of threatened/endangered animal species" and "potential habitat of threatened/endangered species" the sentence, "The county's threatened and endangered species maps shall constitute prima facie evidence of the species unless determined otherwise by the director of environmental resources." The definition of "wide-ranging threatened/endangered animal species" includes the sentence, "The county's threatened and endangered species maps shall constitute prima facie evidence of wide-ranging threatened or endangered species unless determined otherwise by the director of environmental resources."8 Proposed Rule 28-20.120(1) amends Section 9.5-120(b) by deleting the phrase, "unless determined otherwise by the director of environmental resources" from the sentences quoted above. Proposed Rule 28-20.120(1)(a) adds the following provision to the section of Regulation 9.5-120, which defines the term "known habitat of threatened/endangered species or species of special concern": (1) . . . The county's threatened and endangered species maps shall constitute prima facie evidence of the species. Within areas designated for public acquisition for the purposes of resource protection, any threatened, endangered or species of special concern species observed on site while conducting a habitat evaluation shall be noted on the adopted Threatened and Endangered Species Maps. Such observations noted while conducting a habitat evaluation by County Staff Biologists, consultants certified by the County, conducting habitat evaluations, or state or federal agency representatives conducting field inspections shall also constitute evidence of species. Petitioners contend that the portion of Proposed Rule 28-20.120(1)(a), quoted above, is arbitrary and capricious. Petitioners assert that the Proposed Rule fails to account for potential observations of "known habitat of threatened/endangered animal species" on parcels that are not within "areas designated for public acquisition for purposes of resource protection." Also, Petitioners assert that the Proposed Rule limits observations of species required to be noted on the adopted threatened and endangered species maps to consultants or scientists on the parcel specifically to conduct an HEI analysis and fails to require field verification of the parcel. Proposed Rule 28.20.120(1)(a) will expand the circumstances in which observations of listed species will cause modification of the adopted threatened and endangered species maps. Under the present land development regulations, Monroe County modified the maps only if a county staff biologist observed a listed species and did not take into account other professional observations. Monroe County Land Development Regulation 9.5-122.3 Regulation 9.5-122.3(a)(8) of the Monroe County Land Development Regulations establishes and assigns evaluation criteria and point assignment for applications for proposed dwelling units in Monroe County. The existing regulation requires that negative points be assigned to applications that propose a dwelling unit within a "known habitat of a documented threatened/endangered species" and a "potential habitat of threatened/endangered species." Proposed Rule 28-20.120(2) adds the following language to Section 9.5-122.3.(a)(8),9 as shown by the underlined provisions: Point Assignment: Criteria: -10 An application which proposes a dwelling unit within a known habitat of a threatened/endangered species or a species of special concern. For species of special concern, negative points shall only be applied to areas designated for public acquisition for the purpose of resource protection. -5 An application which proposes a dwelling unit within a potential habitat of a threatened/endangered species or a species of special concern. For species of special concern, negative points shall only be applied to areas designated for public acquisition purposes of resource protection. Regulation 9.5-1223.(a)(8), as amended, adds "species of special concern" to the species covered by the existing regulation. Also, the amended regulation requires that negative points be assigned to applications that propose dwelling units in a habitat of a species of special concern, if the area is designated for public acquisition for purposes of resource protection. Petitioners contend that Proposed Rule 28-20.120(2), which amends Regulation 9.5-122.3(a)(8), is arbitrary and capricious. As a basis for this contention, Petitioners assert that even though the Proposed Rule increases situations where an application is awarded negative points, it decreases protection of habitat by limiting the negative point award only to habitat of special concern that have been designated for public acquisition. Proposed Rule 28-20.120(2) increases situations in which an application will be awarded negative points by adding "species of special concern" to the species covered by Regulation 9.5-122.3(a)(8). By awarding negative points as provided in the proposed rule, there is increased protection of habitat for species of special concern. Monroe County Land Development Regulation 9.5-336 Proposed Rule 28-20.120(3) amends Section 9.5-336(b) of the Monroe County Land Development Regulations as follows: (b) Review and Amendment: The existing conditions map may be refined to reflect conditions legally in existence on February 28, 1986. Such refinements shall be made pursuant to the procedures for typographical and drafting errors in section 9.5-511(e). The existing conditions map as referenced throughout this chapter is intended only to serve as a general guide to habitat types for the purpose of preliminary determination of regulatory requirements. The county biologist shall make the final determination of habitat type based upon field verification, except that existing conditions that reflect disturbed with hammock shall be classified as a low quality hammock. Unlawful conditions shall not be recognized when determining regulatory requirements. Petitioners contend that Proposed Rule 28-20.120(3) is arbitrary and capricious and contravenes the law implemented because it does not protect all habitat. The existing conditions map was prepared in the 1980s. Many of the sites designated on the map as "disturbed with hammock" have re-vegetated since then. The proposed change will protect those sites by requiring clustering away from the hammock and by controlling the amount of allowed clearing. Hurricane Evacuation Monroe County and Marathon face a unique hurricane evacuation challenge. There is only one road out of the Florida Keys, and everyone must use that road to evacuate. For a Category 3 or greater hurricane, all areas of the Florida Keys must be evacuated because of the low elevations, the vulnerability to storm surge, and the logistics of post-disaster recovery. The Monroe County Comprehensive Plan and the Marathon Comprehensive Plan currently state that each ". . . shall reduce hurricane evacuation clearance times to 24 hours by the year 2010." The 24-hour standard was adopted by the Administration Commission at the conclusion of prior litigation over the Monroe County Comprehensive Plan. The term "hurricane evacuation clearance time" refers to the time that the emergency managers must call the evacuation before the arrival of tropical storm force winds. Hurricane evacuation clearance time includes both the time for citizens to mobilize (i.e., get their affairs in order, shelter their houses, take care of their belongings), and the time to evacuate the vehicles from the roadway. Tropical storm force winds typically arrive eight to 12 hours before the eye of the storm. In order to achieve a 24-hour hurricane evacuation clearance time, emergency managers must call the evacuation 32 to 36 hours before the arrival of the eye. The DCA contracted with Miller Consulting, Inc., to create a computer model to estimate the actual hurricane evacuation clearance time for the Florida Keys. The Miller model provides the best available data and analysis for estimating the clearance time. The latest run of the Miller model performed by the DCA using 2000 Census data, supplemented with development permit data up to August 2004, provides the best estimate of clearance time. This run of the Miller model estimates a hurricane evacuation time of 23 hours and 56 minutes to reach the beginning of the Homestead Extension of the Florida Turnpike on the mainland, and 24 hours and 48 minutes to reach the hurricane shelter at Florida International University ("FIU"). The beginning of the Florida Turnpike in Florida City is the appropriate endpoint for hurricane evacuation clearance time estimates. Florida City is a point of relative safety outside of the Category 3 vulnerability zone. Florida City is also the point of dispersal for the Florida Keys, where evacuees disperse to any number of destinations, such as South Dade, the FIU shelter, or a hotel in Orlando. The Miller model estimates that if those permit allocations are restored and the annual allocation is increased as described above, the hurricane evacuation clearance time next year will be 24 hours and four minutes. This exceeds the 24-hour standard adopted by the Administration Commission. Proposed Rule 28-20.110 adds the following requirement to Year Eight of the Work Program in Policy 101.2.13 of the Monroe County Comprehensive Plan and Policy 101.2.12 of the Marathon Comprehensive Plan: "Complete a comprehensive analysis of hurricane evacuation issues in the Florida Keys and develop strategies to reduce actual hurricane clearance times and thereby reduce potential loss of life from hurricanes." The Florida Keys' local governments have begun the comprehensive analysis of hurricane evacuation issues by convening a workgroup comprised of local government-elected officials and staffed by the DCA. The hurricane workgroup is considering alternative strategies to reduce clearance times, such as constructing an additional outbound lane, using transportation system management to create a temporary outbound lane, updating the assumptions for the Miller model, reducing transient occupancy, or calling the evacuation earlier. The working group must develop a strategy that balances or accommodates development and also addresses hurricane clearance times. The hurricane workgroup must do much more than simply squeeze a few more minutes out of the Miller model. There are currently 13,000 to 14,000 vacant platted lots in the Florida Keys, which must be allowed to develop or must be purchased by government. On average, 3,000 dwelling units generates about one hour of clearance time. As an example, if 8,000 or so lots were purchased for habitat protection, then two more hours of clearance time will be needed to accommodate the remaining 5,000 or 6,000 lots. The hurricane workgroup must develop a strategy to handle the amount of development permitting that can be expected and a program to acquire the balance of the vacant lots. Affordable and Workforce Housing There is an affordable housing crisis in the Florida Keys. The geography of the Florida Keys hinders the ability of working families in the Florida Keys to find affordable housing. Unlike other expensive areas, such as Boca Raton, working families cannot find affordable housing nearby; the nearest area where housing prices are affordable is the mainland in Dade County. From 1999 to 2003, there were 693 allocations for affordable housing units in the Florida Keys. This amount includes all the allocations for affordable housing units for that time period, even those allocations for which affordable housing units were not constructed. The number of affordable housing allocations issued from 1999 to 2003 and the number being issued under the existing Comprehensive Plans of Monroe County and the City of Marathon, are not sufficient to address the need for affordable housing. The Partnership Agreements recognize and address the affordable housing shortfall by increasing the number of annual affordable housing allocations, restoring residential allocations lost in previous years, and providing funding for the acquisition of land and the construction of workforce housing. As discussed above, Proposed Rule 28-20.110 implements the provisions of the Partnership Agreement by amending the Monroe County Comprehensive Plan as follows: increasing the number of annual affordable housing allocations from 32 to 71; (2) reallocating 140 unused allocations to affordable housing; and (3) requiring that the affordable housing remain affordable in perpetuity. Additionally, as specified in paragraph 60, the Work Program in Proposed Rule 28-20.110 requires Monroe County to complete tasks which will be an improvement of the affordable housing situation in Monroe County. As discussed above, Proposed Rule 28-18.210 implements the Partnership Agreement by amending the City of Marathon Comprehensive Plan as follows: (1) increases the overall number, though not the percentage, of allocations for affordable housing to six; (2) restoring 65 unused allocations for affordable housing; and (3) requiring that the affordable housing remain affordable in perpetuity. Also, as specified in paragraph 101, Proposed Rule 28-18.210 requires the City of Marathon to complete tasks that will result in improving the affordable housing issues in the City of Marathon. Proposed Rules 28-20.110 and 28-18.210 only partially address the affordable housing shortage in the Florida Keys. Nonetheless, the proposed amendments to the Comprehensive Plans of Monroe County and the City of Marathon will improve the current affordable housing shortage by increasing the number of affordable houses and providing the financial resources to make that more likely to occur. The Principles Guiding Development Subsection 380.0552(7), Florida Statutes (2004), provides in relevant part: PRINCIPLES FOR GUIDING DEVELOPMENT.- -State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development . . . . For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the principles for guiding development and any amendments to the principles, the principles shall be construed as a whole and no specific provision shall be construed or applied in isolation from the other provisions. . . . [T]he following shall be the principles with which any plan amendments must be consistent: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. In determining whether the Proposed Rules are consistent with the principles, the principles should be considered as a whole. No specific provision should be construed or applied in isolation from other provisions. Ability to Manage Land Use and Development Principle A, set forth in Subsection 380.0552(7)(a), Florida Statutes, is "to strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation." Monroe County and the City of Marathon have evidenced a willingness and commitment to provide the funding required to meet the objectives of the Principles Guiding Development. Both local governments have included in the Proposed Rules tasks which reflect their understanding of the need to provide critical facilities, such as wastewater treatment facilities. While the need for such facilities has previously been acknowledged, the Proposed Rules provide a specific source of revenue to provide the needed facilities. Moreover, with regard to Monroe County, the proposed rules/regulations at issue in this proceeding strengthen the environmental protections measures in the Comprehensive Plans while allowing reasonable development. The proposed rules for Monroe County and the City of Marathon are consistent with Principle A. Environmental Issues Subsections 380.0552(7)(b), (c), and (e), Florida Statutes, are principles which require consideration of the impacts on the environment of the Florida Keys. Principle B is "to protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife and their habitat." Principle C is "to protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife and their habitat." Principle E is "to limit the adverse impacts of development on the water quality of water throughout the Florida Keys." Principle I is "to limit the adverse impacts of public investments on the environmental resources of the Florida Keys." The Proposed Rules of Monroe County and the City of Marathon include amendments to the Work Program which provide significant funding for sewage treatment systems that will enhance the protection of the shoreline and marine resources. The Proposed Rules of Monroe County and the City of Marathon are consistent with Principle B. The Proposed Rules of Monroe County improve protection of terrestrial habitat, limit clearing of native vegetation, and provide safeguards to ensure that parcels in threatened and endangered species habitat are protected. The proposed rules of Monroe County are consistent with Principle C. The portions of the Proposed Rules of the City of Marathon that are the subject of this proceeding do not specifically address Principle C. However, the Proposed Rules of the City of Marathon are not inconsistent with Principle C. Accordingly, the proposed rules of the City of Marathon are consistent with Principle C. The Proposed Rules of Monroe County and the City of Marathon limit the adverse impacts of development on the quality of water throughout the Florida Keys by the funding commitments that will hasten the construction of the sewage treatment facilities. The Proposed Rules of Monroe County and the City of Marathon are consistent with Principle E. The Proposed Rules do not encourage any public investment that would have an adverse impact on environmental resources. To the contrary, the Monroe County and the City of Marathon Proposed Rules provide for public investments in waste water improvements that are accelerated. Also, the Monroe County Proposed Rules prevent the construction of public facilities within a hammock area. The Proposed Rules of Monroe County and the City of Marathon are consistent with Principle I. Economic Development Principle D in Subsection 380.0552(7)(d), Florida Statutes, is "to ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. The basis of the Florida Keys' economy is tourism, which is attracted by a clean and healthy environment. The increased protection of water quality that should be achieved by the hastened construction of sewage treatment facilities and the improved protection of habitat will strengthen the economy of the Florida Keys and provide the basis for a sound economic development. Also, the Proposed Rules balance environmental protection with property rights. The Proposed Rules of Monroe County and the City of Marathon are consistent with Principle D. Historical Character and Heritage Principle F in Subsection 380.0552(7)(f), Florida Statutes, is "to enhance natural and scenic resources, promote the aesthetic benefits of the natural environment and ensure that development is compatible with the unique historic character of the Florida Keys." Principle G in Subsection 380.0552(7)(g), Florida Statutes, is "to protect the historical heritage of the Florida Keys." The Proposed Rules of Monroe County and the City of Marathon will have little or no impact on the historic character and historical heritage of the Florida Keys. Thus, the Proposed Rules do no harm to either the historic character or historical heritage of Monroe County or the City of Marathon. Public Investments Principle H in Subsection 380.0552(7)(h), Florida Statutes, is "to protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major life investments," including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. . . . The Proposed Rules of Monroe County and the City of Marathon do nothing to undermine the value, efficiency, cost- effectiveness or amortized life of existing major investments. Rather, the Proposed Rules will result in funding and timely construction of the major sewage and disposal facilities that are already contemplated by Monroe County and the City of Marathon's existing Comprehensive Plans. Affordable Housing Principle J in Subsection 380.0552(7)(j), Florida Statutes, is "to make available adequate affordable housing for all sectors of the population of the Florida Keys." The Proposed Rules include a one-time allocation of 165 permits for affordable housing in Monroe County and 65 permits for affordable housing in Marathon. The Proposed Rules will require all future affordable housing to remain as affordable in perpetuity, rather for a limited time frame. The Propose Rules are consistent with Principle J. Natural or Man-made Disaster and Post-Disaster Relief Principle K in Subsection 380.0552(7)(k), Florida Statutes, is "to provide adequate alternatives for the protection of public safety and welfare in the event of a natural disaster or man[-]made disaster and for a post[-]disaster reconstruction plan." The Proposed Rules require officials of Monroe County and the City of Marathon to participate with other Florida Keys' local governments in a comprehensive analysis of hurricane evacuation issues. The Proposed Rules are consistent with Principle K. Health, Safety, and Welfare of Citizens and Maintenance of Florida Keys as Unique Resource Principle L in Subsection 380.0552(7)(l), Florida Statutes, is "to protect the health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource." The Proposed Rules of Monroe County include provisions that increase protection of upland habitat and require a moratorium on ROGO/NROGO applications in hammocks and pinelands, revisions to the CNA maps, and amendments to the land development regulations. The Proposed Rules for Monroe County and the City of Marathon will improve the water quality by providing funding for and hastening the construction of sewage treatment facilities. The Proposed Rules of Monroe County and the City of Marathon will provide more permit allocations for affordable housing, require Monroe County to approve bond funding for the construction of affordable housing, and provide that all future affordable housing remain affordable in perpetuity. Also, the Proposed Rules require Monroe County and the City of Marathon to participate in a Florida Keys wide analysis and solution to the hurricane evacuation problem. The Proposed Rules of Monroe County and the City of Marathon further the objective of and are consistent with Principle K. The Proposed Rules of Monroe County and the City of Marathon are consistent with Principle L.
Findings Of Fact The proposed site for the resource recovery unit is located on 160 acres of the northeast quarter of Section 17, Township 53 South, and Range 40 East in Dade County. This site is presently undeveloped and bordered on the east by the Dade County Northwest 58th Street landfill. The resource recovery facility as proposed consists of a three thousand (3,000) tons per day solid waste resource recovery facility and two 38.5 meggawatt steam electric generating turbines, and one 80 acre landfill. The proposed operations call for the separation of ferrous and aluminum metals and glass from combustible material. The combustible material is to be pulped, dried, and burned in four (4) boilers to produce steam for the generation of electricity. On a daily basis the resource recovery boilers will require 1.76 million gallons of water to operate the cooling towers. Cooling tower blow- down, boiler blow-down, and landfill leachate will be utilized in a hydro- pulping process to process the solid wastes prior to combustion. As a result of this waste water usage, no industrial waste water will be discharged from the site. Potable water will be supplied by the Miami Dade Water and Sewer Authority. Sanitary wastes will be treated in a sewage treatment plant on the site. The cooling water will be withdrawn from a portion of the Biscayne Aquifer contaminated by leachate from the Northwest 58th Street landfill. The South Florida Water Management District has concluded that the Biscayne Aquifer would be capable of supplying the non-potable water requirements of the proposed facility. In addition, the withdrawal of water for the facility would alleviate the impact of the leachate plume from the 58th Street landfIll, which plume of contaminated water is moving eastward to the Miami Springs wellfield. The construction of the resource recovery facility would allow the closing of the 58th Street landfill and would thereby prevent the continued production of contaminated leachate and would reduce problems of flies, rodents, and odors. The construction of the resource recovery facility will involve extensive grading, filling, and removal of vegetation on the proposed site. Due to previous drainage and development of the surrounding area, however, the site is situated in a degraded everglades habitat the hydrologic regime of which has been drastically altered and now supports relatively little wildlife. Surrounding land uses would make future restoration difficult. The destruction of the grasses, and other vegetation on the site would have little environmental impact. The resource recovery facility site is owned by Dade County and will be operated by Dade County Resource Recovery, Inc. Steam produced at the resource recovery facility will be sold to Florida Power and Light Company for the generation of electricity. Some 61 meggawatts of electricity will be generated and distributed throughout the Florida Power and Light transmission system. The electricity generated by this facility will eliminate the need for over one million barrels of imported fuel oil each year and will produce a net savings to the customers of Florida Power and Light. The resource recovery facility will utilize cyclonic collectors and high efficiency electrostatic precipitators to remove fly ash from the burning of processed refuge. Plant air will be injected into the boiler or will be passed through activated carbon filters to eliminate odors. As a result of these control measures, the resource recovery facility will comply with state and federal emission limitations and ambient air quality standards. Although the facility may contribute slightly to a violation of the Dade County Ambient Air Quality Standards, the Director of the Dade County Environmental Resources Management Board did not feel that the facility would cause a problem. The resource recovery facility would utilize the latest reasonably available control technology for the control of emissions to the atmosphere. The use of the proposed equipment will result in a very small incremental increase of sulphur dioxide and particulate matter into the ambient air. These emissions are less than the federal significant deterioration limits and the increases in air pollution levels are not expected to significantly degrade air quality in the area. The Florida Public Service Commission report of October 7, 1977, states that 62 meggawatts of electricity would enhance the reliability of Florida Power and Light's system and would displace residual fuel oil so that some benefit would be derived from construction of the facility. The Division of State Planning did not submit a report as required by Section 403.507(1)(a), Florida Statutes. The Department of Natural Resources, Game and Fresh Water Fish Commission, Department of Commerce, and South Florida Regional Planning Counsel offered comments on the facility supportive of its construction and operation. Comments and objections from the Department of Health and Rehabilitative Services, South Florida Water Management District, the Division of Archives, History and Records Management, were resolved by the provision of additional information and proposed conditions of certification. No opposition from these agencies was presented at the conclusion of the hearing. The Department of Environmental Regulation recommended certification of the Dade County Resource Recovery facility in accordance with the proposed general and special conditions of certification. The applicant has stipulated and agreed that the general and special conditions of certification, as proposed at the hearing, should be imposed if certification is granted. At the conclusion of the presentations by the parties to this proceeding, opportunity was given to the general public to comment on the application for site certification. No such individuals appeared and no comments were offered. After examining the sum and substance of the testimony and evidence offered, it appears that the construction of the resource recovery facility would provide for the closing of inadequate sanitary landfills and inadequate air polluting incinerators. Further, the operational safe guards of the proposed facility are sufficient to protect human health, wildlife and aquatic life. Finally, the construction and operation of the proposed facility will not violate state air or water pollution standards.
Recommendation It is therefore recommended that the proposed site be found and held to be in conformity with existing land use plans and zoning ordinances in effect as of this date, and it is further recommended that the responsible zoning or planning authorities be restrained from hereafter changing such land use plans or zoning ordinances so as to affect the proposed site. DONE AND ENTERED this 22nd day of November, 1977, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32304 (904) 488-9675 Copies furnished to all parties
Findings Of Fact Ivanhoe is a planned unit development on approximately 864 acres in Broward County extending from Griffin Road on the north, Southeast 148th Avenue on the east, Sheridan Road on the south, and with the westwardly boundary approximately one-fourth mile east of Dyke Road. A planning consultant testified concerning the conceptual site development plan for Ivanhoe prepared pursuant to the Broward County Zoning Code and Land Use Plan. The planned unit development anticipates just less than 2,323 dwelling units (the density limit imposed by the Broward County Land Use Plan), to consist of single family units, townhouses, cluster homes, apartments, and some recreation and commercial land uses. The developers of Ivanhoe will not construct the ultimate dwellings but will develop the land for construction of residences and other buildings by builders. Ivanhoe is to be developed in three phases. The first phase is expected to be platted and ready for ultimate development by 1983, the second phase in 1985, and the third phase in 1988. South Broward is a Florida corporation formed solely to provide utility service to Ivanhoe, and if necessary, adjacent property. The corporation is not presently funded or in operation, but it has retained consulting engineers and management consultants experienced in planning, designing, and operating water and sewer utility systems in Florida. One hundred percent of the capital stock of South Broward is owned by Hugh F. Culverhouse. Mr. Culverhouse also owns other water and sewer utilities in Florida regulated by the Commission. The evidence in the record (Exhibit 1 and Exhibit 2) establishes that South Broward's shareholder possesses substantial assets and net worth, and that he has the financial capability to provide whatever capital is needed in order to construct the required utility facilities and to operate a sound utility company. Although South Broward's utility consultant recommended a 50-50 to 60-40 ratio of equity to contributions-in-aid-of-construction, the shareholder is able to invest all of the capital necessary to construct and operate the entire utility system, or whatever ratio of equity to CIAC the Commission may require, should he be willing to do so. In order to determine alternate means of providing utility service to Ivanhoe, South Broward's consulting engineer prepared a preliminary report setting forth various alternatives and his cost estimates for each. These general engineering plans are sufficiently flexible to meet the changing requirements of the appropriate governmental agencies. However, the preparation of complete, detailed plans is premature until such time as certificates are issued by the Commission. At the present time, neither South Broward nor Cooper City Utilities possesses any permits from regulatory agencies relating to the facilities necessary to serve Ivanhoe. A representative from the Department of Environmental Regulation testified relative to licensing. There is nothing in South Broward's preliminary engineering report that would not allow the required permits to be issued. A representative from the Broward County Health Department, which agency reviews and approves engineering plans for potable water facilities in Broward County, also testified concerning licensing. The plans described in South Broward's preliminary report would be approved if they met all of the appropriate criteria when submitted. From this evidence, therefore, if detailed engineering plans are submitted by South Broward consistent with the general plans contained in the preliminary report, South Broward will be granted the necessary construction and operating permits for its proposed water and sewer systems. Ultimately, South Broward plans to utilize the Broward County regional wastewater treatment facility, to be constructed pursuant to Public Law 92-500 under what is known as a "201 Plan", to provide sewage treatment service to Ivanhoe. South Broward's management consultant presented evidence relative to the company's proposed capital structure, rates, the projected operating budget and manner of operation. South Broward's proposed rates would be in keeping with the rates of other utilities in the area, including Cooper City Utilities, even though South Broward would levy no plant contribution charge and would maintain at least 50-50 ratio of CIAC and invested plant. The past operational experience of South Broward's consultants and its sole stockholder demonstrate that South Broward will be operated in an efficient and sufficient manner. The evidence presented establishes that South Broward possesses the engineering and operational capability to construct and operate the necessary facilities to provide service to Ivanhoe. However, there remains to be established the willingness of South Broward's shareholder to commit sufficient funds to the company for this purpose. There is no competent, direct evidence in the record to demonstrate this point, although the capability of Mr. Culverhouse to make available the necessary funding was not challenged at the hearing, and is found as a fact. South Broward being otherwise able to provide utility service to Ivanhoe, the willingness of its shareholder to provide adequate funding may be demonstrated ex-parte, if the evidence presented by Cooper City Utilities fails to establish that it can provide the service required by Ivanhoe more economically or efficiently than South Broward. In this circumstance, the protest should be dismissed; and the application then being unprotested, may be considered further without another hearing. Section 367.051(1), Florida Statutes. The service area of Cooper City Utilities is located within the municipal boundaries of Cooper City, Florida, with its nearest boundary approximately 2 miles from the closest boundary of Ivanhoe. This utility contends that the Commission should deny South Broward's application for certificates because it is more capable of providing service, and because granting a certificate to South Broward will encourage the proliferation of small water and sewage treatment plants, contrary to the public interest. In order to determine the merits of this protest, it is necessary to evaluate the financial ability of Cooper City Utilities, the capacity of its utility plant to serve the Ivanhoe development, and the feasibility of the plan of service proposed by this utility. For the year 1979, Cooper City Utilities sustained a combined loss in its water and sewer operations of approximately $390,000. As of December 31, 1979, it had a negative net worth or deficit of $952,000. In addition, Cooper City Utilities has filed a petition with the Commission seeking authority to borrow $450,000 for the purpose of meeting existing obligations -- to make refunds to developers, to make refunds of customer deposits, and to fund construction of future improvements to the existing utility plant. (Commission Docket No. 800562-WS). Further, the Supreme Court of Florida has recently denied certiorari to review Commission Order No. 8964 requiring Cooper City Utilities far to refund to its customers an additional amount of approximately $400,000. (Supreme Court Case No. 58,047, Order dated September 12, 1980). As a result, the utility consultant to Ivanhoe has recommended that Ivanhoe not consider connecting to Cooper City Utilities as a source of water and sewer service because of the financial instability of this utility. In summary, this utility is not presently capable of making a financial investment in the amount necessary to provide services to Ivanhoe. The only means by which Cooper City Utilities could construct the facilities necessary to serve Ivanhoe is for the developers to provide all of the funds to construct the facilities in the form of contributions-in-aid-of- construction. Under this utility's proposal, Ivanhoe would provide the funds for off-site facilities in the amount of approximately $575,000 a contribution to plant in the amount of approximately $467,500, and a contribution to the hydraulic share cost of existing off-site facilities of $297,500 ($175 per ERC for 1700 ERCs). The deputy clerk of the City of Cooper City, Florida testified concerning the zoning and land use of the remaining area within the service area of Cooper City Utilities. Based on the present development, zoning, platting, and land use, when the existing service area of this utility is fully developed, the customers will require approximately 1,256,000 gallons per day (based on an average daily flow) of the capacity of the utility's water and sewage treatment plants. This demand will utilize the entire capacity of the sewage treatment plant, which has a design capacity of 1.25 mgd. In addition, the maximum day throughput demand of the service area on the utility's water facilities will be approximately 2.826 mgd, which will utilize substantially all of the capacity of the water treatment plant, which has a throughput design capacity of 3.0 mgd. Thus, if Cooper City Utilities were to serve its existing certificated area and Ivanhoe, it would be required to build additional water and sewage treatment facilities. However, Cooper City Utilities does not have sufficient land at its treatment plant site to construct an expansion to its existing facilities, and it does not presently own or have access to enough land to construct the necessary 20 acres of evapopercolation ponds to provide an effluent disposal at its existing plant. South Broward contends that Cooper City Utilities is not a reliable source of utility service for Ivanhoe because the utility has been negotiating to sell its water and sewer systems to a municipal government in the area. Representatives of Cooper City Utilities have met with representatives of the cities of Sunrise, Cooper City, and Davie concerning the possible acquisition of the utility by these cities. Although there is not sufficient evidence in the record to permit a finding to be made on the matter of a sale of Cooper City Utilities to a municipality, the subject of such a possible sale is relevant to the issue of whether it is in the public interest to grant a certificate to South Broward pursuant to its application. If such a sale were consummated, Ivanhoe and the future residents of the development would be dependent for water and sewer services upon a municipality, the officials of which are not elected by them and who do not represent them. Cooper City Utilities also contends that certification of South Broward as a water and sewer utility would violate the policy of regulatory agencies to encourage the growth and expansion of existing community utility systems, and to discourage the proliferation of small water and sewage treatment facilities. However, the representatives of the regulatory agencies will approve the detailed engineering plans which South Broward submits if the same are in conformity with Chapter 17-22, Florida Administrative Code. Thus, this contention is not persuasive in disposing of the issues herein. The evidence fails to establish that Cooper City Utilities can make an economically feasible extension of its systems to serve the Ivanhoe development, or that it is more capable than South Broward of providing water and sewer service to Ivanhoe, or that it can provide such service more economically or efficiently than South Broward. Although this utility has never failed to provide adequate service, and Possesses sufficient treatment capacity to serve Ivanhoe at the present time, it will be required to expand its facilities in order to serve both its existing certificated territory, and also the Ivanhoe development. Its financial condition is such that it would not be able to finance this necessary expansion of its facilities. In addition, the possible sale of Cooper City Utilities to a municipal government makes it uncertain whether the utility is a reliable source of service. Therefore, this utility's protest is not sufficiently meritorious to warrant a denial of the application of South Broward.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of South Broward Utility, Inc., be granted conditionally, subject to a determination by the staff of the Commission that the company's sole shareholder is willing to commit adequate financing to the company to enable it to provide water and sewer service to Ivanhoe as proposed. It is further RECOMMENDED that the protest filed by the Cooper City Utilities, Inc. be dismissed. THIS RECOMMENDED ORDER entered on this 30th day of October, 1980. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1980. COPIES FURNISHED: James L. Ade, Esquire and William A. Van Nortwick, Jr., Esquire 300 Independent Square Post Office Box 59 Jacksonville, Florida 32202 William E. Sundstrom, Esquire 1020 East Lafayette Street Tallahassee, Florida 32301 William H. Harrold, Esquire Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
The Issue The issue for determination is whether Petitioner's revocation of Respondent's modified permit, authorizing a cross- fence on Petitioner's fee owned right-of-way, should be approved.
Findings Of Fact The South Florida Water Management District (District) is a public corporation in the State of Florida, existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multi-purpose water management district. The District's principal office is West Palm Beach, Florida. In executing its multi-purpose, the District, as local sponsor for the US Army Corps of Engineers' Central and Southern Florida Flood Control Project, acquired canal rights-of-way. The District's rights-of-way were acquired to enable the Corps of Engineers to construct the flood control project and to maintain the system after its construction. The District operates a proprietary-based right-of-way program to manage the various property interests of the canal rights-of-way. The purpose of the District's right-of-way program is, to the extent possible, to allow uses of the rights- of-way that do not conflict with the flood control project. The rights-of way are used by both public and private concerns, including adjacent property owners, governmental entities, and utility companies. Jesus G. Quevedo is a private individual. His address is 2615 North Federal Highway, Lake Worth, Florida. The property at this address was vacant when Mr. Quevedo purchased it, and he has owned the property for approximately ten (10) years. The District has fee simple title to a strip of land on the south side of the District's C-51 Canal, immediately west of the Federal Highway/Olive Avenue bridge (C-51 Right-of-Way). Mr. Quevedo's property is located at the side of and adjacent to the C-51 Right-of-Way. The C-51 Right-of-Way is also located within the boundaries of Spillway Park as established in the agreement between the District and the City of Lake Worth. Generally described, Spillway Park includes the District's fee simple owned right-of-way on the south side of the District's C-51 Canal, beginning at the west side of the Federal Highway/Olive Avenue bridge and continuing to the east side of the Dixie Highway bridge. Mr. Quevedo has no real property interest in the C-51 Right-of-Way. Prior to purchasing his property, Mr. Quevedo was aware that the District owned the C-51 Right-of-Way. Historically, portions of Spillway Park and the C-51 Right-of-Way, in particular, have been a unique and popular location for excellent snook fishing by the public. These areas continue to be considered as such. On February 11, 1993, Mr. Quevedo was issued SFWMD Permit No. 9801 (Permit), a right-of-way occupancy permit, by the District’s Governing Board. The Permit authorized him to make use of the District’s lands and works as follows: 20’ X 50’ BOAT DOCK WITH WALKWAY, BURIED WATER AND ELECTRICAL SERVICE, POP-UP SPRINKLERS, AND SODDING WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED IMMEDIATELY WEST OF THE OLIVE AVENUE/FEDERAL HIGHWAY BRIDGE. During the permit application process, but prior to the issuance of the Permit, Mr. Quevedo had discussed with the District's staff the erection of a cross-fence based on allegations of improper or criminal activities by members of the public. Subsequently, in November 1995, Mr. Quevedo again discussed with the District's staff erection of a cross-fence based on the same allegations but he also included a new allegation of public safety as to the C-51 seawall. Based on the concern for public safety, the District's staff recommended that Mr. Quevedo be granted a modification to the Permit for a cross-fence. On November 14, 1996, the District's Governing Board approved, as part of its consent agenda, and issued SFWMD Permit MOD No. 9801 (MOD Permit)3 authorizing the following: CHAIN LINK CROSS FENCE WITH 16’ VEHICULAR GATE ALONG THE WEST PROPERTY LINE WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED AT 2615 NORTH FEDERAL HIGHWAY. The MOD Permit, as did the Permit, provides in pertinent part on its face the following: The permittee, by acceptance of this permit, hereby agrees that he shall promptly comply with all orders of the District and shall alter, repair or remove his use solely at his expense in a timely fashion. . . . This permit is issued by the District as a license to use or occupy District works or lands. . . By acceptance of this permit, the permittee expressly acknowledges that the permittee bears all risk of loss as a result of revocation of this permit. The MOD Permit, as did the Permit, contained standard limiting conditions, as provided in Rule 40E-6.381, Florida Administrative Code, and special conditions. The limiting conditions provide in pertinent part as follows: Permittee agrees to abide by all of the terms and conditions of this permit, including any representations made on the permit application and related documents. . . . This permit does not create any vested rights, and except for governmental entities and public or private utilities, is revocable at will upon reasonable prior written notice. Permittee bears all risk of loss as to monies expended in furtherance of the permitted use. Upon revocation, the permittee shall promptly modify, relocate or remove the permitted use. In the event of failure to so comply within the specified time, the District may remove the permitted use and permittee shall be responsible for all removal costs. This permit does not convey any property rights nor any rights or privileges other than those specified herein. . . . Having been granted the MOD Permit, Mr. Quevedo erected the cross-fence within and onto the C-51 Right-of-Way. The C-51 Right-of-Way is located adjacent to Mr. Quevedo’s property, as indicated earlier, and continues westerly to the permitted cross-fence. The C-51 Right-of-Way is enclosed by the cross-fence, preventing access by the public, and is located easterly of the cross-fence. As the C-51 Right-of-Way is located within the boundaries of the Spillway Park, the cross- fence is also located within the boundaries of the Spillway Park. During the time that Mr. Quevedo has owned his home, including prior to and after erection of the cross-fence, he, his family members and/or guests have frequently fished from the C-51 seawall and used the C-51 Right-of-Way enclosed by the cross- fence. Prior to and after the erection of the cross-fence, Mr. Quevedo and his family members have selectively controlled access by the public to the C-51 Right-of-Way at the C-51 seawall. Prior to the erection of the cross-fence, Mr. Quevedo chased members of the public off the C-51 Right-of-Way. Mr. Quevedo and members of his family also called law enforcement officers to remove members of the public who were located on the C-51 Right-of-Way, even if the members of the public were fishing from the C-51 seawall. After the erection of the cross-fence, Mr. Quevedo and his family members continued to engage in this conduct of selective access. Subsequent to the erection of the cross-fence, Mr. Quevedo had a member of the public arrested for trespassing. The person allegedly jumped over or went around the cross-fence to fish from the C-51 seawall in the C-51 Right-of-Way. With the existence of the cross-fence, Mr. Quevedo has prevented the general public from using the C-51 Right-of-Way, including the C-51 seawall. As a result, he has acquired the exclusive, private use of the C-51 Right-of-Way at the C-51 seawall, which is publicly owned land, and has, almost doubled the size of his adjacent property without the obligations and expense of acquisition, assuming he could acquire the property through acquisition. The District's policy is that public land should be open to the public. Contrary to this policy, Mr. Quevedo's cross-fence precludes access to the District's right-of-way (C-51 Right-of-Way), including the seawall, for passive recreational use. Similar cross-fencing, although not within the boundaries of Spillway Park, have been erected behind residences on the northeast, northwest, and southeast sides of Federal Highway, along the District’s C-51 Canal bank. The cross-fencing prevents public use of the District’s C-51 Canal bank at these locations. The City of Lake Worth made improvements within the boundaries of Spillway Park; however, it made no improvements, and does not intend to make any improvements in the future, at the C-51 Right-of-Way where Mr. Quevedo’s cross-fence is located or at the other private lots west of Mr. Quevedo's property. All of the improvements made at Mr. Quevedo’s cross-fence at the C-51 Right-of-Way have been made by him even though the C-51 Right-of- Way is located within Spillway Park. The original public safety rationale for authorizing Mr. Quevedo to erect the cross-fence blocking public access was revisited by the District. Additional investigation by safety experts (Risk Management staff) revealed that no unreasonable danger existed by allowing public access to the C-51 seawall at the C-51 Right-of-Way. In the absence of the public safety basis for closure of the C-51 Right-of-Way, such closure was contrary to District policy. As a consequence, the District’s staff recommended to the District’s Governing Board that the MOD Permit, authorizing Mr. Quevedo’s cross-fence, be revoked. After conducting two public meetings and receiving comments from Mr. Quevedo, members of the public, and the District’s staff as to the policy issue of pubic access to the C- 51 Right-of-Way, the District’s Governing Board determined that the C-51 Right-of-Way should be open to the public. Consequently, the Governing Board decided to revoke Mr. Quevedo's MOD Permit. Allegations of criminal activity within the general boundaries of Spillway Park and, specifically, in the C-51 Right- of-Way at the cross-fence area, were made by Mr. Quevedo as a basis to not revoke the MOD Permit and allow the cross-fence to remain. Such allegations have no bearing on the revocation of the MOD Permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order revoking SFWMD Permit No. MOD 981 issued to Jesus G. Quevedo. DONE AND ENTERED this 8th day of March, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 8th day of March, 1999.
