The Issue Whether Petitioner is entitled to an award of attorney's fees as a prevailing small business party in an adjudicatory proceeding initiated by a state agency as provided under the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes.
Findings Of Fact Petitioner, A.S., is the primary custodial parent of the child, A.S., who is now ten years old. At the time of the original incident, A.S. was a full time state wildlife law enforcement officer. On May 18, 1991, Respondent initiated a child protective services investigation in which resulted in the creation of FPSS Report 91-052785, wherein the Respondent proposed to confirm Petitioner as the perpetrator of abuse or neglect of his child. Petitioner requested and obtained a formal hearing before the Division of Administrative Hearings. This resulted in the issuance of a Recommended Order, dated February 28, 1992, wherein this Hearing Officer recommended that Petitioner's name be expunged from the Abuse Registry. The Respondent rejected the recommendation and issued a Final Order denying Petitioner's request for expungement. The Final Order was appealed to the Second District Court of Appeal and subsequently to the Supreme Court of Florida which reversed the Final Order of the Department. On remand from the Court, the Department issued a Final Order on Remand, dated January 20, 1995, which expunged Petitioner's name from the Abuse Registry. Petitioner is clearly the prevailing party in this matter.
The Issue The issue to be determined in this case is whether the Florida Fish and Wildlife Conservation Commission (“Commission”) is entitled to the requested minor modification of its existing Environmental Resource Permit and Sovereign Submerged Lands Authorization, which would authorize the backfilling of a portion of Fisheating Creek as part of a restoration project.
Findings Of Fact The Parties The Department is the state agency responsible for regulating construction activities in waters of the State. The Department has also been delegated authority to process and act on applications for authorization from the Board of Trustees for activities on sovereignty submerged lands. The Commission is the state wildlife management agency. The Commission is the applicant for the minor modification at issue in this proceeding. Petitioner, Save Our Creeks, Inc., is a non-profit Florida corporation with its offices in Lake Place, Florida. Save Our Creeks’ members are interested citizens and groups devoted to the conservation of natural resources, especially creeks and small waterways. Save Our Creeks owns property on Fisheating Creek in Glades County, approximately nine miles upstream of Cowbone Marsh. Petitioner, Environmental Confederation of Southwest Florida, Inc. (ECOSWF), is a non-profit Florida corporation with its offices in Sarasota, Florida. A substantial number of the members of Save Our Creeks and ECOSWF use and enjoy the waters of Fisheating Creek for a variety of purposes, including canoeing, boating, fishing, and wildlife observation. Their interests would be affected by the proposed project. Fisheating Creek and Cowbone Marsh Fisheating Creek flows from Highlands and Desoto Counties south and east through Glades County. The Creek runs in a northeastern direction through Cowbone Marsh before draining into Lake Okeechobee. The Creek contributes approximately nine percent of the flow into Lake Okeechobee. Fisheating Creek is designated as Class III waters. Cowbone Marsh is located about eight miles west of Lake Okeechobee. It is a mile and a half long and two miles wide, covering about 2,500 acres. Fisheating Creek and Cowbone Marsh are within the Fisheating Creek Wildlife Management Area. In 1929, the United States Army Corps of Engineers ("USACOE") prepared a survey map which shows Fisheating Creek as an open water route from Lake Okeechobee through Cowbone Marsh and continuing beyond. The accuracy of the course of the Creek as it is depicted in the 1929 map is not disputed by the parties. The 1929 map does not describe the depth or width of the Creek. Some evidence about historical widths and depths was presented, but it was incomplete. There was credible evidence showing that some segments of Fisheating Creek were four to five feet deep and 20 to 30 feet wide. There was also credible evidence that other segments of the Creek were shallower and narrower. The record shows only that canoes, kayaks, and other vessels drawing twelve inches of water or less have been used on the Creek. For a number of years, much of Fisheating Creek has been choked by vegetation and “tussocks.” Tussocks are floating mats of vegetation. Carolina willow now dominates Cowbone Marsh, having replaced areas that were previously open water or covered with herbaceous marsh communities. The vegetation in the Creek made navigation difficult or impossible through Cowbone Marsh. The 1998 Judgment and 1999 Settlement Agreement In 1989, Lykes Bros., Inc., asserted ownership of Fisheating Creek and tried to prevent public access to the Creek. The Board of Trustees responded with a civil action against Lykes Bros., seeking a determination that Fisheating Creek throughout Glades County is navigable and, consequently, the title to its bottom is held by the Board of Trustees as sovereignty submerged lands. Petitioners in this administrative proceeding intervened in the circuit court case on the side of the Board of Trustees. The jury found Fisheating Creek navigable throughout Glades County and the court entered a judgment in 1998 determining that the Creek is sovereignty land held in trust by the Board of Trustees. The judgment did not include any findings about the widths and depths of Fisheating Creek. The court retained jurisdiction to determine the boundaries of the Creek, but the boundaries were never determined. The circuit court case was appealed, but in May 1999, the parties entered into a settlement agreement pursuant to which Lykes Bros. agreed to sell to the Board of Trustees a conservation easement on upland areas adjacent to Fisheating Creek, to be held and managed for the benefit of the public. The conservation area is known as the Fisheating Creek Expanded Corridor. The settlement agreement also called for the Board of Trustees to lease the Fisheating Creek Expanded Corridor to the Commission, who the Board of Trustees designated as the managing agency. The settlement agreement acknowledges the public's "right to boat and canoe on Fisheating Creek throughout the entire Expanded Corridor.” With respect to navigation, the settlement agreement provides: Protection of Navigation. The navigability of Fisheating Creek throughout the entire Expanded Corridor shall be maintained and enhanced through a navigation maintenance program which includes aquatic weed control and removal of fallen logs and similar obstructions. This section does not authorize dredging. The Cookie-Cutter Project In January 2009, the Commission aerially applied an herbicide to kill the vegetation along the course of the Creek. In April 2010, the Commission contracted with A & L Aquatic Weed Control (“A & L”) to “[m]echanically dismantle floating tussocks.” The Commission directed A & L to perform the project by “shredding vegetation and accumulated organic material to re-open the navigation across Cowbone Marsh.” The Commission instructed A & L to re-open a channel "approximately 2.2 miles long and 18-20 feet wide,” and to clear some areas of the Creek “as wide as 35-feet wide occasionally as necessary to turn shredding equipment during the shredding process.” The Commission did not direct A & L to dredge a deeper channel. The vessel used by A & L to perform the work is known as a “cookie-cutter.” The cookie-cutter has two cutting wheels at the front of the vessel to shred and side-cast vegetation. The cutting wheels also act as propellers to propel the cookie- cutter forward. The cookie-cutter can clear woody vegetation up to four inches in diameter. The two cutting wheels can be lowered or raised in order to cut vegetation at various depths in the water. Evidence was presented to show how the cutting wheels could be lowered two to three feet, but it was not made clear whether the cutting wheels could be lowered even more. No evidence was presented to establish how deep the cookie-cutter blades were lowered into Fisheating Creek during the work performed by A & L. No evidence was presented to establish what depth of soil the cookie-cutter was capable of dredging through if the cutting wheels cut into the Creek bottom. The cookie-cutter began on the eastern side of Cowbone Marsh and moved upstream. The parties disputed the point of beginning. Petitioners contend it was farther upstream, but the more persuasive evidence for the point of beginning was presented by the Commission. The cookie-cutter generally followed the course of Fisheating Creek as depicted on the 1929 USACOE map. However, there are three areas where the cookie-cutter deviated from the 1929 map. One deviation is about 100 feet off-line. The other two deviations are 25 to 30 feet off-line. No explanation was given for the deviations, but the cookie-cutter operator generally followed the path of dead vegetation killed by the aerial spraying of herbicide and the line may have deviated from the true course of the Creek in these three areas. During the cookie-cutter project, water levels within the Creek and Marsh fluctuated. At some point, the project was postponed due to low water conditions. A sandbag dam was placed in the channel to artificially raise the water level so the cookie-cutter could continue. In July 2010, the Department and USACOE ordered the Commission to stop the project due to its adverse environmental impacts, including the draining of Cowbone Marsh. Before the cookie-cutter stopped, it had cleared about two miles of Fisheating Creek. Where the cookie-cutter stopped there is a discernible channel continuing west, but it is shallower and narrower than the channel created by the cookie-cutter. At this terminus, the cookie-cutter was dredging a deeper and wider channel than existed naturally. Additional evidence of dredging along the Creek channel is the soil cast up on the banks, and the removal of peat soils in the bottom of the Creek and exposure of underlying mineralized soil. The cookie-cutter altered the natural conditions of the Fisheating Creek in some areas by dredging the sides and bottom of the Creek. The dredging by the cookie-cutter altered the hydrology of the Creek and Marsh. The Marsh drained rapidly to Lake Okeechobee. In addition, large quantities of soil, muck, silt, and debris disturbed by the cookie-cutter were carried downstream toward Lake Okeechobee. Some of the soil and debris settled out at the mouth of the Creek, causing shoaling. The sides of the channel in many areas is continuing to erode. The Department’s Emergency Final Order In July 2010, the Department issued an Emergency Final Order, which directed the Commission to: (a) remove the cookie- cutter and immediately stop all activities associated with the cookie-cutter; (b) place temporary emergency flow restrictors in the channel to reduce flow velocities and minimize downstream sediment transport, as well as raise the water level to minimize surface and groundwater flow from the adjacent marsh into the channel; and (c) develop a long-term remedial plan to return water levels within the Marsh to pre-impact conditions and apply to the Department for an Environmental Resource Permit to implement the plan. In August 2010, pursuant to the Emergency Final Order, the Commission constructed an aluminum weir in the Creek to decrease flow velocities, reduce erosion, and maintain the hydration of the Marsh. The weir was placed approximately half a mile downstream from where the cookie-cutter stopped. During the wet season of 2010, the aluminum weir was completely submerged. Erosion and shoaling occurred immediately downstream. The Commission determined that the weir was ineffective and removed it. The EPA Compliance Orders In March 2011, the EPA issued an Administrative Compliance Order in which it alleged the Commission had engaged in "unauthorized activities associated with the excavation and construction of a channel within Cowbone Marsh.” The Commission was ordered to construct an initial check dam in the upper reaches of the Marsh to minimize the loss of groundwater and prevent further adverse impacts. In April 2011, EPA issued a second Administrative Compliance Order, directing the Commission to construct five additional check dams. The order describes the check dams as "initial corrective measures" and states that the “final restoration plan will include measures for backfilling the unauthorized cut through Cowbone Marsh.” The Initial Permits In May 2011, the Department issued to the Commission an Environmental Resource Permit and Sovereign Submerged Lands Authorization, which authorized the construction of six earthen check-dams within the portion of Fisheating Creek where the cookie-cutter had operated. The purpose of the check dams was to improve the hydrology of Cowbone Marsh and promote the accumulation of sediments within the channel to restore the natural depth and width of Fisheating Creek. The check dams were constructed using sand bags, marine plywood, coconut matting, and pressure-treated posts. The check dams have ten-foot wing walls which extend into the surrounding marsh. The wing walls are to prevent erosion around the dams and to direct water into the marsh. The installation of the check dams was completed in July 2011. Since that time, some repair efforts have been required to replace lost sandbags and to address erosion that has occurred around the check dams. The check dams have been somewhat successful in maintaining higher water levels in the Marsh. However, they have not restored natural hydrologic conditions, or prevented erosion along the channel. The Proposed Modification In June 2012, the Commission applied for a "minor modification" to the existing permits, which the Department granted. The modified permits authorize the Commission to backfill the channel cleared by the cookie-cutter with approximately 27,000 cubic yards of sand. The check dams would not be removed. The sand for the backfilling would be excavated from a "borrow" area located about a mile away. Petitioners contend that the borrow area is in wetlands, but the more persuasive evidence is that it is uplands. A 1.164-mile temporary access road would be constructed from the borrow area through uplands and wetlands to a 100-square-foot staging area adjacent to Fisheating Creek where the backfilling would begin. Wetland impacts would be minimized by constructing the temporary access road and staging area with interlocking mats. Petitioners did not show that the route or manner in which the temporary road would be constructed and used would have unacceptable adverse impacts to the environment or otherwise fail to comply with applicable criteria. The sand would be dumped into the Creek and then compacted. As the Creek was filled, the compacted sand would be used as a roadway for the trucks to transport sand to the end of the filled area to dump more sand, until the backfilling was completed. The proposed backfilling would not restore a typical stream profile, deepest in the middle and becoming more and more shallow moving toward the banks. That kind of profile can be seen in the photographs of Fisheating Creek taken before the cookie-cutter project. The proposed modification calls for filling the cut channel from "bank to bank": Final Grade: Fill must be compacted and ground surface elevations must be the same as the adjacent marsh ground surface elevations (within a tolerance of +6/-6 inches) The filled channel would be seeded and fertilized to grow native vegetation. The proposed seed mixture is mostly water grasses, but has some willow included. Compliance with Criteria Florida Administrative Code Rule 62-343.100 provides that a modification is treated as either minor or major depending on the magnitude of the changes and the potential for environmental impacts that differ from those addressed in the original permit: modification shall be considered to be minor only where the modification does not: Require a new site inspection by the Department in order to evaluate the request; or Substantially: Alter permit conditions; Increase the authorized discharge; Have substantially different or increased impacts on wetlands and other surface waters. . . ; Decrease the retention/detention specified by the original permit; Decrease any flood control elevations for roads or buildings specified by the original permit; or Increase the project area. At the final hearing, it was not shown how the modification meets the criteria for a minor modification. The proposed modification does not meet the criteria because it required new site visits, substantially alters the original permit conditions, and has a substantially different impact on wetlands. The criteria applicable to an application for a major modification were not identified, nor was it shown how the evidence presented at the final hearing satisfies the requirements for such an application. The proposed backfilling plan would not restore the natural conditions that existed in Fisheating Creek. The Commission did not show that it made a reasonable effort to determine the pre-disturbance conditions throughout the disturbed area. The proposed modification would not restore the natural depths in the Creek. The backfilling plan calls for a finished grade of plus or minus six inches above the level of the adjacent marsh. A final grade of zero to plus six inches would essentially eliminate Fisheating Creek. The maximum allowed depth of minus six inches below the level of the adjacent marsh would be shallower than the natural depths in portions of the Creek. Even the Department described the Creek was "one to two feet deep" before the cookie-cutter project. Adequate measures are not included in the permits to ensure that after backfilling and planting, the Creek would have the ordinary attributes of a creek. The proposed modification would not restore the pre- existing hydrologic conditions of the Creek. The modified Environmental Resource Permit requires strict compliance with the terms of the 1999 settlement agreement. The modification would not be consistent with the 1999 settlement agreement because the backfilling and planting would destroy the navigability of the Creek. Petitioners want to preserve the current depths of Fisheating Creek, but some of those depths are unnatural, being the result of dredging by the cookie-cutter. However, the proposed backfilling would not restore the natural depths in some parts of the Creek and would not maintain the navigability of the Creek, even for shallow draft vessels such as canoes and kayaks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department deny the requested modification to the Commission's Environmental Resource Permit and Sovereignty Submerged Lands Authorization. DONE AND ENTERED this 3rd day of July, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2013. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Alisa A. Coe, Esquire Joshua D. Smith, Esquire Bradley I. B. Marshall, Esquire Earthjustice 111 South Martin Luther King, Jr., Boulevard Tallahassee, Florida 32301 Harold "Bud" Viehauer, General Counsel Ryan Osborne, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue to be determined in this case is whether the Petitioner, Kimberly Wysong, is entitled to approval of her application to add authorization for the family giraffidae to her license to possess Class I and/or Class II wildlife for exhibition or public sale.
Findings Of Fact The Parties The Petitioner currently holds a license to handle certain Class I and/or Class II animals, e.g., Class I baboons and Class II primates. She is currently employed by Jerry Holly, and along with other full-time and part-time employees, takes care of a number of exotic animals. The Agency is responsible for determining if applicants meet the criteria for issuance of a license, permit or other authorization to possess giraffidae under Florida Administrative Code Rules 68A-6.002(3), 68A-6.0011 and 68A-6.022. The Application On January 25, 2017, the Petitioner wrote to the Agency requesting to add giraffidae to her license. The application included two letters of recommendation and a spreadsheet detailing 1,003 hours spent working with a giraffe owned by Rhudy Holly. The information that the Petitioner sent to the Agency is the type of information she and others in her industry typically submit when requesting authorization to handle other animals. In response to a request for additional information, the Petitioner provided clarification of her hours and a copy of her current license. The spreadsheet documented hours spent with the giraffe between October 19, 2015, and January 23, 2017. The documented time averaged six hours per day and showed that the time was spent doing a combination of enrichment, cleaning, husbandry/handling, and feeding. The Petitioner testified that she noted her hours on a daily basis and then entered the hours into an Excel spreadsheet at the end of each week. For the first two weeks, the Petitioner started working with the giraffe under the supervision of its owner, Rhudy Holly. Mr. Holly has had his license to handle giraffes for at least five years and started working with them around 2007. Mr. Holly taught the Petitioner how to take care of the giraffe. He went over the basics until he was comfortable that she understood the giraffe’s behavior and mannerisms and she could safely handle the giraffe. He checked on her progress periodically. He also has an employee who works with the giraffe who was also available to the Petitioner for any questions or help with the giraffe. The Petitioner described a typical day working with the giraffe. In the mornings, she spent about two and a half hours cleaning the feed area, then gathering and loading fresh feed. Cleaning the feed area requires shifting the giraffe out of the barn to his outdoor enclosure. Coaxing the giraffe to leave the barn and go outside can take up to 45 minutes because the giraffe is a shy and skittish animal and cannot be rushed. Once the giraffe is outside, the Petitioner cleans the feed area including his troth and buckets and then refills them. She then coaxes the giraffe to come back into the barn using cut branches (“browses”), romaine lettuce or various fruits. Mr. Holly testified that two and a half hours was typical for these activities when you are learning how to handle and take care of the giraffe. At midday, the Petitioner returned for about two hours to clean the feed area of the barn again and also to pressure wash the barn. Mr. Holly testified that the barn is large and two hours was not an unusual amount of time to spend on these activities. In the afternoon, the Petitioner returned for about one and a half hours to clean and shift the giraffe back into the barn. Each visit included enrichment. Enrichment consisted of spending time interacting with the giraffe, which can include stimulation and entertainment using branches, treats, and even spoons hung on the fence for play. The Petitioner was able to devote an average of six hours per day to taking care of the giraffe because she has a full-time employee who helps take care of the primates and a part-time employee who helps with cage repairs and maintenance. The Denial On May 26, 2017, the Agency issued its Notice of Denial. It stated that because the Petitioner’s current job is full-time, “it does not appear that [she] had time to obtain the required experience hours for giraffidae.” The denial went on to state that the Agency “has reason to believe that six hours per day is an unreasonable amount of time to spend caring for one giraffe and therefore, that these hours have been falsified.” Furthermore, the denial stated that the Petitioner “in a conversation with FWC Investigator Steven McDaniel . . . stated [she] spent about half of the documented experience hours sitting and observing the giraffe.” The denial states that “observation time” cannot be claimed to meet the experience requirements of the rule. The Petitioner and Mr. Holly testified that there were no chairs at the giraffe’s barn and enclosure for “sitting.” In addition, Mr. Holly testified that references to observation was time spent using branches and other treats for enrichment, to learn and understand the giraffe’s “body language and behavior,” and “was also a way for them to sort of build a bond.” In his opinion these activities were part of husbandry, i.e., “everything that goes into taking care of that giraffe.” The Agency did not offer any contrary factual or expert testimony regarding husbandry of giraffes. The Petitioner testified persuasively that she expended the time required to obtain her experience hours, that she did not falsify the hours submitted in her application, and that she did not spend half of her hours just sitting and observing the giraffe. Investigator McDaniels’ testimony showed that the Agency only made a cursory attempt to verify the Petitioner’s hours. The Agency did not contact Mr. Holly, although he wrote a letter of recommendation as part of the Petitioner’s application; and Investigator McDaniel did not actually observe the Petitioner’s interactions with the giraffe.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that FWC enter a final order granting the Petitioner’s request to add giraffidae to her license to possess Class I and/or Class II wildlife for exhibition or public sale. DONE AND ENTERED this 13th day of February, 2018, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February 2018. COPIES FURNISHED: William John Cook, Esquire Barker and Cook, P.A. Suite 1040 501 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Tyler N. Parks, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Bridget Kelly McDonnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eugene Nichols "Nick" Wiley II, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. "Bud" Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 (eServed)
The Issue The issue to be determined in this case is whether the Leon County Application Review Committee's preliminary decision approving a site and development plan for the Market District Housing (LSP 180013) is consistent with the Tallahassee-Leon County Comprehensive Plan ("Comp Plan") and the Leon County Land Development Code ("Code").
Findings Of Fact The Parties The Petitioner, Wynona C. Braswell, lives at 2784 Palafox Lane, which is the single-family lot located at Lot 5, Block A, of the 2008 Palafox Preserve Subdivision Plat ("Plat"). The Petitioner, Vickie Goodman, lives at the single- family lot located at Lot 1, Block A, of the Plat. The Petitioners are concerned that changes in the storm water management facility on Lot 1, Block B, of the Palafox Preserve Subdivision will reduce the size of the storm water pond. The Petitioners are concerned that changes in the storm water pond will cause the conservation easement to overflow and burden the storm water facilities owned by residential homeowners. Leon County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to chapter 163, Florida Statutes. Leon County is responsible for enacting and applying relevant Comp Plan and Code provisions to the development of property located within its political boundaries. Palafox is a limited liability corporation that is the applicant seeking approval for the "Type A" site and development plan, which is the subject of this proceeding. Palafox is the sole member of the Palafox Preserve Commercial Property Owners' Association, Inc. Gary Zins owns and controls Palafox through its managing member, Evergreen Communities, Inc., and is also the president of the Palafox Preserve Commercial Property Owners' Association, Inc., and controls the association as its only officer and director. Land Use Designations The Project is located on approximately 2.75 acres of the approximately 6-acre parcel of land identified as Lot 1, Block B, on the Plat. The parcel is within the Suburban ("SUB") and Lake Protection ("LP") categories on the Future Land Use Map of the Comp Plan. The parcel is split zoned Office Residential 3 ("OR-3") and LP. The Project is proposed only within the OR-3 zoned portion. Policy 2.2.5 of the Future Land Use Element ("FLUE") of the Comp Plan provides that the major function of the SUB designation is to mix placement of employment and shopping opportunities, with convenient access to low and medium density residential land uses. The proposal for 36 dwelling units which equates to a density of approximately 13 dwelling units per acre ("du/a") meets the gross density requirement of the OR-3 zoning district. The Project is located within the Urban Services Area established by the FLUE, which is the area identified by Leon County as desirable for new development based on the availability of existing infrastructure and services. The parcel contains a localized closed basin, wetlands and 100-year floodplain. Consistent with Comp Plan Conservation Element Policies 1.3.2 and 1.3.6, the areas of the site that contain environmentally sensitive features were previously placed in a perpetual conservation easement, and Palafox does not propose to disturb the area in the conservation easement. Background Leon County previously approved development of 19 single-family lots located on Lots 1 through 19, Block A, of the Plat. This development included infrastructure such as Palafox Lane, which is the entrance to the subdivision, and storm water management facilities in both Block A and Block B of the Palafox Preserve Subdivision. The Palafox Preserve Subdivision is a common scheme of development, and the storm water management facilities are operated under a single operating permit. It is also a private subdivision with all of the storm water management facilities dedicated to private entities and not to Leon County. A wetland of approximately seven acres was identified as part of the Natural Features Inventory ("NFI") and placed in a perpetual conservation easement in 2006. The wetland was initially delineated in 2001 by Kevin Songer who represented the applicant at that time. Mr. Songer's wetland delineation was field reviewed by representatives from Leon County and the Florida Department of Environmental Protection, adjusted, and finally approved by Leon County in 2006 as part of the NFI approval. The wetland and perpetual conservation easement straddle the boundary between Block A and Block B with about two- thirds in Block A and about one-third in Block B. With the required buffer area added to the approximately seven-acre wetland, the perpetual conservation easement in total covers approximately nine acres. Subsequent permits for the development of the Palafox Preserve Subdivision, such as for the 19 homesites, relied on the 2006 NFI, which included the 2001 wetland delineation and the perpetual conservation easement. Leon County did not require new wetland delineations prior to development of each homesite even though homes were built as recently as 2012, 2013, and 2014. The storm water management facility constructed in Block B of the Plat is labeled as SWMF #1. SWMF #1 was designed to retain the additional runoff from the first 500 feet of Palafox Lane up to the 100-year, 24-hour storm. SWMF #1 has a concrete weir that allows a controlled discharge into the adjacent conservation easement wetlands. Storm water management facilities constructed in Block A included SWMFs #6 and #7 that collect the runoff from the homesites located on the west side of the conservation easement, namely Lots 11 through 19. Lots 11 through 19 all contain a portion of the conservation easement area as well as platted drainage easements. SWMFs #6 and #7 are constructed in the platted drainage easements on Lots 11 through 19 in Block A. SWMFs #6 and #7 are constructed in a horseshoe shape adjacent to the conservation easement, are designed as detention facilities, and discharge to the conservation easement wetlands. The SWMF #1 retention facility, the SWMFs #6 and #7 detention facilities, and the conservation easement containing the wetlands are within the localized closed basin. There is another SWMF to the west behind homesites located on Lots 1 through 7 that is labeled SWMF #5. SWMF #5 is not within the localized closed basin and discharges to the Lake Jackson drainage basin. The conservation easement also contains a "pop-off" or outfall which allows for discharge of water from the wetlands to the west if it reaches a certain elevation, which based on the plans is 223.57 feet. It was designed to mimic pre-development conditions and only discharges if the 100-year, 24-hour storm is exceeded. If discharged, the water would travel west through drainage easements to SWMF #5 and ultimately to Lake Jackson. Because the localized closed basin retains up to the 100-year, 24-hour storm, it is a closed basin under the Code. Leon County also previously approved commercial development on Lot 1, Block B, of the Plat, which is still active (Palafox Preserve Commercial Project). The site development approval and environmental permits for the Palafox Preserve Commercial Project are current but would be superseded by final approval of the site and development plan and environmental permit for the current Project. The Project In 2014, an earlier application for Site Plan and Development Review was submitted for the Market District Housing Project. An Environmental Permit Application ("EMP") was also reviewed concurrently under the Code. Leon County issued a preliminary written decision of approval, which was appealed by Robert and Wynona Braswell, and the case was assigned to DOAH. Based on certain issues, the application was withdrawn, and the parties litigated in circuit court. That litigation concluded with a Final Judgment in favor of Evergreen Communities, Inc., and Palafox. Palafox then submitted the current site and development plan application for the Project dated April 4, 2018, which was designated LSP 180013. Palafox concurrently submitted an EMP application for the Project, which was designated as LEM 18- 00034. The Project's current Plan application was reviewed by various departments within Leon County, as well as several other entities and agencies. Ms. Shawna Martin, principal planner with the Leon County Development Services Division, coordinated the review gathering comments and feedback from the various departments and agencies and coordinated the preparation of a Staff Report for the Application Review Meeting ("ARM") held on April 25, 2018. The Staff Report recommended approval of the Project finding that the Project's proposed development was consistent with the Comp Plan, met applicable zoning standards and requirements, and met the applicable provisions of the County's Environmental Management Act ("EMA") and the provisions of chapter 10 of the Code. Leon County's Environmental Services Division ("Environmental Services"), under the supervision of Nawfal Ezzagaghi, a licensed professional engineer, reviewed the EMP application for the Project concurrently with the site plan and development review. Mr. Ezzagaghi has been the environmental review supervisor for Leon County since 2005, and is responsible for the review by Environmental Services' staff of environmental management plans, engineering calculations, engineering plans, and providing input on site plans and to the public works department. During the review of the application, both in 2014 and 2018, Environmental Services under Mr. Ezzagaghi's supervision reviewed the application including the storm water design, modeling, and construction plans, and coordinated and communicated with the applicant. Environmental Services received and reviewed the materials, conducted an independent analysis, and ultimately verified compliance with the EMA. The Petitioners received notice of the ARM meeting, submitted verbal and written comment, and ultimately challenged the written preliminary decision of approval. The Petitioners' challenge raised three primary issues: (1) that the Project is inconsistent with the Plat; (2) that the perpetual conservation easement wetland should have been re- delineated as part of the Project's current permitting application; and (3) that the storm water plan for the Project does not meet the requirements of the Code. Palafox Preserve Subdivision Plat The Plat designates a portion of Lot 1, Block B, as the "POA Drainage Easement." The dedication provisions of the Plat convey the POA Drainage Easement to the Palafox Preserve Commercial Property Owners' Association, Inc. Palafox, the applicant, is the sole member of the Palafox Preserve Commercial Property Owners' Association, Inc. The dedication provisions of the Plat convey all "drainage easements" to the Palafox Preserve Home Owners Association, Inc., which is the owners' association for Block A--the residential area of the subdivision. Plat Note 5 states that "the construction of permanent structures, including fences but excluding driveways, by the Property Owner is prohibited within drainage and utility easements." The Petitioners claim that the Project is inconsistent with the prohibition in Plat Note 5. SWMF #1 is located within the POA Drainage Easement on Lot 1, Block B, of the Plat and does not serve any part of the residential area of the subdivision. On its face, the prohibition in Plat Note 5 does not apply to the POA Drainage Easement. In addition, words such as "fences" and "driveways" more reasonably refer to residential areas of the Plat. Wetland Delineation The application for the Project did not contain a new NFI. Leon County informed Palafox that the parcel had already been through the NFI process and held a valid and active EMP. As a matter of policy, Leon County does not require submission of a new NFI or new wetland delineation once previously delineated wetlands are under a perpetual conservation easement that is dedicated to Leon County as a preservation area. Unlike the 2001 wetland delineation line submitted in the 2006 NFI and placed under the perpetual conservation easement, Kevin Songer's 2015 wetland delineation work for the Petitioners was neither checked by independent peer review nor confirmed by any state or local environmental regulatory agency. Mr. Songer's 2015 wetland delineation does not represent a recognized wetland jurisdictional line. Storm Water Plan The storm water management system for the Project is a "two-step system" designed to address both the water quality and volume control standards of the EMA. For water quality, the Code requires a one and one-eighth-inch standard for storm water treatment and the Project would satisfy this requirement through a new storm water detention and treatment facility. The detention pond is designed to treat the volume determined from the one and one-eighth-inch standard, or slightly more than 14,000 cubic feet. This is the more critical volume for which the new facility must be designed. For volume control, the closed basin standard requires the runoff volume in excess of the pre-development runoff volume to be retained for all storm events up to a 100-year, 24-hour duration storm. That difference is approximately 9,650 cubic feet. The closed basin for which retention must be demonstrated includes the conservation easement wetlands, and modeling demonstrated a change in elevation from 221.51 to 221.54 over approximately six acres. This difference in elevation is retained in the wetlands up to and including the 100-year, 24- hour storm. The post-development elevation of 221.54 does not approach the 223.57 "pop-off" elevation of the wetlands. SWMF #1 was designed to retain runoff from the first 500 feet of Palafox Lane up to the 100-year, 24-hour storm. The evidence established that SWMF #1 was "over-designed" because of circumstances in 2006 to 2007, which may have included different Code requirements and the wishes of the original developer. The Petitioners' engineer, Sal Arnaldo, who did not have any previous experience with the Code, opined that the existing SWMF #1 could not be replaced by the proposed detention with treatment facility. Mr. Arnaldo's understanding of the Code was that all storm water that falls on Block B and runoff from the first 500 feet of Palafox Lane must be retained in a retention pond up to and including the 100-year, 24-hour storm. He viewed SWMF #1 as the "closed basin" or the "site" that was not allowed to discharge to the conservation easement wetlands. In his opinion, the proposed detention facility for the Project did not provide the same function. Different pond sizes, designs, and storm water management methods can be used to meet the requirements of the Code exemplified by the fact that the two-step approach used for the Project is the same approach used on the west side of the wetlands for Lots 11 through 19, Block A. SWMFs #6 and #7 are also detention facilities which were designed to treat storm water and discharge to the conservation easement wetlands. Leon County's expert engineer, Mr. Ezzagaghi, testified that the SWMF #1 retention facility, the SWMFs #6 and #7 detention facilities, and the conservation easement containing the wetlands are part of the closed basin under the Code. Thus, the standard is not a comparison of the capacity of existing SWMF #1 to the capacity of the proposed detention facility, but whether the storm water system as a whole controls for the post- development volume that is in excess of pre-development conditions. The evidence demonstrated that the Project's proposed storm water system will not significantly impact the conservation easement wetlands and will not cause flooding or other adverse impacts to downstream areas. Summary The preponderance of the evidence, which includes Leon County's interpretation and application of applicable provisions of the Comp Plan and Code, demonstrated that the Project is consistent with all requirements for approval. See § 10-7.407, Leon Cnty. Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Leon County Board of County Commissioners enter a final order approving the Project, subject to the conditions outlined by the Application Review Committee in its written preliminary decision dated April 27, 2018. DONE AND ENTERED this 31st day of August, 2018, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2018.
The Issue Whether Respondent properly denied the applications of Petitioner for Class I wildlife; and whether Respondent's previous granting of Class I licensure to Petitioner estops Respondent from denying the instant applications.
Findings Of Fact On July 15, 1998, Petitioner applied to the Commission for licenses, via three separate applications, to possess wildlife, particularly bears, leopards, and baboons at three separate locations. The applications cited the addresses of 127 West Hiawatha Street, 116 West Elm Street, and 6802 North Highland Avenue, all in Tampa, Florida, as the locations where Petitioner planned to possess the animals. Petitioner applied to possess bears (family ursidae), leopards (family felidae) and baboons (family cercopithecidae) at each location. All these animals are Class I wildlife. Respondent issued Notices of Denial of the three applications to Petitioner on September 22, 1998. Class I animals are dangerous animals that cannot be possessed for personal use, and are typically found in zoos. They are dangerous because of their ferocity and size. These animals may be aggressive towards anyone, including their keeper. Class II wildlife are potentially dangerous animals which should only be possessed by experienced individuals. Class III animals are of smaller size and are less aggressive. The goal of the Commission's classification system is to promote the safehousing of wildlife, and to protect the general public and the individual keeping the animals. In the application for 116 West Elm Street, Petitioner noted that he presently possessed five white-tailed deer, one muntjac, and one emu, all Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 116 West Elms Street, the year previous to the instant application. In the application for 127 West Hiawatha Street, Petitioner noted that he presently possessed two panthers and one bobcat, both Class II wildlife, and two alligators, which are Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 127 West Hiawatha Street the year previous to the instant application. In the application for 6802 North Highland Avenue, Petitioner noted that he presently possessed no wildlife at this location. Petitioner did not possess authorization to house Class I wildlife at 6802 North Highland Avenue the year previous to the instant application. Two of Petitioner's locations are contiguous: 127 West Hiawatha Street, and 166 West Elm Street. Petitioner's location at 6802 North Highland Avenue is approximately one block from the other two sites, and on the other side of the street. Elm and Hiawatha are not one property, but two separate residences and addresses. The Hiawatha and Elm Street addresses were treated as two separate locations by the Commission as they are separate addresses with separate applications. The Elm Street and Hiawatha locations are separated by a fence at the back of each property. Petitioner uses a ladder to traverse over the fence between the Elm Street and Hiawatha locations. The area where Petitioner wishes to house Class I wildlife is a residential area with small single-family houses located close together, with small yards, and near a major road. There are residential properties to the east of both the Hiawatha and Elm Street locations. Petitioner's neighborhood is densely populated, with single-family residential dwellings and small lots. Petitioner's locations are within approximately 100 yards from large intersections at Sligh Avenue and Florida Avenue. The three properties where Petitioner sought to keep Class I wildlife are zoned single-family residential. Approximately six people per week visit through Petitioner's facilities. Petitioner has received various permits, including Class I, from the Commission for over the past 15 years. It is possible to obtain a Class I license and not be qualified to possess animals at the address on the license. Pursuant to law, a permittee for Class I wildlife has to meet specific requirements including standard caging requirements and land area. The land area required to house Class I wildlife is 1/4 acre minimum. An acre of land is 43,560 square feet. One-quarter of an acre is 10,890 square feet. The 1/4 acre minimum area for Class I wildlife is critical because it allows for a larger buffer for dangerous animals. Respondent wildlife inspectors visit applied-for sites to determine whether the facility meets the caging requirements, whether wildlife are housed safely and ensure the public is not at risk. Respondent inspections are made to determine whether caging is strong enough to contain animals safely and to verify the owner or possessor does not exceed the number of permitted animals. Wildlife officers regulate and enforce the caging of captive wildlife, both exotic and native. It is necessary to have cages meet the rules to protect the safety of the animal, the neighbors, and the keeper. Respondent's Lieutenant Stephen Delacure, who has been a Commission Wildlife Officer or Inspector for approximately ten years, has been to Petitioner's three locations in Tampa at least 15 times over the past four years. Delacure has never seen any Class I animals at any of Petitioner's three locations. On November 12, 1998, Delacure and Lieutenant Krause inspected all three of Petitioner's locations pursuant to his application. Delacure inspected the three locations for appropriate caging and land area for bears, leopards, and baboons. Delacure measured all locations with Petitioner present and indicated that he gave Petitioner "the benefit of the doubt" as to the measurements. Delacure measured the total area for 127 West Hiawatha Street to be 103 feet by 39 feet (front and depth) (4,017 square feet). Delacure measured the total area of 116 West Elm Street to be 87 feet by 69 feet (6,003 square feet). Therefore, Delacure found the combined area for 127 West Hiawatha Street and 116 West Elm to be 10,020 square feet. Delacure measured the total area of 6802 North Highland Avenue to be 102 feet by 42 feet (4,284 square feet). Delacure found no adequate caging for Class I bears, baboons, or cats at 127 West Hiawatha Street. In addition, Delacure found no caging for Class I wildlife at 116 West Elm Street nor 6802 North Highland Avenue. The November 1998 inspection was the basis for the issuance of the amended notice of denial for failure to meet land area requirements and to meet caging requirements. Respondent denied Class I licenses to Petitioner because of inadequate land area and caging. Class II licenses do not say "all" for possession purposes, as these licenses are defined by specific animal families. However, Class III licenses may say "all" for possession purposes. The Respondent changed Class I licenses to animal specific from the "all" designation to ensure that the animal possessor is familiar with the handling of that family or species of animal as nutritional, health, and handling requirements are different for each animal family. Linda Coomey is a building inspector for the City of Tampa, having done this job for 15 years. Coomey inspects zoning and code enforcement. Coomey has been to Petitioner's locations 12-13 times over the last eight years. Coomey calculated the area of 127 West Hiawatha Street as 38 feet by 103 feet (3,914 square feet). Coomey calculated the area of 116 West Elm Street as 65 feet by 80 feet (5,200 square feet). Therefore, Coomey found the combined area of 127 West Hiawatha Street and 116 West Elm Street is 9,114 square feet. The area of 6802 North Highland Avenue was calculated by Coomey as 50 feet by 104 feet (5,200 square feet). These measurements were taken from the Hillsborough County plat maps and Coomey does not consider any error in measuring the square footage as acceptable. The Hillsborough County Property Appraiser's Office found the area of the three properties to be as follows: 127 West Hiawatha Street, 38 feet by 103 feet (3,914 square feet); 116 West Elm Street, 65 feet by 80 feet (5,200 square feet); and 6802 North Highland Avenue, 50 feet by 104 feet (5,200 square feet). None of these individual areas is equal to or greater than 1/4 acre, nor does the combining of the areas of 127 West Hiawatha Street and 116 West Elm Street (3,914 square feet and 5,200 square feet, for a total of 9,114 square feet) meet or exceed 1/4 acre. The Hillsborough County Tax Collector's Office reports 127 West Hiawatha Street as being .09 acres; 116 West Elm Street as being .12 acres; and 6802 North Highland Avenue as being .12 acres. Therefore, the Hillsborough County Tax Collector's Office found the combined area of 127 West Hiawatha Street and 116 West Elm Street is .21 acres. Per Petitioner, 127 West Hiawatha Avenue is 39 feet by 103 feet (4,017 square feet) in total area, and Respondent's officers informed Petitioner he did not have the required acreage. Respondent informed Petitioner on more than one occasion that Petitioner could have a Class I license that allows a person to borrow an animal and not be allowed to posseses Class I animals on the license holder's property. On September 6, 1991, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On July 23, 1993, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding felidae. On June 29, 1993, Petitioner was issued a license for 116 West Elm Street, which cited that Petitioner could possess the following: Class I, ursidae, cercopithecidae, and felidae. On June 29, 1993, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, ursidae, felidae, and cercopithecidae; Class II, all excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was a issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On July 4, 1994, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding venomous reptiles. On June 27, 1996, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all, excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. This was the last instance where Petitioner was licensed to possess Class I wildlife. On September 16, 1997, Petitioner was issued a license for 127 Hiawatha Street, which cited Petitioner could possess: Class I, none; Class II, felidae; Class III, all. On September 16, 1997, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess: Class I, none; Class II, none; Class III, all, excluding venomous reptiles. On September 16, 1997, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess: Class I, none; Class II, none. Lieutenant Dennis Parker is an inspector for Respondent, having worked for Respondent 26 years. Parker has consistently inspected Petitioner's facilities for more than 15 years. Parker measured 127 West Hiawatha Street "from curb to curb" in 1992 pursuant to Petitioner having a bear on the premises. Petitioner immediately received notice from Respondent that his acreage was inadequate via a "field revocation." Petitioner was ordered to remove the Class I animals. Petitioner was mistakenly provided a Class I license for ursidae before the Commission measured 127 West Hiawatha Street, under Parker's assumption that Petitioner had adequate acreage. A Class I license requires 1/4 acre or more to possess a Class I animal on that property. Petitioner's license for Class I ursidae was based on Petitioner's borrowing a bear for exhibition, with the bear being kept at a licensed facility not owned by Petitioner. Petitioner used 127 West Hiawatha Street as the mailing address for the license. Respondent had never inspected or authorized caging for bears at 127 West Hiawatha Street. Petitioner originally obtained bears without the knowledge and/or consent of Respondent, then a complaint was filed with Respondent. Petitioner recently had an animal escape from the 116 Elm Street location. Petitioner presently possesses Class I animals. Petitioner's properties do not meet the regulatory requirement for acreage size to house Class I wildlife pursuant to Rule 68A- 6.022 (formerly 39-6.022), Florida Administrative Code. Petitioner is one of thousands of persons who has authority to possess animals, but does not have an approved facility address to house the animals. Moreover, assuming arguendo that the properties are combined, Petitioner's properties at 127 West Hiawatha and 116 West Elm fail to meet the mandatory requirements for acreage to house Class I wildlife, pursuant to Rule 68A-6.022, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order upholding the Commission's Amended Notice of Denial. DONE AND ENTERED this 18th day of February, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2000. COPIES FURNISHED: Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Preston T. Robertson, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Allan L. Egbert, Ph.D., Interim Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 James Antista, Acting General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue The issue is whether proposed amendments to the Collier County comprehensive plan are in compliance with the criteria of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Background Located in southwest Florida, south of the Caloosahatchee River and southeast of Lake Okeechobee, Collier County comprises about 2000 square miles or 1.28 million acres. The County borders the Gulf of Mexico on the west, Lee and Hendry counties on the north, Broward and Dade counties on the east, and Monroe County and the Gulf of Mexico on the south. Contiguous tracts of government-owned land occupy much of the County, especially the southeast portion of the County. These tracts include the Big Cypress National Preserve, Everglades National Park, Fakahatchee Strand State Preserve, Ten Thousand Islands Aquatic Preserve, Collier Seminole State Park, and, at the northwest corner of these public holdings, the Florida Panther National Wildlife Refuge. The area that is the subject of the present case is the Big Cypress Area of Critical State Concern (Big Cypress). The Big Cypress contains about 931,000 acres, of which about 778,000 are in Collier County. This represents about 60 percent of the County. Encompassing nearly all of the government-owned land identified in the preceding paragraph, as well as smaller areas of privately owned land, the Big Cypress will eventually extend to about 92 percent of the County. On July 23, 1996, the Collier County Board of County Commissioners adopted Ordinance No. 96-41. The ordinance would amend the future land use element (FLUE) of the comprehensive plan (as amended, the Plan) of Respondent Collier County (County). Petitioner Gary L. Beardsley (Beardsley) is an environmental consultant who has worked in Collier County since 1984. He appeared before the Collier County Board of County Commissioners when the Board was considering the adoption of the plan amendments. Petitioner Environmental Confederation of Southwest Florida, Inc. (ECOSWF) is a confederation of about 50 organizations in Collier, Lee, Hendry, Charlotte, Sarasota, and DeSoto counties. Through its representative, Beardsley, ECOSWF appeared before the Collier County Board of County Commissioners when the Board was considering the adoption of the plan amendments. Intervenors Barron Collier Partnership and Collier Enterprises are general partnerships. Intervenors Russell A. and Aliese Priddy; John E. Price, Jr.; and James E. Williams, Jr. are residents of, and maintain their primary places of business in, Collier County. Intervenors own over 56,000 acres in the Big Cypress. Their land is zoned agricultural, and they engage in active agricultural activities on much of this land. Barbara Cowley, as representative of Intervenors, submitted comments to the Collier County Board of County Commissioners while the Board was considering the plan amendments. Plan Provisions The challenged plan amendments would reinstate three agricultural exemptions from land-use restrictions otherwise imposed by the Plan upon agricultural activities in the Big Cypress. The land-use restrictions presently in effect limit site alterations, drainage, and structural installations in the Big Cypress with no exemption for agricultural activities. The Plan originally exempted agricultural activities from the prohibitions against site alterations, drainage, and structure installations in the Big Cypress. In 1991, when adopting its land development regulations, Collier County amended the Plan to eliminate these agricultural exemptions in the Big Cypress. Adopting a recommendation of a citizen advisory committee, Collier County reasoned that “agricultural uses are intensive uses which alter the land significantly and should be regulated with regard to the site alteration, drainage, and structure installation requirements as other land uses are within the Critical Area.” Five years later, Collier County decided to readopt the original agricultural exemptions in the land development regulations and the Plan. A fourth plan amendment in the adoption ordinance affects land uses outside the Big Cypress; it is restated below, but Petitioners have challenged only the three amendments reinstating the original agricultural exemptions. The proposed plan amendments would change the FLUE. Following the FLUE goals, objectives, and policies, the FLUE provides detailed explanations of the FLUE designations. Although not in the form of goals, objectives, and policies, these explanations are operative provisions of the Plan. The proposed plan amendments would revise the explanatory section entitled, “Area of Critical State Concern Overlay” (Overlay). The Overlay applies to land uses in the Big Cypress. As originally adopted, the Plan required that all “development orders” comply with Chapter 27F-3, Florida Administrative Code, which regulated activities in the Big Cypress. (Chapter 28-25 has since superseded Chapter 27F-3.) As amended in 1993, the Plan now provides that development orders in the Big Cypress must comply with the rules of Chapter 27F-3 or the Overlay provisions, whichever are more restrictive. Overlay Section A addresses site alterations, Overlay Section B addresses drainage, and Overlay Section D addresses structure installations. Overlay Section A.1 provides: Site alterations shall be limited to ten percent of the total site size, and installation of nonpermeable surfaces shall not exceed 50 percent of any such area. However, a minimum of 2,500 square feet may be altered on any permitted site. The original agricultural exemption for site alterations was contained in Overlay Section A.8, which provided: “This rule [i.e., the Overlay provisions governing site alterations] shall not apply to site alterations undertaken in connection with the agricultural use of land or for the conversion of land to agricultural uses.” The proposed plan amendments would readopt this original language. The plan amendment not challenged by Petitioners eliminates the percentage limitation for site alterations for conservation purposes. The unchallenged plan amendment states (new language underlined and repealed language stricken through): For land zoned agricultural Estates, outside of the Area of Critical State Concern, and identified as Southern Golden Gate Estates in Goal 2 of the Golden Gate Area Master Plan, that is engaged in or is proposing bona fide agricultural use(s), site alteration percentage limits may be adjusted for site alteration activities designed for conservation and/or environmental purposes as set forth in an environmental impact statement approved by the Board of County Commissions. Such site alteration activities include: (i) prescribed fires and associated firebreaks as approved by the Florida department of forestry; (ii) removal and control of listed exotic plant species; (iii) native habitat occurring plant species; (v) [sic] restoration of historical hydroperiods; and (vi) other activities designed for conservation and environmental purposes reviewed on a case by case basis. Overlay Section B addresses drainage in the Big Cypress. Section B.2 requires new drainage facilities to release water in a manner approximating the natural local surface flow regime . . . either on-site or to a natural retention or filtration and flow area. New drainage facilities shall also maintain a groundwater level sufficient to protect wetland vegetation through the use of weirs or performance equivalent structures or systems. Said facilities shall not retain, divert, or otherwise block or channel the naturally occurring flows in a strand, slough, or estuarine area. Originally, Section B.4 provided: “This rule shall not apply to drainage facilities modified or constructed in order to use land for agricultural purposes or to convert land to such use.” The proposed plan amendments would readopt this original language. Overlay Section D addresses the installation of structures in the Big Cypress. Section D.1 requires that the “[p]lacement of structures shall be accomplished in a manner that will not adversely affect surface water flow or tidal action.” Originally, Section D.3 provided: “This rule shall not apply to structures used or intended for use in connection with the agricultural use of the land.” The proposed plan amendments would readopt this original language. Goal 1 of the Conservation and Coastal Management Element (Conservation) states: “The County shall continue to plan for the protection, conservation, management and appropriate use of its natural resources.” Conservation Objective 1.1 states: By August 1, 1994, the County will complete the development and implementation of a comprehensive environmental management and conservation program that will ensure that the natural resources, including species of special status, of Collier County are properly, appropriately, and effectively identified, managed, and protected. . . . The FLUE also contains an overlay for areas of environmental concern. However, the only significance of this overlay is that the County promises later to adopt land development regulations governing development in such areas. As a Plan provision, this overlay does not directly protect any natural resources. The Plan contains definitions to clarify terms used in the Collier County Comprehensive Plan and not to establish or limit regulatory authority of other agencies or programs. Some definitions have been changed from those found in Chapter 163, Florida Statutes to reflect local usage. Paragraph 64 of the definitions defines “development” as the “act, process, or result of placing buildings and/or structures on a lot or parcel of land or clearing and/or filling of land.” A “note” at the end of the explains the meaning of “properly,” “appropriate(ly),” and “effective(ly).” The note explains that these words are used to allow the Board of County Commissioners flexibility in its decision making process for the issuance of development orders . . .. Because several areas of this plan identify future studies and/or programs, flexibility was reserved by the Board of County Commissioners until these studies and programs have been completed and specific statements could be developed for inclusion in the Growth Management Plan through the amendment process. DCA Review of the Proposed Plan Amendments The County transmitted the proposed plan amendments to Respondent Department of Community Affairs (DCA) to determine whether they are in compliance, as required by Section 163.3184(1)(b). By Objections, Recommendations, and Comments (ORC) issued February 9, 1996, DCA announced objections that, if not addressed, could have provided the basis for a determination that the plan amendments were not in compliance. The ORC contends that the plan amendments are not supported by data and analysis. The ORC states that Collier County did not provide any data and analysis to “justify reinstatement of the agricultural exemptions.” The ORC recommends that the County describe the conditions that have “occurred or changed to warrant reinstatement of the agricultural exemptions” and “consider and assess the practicality of allowing less than 100 percent clearing in areas where significant natural resources occur or could be adversely affected.” The ORC notes that Collier County provided no analysis of the environmental impacts that could result from reinstating the agricultural exemptions. The ORC contends that the plan amendments are internally inconsistent. The ORC explains that reinstatement of the agricultural exemptions creates a “potential for loss (through clearing activities) of natural resources such as wetlands and listed species['] habitats.” The ORC questions the consistency of the reinstatement of the agricultural exemptions, with the attendant loss of natural resources, with Conservation Goal 1 and Objective 1.1. The ORC suggests that the County consider additional protection from agricultural uses for areas within the Big Cypress that contain “significant natural resource areas.” The ORC contends that the plan amendments are inconsistent with Goal 8 and Policy 8.10 and Goal 10 and Policies 10.1, 10.3, 10.5, and 10.7 of the State Comprehensive Plan, as set forth at Section 187.201, Florida Statutes. The ORC contains the comments of various state and regional agencies, including the Southwest Regional Planning Council, Department of Environmental Protection (DEP), and South Florida Water Management District (SFWMD). The Southwest Regional Planning Council determined that the plan amendments were consistent with the Strategic Regional Policy Plan of the Southwest Regional Planning Council and recommended that Collier County, SFWMD, or another entity monitor the impacts in the Big Cypress of the agricultural activities that would be permitted by the amendments. DEP noted that Collier County had not analyzed the impact of the readoption of the agricultural exemptions on lands designated for agricultural use. DEP mentioned that agriculturally designated lands may include sensitive habitats used by threatened or endangered species and thus “deserve a special classification.” DEP also linked agricultural practices in the area to problems in water quality and quantity, as well as disturbed hydroperiods. For these reasons, DEP suggested that the County designate appropriate lands as Conservation and enlist DEP’s assistance in forming stewardship alliances with landowners in the Big Cypress to preserve these natural resources. SWFWMD commented that it does not exempt most agricultural activities from its Environmental Resource Permitting requirements. But SWFWMD added that the “site alteration and drainage regulations of the . . . Overlay represent a valuable addition.” The County did not revise the proposed plan amendments after receiving the ORC. Explaining the County’s position, a staff memorandum dated March 4, 1996, asserts that the proposed amendments are supported by data and analysis because the amendments achieve consistency with Chapter 28-25, do not prevent the County from adopting land development regulations to protect the affected natural resources, and affect a small amount of undeveloped land (14 of 81 square miles) as compared to the large amount of land owned or about to be owned by public entities. The March 4, 1996, memorandum disclaims any inconsistency between the proposed plan amendments and Conservation Goal 1 and Objective 1.1. In support of this claim the memorandum cites Policy 1.1.2, which calls for the adoption of land development regulations incorporating the Conservation goals, objectives, and policies; Policy 1.1.5, which is to avoid duplication of effort with private and public agencies; and Policy 1.1.6, which is to balance the benefits and costs of the County conservation program between the public and private sectors. On September 9, 1996, DCA published in the Naples Daily News its Notice of Intent to find the proposed plan amendments in compliance. On September 30, 1996, Petitioners filed their petition challenging the proposed plan amendments. Data and Analysis In its proposed recommended order, Collier County cites as supporting data and analysis the same items asserted in the March 4, 1996, memorandum. In isolation, these items offer little, if any, support for the readoption of the agricultural exemptions. In the context of the readily available data and analysis, the data and analysis on which the County relies provide no support for the blanket reinstatement of the agricultural exemptions proposed by the plan amendments. The County argues that the reinstatement of the agricultural exemptions is supported by the presence of an identical exemption in Chapter 28-25 for agricultural activities in the Big Cypress. This argument treats the rules protecting areas of critical state concern as a “safe harbor” so that, if incorporated into a local government’s comprehensive plan, they assure a finding of supporting data and analysis. The effect of this argument is that comprehensive plans would provide greater protection from agricultural activities to natural resources outside areas of critical state concern than they would provide the same natural resources in areas of critical state concern. The County implies that the proposed plan amendments would have little effect because relatively little land of the affected land remains undeveloped, most of the land is in public ownership, and much of the remainder of the land will be in public ownership. Although the percentage of such undeveloped, privately owned land may be low, the actual area remains significant. Also, proposed agricultural exemptions apply to land already in agricultural use, not just undeveloped land proposed for conversion to agricultural use. Each proposed exemption applies to activities “to use land for agricultural purposes or to convert land for such use.” Obviously, adding privately owned agricultural land to privately owned undeveloped land means that the proposed exemptions would affect even more land. Lastly, the County, in effect, argues for a relaxation of land-use restrictions on land just prior to its public acquisition. Such an action would jeopardize the purpose of what has been an ambitious land-acquisition program to protect the important natural resources of this area. The County argues that its land development regulations protect any natural resources left vulnerable by the reinstatement of the agricultural exemptions. As compared to plan provisions, land development regulations are easily repealed and do not generally, in the best of circumstances, supply much support, as data or analysis, for plan provisions. This case does not present the best of circumstances given the valuable and extensive natural resources and the reliance on land development’s regulations to the exclusion of the Plan provisions that the County effectively proposes to repeal with the reinstatement of the agricultural exemptions. The County argues that other permitting regimes govern agricultural uses in the Big Cypress. Most notably, the area of critical state concern program obviously does not. The vigorous participation of the Intervenors and the comments of the SFWMD suggest that the failure to reinstate the three agricultural exemptions in the Plan would meaningfully restrict agricultural activities. In any event, authority dictating avoidance of duplicative permitting regimes was not intended to prohibit the County from strengthening Plan protections for the natural resources found in the Big Cypress. For the reasons stated in the preceding paragraphs, the County’s data and analysis do not support the proposed plan amendments. In fact, the proposed plan amendments are repudiated by considerable data and analysis that the County has ignored. These data and analysis have emerged since the adoption of the Plan and 1993 plan amendments, but prior to the adoption of the proposed plan amendments. Two sources of these data and analysis are the Florida Panther: Habitat Preservation Plan—South Florida Population, which was issued in November 1993 by individuals employed by the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, Florida Department of Environmental Protection, and National Park Service for the Florida Panther Interagency Committee (Habitat Preservation Plan), and Closing the Gaps in Florida’s Wildlife Habitat Conservation System, which was issued in 1994 by individuals employed by the Florida Game and Fresh Water Fish Commission (Closing the Gaps). The Habitat Preservation Plan notes that the U.S. Fish and Wildlife Service designated the Florida panther as a federal endangered species 30 years ago. Fourteen years later, the U.S. Fish and Wildlife Service approved a recovery plan for the Florida panther. The Service revised the plan six years later in 1987. The purpose of the 1987 recovery plan is to develop three viable, self-sustaining populations within the historic range of the Florida panther. This range extended through the entire southeast, not just Florida. Recovery efforts focus on three elements: stabilizing the south Florida population, preserving and managing genetic resources, and reestablishing at least two more populations elsewhere. The Habitat Preservation Plan warns that these “three elements must proceed simultaneously if recovery of the Florida panther is to be successful.” Habitat Preservation Plan at page 1. Focusing on the first element, the Habitat Preservation Plan identifies “actions that will assure the long-term preservation of habitats considered essential for maintaining a self-sustaining population of panthers in south Florida” (emphasis deleted). Id. at page 2. The Habitat Preservation Plan reports that a self- sustaining population requires at least 50 adult panthers. Id. The Habitat Preservation Plan estimates that the south Florida panther population appears stable at 30-50 adult animals. Id. at page 1. However, the plan, at page 2, cautions: Important panther habitat is being lost daily. Urban Development and agricultural expansion in occupied panther range without consideration for habitat needs of the panther are expected to accelerate as Florida’s [human] population increases. Development activities could reduce the available habitat to a level below the minimum threshold essential for a self-sustaining panther population. The Habitat Preservation Plan states that Collier is one of only four counties with a documented reproducing panther population—the other counties are Lee, Dade, and Hendry. Adult males require 200 square miles with little overlap with other males. Adult females require 75 square miles with some overlap with other panthers. Florida panther prefer white-tailed deer and feral hogs, but will also eat raccoons, armadillos, rabbits, birds, and alligators. According to the Habitat Preservation Plan, an adult panther annually eats the equivalent of 30-50 deer. The Habitat Preservation Plan states that “[l]and management plays an important role in panther habitat preservation.” Id. at page 5. According to the plan, prescribed burning, which facilitates the use of livestock range, also benefits the white-tailed deer. The plan warns that panther habitat is threatened by the invasion of nuisance exotics, such as melaleuca, Brazilian pepper, and Australian pine. The Habitat Preservation Plan asserts that the preferred panther habitats are hardwood hammocks and pine flatwoods, which are upland habitats in south Florida. Private lands in Collier County typically feature improved and native rangeland, wet and dry prairies interspersed with cabbage palm, and pine and oak forests—habitat that the panther share with other endangered or threatened species, such as the Florida sandhill crane, Audubon’s crested caracara, Florida grasshopper sparrow, and the burrowing owl. The Habitat Preservation Plan suggests that South Florida may be near carrying capacity for panthers, so that further habitat loss means the loss of panthers. Nor are the existing publicly owned lands in south Florida sufficient; they can probably support only 9-22 of the estimated 30-50 panthers in the region. Id. at page 9. The threat to panther habitat posed by agricultural uses depends entirely on the type of agricultural use for which development is proposed. The Habitat Preservation Plan acknowledges that native range and sustained yield forestry retain native habitat and “can be compatible with panther use.” Id. at page 16. Other uses, such as citrus groves, vegetable farms, and improved pasture, eliminate native habitat. However, the plan describes an ongoing evaluation of the possibility that fertilization of livestock range may boost the nutrition of deer, which would also assist the panther. Also, the plan acknowledges the importance of the configuration and scale of agricultural development. Panthers may persist in a mosaic of native and nonnative habitats where the size and configuration of an improved pasture, vegetable field or citrus grove and the composition of adjoining landscapes determine whether or not the mosaic provides suitable panther habitat. Agricultural lands interspersed with native habitats may benefit the panther’s primary prey, deer and feral hogs. Id. at page 16. The Habitat Preservation Plan warns that citrus development in particular may displace panther habitat in southwest Florida at a fast rate as grove owners, using new technologies, expand citrus into the pine flatwoods of southwest Florida. But the plan suggests that small citrus groves dispersed carefully among preserved panther habitat might provide corridors and cover for the panther. The Habitat Preservation Plan suggests that south Florida livestock range is divided equally between native range and improved pasture. Suggesting that even improved, overseeded pasture may assist the panther by providing additional food for the white-tailed deer, the plan focuses on the “size and configuration of the pasture and the interspersion and connectivity of native cover adjacent to the pasture.” Id. at page 20. Among methods of habitat preservation, the Habitat Preservation Plan lists numerous approaches that do not require acquisition of the fee simple. These approaches include incentives in landowner agreements and conservation easements to encourage the perpetuation of native range and sustained-yield forestry as opposed to other, more habitat-disruptive agricultural uses. The Habitat Preservation Plan describes a number of laws that assist in the preservation of panther habitat. Although not mentioning the state laws governing development in areas of critical state concern, such as Big Cypress, the plan discusses Chapter 163, Part II, Florida Statutes, and the role of the comprehensive plans of local governments, such as Collier County, whose jurisdictions encompass prime panther habitat. Using available data, the Habitat Preservation Plan identifies habitats suitable for preservation as priority one or priority two. Priority one habitats, which include much of the still-forested area affected by the proposed plan amendments, comprise the “lands most frequently used by the panther and/or lands of high quality native habitat suitable for the panther . . ..” Id. at page 34. The first of several recommendations contained in the Habitat Preservation Plan is to: Develop site-specific habitat preservation strategies for [priority one] lands considered essential to maintaining the Florida panther population south of the Caloosahatchee River at its present level. Strategies should emphasize preservation of suitable panther habitat on private lands by methods that retain private ownership of those lands to the extent possible, and implement management practices on public lands that, based on existing data, would be expected to result in improved habitat conditions for the panther. Id. at page 37. Quantitatively, priority one lands south of the Caloosahatchee River that are not designated for federal or state acquisition constitute 203,500 acres. Id. If implemented, the first recommendation would preserve the land where 43 panthers were found 98 percent of the time during the period of study. Id. Again ignoring the laws governing development in areas of critical state concern, the ninth recommendation is for DCA, the regional planning councils, and local governments to review their efforts in protecting panther habitat in the context of the provisions of the Habitat Preservation Plan. Closing the Gaps addresses the habitat needs of a variety of species, not only the Florida panther. The findings and conclusions of Closing the Gaps agree with those of the Habitat Preservation Plan as to the panther. Closing the Gaps finds that nearly all of the Big Cypress not publicly owned is good habitat for the Florida panther, as well as the Florida black bear and American swallow- tailed kite. Closing the Gaps reports that nearly all of the Big Cypress already hosts a stable black bear population. Closing the Gaps rates much of the privately owned portion of the Big Cypress as outstanding potential bear habitat, in terms of proximity to conservation areas, extent of roadless areas, diversity of cover types, and the presence of specific cover types. Closing the Gaps also finds that isolated County locales, including some in the affected area, present good potential habitat for the Florida sandhill crane, although much more extensive potential habitat is found north and east of Collier County. Closing the Gaps includes Collier County in the Southwest Florida Region, which does not include any of Monroe or Dade counties. Closing the Gaps calls this region, which extends north to Sarasota County, “the most important region in Florida” in terms of “maintaining several wide-ranging species that make up an important component of wildlife diversity in Florida . . ..” Id. at page 173. As to the area northwest of the Big Cypress National Preserve, Closing the Gaps asserts that the “mixture of cypress swamp, hardwood swamp, dry prairie, and pineland represents one of the most important wildlife areas remaining in Florida.” Id. at page 174. Closing the Gaps cautions: “The threats facing Florida panthers require quick and aggressive action if panthers are to be saved from extinction. . . . [B]ut the situation is far from hopeless if quick actions are taken.” Closing the Gaps, page 68. Repeating the warning of the Habitat Preservation Plan, Closing the Gaps cautions that “[o]ne of the greatest threats to the continued existence of panther habitat in south Florida is conversion of large areas of rangeland and native land cover to agriculture.” Id. In particular, citrus development threatens to subdivide existing, contiguous panther habitat, including that land covered by the proposed plan amendments. Closing the Gaps concludes with suggestions for how to protect valuable natural resources. Acknowledging that acquisition is the most effective and least controversial of methods, Closing the Gaps suggests the purchase of lesser rights, such as conservation easements or development rights. Omitting mention of the state program designating areas of critical state concern, Closing the Gaps advises that local governments protect valuable habitat through their comprehensive plans. The Plan currently prohibits various agricultural activities in the Big Cypress. The prohibited activities are the alteration of more than 10 percent of the site; installation of structures that would alter surface water flow; and implementation of drainage systems that fail to approximate the natural local surface flow regime, maintain sufficient groundwater levels to protect wetland vegetation, or retain, divert, or impede the naturally occurring flows in a slough or strand. The proposed amendments would permit these activities, if done for agricultural purposes. The data and analysis do not support the blanket reinstatement of the proposed agricultural exemptions. The data and analysis support the present Plan provisions. The data and analysis might support a more sophisticated approach to agricultural activities, with due regard to the extent and configuration of various types of agriculture in terms of the impact on endangered species and their habitat. However, the County has not attempted such an approach with the proposed plan amendments, and it is premature to consider further what such an approach might involve. To the exclusion of fair debate, the proposed amendments are unsupported by the data and analysis. Internal Consistency Conservation Objective 1.1 required the County, by August 1, 1994, to adopt and implement a “comprehensive environmental management and conservation program” to “ensure that the natural resources, including species of special status,” are “properly, appropriately, and effectively identified, managed, and protected.” The covered species are those listed as endangered and those listed by the Florida Game and Fresh Water Fish Commission as endangered and potentially endangered. Conservation Objective 1.1 promised future action. By mid-1994, the County was required to adopt a program to “properly, appropriately, and effectively . . . protect. . .” listed species. Absent a Plan requirement that such protection be expressed in the Plan, the County arguably could have discharged this requirement by adopting land development regulations. And perhaps that was the intent of the 1993 changes to the land development regulations and Plan. The words of flexibility—“properly,” “appropriately,” and “effectively”—reveal the promissory nature of this objective. According to the Plan, these words were designed to leave the County flexibility until it later completed the necessary work so “specific statements could be developed for inclusion” in the Plan. By the language of Conservation Objective 1.1, the promise came due in 1994. Perhaps part of the County’s response was the elimination of the agricultural exemptions that it is now trying to reinstate. In any event, the Plan does not now allow the County to repudiate its undertaking to “protect” the Florida panther “properly, appropriately, and effectively.” Regardless of the flexibility accorded these three adverbs, Conservation Objective 1.1 does not permit the County to amend the Plan so as to facilitate further loss of panther habitat, which the data and analysis disclose would be the inevitable result of the reinstatement of the agricultural exemptions. To the exclusion of fair debate, the proposed plan amendments are inconsistent with Conservation Objective 1.1. Consistency with the State Comprehensive Plan As set forth in Section 187.201(8)(a), Florida Statutes, Goal 8 of the State Comprehensive Plan states that Florida shall assure the availability of an adequate supply of water for all competing uses deemed reasonable and beneficial and shall maintain the functions of natural systems and the overall present level of surface and ground water quality. Florida shall improve and restore the quality of waters not presently meeting water quality standards. As set forth in Section 187.201(b)10, Policy 8.10 of the State Comprehensive Plan is to “[p]rotect surface and groundwater quality and quantity in this state.” Notwithstanding DEP’s comments, as reflected in the ORC, the record is not sufficiently developed as to water-quality issues to permit a finding that, to the exclusion of fair debate, the proposed amendments would conflict with these water-quality provisions of the State Comprehensive Plan. As set forth in Section 187.201(8)(a), Goal 10 of the State Comprehensive Plan states that Florida shall protect and acquire unique habitats and ecological systems, such as wetlands, tropical hardwood hammocks, palm hammocks, and virgin longleaf pine forests, and restore degraded natural systems to a functional condition. As set forth in Section 187.201(b)10, Policies 10.1, 10.3, 10.5, and 10.7 of the State Comprehensive Plan are to Conserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational value. * * * 3. Prohibit the destruction of endangered species and protect their habitats. * * * 5. Promote the use of agricultural practices which are compatible with the protection of wildlife and natural systems. * * * 7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value. To the exclusion of fair debate, the proposed plan amendments are inconsistent with the provisions of the State Comprehensive Plan providing for the conservation of forests and the wildlife using the forests from intense agricultural uses, such as for citrus groves, vegetable farming, and improved pasture; the protection of the endangered Florida panther and other species through the protection of their critical and essential habitats; and the promotion of agricultural practices that are compatible with the protection wildlife and natural systems. Notwithstanding general depictions of wetlands in various sources of data and analysis, the record is not sufficiently developed as to the treatment by the proposed amendments of wetlands in the Big Cypress to permit a finding that, to the exclusion of fair debate, the proposed amendments conflict with these wetland provisions of the State Comprehensive Plan.
Recommendation It is RECOMMENDED that the Department of Community Affairs submit this recommended order to the Administration Commission for entry of a final order determining that that proposed plan amendments are not in compliance. DONE AND ENTERED this 26th day of September, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1997. COPIES FURNISHED: Attorney Thomas W. Reese 2951 61st Avenue South St. Petersburg, Florida 33712 Shaw P. Stiller Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 Ramiro Manalich Chief Assistant County Attorney Marjorie M. Student Assistant County Attorney Collier County Attorney Office 8th Floor, Administration Building 3301 Tamiami Trail East Naples, Florida 34112-4902 C. Laurence Keesey Young, van Assenderp & Varnadoe, P.A. SunTrust Building 801 Laurel Oak Drive, Suite 300 Naples, Florida 34018 Stephanie Gehres Kruer General Counsel 2555 Shummard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 James F. Murley, Secretary 2555 Shummard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue Whether Petitioner’s application for a license to possess Class II wildlife for exhibition or public sale should be granted.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Commission is the state agency with exclusive jurisdiction to regulate all wild animal life in Florida. See Art. IV, § 9, Fla. Const. All persons who possess captive wildlife for the purposes of public display or public sale must have a license from the Commission. See § 379.3761(1), Fla. Stat. (mandating that “[i]n order to provide humane treatment and sanitary surroundings for wild animals kept in captivity, no person, party, firm, association, or corporation shall have, or be in possession of, in captivity for the purpose of public display with or without charge or for public sale any wildlife, specifically birds, mammals, amphibians, and reptiles, whether native to Florida or not, without having first secured a permit from the [C]ommission authorizing such person, party, firm, association, or corporation to have in its possession in captivity the species and number of wildlife specified within such permit; however, this section does not apply to any wildlife not protected by law and the rules of the [C]ommission. No person, party, firm, association, or corporation may sell any wild animal life designated by [C]ommission rule as a conditional or prohibited species, Class I or Class II wildlife, reptile of concern, or venomous reptile in this state, including a sale with delivery made in this state, regardless of the origin of the sale or the location of the initial transaction, unless authorized by the [C]ommission.”); § 379.3762(1), Fla. Stat. (providing that “[i]t is unlawful for any person or persons to possess any wildlife as defined in this act, whether native to Florida or not, until she or he has obtained a permit as provided by this section from [the Commission].”). (emphasis added). Florida Administrative Code Rule 68A-6.002(1)(a) specifies that Class I animals include 24 different species such as chimpanzees, gorillas, orangutans, baboons, leopards, jaguars, tigers, bears, rhinoceros, elephants, hippopotamuses, crocodiles, and Komodo dragons. Rule 68A-6.002(1)(b) specifies that Class II animals include 38 different species such as howler monkeys, patas monkeys, macaques1, bobcats, wolves, wolverines, honey badgers, and alligators. Class II animals have the potential to cause harm but not to the extent of Class I animals. Rule 68A-6.002(1)(c) generally specifies that Class III animals include those not listed as Class I or II. Ms. Obloy and her husband Eric are part owners of the Obloy Family Ranch, a 110-acre working farm with 40 different types of animals such as goats, pigs, and ducks. Ms. Obloy accepts and cares for animals that are dropped off at the Obloy Family Ranch. Ms. Obloy has a Class III license that enables her to exhibit and sell any animals that are not Class I or II animals. Ms. Obloy filed an application in October of 2018 for a Class II license that would enable her to possess alligators.2 The Commission’s September 21, 2018, Inspection Someone left a monkey at the Obloy Family Ranch before September 21, 2018. Ms. Obloy is not an expert on primates and relied on information she found on the internet to conclude that this monkey was a Class III animal covered by her Class III license. Damon Saunders has been employed by the Commission as a Captive Wildlife Investigator II since 2013. He inspects wildlife in Brevard, Indian River, and Osceola counties in order to ensure people have the proper permits and are using proper caging. Mr. Saunders does not consider himself to be an expert on primates, and he has received no specific training on how to distinguish between 1 The version of Florida Administrative Code Rule 68A-6.004(3)(c) in effect in September of 2018 required that cages for macaque monkeys must be 6 feet by 8 feet, and 6 feet high. 2 When Ms. Obloy applied for a Class II license, the Obloy Family Ranch was known as Dolphin Paradise Tours. various primate species. However, during his tenure as a Captive Wildlife Investigator II, he has learned how to distinguish Class II primates from Class III primates. For instance, Mr. Saunders testified that the term “old world monkeys” refers to monkeys indigenous to Europe, Asia, and Africa. According to Mr. Saunders, old world monkeys have downward facing noses, similar to those of humans. Old world monkeys are also similar to humans in that they have flat nails. Mr. Saunders also testified that “new world monkeys’ are those indigenous to North, Central, and South America. In contrast to their old world counterparts, new world monkeys have nostrils that flair outward to the side, and they have claws rather than nails. According to Mr. Saunders, virtually all old world monkeys are in Class II and most new world monkeys are in Class III. Mr. Saunders testified that there are 23 different subspecies of macaque monkeys, and all of them are Class II. Mr. Saunders conducted periodic inspections of the Obloy Family Ranch from 2015 to 2019. On September 20, 2018, Mr. Saunders received information from an anonymous source that the Obloys were keeping a primate at their facility. The anonymous source also forwarded to Mr. Saunders a photograph, purportedly taken in the Obloy Family Ranch’s gift shop, of Ms. Obloy holding a monkey in her lap. Mr. Saunders and two other Commission employees arrived at the Obloy Family Ranch on September 21, 2018, and obtained Mr. Obloy’s consent to enter the gift shop. Once inside the gift shop, Mr. Saunders heard a loud, shrill noise and cage rattling coming from a closed door behind the gift shop counter. Mr. Saunders then opened the door, entered a room that he estimated to be six feet by eight feet, and saw a monkey in what he described as a “parrot cage.” While Mr. Saunders did not provide an estimate of the aforementioned cage’s dimensions, he described it as “[a] bird cage, one that you would typically find a larger parrot in.” Because he had no doubt that the cage he observed did not satisfy the requirements for caging a Class II monkey, Mr. Saunders did not bother to measure its dimensions.3 Almost immediately upon seeing the monkey, Mr. Saunders determined that it was a macaque. He observed that the monkey appeared to be in good health and well fed. Mr. Saunders seized the monkey on September 21, 2018, and transferred it to a properly-licensed facility. The Commission initiated criminal charges against Mr. and Mrs. Obloy for possessing Class II wildlife without a license and appropriate caging. As noted in the Preliminary Statement, the Obloys were acquitted. Ultimate Findings Mr. Saunders has sufficient personal and professional experience and knowledge to identify a macaque monkey and to distinguish it from different species of monkeys. Mr. Saunders’ testimony is competent, substantial evidence that the monkey seized by the Commission on September 21, 2018, at the Obloy Family Ranch was a macaque monkey. Mr. Saunders’ testimony is also competent, substantial evidence that the cage used to house the macaque monkey did not comply with the caging requirements for a Class II monkey. The preponderance of the evidence demonstrates that Ms. Obloy possessed a Class II monkey without the appropriate licensure and that the cage used to house that monkey did not comply with the caging requirements for a Class II monkey. Ms. Obloy failed to prove that her husband had sole possession of the monkey. 3 Mr. Saunders had no doubt that the cage was noncompliant because he estimated that the entire room was 6 feet by 8 feet, and the version of Florida Administrative Code Rule 68A- 6.004(3)(c) in effect in September of 2018 required that cages for macaque monkeys must be 6 feet by 8 feet, and 6 feet high.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order denying Amanda Obloy’s application for a license to possess Class II wildlife for exhibition or public sale. DONE AND ENTERED this 12th day of March, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2020. COPIES FURNISHED: Michael Bross, Esquire Michael Bross & Bryan Savy, PLLC Suite 1 997 South Wickham Road West Melbourne, Florida 32904 (eServed) Michael R. Cook, Esquire Michael Bross & Bryan Savy, PLLC Suite 1 997 South Wickham Road West Melbourne, Florida 32904 Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 (eServed)
