The Issue Whether the City of Miramar Comprehensive Plan Amendment, adopted by Ordinance No. 1901 on October 17, 2018, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing Petitioners own and reside on property located at 17428 Southwest 36th Street in Miramar, Florida. Petitioners submitted oral and written comments, recommendations, or objections to the City during the period of time between, and including appearances at, the transmittal hearing and the adoption of the Plan Amendment. Petitioners’ house is approximately 430 feet north of the property subject to the Plan Amendment (the “Subject Property”). Petitioners’ property is separated from the Subject Property by a residential canal, approximately 100 feet of wetland or marsh area, and a City street right-of-way. The residential canal is owned and controlled by Petitioners’ homeowner’s association. From the backyard of their home, Petitioners enjoy observing and photographing birds and wildlife that utilize the canal, including birds that can be seen from Petitioners’ property in the trees on the Subject Property and flying between the properties. The City is a Florida municipal corporation with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. Univision is a Delaware limited liability company authorized to transact business in Florida. Its principal business address is 500 Frank West Burr Boulevard, Teaneck, New Jersey 07666. Univision is the owner of the Subject Property. Lennar is a Florida limited liability company, whose principal business address is 700 Northwest 107th Avenue, Suite 400, Miami, Florida 33172. Lennar is under contract to purchase the Subject Property. Existing Conditions The Subject Property is approximately 120 gross acres of mostly undeveloped property. The Subject Property contains 102.2 acres of wetlands and 15.5 acres of uplands. At least 80 percent of the wetlands are covered by Melaleuca trees, which is an invasive species. Melaleuca is listed by federal and state agencies as a noxious weed, making it illegal to possess, sell, cultivate, or transport in Florida. The uplands on the Subject Property are limited to areas previously developed with radio transmission towers, a control room, and filled roadways connecting the on-site improvements. The improvements, with the exception of the fill roads, were removed in approximately 2017. The radio towers were secured by guy wires anchored by concrete blocks. The areas of the Subject Property underneath the guy wires were maintained to prevent vegetation from growing up into the guy wires. The areas where the concrete supports have been removed are wet, and the areas that were beneath the former guy wires contain fewer Melaleuca and some native vegetation, like sawgrass and ferns. However, the upland areas are also currently growing exotic grasses and Australian Pine, which are also invasive species. The Subject Property is currently designated on the City’s Future Land Use Map (“FLUM”) as “Rural.” Pursuant to the City’s Comprehensive Plan, the Rural land use category allows the following types of development: (1) residential development at a density of one dwelling unit per 2.5 gross acres (1du/2.5 acres); (2) agricultural and related uses, including crops, groves, horse and cattle ranches, private game preserves, fish breeding areas, and tree and plant nurseries; (3) parks; (4) police and fire stations, libraries, and civic centers; (5) special residential facilities, such as group homes; and (6) public utilities, including wastewater pumping stations, electrical utility substations, and telecommunications transmission facilities. The Plan Amendment The Plan Amendment changes the FLUM designation of the Subject Property from Rural to “Irregular (3.21) Residential,” which allows residential development at a density of 3.21du/acre.4/ Lennar proposes to develop 385 units on the property-- the maximum allowable under the Plan Amendment. Under Lennar’s development proposal, all of the on- site wetlands will be impacted. The Plan Amendment Process Broward County municipalities have a unique plan amendment review process. Each amendment to a municipal comprehensive plan must be consistent with, and incorporated into, the Broward County Land Use Plan (“BCLUP”). This Plan Amendment, as with all other municipal amendments, was reviewed and approved through both the County’s and City’s approval process. The Board of County Commissioners held an adoption public hearing on March 20, 2018, and approved Ordinance No. 2018-12, amending the BCLUP to change the County FLUM designation of the Subject Property from Agriculture to Irregular (3.21) Residential. On October 17, 2018, the City Commission held a duly advertised second public hearing, wherein the City voted to adopt the Plan Amendment. Lennar Permitting Lennar pursued permitting of its proposed development of the Subject Property during the Plan Amendment review process. On or about September 11, 2018, the Broward County Environmental Protection and Growth Management Department (“EPGMD”) issued an environmental resource license (“ERL”) for the proposed development. The ERL is based on Lennar’s site plan for the site, not the Plan Amendment. The ERL recognizes that the impacts on the Subject Property wetlands are unavoidable and determines that off-site mitigation is required to address any impacts on those wetlands. On or about September 11, 2018, the South Florida Water Management District issued an environmental resource permit (“ERP”) for the proposed development. The ERP is based on Lennar’s site plan and other required documents, not the Plan Amendment. The ERP provides that off-site mitigation is required to address any impacts on the Subject Property wetlands. On or about December 14, 2018, the Army Corps of Engineers (“ACOE”) issued a permit for the development proposed, based upon Lennar’s site plan and other required documents. The ACOE permit provides that off-site mitigation is required to address any impacts on the Subject Property wetlands. Petitioners’ Challenge Section 163.3177(2) directs that “the several elements of the comprehensive plan shall be consistent,” in furtherance of the major objective of the planning process to coordinate the elements of the local comprehensive plan. Petitioners allege the Plan Amendment is not “in compliance” because it creates internal inconsistencies with the existing Comprehensive Plan. Petitioners’ challenge rests on four provisions of the Comprehensive Plan: Future Land Use Element (“FLUE”) Goal (unnumbered), FLUE Policies 3.5 and 6.10, and Conservation Element Policy 7.3 (“CE Policy 7.3”). FLUE Goal (unnumbered) The City’s Comprehensive Plan contains one overarching goal for the FLUE, which reads as follows: Maintain a long-range future land use pattern which promotes orderly and well- managed growth and development of the community, producing quality neighborhoods, enhancing the city’s aesthetic appeal, conserving the natural environment and open space, supporting a vibrant economic tax base, and minimizing risks to the public’s health, safety, and welfare. (emphasis added). The goal is the singular goal for the overall FLUE, which includes 12 different objectives and many more policies for each objective. The purpose of the goal is to set the initial framework; it is a very broad statement setting the direction for the City’s long-term goals, but does not provide any measurable standards or specifics regarding implementation. Petitioners’ challenge focuses on the underlined phrase, and argues that the Plan Amendment is internally inconsistent with the goal’s direction to “conserv[e] the natural environment and open space.” The Subject Property is not currently designated as either “Recreation and Open Space” or “Conservation.” The Subject Property is private property that, by virtue of its land use designation, has always been intended for development as one of the uses allowable within the Rural land use category. Further, Eric Silva, the Director of the City’s Community and Economic Development Department, testified that the goal’s direction of “conserving the natural environment and open space” relates only to those areas that have been designated by the City, or another agency, for protection. The Recreation and Open Space Element (“ROS Element”) sets forth the specific objectives and policies to accomplish the City’s goal to “[p]rovide adequate and accessible parks and facilities to meet the recreation needs of all current and future Miramar residents.” In the ROS Element, the City has established a level of service standard of four acres of park and open space for each 1,000 City residents. Petitioners introduced no evidence that the Plan Amendment would diminish the amount of land designated for open space in the City, or otherwise impede the City’s progress toward the adopted standard. To the contrary, Mr. Silva testified that the City has over 300 extra acres of park space and that this Plan Amendment will not impact the City’s adopted level of service for parks and open space. Likewise, Petitioners introduced no evidence to support a finding that the Plan Amendment would reduce the amount of land designated for “Conservation” in the City. Rather, Petitioners argue that the Subject Property should be converted to a nature preserve, or otherwise placed in conservation use. The issue in this case is not whether the City should designate the Subject Property for a different use, but whether the designation the City proposes is consistent with the comprehensive plan. Petitioners did not prove the Plan Amendment is inconsistent with the FLUE Goal. FLUE Policy 3.5 Petitioners next contend the Plan Amendment is inconsistent with FLUE Policy 3.5, which directs the City to “[c]onsider the cumulative and long-term effects of decisions regarding amendments to the Land Use Plan Map and revisions to the Future Land Use Element.” Petitioners’ concerns here are similar to those with the FLUE Goal--the Plan Amendment will reduce green space and open space, which could be preserved under the existing Rural designation. Petitioners’ expert witness conceded that it is impossible to determine that the City did not consider the cumulative and long-term effects of the Plan Amendment. Moreover, the City introduced abundant evidence that it considered, during the lengthy Plan Amendment process, all impacts of the Plan Amendment on the City’s resources and infrastructure. Petitioners did not prove the Plan Amendment is inconsistent with FLUE Policy 3.5. FLUE Policy 6.10 Next, Petitioners argue the Plan Amendment is inconsistent with FLUE Policy 6.10, which states, “The City shall consider the impacts of land use plan amendments on wetland and native upland resources, and minimize those impacts to the maximum extent practicable.” Here, Petitioners focus on the density allowed under the Plan Amendment. Petitioners argue that the Plan Amendment is inconsistent with this policy because it allows development of 385 units, which will maximize, rather than minimize, impacts to the on-site wetlands. Petitioners argue that the residential density allowed under the existing Rural designation would yield development of only 48 units, which would provide for conservation of at least some of the wetlands on site, thereby minimizing the wetland impact. Petitioners’ argument ignores the fact that the Rural designation allows other types of non-residential development that may be as intense as residential, such as a civic center or fire station, or uses that require fewer improvements, but have a destructive effect on wetlands, such as horse or cattle ranches. The issue of whether the Plan Amendment minimizes impacts to wetlands is not determined by the mathematical function 48 units < 385 units. Instead, the determination hinges on the meaning of “minimizing impacts” in the City’s Comprehensive Plan. Under the City’s Comprehensive Plan, impact of development on wetlands must be considered in partnership with the County, and is dependent upon the value assigned to those wetlands, pursuant to the wetlands benefit index (“WBI”), as set forth in the Conservation Element. Based on the following relevant analysis, the Petitioners did not prove the Plan Amendment is inconsistent with FLUE Policy 6.10. CE Policy 7.3 Finally, Petitioners challenge the Plan Amendment as internally inconsistent with CE Policy 7.3, which reads as follows: The City shall distribute land uses in a manner that avoids or minimizes to the greatest degree practicable, the effect and impact on wetlands in coordination with Broward County. Those land uses identified below as being incompatible with the protection and conservation of wetlands and wetland functions shall be directed away from wetlands, or when compatible land uses are allowed to occur, shall be mitigated or enhanced, or both, to compensate for loss of wetland functions in accordance with Broward County Code of Ordinances, Chapter 27, Article XI, Aquatic and Wetland Resource Protection. Compatibility of Land UsesRelative to the Wetland Benefit Index (WBI) Wetland Benefit Index Land Use Compatibility 1. Wetlands with a WBI value greater than or equal to 0.80 1. There is a rebuttable presumption that all land uses except for conservation uses are incompatible. 2. Wetlands with a WBI value less than 0.80 2. All land uses are compatible, provided that the wetland impact compensation requirements of Chapter 27, Article XI, are satisfied. Source: Broward County Code of Ordinances, Chapter 27, Article XI, Aquatic and Wetland Resource Protection CE Policy 7.3 is more specific than FLUE Policy 6.10 regarding the City’s direction to minimize impacts of development on wetlands. Petitioners’ planning expert opined that the Plan Amendment is inconsistent with this policy because it does not “avoid or minimize” the impact of wetlands at all, much less “to the greatest degree practicable,” as directed by the policy. Petitioners’ expert based his entire argument solely on the first sentence of the policy. Petitioners’ planning expert explained, incredulously, that, in his opinion, the rest of the policy “doesn’t matter.”5/ The opinion of Petitioners’ expert was not persuasive. The Policy must be read in its entirety; and, when read as such, the Plan Amendment is consistent with the policy. The first sentence of the policy is precatory and direction-setting. It states the City’s intent to distribute land uses in a way that minimizes wetland impacts. The following sentences describe in more detail how that direction will be accomplished, and specifically reference the incorporated chart. The policy provides that land uses identified in the chart as incompatible with wetland protection “shall be directed away from wetlands.” By contrast, the policy provides that for land uses identified as compatible, wetland impacts “shall be mitigated . . . in accordance with the Broward County Code of Ordinances, Chapter 27.” It is undisputed that the wetlands on the Subject Property have a WBI value of less than .80. Pursuant to the chart, then, all uses of the Subject Property are compatible with the wetlands on-site, as long as the wetland impact compensation requirements of the Broward County Code are followed. The policy clearly provides that no development, regardless of density or intensity, must be directed away from the wetlands on the Subject Property. If the WBI value of the on-site wetlands was .80 or higher, pursuant to this policy, Petitioners’ position that the Subject Property should be placed in Conservation use would be presumed correct, although rebuttable. To that end, Petitioners introduced expert opinion testimony as to the quality of the wetland areas on-site which were previously maintained by the property owner--namely the areas under the guy wires. In the opinion of Petitioners’ wetlands expert, the on-site wetlands could be restored to higher quality if the Melaleuca trees were removed and the stumps sprayed to prevent regrowth. Petitioners’ argument is irrelevant to a determination of whether the Plan Amendment is consistent with this policy. Having established that the WBI value of the on-site wetlands is below .80, the issue of whether the on-site wetlands could be restored is irrelevant. Chapter 27 of the Broward County Code governs application for, and issuance of, an ERL for wetland alteration. On September 11, 2018, Broward County issued an ERL to Lennar for its proposed development of the Subject Property. Petitioner introduced no evidence to support a finding that the provisions of Chapter 27 were not satisfied by the County in issuing the ERL. Petitioners did not prove the Plan Amendment is inconsistent with CE Policy 7.3.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by City of Miramar Ordinance 1901, on October 7, 2018, is “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 26th day of June, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 26th day of June, 2019.
The Issue Whether the Respondent should issue a permit for the removal of the one mangrove tree growing on the submerged lands owned by Petitioner.
Findings Of Fact There being no transcript of the proceedings, the Department did not take any exceptions to findings of fact per se. In Exception No. 1, however, the Department takes exception to Finding of Fact No. 16 to the extent that it embodies an implied conclusion of law that Batell had certain riparian or other vested rights which would prevent the Department from requiring a dredge and fill permit for removal of the mangrove tree. 3/ The Department's regulations are based on the police power of the state. Odom v. Deltona Corp., 341 So.2d 977, 987 (Fla. 1977); Neumann v. Davis Water and Waste, Inc., 433 So.2d 559 (Fla. 2d DCA 1983), rev. den.,441 So.2d 632 (Fla. 1983). See also Sunshine Jr. Stores, Inc. v. Department of Environmental Regulation, 556 So.2d 1177 (Fla. 1st DCA 1990); State v. General Development Corp., 448 So.2d 1074 (Fla. 2d DCA 1984), aff'd., 469 So.2d 1381 (Fla. 1985); Town of Indialantic v. NcNulty, 400 So.2d 1227 (Fla. 5th DCA 1981); Department of Environmental Regulation v. Oyster Bay Estates, Inc., 384 So.2d 891, 894 (Fla. 1st DCA 1980). All property rights are subject to the reasonable exercise of the police power. Odom v. Deltona, supra; Brickell v. Trammell, 82 So. 221 (Fla. 1919). The state may reasonably exercise its police power to regulate the use of both private land and waters to protect the environment. Odom v. Deltona Corp.; Oyster Bay; supra. Therefore, Batell's rights in her submerged land are subject to the Department's regulations on dredge and fill and mangrove alterations. Accordingly, I accept the Department's Exception No. 1 and reject any implied conclusion of law that Batell had certain riparian or other vested rights which would prevent the Department from requiring a dredge and fill permit for removal of the mangrove tree. Also, Finding of Fact No. 11 embodies a conclusion of law that the function of mangrove seedling propagation in the area is a "false [i.e., irrelevant] concern because mangroves were purposely removed from the area when the development was created." This conclusion of law is erroneous for the same reason as stated above. The right of Batell in her submerged lands are subject to the reasonable exercise of the police powers of the state. Therefore, I reject the embodied conclusion of law, but otherwise accept Finding of Fact No. 11. Finding of Fact No. 13 states: There was no reliable, empirical evidence provided by the Department at hearing to justify its preliminary finding that the tree removal was contrary to the public interest pursuant to Section 403.918(2), Florida Statutes. note that this statement may construed as containing an implied conclusion of law that the Department has a burden of showing that the proposed dredge and fill activity is contrary to the public interest. In fact, the burden is on the applicant to show that the project is not contrary to the public interest. Section 403.918(2), Florida Statutes; Florida Dept. of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981); Young v. Dept. of Community Affairs; 567 So.2d 2 (Fla. 3d DCA 1990). I reject any such implied conclusion of law, but otherwise accept Finding of Fact No. 13. 4/ In sum, I accept the findings of fact in the Recommended Order except to the extent they embody or imply conclusions of law as noted above. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW In Exception No. 2, the Department takes exception to the conclusion of law that the Department is estopped from denying the requested permit. The Hearing Officer concludes that under the rule of Odom v. Deltona Corp., 341 So.2d 977 (Fla. 1976), the Department is equitably estopped from denying the permit to remove the mangrove tree because (1) ownership in the submerged land was acquired by the original developer as part of an overall project plan for the community; (2) public officials acquiesced in the development which included the removal of the original mangrove fringe, and (3) private persons such as Batell purchased the land in reliance on the development plan. In Odom the Board of Trustees of the Internal Improvement Trust Fund ("Trustees") sought to require permits for dredging and filling in navigable waters in which the Trustee's and Odom made conflicting claims of ownership. The court found, among other things, that the Trustees had previously purported to have conveyed the submerged lands at issue and were now estopped from attacking the validity of the earlier conveyance in light of the fact that (1) the conveyances were more than 30 years old, (2) the Trustees had made no effort of record to reclaim the lands, (3) the Trustees had acquiesced in the development of the land, and (4) private parties had entered into contracts in reliance on the development. Odom, however, is not applicable to this case. There the Trustees attempted to invalidate their prior conveyance. Here, the Department is not attacking the validity of the prior development; rather, it is merely applying current regulations to the present existing situation. It is established law that, absent a basis for equitable estoppel, the state's acquiescence in the earlier lawful removal of the mangrove fringe does not preclude the Department from apply current regulations to the removal of existing mangrove trees. See Department of Environmental Regulation v. Oyster Bay Estates, 384 So.2d 891 (Fla. 1st DCA 1980) Nor is there any basis to equitably estop the Department from applying current regulations to the removal of existing mangrove trees. Equitable estopped will be found against a state agency only in rare instances and under the most exceptional circumstances. Reedy Creek Improvement District v. Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986); Department of Environmental Regulation v. C.P. Developers, 512 So.2d 258 (Fla. 1st DCA 1987). Thus, a state agency will be equitably estopped only when (1) the state agency has made a representation of a material fact that is contrary to a later asserted position, (2) the party seeking to estop the agency has relied on the representation, and (3) the party has taken a detrimental change in position caused by the representation and reliance. Reedy Creek; C.P. Developers; supra; Dept. of Revenue v. Anderson, 403 So.2d 397, 400 (Fla. 1981). The Hearing Officer has not found such factors. There was no finding of a representation that the mangrove at issue could be removed without a permit, no finding of reliance on any such representation, and no finding of a detrimental change of position caused by such a representation and reliance. Since there was no finding of ultimate facts necessary to establish equitable estoppel, there is no basis for the conclusion of law that the Department is estopped. Therefore, I accept the Department's Exception No. 2 and reject the Hearing Officer's legal conclusion that the Department is equitably estopped from denying the permit. In Exception No. 3, the Department takes exception to the Hearing Officer's conclusion of law that the denial of the permit to remove a single mangrove tree is an unconstitutional taking of property which can only be lawfully achieved through eminent domain proceedings. Such a conclusion of law must be predicated on a finding that the regulation leaves no economically viable use of the land to the owner. "[A] taking will not be established merely because the agency denies a permit for the particular use that a property owner considers to be the most desirable, or because the agency totally denies use of some portion of the property," so long as some economically viable use of the entire property remains. Department of Environmental Regulation v. MacKay, 544 So.2d 1065 (Fla. 3d DCA 1989) (citing Fox v. Treasure Coast Regional Planning Council, 442 So.2d 221, 226 (Fla. 1st DCA 1983) (emphasis added) . See also, Graham v. Estuary Prop. Inc., 399 So.2d 1374 (Fla. 1981), cert. den., 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981); Bensch v. Metropolitan Dade County, 541 So.2d 1329 (Fla. 3d DCA 1989), rev. den., 549 So.2d 1013 (Fla. 1989); Florida Audubon Society v. Ratner, 497 So.2d 672 (Fla. 3d DCA 1986), rev. den., 508 So.2d 15 (Fla. 1987). The Hearing Officer made no finding of fact that the Department's decision deprived Batell of all beneficial uses of her property such that there was no remaining substantial economically viable use. Therefore, there can be no determination that a taking occurred. MacKay (and cases cited therein); supra. Furthermore, in order to show a taking, the landowner must show that she was not able to obtain a variance from the Department. Absent a showing that a variance cannot be obtained, there can be no finding of a taking. Department of Environmental Regulation v. MacKay (and cases cited therein) supra. The Hearing Officer made no such finding of fact; therefore, there can be no determination that a taking has occurred. Finally, and most importantly, a DOAH hearing officer lacks jurisdiction to determine issues of inverse condemnation. Bowen v. Department of Environmental Regulation, 448 So.2d 566, 568 (Fla. 2d DCA 1984), aff'd., 472 So.2d 460 (Fla. 1985) ("inverse condemnation actions cannot be adjudicated by administrative boards or agencies") For all of the above reasons I accept the Department's Exception No. 3 and reject the conclusion of law that the denial of the permit constitutes an unconstitutional taking of property. PUBLIC INTEREST TEST Section 403.918(2) (a), Florida Statutes, requires the consideration and balancing of seven factors in determining whether the project is not contrary to the public interest. The Hearing Officer did not make express findings of fact on any of the seven factors, and did not expressly find or conclude whether the project is not contrary to the public interest. Absent express findings on each of the seven factors a remand to DOAH would normally be required. However, in this case inferences as to all but two of the seven factors may be gleaned from Findings of Fact Nos. 7, 10, 12, 14 and 15, and from the Hearing Officer's acceptance of Batell's proposed findings of fact. When these findings of fact are taken as a whole, it can be fairly inferred that the Hearing Officer considered and found that the project would have either a beneficial or at least no adverse impact for all of the factors except for the permanence of the project and the impacts on historical or archaeological resources, which were not at issue in this case. I note that I have serious misgivings and doubts about some of the Hearing Officer's findings of fact. I have particular misgivings regarding her findings that the removal of mangroves can actually have a beneficial effect on water quality, marine productivity, fishing or recreation values, conservation of fish or wildlife, or public health, safety and welfare. I believe such findings are contrary to the great weight of scientific knowledge, and contrary to the implicit findings of the Legislature when it enacted the Mangrove Protection Act, Sections 403.93-.938, Florida Statutes, which generally prohibits the cutting, removal, defoliation, or other destruction of mangroves without a permit. Nevertheless, I am bound by the findings of fact unless, after a full inspection of the record, I conclude that the findings of fact are not supported in the record by any competent substantial evidence. 5/ Section 120.68(10), Florida Statutes; Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988); Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). In this case there is no transcript of the hearing, and I have no way of determining whether in fact these findings of fact by the Hearing Officer are supported by any competent substantial evidence. Therefore I am reluctantly bound by the findings of fact. Section 403.918(2), Florida Statutes, requires that the seven factors be balanced to determine whether the project is not contrary to the public interest. It might be inferred from Finding of Fact No. 13, and from the Hearing Officer's acceptance of Batell's proposed findings of fact, that the Hearing Officer balanced the factors and concluded that the applicant had met her original burden of showing that the project is not contrary to the public interest. However, the balancing of the various factors to determine whether the project is not contrary to the public interest is a conclusion of law over which I have final authority and responsibility to determine. 1800 Atlantic Development v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990); J.T. McCormick v. City of Jacksonville, 12 FALR 960, 978-9 (DER Final Order, Jan. 22, 1990), rev. on other grounds sub nom., Perry, et al. v. City of Jacksonville, (Florida Land and Water Adjudicatory Comm'n Final Order No. 90-001, Feb. 14, 1991) I may reject a hearing officer's conclusion of law so long as my conclusion of law is consistent with the facts found by the hearing officer and accepted by me. Although I am inclined to reject the Hearing Officer's conclusion that the project is not contrary to the public interest, I am not at liberty to do so because my conclusion would be inconsistent with the Hearing Officer's finding of facts. Accordingly, I must reluctantly accept the conclusion that the project is not contrary to the public interest. MITIGATION In Exception No. 4, the Department takes exception to the fact that the recommendation of the Hearing Officer does not include any requirement for mitigation, even though mitigation was proposed by Batell at the hearing. In view of the fact that I have accepted the Hearing Officer's conclusion that the project is not contrary to the public interest, no mitigation is required. Therefore Exception No. 4 is rejected. Accordingly, it is therefore ORDERED that: Except as otherwise stated herein, the Hearing Officer's Recommended Order is adopted and incorporated by reference; and The Department shall forthwith issue a permit to Petitioner Geraldine V. Batell pursuant to Application No. MA521949293.
Recommendation Accordingly, it is RECOMMENDED: That Petitioner be granted the permit to remove the mangrove three which was preliminarily denied in File No. MA 521949293. DONE and ENTERED this 17th day of January, 1992, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #5, #6, #8 and #9. Accepted. See HO #2, #7, #12 and #15. Accepted. See HO #9, #10, #13 and #16. Accepted. Except for Mr. Steinke's affidavit. See Preliminary Statement. Accepted. See HO #17. Respondent's proposed findings of fact are addressed as follows: Rejected. Contrary to fact. There was only one mangrove. See HO #5, #6, #8 and #9. The rest is accepted. See HO #8. Accepted. See HO #1. Accepted, except there is only one mangrove tree. See HO #5, #6, #8 and #9. One mangrove tree. Otherwise accepted. See HO #2. Accepted. See HO #7. Accepted. Rejected. Contrary to fact. See HO #6. Accepted. Accepted. See HO #1. Accepted. See HO #1 and #2. Accepted. See HO #1 and #2. Accepted. See HO #2. Accepted. Rejected. Cumulative. Rejected. Contrary to fact. See HO #9 - #11. Accepted. See HO #4. (Only one mangrove). Rejected. Contrary to fact. Petitioner does not have a stand of mangroves on her privately owned submerged lands. See HO #4. Accepted. Accepted. One mangrove. Otherwise accepted. One mangrove. Otherwise accepted. Rejected. Contrary to fact. See HO #17. Rejected. Irrelevant. See HO #16. Contrary to fact. See HO #10. Rejected. Irrelevant. See HO #16. Contrary to fact. See HO #10. Rejected. Contrary to fact. See HO #10. Rejected. Contrary to fact. See HO #10. Accepted. (One mangrove) Accepted, generally but not on this site. See HO #10. Rejected. Contrary to fact. See HO #10, #13 and #16. COPIES FURNISHED: GERALDINE V BATELL 1184- 79TH STREET S ST PETERSBURG FL 33707 DOUGLAS BEASON ESQ ASST GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 CAROL BROWNER, SECRETARY DEPT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BLDG 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 DANIEL H THOMPSON ESQ GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400
Findings Of Fact Petitioner filed Application No. 13-31-0286 on or about December 4, 1972, with the Florida Board of Trustees of the Internal Improvement Trust Fund, for a dredge and fill permit. This application was amended by the Petitioner on August 19, 1975, and again on October 8, 1975. The application as amended was admitted into evidence as Exhibit No. 14. The Mean High Water Line as depicted by the Petitioner on the application, Exhibit No. 14, is acceptable and correct and was stipulated and agreed to by the parties as being a correct depiction of the Mean High Water Line. Petitioner is the owner of approximately 350 acres of land adjacent to and in the Biscayne Bay Aquatic Preserve, located in Sections 21 and 22, Township 52 South, Range 42 East, Dade County, Florida. Approximately 192.8 acres of this land is below the Mean High Water Line and is part of the Biscayne Bay Aquatic Preserve. Petitioner, in the application, seeks to fill approximately 63.2 acres of submerged land below the Mean High Water Line for the purpose of constructing part of a planned 36-hole public golf facility. Less than 18 holes of the proposed golf facility are located on the filled area. The historical background detailing the acquisition by the Petitioner of the above 350 acres is set forth accurately in paragraphs 4, 5, 6; 7, 9, 10, 11, 13, 14 and 15 of Exhibit No. 2, admitted herein, entitled Petitioner's Statement. Therefore, those matters of a factual nature set forth in the aforementioned paragraphs are adopted as though set forth in full herein. Those matters of a conclusive nature, legal or factual, set forth in the aforementioned paragraphs are neither accepted nor rejected except as may be specifically provided herein. The Petitioner is obligated to pay off its General Obligation Bond Issue by which it acquired the 350 acres from Interama. This debt service will cost the Petitioner approximately $950,000 annually through the year 2001, and is paid out of ad valorem tax revenue. This debt constitutes a serious burden upon the taxpayers and citizens of the City of North Miami. There is a need in the North Miami area for the type of recreational facility proposed. At present, the only public golf course in the area is a 9- hole facility which is one of the busiest in the country. The lands owned by Petitioner in the Biscayne Bay Aquatic Preserve and subject of this hearing support a mangrove forest system, composed predominantly of red (Rhizophora mangle) and white (Languncularia racemosa) mangroves, with occasional black mangroves (Avicennia germinans). Prior to mosquito ditch excavation, which occurred approximately 35 years ago, the mangrove forest occupied only the southeastern portion of the acreage, while the remaining area probably supported sawgrass and marshgrass communities. The increase in salinity caused by mosquito ditches promoted the expansion of the mangrove community. Presently, the historical mangrove forest is the best developed portion of the system. The red mangrove trees reach heights in excess of 40 feet and the soil is composed of a deep layer of mangrove mulch. In contrast, the soil beneath the mangroves that invaded the marsh land after mosquito ditching, is primarily marl with a relatively thin organic layer of recent origin. Tidal waters flow onto the site through two 60-inch culverts under NE 135th Street, located on the southeastern perimeter of the property. Water flows north through three mosquito control ditches. The ditch along the eastern boundary terminates a short distance north of the historical forest. The north- south ditches are relatively deep and open, whereas the east-west ditches are filled with silt. Many of the latter are 1 foot to 1.5 feet deep at high tide. While tidal waters flow onto the site, these internal restrictions to flow limit circulation over much of the site. The historical mangrove forest on the subject property is well developed and highly productive. That part of the mangrove forest induced by the mosquito ditches is less well developed and not as productive. However, it is not unproductive. The mangrove forest area proposed for filling by the Petitioner, in terms of forest productivity, produces approximately 2 tons of material per acre annually. This compares to approximately 4 tons per acre annually by the well developed historical forest. The growth and development of both the historical and induced mangrove forests is inhibited somewhat by the restricted flow of tidal water into the forests, which, in turn, is caused by the NE 135th Street Causeway and the silting referred to in paragraph 7. Mangroves thrive on good flow and circulation. Therefore, if the flow and circulation of tidal waters is improved, the mangrove forest will improve. The filling of part of the mangrove forest, together with the dredging of the canals sought to be dug by the Petitioner, and the proposed additional opening in NE 135th Street, would enhance the flow and circulation in the historical forest and probably aid its further development. That same dredging and filling would completely destroy 63.2 acres of the existing, healthy, induced mangrove forest. There is no evidence that the induced mangrove forest proposed for filling is in a fatal state of deterioration. Rather, the question is one of how rapidly or slowly that mangrove forest will develop. Without improved flushing, its development will be slow. Apparently, if the flushing of the induced mangrove forest proposed for filling is improved, its development will be much more rapid. In either case, it apparently will eventually attain, given existing conditions, that stage of development presently enjoyed by the historical forest. The construction of one additional culvert in the NE 135th Street causeway will cost approximately $20,000. The Petitioner does not own the right-of-way to NE 135th Street which would be used in constructing an additional culvert. The owner of that right-of-way appears to be Dade County, which entity is not a party to this proceeding. The Petitioner has an agreement with a private entity known as Munisport, whereby Munisport is to develop and operate the proposed recreational complex, including the golf courses, with the attendant dredging and filling. According to the agreement, at the end of 30 years, the City would own the complex free of any other interest. With regard to the golf courses, the City, throughout their operation, would receive a guaranteed minimum of $86,000 annually, plus a percentage of the fees received by Munisport. As testified to by the City Manager, once the recreational complex is in full operation, the City hopes to receive from it $100,000 to $200,000 annually. The City Manager characterized this as having a small effect upon the financial burden borne by the taxpayers and citizens of the City of North Miami with regard to the bond debt. There was not sufficient evidence presented to establish that, for engineering, environmental, or economic reasons, the golf courses could not be reduced in size or redesigned to eliminate that part to be placed in the Biscayne Bay Aquatic Preserve. Witnesses for the City stated that the City had gone as far as it could in redesigning the project, but no evidence, other than that pertaining to the bond debt, was presented to show why the City took that position. The impact of altering the water storage capacity and volumetric tidal prism within the wetland area, as proposed, can only be adequately assessed by conducting a hydrographic survey. (See Composite Exhibit No. 25.) Such a survey has not been conducted. The Petitioner's application does not involve a public navigation project. The evidence presented does not establish that it is a public necessity that 63.2 acres of mangrove forest in the Biscayne Bay Aquatic Preserve be destroyed by dredging and filling so that part of a public golf course might be constructed. The evidence presented fails to show that the proposed dredging and filling is necessary for the preservation of the Biscayne Bay Aquatic Preserve. The proposed dredging and filling may enhance the quality of approximately 130 acres of mangrove forest in the Preserve, but it will do so by the destruction of 63.2 acres of mangrove forest, also in the Preserve. Viewing the total impact of the proposed dredging and filling on the Preserve, there is no showing that such dredging and filling is necessary to enhance the quality or utility of the Preserve. There was no showing that the 63.2 acres of mangrove forest to be dredged and filled is hazardous to the public health or lacking in aesthetic quality or utility.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: DCA is the state land planning agency with the power and duty to exercise general supervision over the administration and enforcement of Chapter 380, Florida Statutes, including Areas of Critical State Concern, and all rules and regulations promulgated thereunder. See, Section 380.031(18), Florida Statutes. The City of Key West is in the Florida Keys Area of Critical State Concern. See, Section 380.0552(3), Florida Statutes and Rule 27F-8, Florida Administrative Code. Since the City is in the Florida Key's Area of Critical State Concern, City ordinances regulating land development do not take effect until DCA approves them "by rule." See, Section 380.0552(9), Florida Statutes. See also, Section 380.05(6), Florida Statutes (which provides that no proposed land development regulation in an Area of Critical State Concern shall become effective until DCA has adopted a rule approving such regulation.) In pertinent part, Section 380.0552, Florida Statutes provides: 380.0552 Florida Keys Area; protection and designation as area of critical state concern.-- PRINCIPLES FOR GUIDING DEVELOPMENT.--State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which chapter is hereby adopted and incorporated herein by reference. For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the principles for guiding development and any amendments to the principles, the principles shall be construed as a whole and no specific provision shall be construed or applied in isolation from the other provisions. However, the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, are repealed 18 months from July 1, 1986. After repeal, the following shall be the principles with which any plan amendments must be consistent: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shorelines and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or man-made disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. * * * MODIFICATION TO PLANS AND REGULATIONS.--Any land development regulation or element of a local comprehensive plan in the Florida Keys Area may be enacted, amended, or rescinded by a local government, but the enactment, amendment or rescission shall become effective only upon the approval thereof by the state land planning agency. The state land planning agency shall review the proposed change to determine if it is in compliance with the principles for guiding development set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, and shall either approve or reject the requested changes within 60 days of receipt thereof. Further, the state land planning agency, after consulting with the appropriate local government, may, no more often than once a year, recommend to the Administration Commission the enactment, amendment, or rescission of a land development regulation or element of a local comprehensive plan. Within 45 days following the receipt of such recommendation by the state land planning agency, the commission shall reject the recommendation, or accept it with or without modification and adopt it, by rule, including any changes. Any such local development regulation or plan shall be in compliance with the principles for guiding development. (Emphasis supplied.) In sum, any land development regulations adopted by the City must be submitted to DCA for approval or rejection pursuant to Section 380.0552(9). Such regulations become effective when approved by DCA. In evaluating an Ordinance submitted pursuant to Section 380.0552(9), DCA will look to the Principles for Guiding Development found in Section 380.0552(7), Florida Statutes. DCA is directed to approve a proposed ordinance if it is in compliance with the Principles for Guiding Development; conversely, DCA is without authority to approve a proposed amendment which is not in compliance with the Principles for Guiding Development. On September 3, 1991, the City adopted Ordinance 91-25 (the "Ordinance") which provides for a 180 day moratorium on certain development activities in the City. The Ordinance prohibits ...the approval of Community Impact Assessment Statements and site plans for projects falling within the scope of the city's CIAS ordinance, where the proposed density or intensity of use is inconsistent with the permitted density or intensity under the future land use map of the city's pending comprehensive plan or the property is situated in an area designated as coastal high hazard or wetlands on the Future Land Use Map of the City's pending comprehensive land use plan... A building moratorium, such as that set forth in the Ordinance, constitutes a land development regulation as defined in Section 380.031(8), and Rule 28-20.19(4), Florida Administrative Code. Therefore, the moratorium could not take effect until approved by DCA by rule. A Community Impact Assessment Statement ("CIAS"), as defined in Section 34.04, Key West Code, describes expected impacts of proposed development on specified City resources and infrastructure. While a CIAS is not a development order, the City requires a CIAS as a precondition to the granting of a building permit for most large projects in the City. A developer is required to submit a CIAS for a proposed residential or hotel/motel development of ten or more habitable units or a proposed commercial development of 10,000 square feet or more. A CIAS is intended to ensure that the impacts a proposed project will have upon public facilities and the social and economic resources of the community are considered in the planning process and to avoid surprises during the planning process. The City will reject a CIAS that it finds to be incomplete or misleading. The City Commission held its first hearing on the Ordinance on June 18, 1991. At least five public hearings before the City Commission were held prior to the City's adoption of the Ordinance. The 1981 City of Key West Comprehensive Plan (the "Existing Comprehensive Plan") sets forth certain parameters and standards for the issuance of development orders. The Existing Comprehensive Plan has been approved by the Administration Commission in Chapter 28-37, Florida Administrative Code. The City of Key West land development regulations and certain amendments to the Existing Comprehensive Plan have been approved by DCA in Chapter 9J-22, Florida Administrative Code. The City is required by the States's growth management statute, Part II of Chapter 163, Florida Statutes, to submit to DCA a new comprehensive plan. Since the City is in an Area of Critical State Concern, the new comprehensive plan will not take effect until it is approved by DCA by rule. The Existing Comprehensive Plan remains in effect until a new plan is adopted. At the time the Ordinance was adopted, the City was in the process of preparing a new comprehensive plan to guide future development. By adopting the moratorium, the City sought to provide itself with an opportunity to effectively implement a new comprehensive plan. The City submitted a proposed new comprehensive plan (the "Pending Comprehensive Plan") to DCA on December 2, 1991. DCA and the City are currently involved in negotiations over whether the Pending Comprehensive Plan is in compliance with the state's growth management law, Chapter 163, Florida Statutes, and the rules promulgated thereunder, Rule 9J-5, Florida Administrative Code. The Pending Comprehensive Plan was still in the draft stages at the time the Ordinance was adopted. As indicated above, the City adopted the moratorium for projects requiring a CIAS in an effort to ensure that the City would be able to effectively implement a new comprehensive plan. The City is faced with numerous development-related problems which it attempts to address in the Pending Comprehensive Plan. These problems include: Water Quality Water Resources - The City draws all of its water from the Biscayne Aquifer. The water is pumped from wellfields on the mainland in Dade County and is transported through a single pipe to Monroe County to provide water to the Florida Keys population. While there is no immediate problem with the availability of water for the City, the Florida Keys Aqueduct Authority and the South Florida Water Management District (SFWMD) are in the process of preparing a water supply plan for Dade County and the Keys. These agencies recently informed all Monroe County local governments that they are approaching the limit of water that can be supplied from the aquifer and it is expected that there will be limitations on any further increases in consumption and/or consumptive use permits. The City and DCA contend that the moratorium will help the City to effectively analyze and address these issues in its new comprehensive plan. Chapter 4 of the Pending Comprehensive Plan would require the City to develop a plan for potable water resources, including replacement of the aging water main, providing for emergency supplies, and emphasizing the need to conserve water. Sewer System - Sewage treatment in the City of Key West is a serious problem. The treated effluent is currently dumped into the Atlantic Ocean and has been implicated in the degradation of the environmentally sensitive and unique coral reefs. Chapter 4 of the Pending Comprehensive Plan would direct the City to substantially improve its wastewater treatment level of service, prevent system infiltration, fix leaky pipes, and reduce the pollution of the surrounding waters. Stormwater Runoff - The waters surrounding the island of Key West have been designated Outstanding Florida Waters, pursuant to Chapter 403, Florida Statutes. The runoff generated by rains in the City is currently channeled into these waters either directly or via canals. The Existing Comprehensive Plan does not contain extensive guidance regarding stormwater runoff. Chapter 4 of the Pending Comprehensive Plan would direct the City to conduct a half million dollar study over the next two years to examine, develop, and implement a stormwater management plan. Section 4-2.1(d) of the Pending Comprehensive Plan would also require improved levels of service for stormwater runoff. Hurricane Evacuation - The evacuation of people out of the Florida Keys during a hurricane is an important element in the planning process for the City. The Existing Comprehensive Plan does not provide any standards for hurricane evacuation. Chapter 2 of the Pending Comprehensive Plan requires the City of Key West to develop a feasible hurricane evacuation plan and coordinate its implementation with the County. The City has taken no action on this directive to date. A model is being developed within the Monroe County Comprehensive Plan for the safe evacuation of residents from the Florida Keys. The model will include updated information based upon the Pending Comprehensive Plan. The inclusion of new development into the model is complicated. By temporarily limiting new development, the City can provide more certainty to this planning process. Wetlands and Environmental Protection - The Pending Comprehensive Plan seeks to strengthen and clarify the Existing Comprehensive Plan provisions regarding wetlands and habitat protection by reducing densities within wetlands, salt ponds, and coastal high hazard areas and requiring the adoption of amended land development regulations which extensively improve the City's environmental protection requirements. Residential Housing and Conversion to Transient Units - There have been a significant number of conversions from residential to transient units (hotels, motels, and other tourist accommodations) in the City during the last several years. The increase in "transient" persons exacerbates the strain upon public facilities, especially transportation facilities. The Existing Comprehensive Plan offers little protection to residential areas from commercial and transient intrusion. The Future Land Use Element of the Pending Comprehensive Plan attempts to guide and plan the locations of conversions. Transportation - Many roads in the City are currently operating at poor levels of service, including U.S. Highway 1, the main arterial roadway in the City. The City has never had a specific plan to improve the levels of service. The City is required under the growth management statute (Chapter 163) to provide adequate levels of service on the roads within the City. Chapter 2 of the Pending Comprehensive Plan proposes to implement an extensive traffic circulation system over the next twenty years which will include roadway improvements, revised levels of service, and nonmotorized transportation provisions. Solid Waste - Currently, the City's solid waste is disposed at a local landfill. The City's solid waste disposal facility is currently operating under a year old consent order that directs the facility to be closed within three years. The Existing Comprehensive Plan states that the City is to provide adequate public facilities, but does not explain what constitutes "adequate". The Existing Comprehensive Plan does not provide a plan for the impending closure. The Pending Comprehensive Plan would require the City to provide the funding for solid waste disposal improvements. The clear goal of the Ordinance was to delay the approval of certain CIAS applications, site plans and building permits for 180 days while work continued on the Pending Comprehensive Plan. The City contends that the moratorium will help it to effectively implement the policies which it anticipates will be incorporated in the new comprehensive plan when it is finally in place. The Ordinance provided that the 180 day moratorium would begin on the effective date of the administrative rule approving the Ordinance. The City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the Ordinance. Normal rulemaking pursuant to Section 120.54, Florida Statutes, generally takes between 90 to 120 days. Many local governments experience a significant increase in development proposals immediately prior to the adoption of a new comprehensive plan. Many of these proposals are prompted by a fear as to the impact of the new plan and seek to acquire vested rights under the old plan. The City and DCA were concerned that such an increase in development proposals might complicate the planning process by rendering some aspects or assumptions of a new plan moot before the plan could even be adopted. Moratoria are frequently used by local governments in order to complete an effective comprehensive plan without the need for changes. In the year immediately proceeding the adoption of the Pending Comprehensive Plan by the City Commission (from September 1990 through September 1991), the City received seven CIAS applications. No CIAS applications had been received during the year prior. The City contends that many of the 1990/1991 applications were motivated by an attempt to obtain vested development rights. However, no persuasive evidence to support this speculation was presented. The City Commmission did not consider any reports, studies or other data in connection with the enactment of the Ordinance. At the time the Ordinance was adopted, the City Commission did not make any specific determinations that there were any immediate dangers to the public health, safety or welfare of the community nor was the Ordinance enacted as an emergency ordinance. After its adoption by the City Commission, the Ordinance was transmitted to DCA on September 5, 1991 for approval pursuant to Section 380.0552(9), Florida Statutes. The only information transmitted to DCA was a copy of the Ordinance. As indicated above, the City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the City's Ordinance. The City Planner contacted DCA to request approval of the Ordinance by emergency rule. The City Planner and DCA concurred in the conclusion that the purpose of the Ordinance would be defeated if it was not immediately implemented. The City Commission did not specifically ask or authorize the City Planner to request DCA to enact the Ordinance by emergency rule. The City's concerns included, among other things, that the conversions of residential properties to transient tourist accommodations would accelerate during the process of finalizing the Pending Comprehensive Plan. In addition, the City expects that its new comprehensive plan will reexamine the densities in coastal high hazard areas. By adopting a moratorium, the City sought to insure that any new developments will comply with the new densities ultimately adopted. On September 18, 1991, DCA filed the rule packet for the Emergency Rule with the Secretary of State and the Emergency Rule became effective on that date. DCA did not prepare an economic impact statement for the Emergency Rule. The rule packet consisted of: (a) a Certification Of Emergency Rule; (b) the Notice Of Emergency Rule; (c) a Statement Of The Specific Facts And Reasons For Finding An Immediate Danger To The Public Health, Safety And Welfare, (the "Statement of Specific Reasons") and (d) a Statement of the Agency's Reasons for Concluding that the Procedure Used Is Fair under the Circumstances (the "Agency Conclusions"). The Notice of Emergency Rule appeared in the September 27, 1991 edition of the Florida Administrative Weekly. In the Statement of Specific Reasons, DCA concluded that: ...Generally, a [comprehensive] plan revision process stimulates an accelerated rate of permit requests. Accelerated permitting including the acquisition of vested rights during a planning period will severly erode the City's ability to effectively revise and implement the comprehensive plan. Such accelerated development will also lead to further deterioration of current hurricane evacuation clearance time for the City. This action will increase the existing potential for loss of life and injury to person [sic] and property, will cause further deterioration of level [sic] of service on existing roadways and will lead to irreversible environmental degradation. Therefore this rule must be adopted by emergency procedures because of the potential immediate danger to the public health, safety and welfare. In the Agency Conclusions, DCA concluded: The emergency rulemaking is fair because (1) it immediately approves the ordinance as adopted by the City of Key West Commission and (2) normal rulemaking would moot the intent of the adopted ordinance since the City of Key West would be required to continue accepting applications for building permits, site plans, of [CIAS's] covering work projects or both, as set forth in Section 2 of ordinance 91-25 until the Department's rule approving the ordinance becomes effective. DCA's Statement of Specific Reasons was not reviewed or discussed with the City or its planner prior to its preparation. In deciding to promulgate the Emergency Rule, DCA considered the major public facilities and natural resource problems confronting the City and the City's proposed strategy to deal with these problems in the Pending Comprehensive Plan. DCA concluded that an immediate danger to the public health, safety, and welfare currently exists within the City justifying the approval of the Ordinance by emergency rule. The evidence clearly indicates that the City is facing many significant problems from a planning perspective. Petitioner contends, however, that there is no evidence that any of those problems present an "immediate" threat to the public health, safety or welfare. For the reasons set forth in the Conclusions of Law below, this contention is rejected. On October 10, 1991, DCA filed a rule packet for the Proposed Rule with the Secretary of State. The rule packet consisted of the Notice Of Proposed Rule 9J-22.013, the Estimate of Economic Impact on All Affected Persons (the "EIS",) a Statement of the Facts and Circumstances Justifying Proposed Rule 9J-22.013 (the "Statement of Facts"), a summary of the Proposed Rule, a Comparison with Federal Standards, a Statement of Impact on Small Business and the text of the Proposed Rule. The Notice of Proposed Rule 9J-22.013 appeared in the October 18, 1991 edition of the Florida Administrative Weekly. On October 24, 1991, DCA filed a Notice of Change with the Secretary of State, stating that the correct number for the Proposed Rule was 9J-22.014, since 9J-22.013 had already been used. The Notice of Change appeared in the November 1, 1991 edition of the Florida Administrative Weekly. DCA did not consider any appraisals, data, reports or other studies concerning the economic impact that could result from the imposition of a moratorium. Instead, DCA followed the approach it had used in approving prior ordinances enacted by the City and concluded that its role in reviewing the Ordinance for compliance with the Priniciples Guiding Development did not require an examination of the economic impact of the underlying policy decisions reached by the City Commission in adopting the Ordinance. The EIS states that: Costs and benefits will occur as a result of this ordinance and were considered by the City prior to adoption of the ordinance. The City did not provide any information to DCA on the economic impacts of the Ordinance or on the impact of the Ordinance on the value of properties affected by it. The evidence was unclear as to the extent to which the City Commission considered economic impacts in deciding to adopt the Ordinance. Several public hearings were held in connection with the adoption of the Ordinance and DCA assumed that interested parties had an opportunity to express their concerns regarding the economic impact of the Ordinance at these hearings. DCA did not inquire as to the number of projects under review by the City at the time the Ordinance was passed nor did it seek a determination as to whether any projects with vested rights were affected by the Ordinance. The City Planning Department has retained a consultant, as required by the Ordinance, to conduct an economic study of existing conditions and projections for future growth. The purpose of this study is to assist in developing future amendments to the Ordinance. The study is not final and was not considered by the Key West City Commission when the Ordinance was enacted. DCA concluded that the proposed moratorium adopted by the Key West City Commission was consistent with the Principles for Guiding Development. Therefore, DCA concluded that Section 380.0552 required it to approve the Ordinance. Petitioner has not presented any persuasive evidence to establish that the Ordinance is in any way inconsistent with the Principles for Guiding Development. Petitioner owns 6.8 acres of vacant real property on Atlantic Boulevard in the City. He purchased the property in 1974 with the intent to develop it. Petitioner's property is located in an R-2H zoning district. The City's future land use map designates Petitioner's property as multi-family. Petitioner has spent approximately $71,000.00 to hire architects, engineers, surveyors, planners, biologists and attorneys to aid him in preparing to develop the subject property. In 1989, Petitioner submitted applications for a Department of Environmental Regulation Surface Water Management permit, and an Army Corps of Engineers dredge-and-fill permit, but neither of those permits have been issued to date. Generally the City requires a developer to obtain these "higher-order" permits prior to issuing a building permit. Petitioner has never applied for or installed sewer service, water service or any other utility service to the property. Since he acquired the property, Petitioner has not cleared any vegetation on the property except for minor trimming adjacent to the roadway which was required by the City for safety purposes. In June of 1989, the City passed a resolution notifying the Department of Environmental Regulation that it opposed Petitioner's application to place fill upon the property. On April 10, 1991, Petitioner submitted a CIAS to the City for a proposed 96 unit residential development in three buildings on the subject property. Before the Ordinance was enacted, the City Planner prepared a report dated July 3, 1991 reviewing Petitioner's CIAS as required by the CIAS ordinance. In that review, the City Planner concluded: The project is located in the R-2H zoning district and conforms to all provisions of that district, thus requiring no variances or special exceptions. On August 6, 1991, the Key West City Commission considered Petitioner's CIAS. The City Commission refused to approve the Petitioner's CIAS application. Specifically, the City Commission determined that Petitioner's CIAS application was incomplete and that the "submerged land district" designation ("SL") applied to the Petitioner's property as an overlay zoning district because Petitioner's property is located in an area which is deemed to include wetlands and mangroves. The City Commission requested that the CIAS address the "submerged land district" before the CIAS application could be deemed complete. The City Planner was not present at the August 6, 1991 City Commission meeting. The "submerged land district" in Section 35.07(f), City of Key West Code, provides that the density and site alteration of "environmentally sensitive areas including but not limited to wetland communities, mangroves, tropical hardwood hammocks and salt ponds shall be zoned with a maximum density of one (1) unit per acre. Site alteration shall be limited to a maximum of ten percent of the total size." The "submerged land district" overlay zone applies to any parts of the property which fall within the description of "environmentally sensitive areas" in Section 35.07, City of Key West Code. Because there is confusion over the interpretation and applicability of the SL district and because the SL land use district does not appear on the City's official zoning map, it was not considered in the preparation of the July 3 Report. The evidence in this case was inconclusive as to whether Petitioner's property is located in a SL district and/or whether Petitioner's CIAS for his property can be approved under the City regulations in place prior to the adoption of the Ordinance. On August 22, 1991, Petitioner submitted an amendment to the CIAS as well as a Site Plan. The amendment to the CIAS contests the City's conclusion that Petitioner's property should be considered part of a SL district. As set forth above, during this time period, the City had began consideration of the Ordinance. The first hearing on the Ordinance was held on June 18, 1991 and the Ordinance was passed by the City Commission on September 3, 1991. The City Planner notified Petitioner by letter dated October 11, 1991, that his CIAS Site Plan review and approval had been "stayed" because of the enactment of the Ordinance and because of the project's "inconsistencies with the City's Pending Comprehensive Plan." Petitioner requested an exception from the effect of the Ordinance pursuant to the procedure contained in the Ordinance. A hearing was held before the City Commission and the request was denied.
The Issue The issue in this case is whether the City's Future Land Use Map (FLUM) Amendment for Site 7 is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The City of Groveland is located in Lake County, mostly north of State Road 50 and the northeastern corner of the Green Swamp. The core of the City is in the vicinity of the intersections of State Road 50 with State Road 33 (to the south) and State Road 19 (to the north). There are many lakes and wetlands within the City and surrounding the City in Lake County. The Green Swamp was designated an Area of Critical State Concern by the Florida Legislature in 1979. It consists of approximately 500 million acres south from the City through south Lake County and into Polk County. It is bordered on the east by U.S. Highway 27 and on the west extends over the County line into Sumter County. The Green Swamp is important as a statewide resource to Florida because it is one of the last remaining intact ecosystems in Florida. It is one of Florida's largest wetland systems, second only to the Everglades. It includes the headwaters of five rivers, and provides recharge to the Floridan Aquifer, the primary source of drinking water for Florida. It is an ecologically and hydrologically significant resource. It provides habitat for many endangered species including gopher tortoise, scrub jay, and wood stork. In 2003, the City annexed the parcels known in this proceeding as Sites 4, 5, 6, and 7 from Lake County into the City. All of the parcels are located east of State Road 33 and south of State Road 50 and within the boundaries of the Green Swamp. Sites 4, 5, and 6 total 171.1 acres of wetlands bordering Sumner Lake and the City's boundaries before annexation. Site 7 consists of 361 acres (264 acres of uplands and 97 acres of wetlands). (There is an approximately 70-acre County "enclave" in the middle of Site 7 which remained in Lake County.) Site 7 currently is used to grow citrus. It is connected to the City through the other three sites and Sumner Lake. At the time of annexation (and until City plan amendments are found to be "in compliance"),4 the future land use designation for Sites 4, 5, and 6 was Lake County Rural/Conservation. Site 7 had and still has its Lake County future land use designations. Its 97 acres of wetlands are designated Lake County Rural/Conservation, which allows one dwelling unit per 10 acres, while the 264 acres of uplands are designated as Lake County Transition, which allows one unit per 5 acres, or one unit per acre if the “timeliness” criteria under the Lake County Comprehensive Plan are met. These parcels were the subject of the City's FLUM amendments adopted on August 2, 2004. The FLUM amendments changed the designation of Sites 4, 5, and 6 from County Rural/Conservation to City Conservation. These City designations have been found to be "in compliance." The FLUM amendments also changed the future land use designation of Site 7's 97 acres of wetlands to City Conservation, and its 264 acres of uplands to City of Groveland Green Swamp Single Family Rural Development (GSRD), which allows two dwelling units per acre. With a transfer of development rights from the undevelopable wetlands to the developable uplands, which would be allowed under both the City's and the County's comprehensive plans, the maximum number of dwelling units allowed on Site 7 under the City's designation would increase to 532, up from the 57 allowed under the current County designations. Compliance Issues As indicated in the Preliminary Statement, DCA's Petition and SOI alleged that the City's Plan, as amended by the Site 7 FLUM amendment, is not "in compliance" because: (1) it is inconsistent with Rule Chapter 9J-5 because it fails to discourage the proliferation of urban sprawl, as required by Rule 9J-5.006(5); (2) it is internally inconsistent with the City's Future Land Use Element (FLUE) Policies 1-1.10.1 (land use allocation), 1-1.10.2 (promoting orderly compact growth), and 1-1.10.3 (coordination with Lake County to reduce urban sprawl), and Intergovernmental Coordination Element (ICE) Policy 7-1.1.3 (land use planning of adjacent lands); (3) it is inconsistent with the Green Swamp Guiding Principles; (4) it is inconsistent with Section 163.3177(6)(a) and (8), Florida Statutes, and Rule 9J-5.005(2)(a), because it does not react appropriately to the data and analysis on environmental site suitability; and (5) it is inconsistent with State Comprehensive Plan Public Facilities Goal 17(a) and Policies 17(b)1.-2. Urban Sprawl It is no longer disputed that there is a demonstrated need for the additional residential development allowed by the Site 7 FLUM amendment. The real contention by DCA is that the development should not occur at Site 7. DCA's urban sprawl argument focuses on five of the 13 "primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl": 4. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. * * * Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Fla. Admin. Code R. 9J-5.006(5)(g). Indicator 4 DCA's argument as to Indicator 4 is two-fold: Site 7 is surrounded by rural land; and increasing densities will harm the natural resources of the Green Swamp. Site 7 is immediately surrounded by generally rural uses. As indicated, wetlands and Sumner Lake are to the immediate northwest. Directly to the north of the northernmost portion of Site 7 is a sprayfield owned and operated by the City of Clermont. North of the sprayfield is an open water body. The east side of Site 7 adjoins a marshy area on the west side of Lake Palatlakaha. The south side of Site 7 abuts CR 565 and low wetlands areas, with Lake Wash and other rural lands and wetlands farther south. While immediately surrounded by rural lands (City Conservation, County Rural/Conservation, and County Transition), Site 7 is located approximately 3,000 feet (not three miles, as DCA's primary witness on this issue believed as late as her deposition in this case) south of State Road 50, a highly traveled, major road that connects West Central Florida to East Central Florida. Site 7 is in a fast-growing area less than two miles southeast of the center of the City. Immediately to the north of Sumner Lake is the Westwood residential subdivision which lies along the southern boundary of State Road 50. Existing homes are scattered around the sprayfield. Westwood is located within the City’s boundaries and in the Green Swamp. It has a future land use designation of Green Swamp Single Family Low Density Development (GSLD), which allows up to four single-family detached homes per acre. This corresponds to the Lake County Ridge designation it had at the time it was annexed into the City. Westwood currently is under construction, with many homes already occupied. Along the northern side of State Road 50 north of Westwood is a parcel within the City designated on the FLUM as Commercial, which is proposed to be used for a Publix grocery store, and the Green Valley Country Club, an existing golf course community. To the west of Site 7 is an existing golf course and water ski community known as the Swiss Ski School. It is located within unincorporated Lake County in the Green Swamp and has a Planned Unit Development (PUD) approval for 296 residential units. To the west of the Swiss Ski School lie Stewart Lake and Olsen Lake and their associated wetlands, which are in the Green Swamp in the unincorporated County and have County designations of Rural/Conservation and Transition. Farther west, along State Road 33 and still in the Green Swamp, lie developments having FLUM designations of GSSFLD allowing up to four units per acre. Both those developments lie within City limits. To the south of Site 7, and in unincorporated Lake County, with a County designation of Transition, lies a subdivision along Monte Vista Road which is vested for residential development partly at a density of two units per acre and partly at one unit per acre. Although there will be wetlands and Sumner Lake in City Conservation designations between Site 7 and developments to the north and west in the City, leapfrog development is not a concern for Site 7 and its surrounding area. To the extent Site 7 is separated from other urban or suburban uses in the City by lakes, wetlands, and conservation lands, no urban, suburban or even rural development of those conservation lands should be expected, so that "leaping over" those undeveloped lands should not be considered an indicator of sprawl. For these reasons, it is found that the Site 7 FLUM amendment is not premature. Nor is the conversion from agricultural use to residential use poorly planned. The development will be compact and orderly, and public facilities and services are available. Natural resources already receive a significant amount of protection in the plan. The development of Site 7 will promote conservation of natural resources by allowing only uplands to be developed onsite and allowing a density of up to two units per acre. A lower density would be an inefficient use of developable land. An inefficient land use pattern encourages the premature conversion of environmentally significant lands. Indicators 6 and 7 DCA's arguments as to Indicators 6 and 7 essentially are that some public facilities and services will have to be extended to Site 7, that there are places in the City capable of development using only existing public facilities and services, and that the City has planned for future public facilities and services elsewhere--namely, in the North Overlay, which is described below. As for existing public facilities and services (Indicator 6), development under the site 7 FLUM amendment will receive the same public services of law enforcement, fire, emergency services, and schools as are currently available to Site 7, at a lower residential density, under the existing Lake County Transition land use. Pursuant to an interlocal agreement with Lake County, the City already provides law enforcement services not only to Site 7 and surrounding areas in the City, but also to adjacent areas in unincorporated Lake County. As the City already provides public services in the area, it will be more cost-efficient to spread those costs among more homeowners. The proposed amendment will allow more homeowners to share these costs. DCA's only response to these facts, some of which were not known by DCA's expert witness, was that "the increased population on the site may require additional staff and facilities to serve the population." DCA's PRO, at 41. As for water and sewer, as indicated, a connection to central water and sanitary sewer is available at State Road 50, approximately 3,000 feet from Site 7 (a fact also not known by DCA's expert witness until shortly before the hearing). The developer will be required to pay for the cost of the new lines to Site 7. After those lines are installed, nearby property owners can voluntarily connect to central water and sewer. A few of the nearby property owners who have septic tanks have indicated an interest in connecting to the Site 7 sewer lines. For these reasons, the proposed amendment would result in an efficient use of central water and sanitary sewer facilities. As for future public facilities and services (Indicator 7), in 2003, as a result of a settlement agreement between the City and DCA on the City's 2003 plan amendment, the City proposed and adopted the "Groveland North Overlay" area and associated policies as a plan for future growth. The North Overlay was found to be "in compliance," is part of the City's FLUE, and is designated on Map 1-7 of the City’s FLUM series. The North Overlay is located to the north of the existing City limits and consists of several thousand acres. It is identified as an area in which future annexations are likely to take place in order to meet growth needs. The area is adjacent to parcels already annexed by the City, designated for urban densities, and planned for public facilities. It allows for a mix of uses. It shows that the City had identified a growth strategy to meet its need for the planning timeframe and beyond. It was established to ensure that, as land in the North Overlay was annexed into the City, new development would not develop as urban sprawl, but rather would be managed in a way which created a more effective land use pattern. While adopting the North Overlay, the City has a policy to annex land only on a voluntary basis. It does not exercise its rights under Section 171.0413, Florida Statutes, to require contiguous, compact unincorporated territory to annex. For this reason, it is difficult for the City to foresee with certainty which lands will annex into its municipal boundaries. In addition, starting in the mid-1990's, before adopting the North Overlay, the City began to annex land to the south in the Green Swamp. At that time, the City began the process of amending its comprehensive plan to include provisions to comply with the Principles for Guiding Development in the Green Swamp. In late 2000, the City embarked on a study to guide development and facilitate municipal expansion in the Green Swamp. The DCA provided funding for the study through a technical assistance grant. DCA also provided feedback for the study. The City hired a private consulting firm to do the study and produce a series of four quarterly reports. The final report is entitled "City of Groveland Small Area Study Final Report November 1, 2001." The Small Area Study considered an area of approximately 2,580 acres in the Green Swamp, which the City reasonably projected may be annexed. The geographic boundaries of the study were larger in the first three phases of the study, but were constricted for the final report at the request of DCA planner, Bob Dennis, to be closer to State Road 33. In addition, future annexations were projected to be phased, with areas closer to State Road 33 projected to occur before areas farther away from there. Site 7 is even farther away from State Road 33 and entirely outside the final boundaries of the Small Area Study. But the Small Area Study was not intended to bind the City, or restrict the City's annexation rights and powers, or change the City's policy of voluntary annexation. In other words, the projected annexations and phasing did not preclude consideration of out- of-phase or out-of-area annexations. The DCA grant required the Small Area Study to evaluate the area south of Groveland using several criteria, including upland area, utility availability and expansion, road/transportation network, Lake County land use designation, current land use activities, environmental assessment impacts, and the Green Swamp rules. The Small Area Study recommended that the City adopt two land use categories to apply to residential development in the Green Swamp: a land use category allowing a maximum of four units per acre, and another land use category allowing a maximum of two units per acre. A requirement of 60 percent open space and limitations on impervious surface for residential development also were recommended. For the protection of the Green Swamp and the Floridian Aquifer, the study also recommended that clustered development be encouraged and that central water and sewer be provided. The Small Area Study also recommended that wetlands be designated a Conservation land use. The Small Area Study also recommended that the plan require an upland buffer of 50 feet from the edge of the wetland line and that all development be prohibited in wetlands and floodplains. The City adopted those recommendations, as well as others. All of those plan amendments were found be DCA to be "in compliance." One of those amendments, FLUE Policy 1.3.11, prohibits any structure in the Green Swamp to be located within fifty feet of a wetland line. This requirement exceeds the St. Johns River Water Management District (SJRWMD) performance standards for wetland buffers, which require an average uplands buffer of 25 feet, with a minimum buffer of 15 feet, as well as the standard included in the plan’s Conservation Policy 7.3.5, which applies only to development located outside of the Green Swamp, and requires an average buffer of 50 feet, with a minimum buffer of 25 feet. FLUE Policy 1.3.3 and Conservation Policy 7.13.1 prohibit all development in the wetlands and floodplains for land located within the Green Swamp. This policy is more stringent than the Guiding Principles and Rule 9J-5. Rule 28- 28.008(1) provides performance criteria for development in flood-prone areas, which may be adopted in land development regulations applying in Lake County portions of the Green Swamp. Rule 9J-5.013(3)(b) requires that land uses be distributed to allow wetland impacts to be minimized and mitigated. The City also implemented the recommendations of the Small Area Study for the two residential land use categories. As already indicated, the City adopted the GSLD land use category, allowing a density of up to four units per acre. FLUE Policy 1.1.17. It also adopted the GSRD land use category in FLUE Policy 1.1.18, allowing a density of up to two single family detached homes per acre. Both categories require that at least 60 percent of the property remain in open space and that development be clustered on the least environmentally sensitive portions of the site. The amendments adopting the GSLD and GSRD land use categories were found by DCA to be "in compliance" and consistent with the Principles of Guiding Development in the Green Swamp. However, those categories were not yet assigned to all land considered in the Small Area Study, much less land outside its final boundaries. The appropriateness of GSRD for Site 7 is the issue in this case. Indicator 8 DCA's arguments as to Indicator 8 essentially focus on the timeliness provision in Lake County's Transition designation and the requirement to provide some new public facilities and services as a result of the City's Site 7 FLUM amendment. See Finding 4, supra. Development of Site 7 under Lake County's Transition designation would be limited to one unit per five acres. Site 7 would not qualify for development at one unit per acre under the timeliness provision, which requires more than 40 percent of the surrounding area within a mile radius, and 60 percent of the surrounding area within a two-mile radius, to be developed at a density of one unit per acre or greater.5 In addition, development of Site 7 under the City's FLUM amendment would make one unit per acre development of the 70- acre County "enclave" within Site 7 timely, which in turn may make one unit per acre development of other County land in the vicinity timely under Lake County's Transition designation. In effect, DCA fears that the City's Site 7 FLUM amendment will have a "domino effect" that will trigger rapid, wholesale conversion of rural County Transition land that can be developed at one unit per five acres to Transition land "timely" for development at one unit per acre. But DCA did not prove that its fear is reasonable. DCA also fears that the City's Site 7 FLUM amendment ultimately will result in too much residential development in the Green Swamp. But future County land use designation changes that will harm the Green Swamp will be subject to challenge by DCA. In any event, whether the City's FLUM change at issue in this case is timely depends on a number of factors besides just the timeliness provision of Lake County's Transition designation. Indicator 8 addresses allowing "land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services," not just patterns or timing that increases those costs. (Emphasis added). DCA did not prove that extending water and sewer lines will be a disproportionately high cost for the developer to pay and pass on to homeowners. The water and sewer lines will be placed along an existing right-of-way and will be required to be extended approximately 3,000 feet to reach Site 7. Longer lines have been installed within City limits. Also, as discussed above relating to Indicators 6 and 7, the Site 7 FLUM amendment will allow a greater sharing of expenses of facilities and services. Indicator 9 As to Indicator 9, there is some merit to DCA's argument that the Site 7 FLUM amendment fails to provide a clear separation between rural and urban uses. But this is partly because of the lakes and wetlands between Site 7 and those urban uses. In addition, there are some urban-like uses between Site 7 and other urban uses in the City. See Finding 14, supra. Internal Consistency DCA's Petition and SOI alleged that the Site 7 FLUM amendment is internally inconsistent with other parts of the City's comprehensive plan addressing urban sprawl considerations: FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3; and ICE Policy 7-1.1.3. After the Site 7 FLUM amendment was adopted, the City further amended its comprehensive plan. FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3 became, respectively: Policy 1.1.2; Objective 1.6 and Policy 1.6.1; and Policy 1.6.2. ICE Policy 7-1.1.3 was replaced by ICE Policy 11.1.1, and there was no objection to substituting the new, equivalent policy for purposes of this proceeding. FLUE Policy 1.1.2 states: The City shall designate land use on the [FLUM] to accommodate needs identified within the Comprehensive Plan supporting document (i.e., Data Inventory & Analysis). The City shall allocate a reasonable amount of land above identified needs to avoid economic impacts which a controlled supply of land places on land values and market potential. As found, it is undisputed that the Site 7 FLUM amendment is internally consistent with this policy. In its response to the ORC, the City adequately demonstrated that it had a need for additional residential land to accommodate its future population. Moreover, the ratio between the City's future land use needs and population growth is only slightly more than 1:1. The Site 7 FLUM amendment does not create an over- allocation of land uses in relation to its estimated population growth. Again, DCA's challenge is to the location of Site 7. FLUE Objective 1.6 states: "Discourage urban sprawl through a future land use pattern which promotes orderly, compact development." FLUE Policy 1.6.1 states: Land use patterns delineated on the [FLUM] shall promote orderly, compact growth. The City shall encourage growth and development in existing developed areas where public facilities and services are presently in place and in those areas where public facilities can provide the most efficient service. Land shall not be designated for growth and development if abundant undeveloped land is already present within developed areas served by facilities and services." Based on the findings as to the urban sprawl indicators, supra, DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Objective 1.6 and Policy 1.6.1, much less that internal consistency is beyond fair debate. FLUE Policy 1.6.2 states: "The City of Groveland shall coordinate with Lake County through a Joint Planning Agreement to develop an areawide [sic] planning approach by 2010, taking into account environmental suitability, functional relationships and areas where public facilities and services are available or proposed to be available by year 2020." ICE Policy 11.1.1 states: "The City of Groveland shall continue to work closely with Lake County, Lake County School Board, other municipalities and affected regional, state and national government agencies to coordinate the comprehensive planning effort of the City with those agencies affected, through the provision of information and participation on committees and working parties." DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Policy 1.6.2 or ICE Policy 11.1.1, much less that internal consistency is beyond fair debate. To the extent that internal consistency requires that the local government to comply with the intergovernmental coordination provisions in its comprehensive plan when it proposes and adopts plan amendments, DCA also did not prove that the City failed to do so, much less that its failure to comply is beyond fair debate. The City regularly coordinates its plan amendments with Lake County. The City provided a copy of its 2004-02 amendment package to Lake County when the amendment was transmitted to DCA, as was indicated to DCA in the transmittal amendment cover letter to DCA. A local government’s submittal to an adjacent local government of a copy of an amendment under review is a common way for a local government to coordinate amendments with other local governments. The City also regularly coordinates planning issues with Lake County and other Lake County municipalities by attending meetings of their planning departments. Obviously, the Site 7 FLUM amendment was adopted long before FLUE Policy 1.6.2's 2010 target for a joint planning agreement. At this time, there is no voluntary joint planning strategy with which it can be argued that this amendment is inconsistent. At the hearing, DCA was permitted to also argue internal inconsistency with new plan provisions adopted in July 2005, and found to be “in compliance” in September 2005 (but not provisions adopted in September 2005 and under DCA challenge at the time of the hearing).6 Newly adopted Sanitary Sewer Objective 5.3 reads: MAXIMIZE EXISTING FACILITIES AND DISCOURAGE URBAN SPRAWL. The City shall maximize existing sanitary sewer facilities within its service area and promote compact efficient growth patterns. This objective must be read in conjunction with related Sanitary Sewer Policy 5.3.1, which requires all new development in the City to connect to the central sanitary sewer system, as well as with FLUE Policy 1.1.18, which requires all development in land designated GSRD to connect to central water and sanitary sewer utilities. Density is related to the ability to provide central sewer and water services. If a developer runs new water and sewer lines, which he must do at his own cost in the City, compact density will make development more economical for those services and will encourage an efficient land use pattern. A density of two units per acre is financially feasible for providing central water and sewer to Site 7, whereas the evidence was that a density of one unit per five acres, as urged by DCA, is not cost-effective for Site 7, at least given the developer's $6.5 million land acquisition cost. As the use of septic tanks is not an option in the City for any new development, a contiguous and compact form of development is essential not only for the property in question, but also for future development sites. Development of Site 7 will be connected to an existing City-owned and operated wastewater treatment plant, which has adequate capacity for the maximum of 532 homes allowed by the amendment. As the amendment will allow a compact development pattern of two units per acre and will maximize the use of an existing sewer facility, it is not internally inconsistent with ICE Objective 5.3. Newly-adopted ICE Objective 11.2 requires the City to implement a strategy to ensure the efficient provision of urban services, sound urban development, and accommodation of growth. The objective identifies negotiating interlocal agreements with Lake County and other local governments for joint planning areas and for providing public services. ICE Objective 11.2 requires future intergovernmental coordination and is not self-implementing. The Site 7 FLUM amendment is not internally inconsistent with ICE Objective 11.2. Guiding Principles The Guiding Principles were adopted by rule by the Administration Commission in 1974 and subsequently were approved by reference by the Legislature. See Rule 28-26.003; Ch. 79-73, § 5, Laws of Florida (1979). Preceding Rule Chapter 9J-5 and modern Florida statutory requirements for local comprehensive plans, the Guiding Principles actually were adopted to provide guidelines for the adoption of land development regulations. See Rule 28-26.004 and Rule Chapter 28-28, Land Planning-Part VII Boundary and Regulations for the Green Swamp Area of Critical State Concern-Lake County; § 380.0551(2), Fla. Stat. The City's plan contains goals, objectives, and policies that are consistent with the Guiding Principles. Nonetheless, DCA contends that the Site 7 FLUM amendment is inconsistent with the following objectives to be achieved under the Green Swamp Guiding Principles, Rule 28-26.003(1): Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands, and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the water available for aquifer recharge. * * * (j) Protect the natural flow regime of drainage basins.7 One of the primary reasons for designating the Green Swamp as an area of Critical State Concern is its relatively high aquifer recharge capabilities. This results from the relative proximity of the surficial aquifer to the ground surface, together with relatively high rate at which water percolates through the soils overlying the surficial aquifer. The relatively high aquifer recharge rate results in a relatively high potentiometric surface in the underlying Floridan aquifer (Central Florida's primary drinking water source) and drives the groundwater system throughout Central and Southwest Florida. Florida contains many areas of no recharge, but low- to-moderate recharge characteristics are common throughout Florida. Within the Green Swamp, there are areas of low, moderate, and high aquifer recharge, depending primarily on the proximity of the surficial aquifer to the ground surface and the characteristics of the overlying soils. In the area of Site 7, the surficial aquifer is approximately 150 feet below ground surface. Site 7 has both Type A (sandy, upland) soils, which have a high infiltration rate, and Type B (wetlands) soils. The area has been regionally mapped by SJRWMD as having a net recharge rate of 0-4 inches (low) on the western side of the site, and 4-8 inches (moderate) on the eastern part of the site. As such, these recharge characteristics of Site 7 can be said to be "common" for the Green Swamp. As for groundwater contamination, a map of the Floridan Aquifer Groundwater Vulnerability admitted into evidence by DCA showed that the groundwater for Site 7 and the surrounding area are "more vulnerable" to contamination. However, DCA did not present a map for other parts of the Green Swamp or the rest of Florida for comparison purposes, and its expert witness on the subject was unable to quantify vulnerability or directly compare Site 7 to other parts of the Green Swamp and the rest of Florida. However, he did testify that areas of "high vulnerability" extend all the way to the west of Tallahassee and that the western part of the Green Swamp generally is more vulnerable to groundwater contamination than the eastern part, where Site 7 is, because the surficial aquifer is at or near the ground surface in the western part of the Green Swamp. As to the natural flow regime of drainage basins, Site 7 lies in the Oklawaha River Drainage Basin. The natural local drainage of Site 7 is into the Palatlakaha River via several smaller drainage sub-basins: Sumner Lake Outlet, Palatlakaha Reach, Lake Wash Outlet, and Pine Island Outlets. The Palatlakaha is a major tributary to the Oklawaha River. DCA did not prove that the Site 7 FLUM amendment will adversely impact the natural flow regime of the drainage basin Site 7 is in. DCA did not prove that Site 7 has any hydrologic or environmental characteristics that would require more protection than other parts of the Green Swamp. It follows that DCA did not prove a need for Site 7 to have a lower density than is allowed under the GSRD land use category already approved by DCA for the Green Swamp. Similar residential densities also have been approved in other parts of the Green Swamp. A plan's goals, objectives and policies must be considered when evaluating the impacts of development allowed by a land use category. The FLUM, the goals, objectives, and polices are interrelated. See § 163.3177(6)(a), Fla. Stat. The hydrologic features and functions addressed in the Guiding Principles are protected in the plan, and those protections have been found by DCA to be consistent with the Guiding Principles. Those plan provisions will guide development to ensure that the aquifer, wetlands, flood detention areas, groundwater, surface water, Lake Sumner, and the natural flow of the drainage basin will be appropriately protected. The essence of DCA's argument that the Site 7 FLUM amendment is inconsistent with the Guiding Principles is that, regardless of how much protection the plan's provisions afford, the Site 7 FLUM will allow approximately ten times the various impacts of development--e.g., impacts on wetlands, reduction of aquifer recharge due to increased impervious surfaces, water quality impacts, and water quantity impacts-- at one unit to five acres under the current Lake County Transition designation, so that adverse impacts are not minimized, and resources are not protected, as envisioned in the Guiding Principles. There are several flaws in DCA's argument, even assuming the impact factor of ten. First, the logical extension of DCA's argument would be that minimization and protection require no additional adverse impacts. If so, development at one unit per acre under Lake County Transition's timeliness provisions--a fivefold increase in impacts, under DCA's rationale--also would be inconsistent with the Guiding Principles. Second, planning should be based on reality,8 and DCA did not prove that residential development would occur on Site 7 at one unit to five acres. To the contrary, while continued development of small parcels in areas designated Lake County Transition is plausible, the evidence was that it is financially infeasible to develop Site 7 as a whole residentially at that density.9 For that reason, while ordinarily it is appropriate only to compare potential impacts from different possible land use designations, in this case it is appropriate to consider the impacts of the current use of Site 7 as an orange grove when deciding whether the Site 7 FLUM amendment is consistent with the Guiding Principles. The evidence was clear that, under all the criteria in the Guiding Principles cited by DCA, residential development under the Site 7 FLUM amendment is far preferable to the continued use of the property as an orange grove10--the likely if not absolutely clear result of maintaining Lake County's Transition designation.11 Third, as mentioned in Finding 57, supra, it was clear from the evidence that DCA has found residential land use designations of two units per acre and greater not only elsewhere in the Green Swamp, both in the City and elsewhere, to be consistent with the Guiding Principles, and DCA failed to explain why those densities would be consistent with the Guiding Principles elsewhere but not at Site 7. Again under this issue, DCA in effect fears that the City's Site 7 FLUM amendment will have a "domino effect" that will ultimately result in the entire Green Swamp being designated for two-unit per acre residential densities. But the entire Green Swamp is not like Site 7. Future County land use designation changes that actually will harm the Green Swamp will be subject to challenge by DCA, and it is unreasonable to assume that DCA will allow densities of two units per acre throughout the Green Swamp if it is allowed at Site 7. Environmental Suitability For essentially the same reasons DCA argues inconsistency with urban sprawl rules and plan provisions and with the Guiding Principles, DCA also contends that the City did not react appropriately to data and analysis indicating Site 7's alleged environmental unsuitability for residential development at two units per acre. Based on the previous findings, DCA did not prove that allegation.12 State Comprehensive Plan DCA alleges that the Site 7 FLUM amendment is inconsistent with the State Comprehensive Plan's Public Facilities goal and two related policies. Public Facilities Goal (a) addresses the need to protect substantial investments in existing public facilities. Related Policy (17)(b)1. provides incentives for developing land in a way that maximizes the uses of existing public facilities. Public Facilities Policy 17(b)2. promotes the "rehabilitation and reuse of existing facilities, structures, and buildings as an alternative to new construction." As discussed above in the urban sprawl findings, the Site 7 FLUM amendment encourages the efficient use of existing public facilities. The increase in density, which the amendment allows, may be viewed as a land use incentive that encourages the maximization of existing public facilities both as to Site 7 and as to surrounding properties that may later connect to City utilities. The amendment furthers Public Facilities Goal (a) and Policy (b)(1). The Site 7 FLUM amendment also does not undermine or conflict with Policy (b)(2). The City’s plans to rehabilitate a downtown community redevelopment area (CRA) will not be adversely affected by development allowed by the proposed amendment. Also, there is insufficient land within the CRA to accommodate the City’s projected housing and land use needs. The amendment is not inconsistent with this policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding the City's Site 7 FLUM amendment to be "in compliance." DONE AND ENTERED this 28th day of November, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 28th day of November, 2005.
The Issue The issue to be determined in this case is whether Amendment 10-01A to the Bay County Comprehensive Plan (“the Plan Amendment”), adopted by Ordinance 10-22, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The Parties The Department is the state land planning agency and, at the time of the adoption of the Plan Amendment, was charged with the duty to review comprehensive plan amendments and to determine whether they are “in compliance,” as that term is defined in section 163.3184(1)(b). Bay County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time. Petitioner Diane Brown resides and owns property in Bay County, but not in the Sand Hills STZ. Petitioner submitted comments to Bay County during the time between the transmittal and adoption hearings for the Plan Amendment. Intervenor Cedar Creek is a Florida corporation that owns approximately 1,007 acres of land within the Sand Hills STZ. Intervenor submitted comments to Bay County during the time between the transmittal and adoption hearings for the Plan Amendment. The Sand Hills STZ The Sand Hills STZ is one of three Rural Community STZs in Bay County. The Sand Hills STZ has a number of platted and unplatted subdivisions that were created before the adoption of the Bay County Comprehensive Plan. Within the Sand Hills STZ is a police station, a fire station, and a public school for Pre- Kindergarten through 12th grade. Residences and businesses in the Sand Hills STZ are on private wells and septic tanks. The public school is on central sewer and water. Existing land uses within the Sand Hills STZ include Agriculture, Public/Institutional, Conservation/Preservation, General Commercial, and Rural Residential. Lands designated Agriculture can be developed at one dwelling unit on ten acres ("1 du/10 ac"). Lands designated Rural Residential can be developed at 1 du/3 ac on unpaved roads and 1 du/ac on paved roads. This leads to some semantic confusion. Densities of 1 du/10 ac and 1 du/3 ac are rural densities, but a density of 1 du/ac is a suburban density. That means the Rural Residential land use designation allows for densities that are suburban in character and the rural community STZs are not altogether rural. Abutting the Sand Hills STZ on the north is Washington County. To the south are areas designated Agriculture/ Timberland. The community of Southport is located about five miles to the south. West of the Sand Hills STZ is the Northwest Florida Beaches International Airport and other lands subject to the West Bay Area Sector Plan. East of the Sand Hills STZ is Deer Point Lake/Reservoir, the County’s primary source of drinking water. Also to the east are 8,500 acres of land owned by the Northwest Florida Water Management District that are designated Conservation/Recreation. The Sand Hills region is hydrogeologically sensitive because of significant recharge which occurs throughout the region via ground and surface waters to Deer Point Lake/Reservoir. The Plan Amendment The Plan Amendment creates a new Policy 3.4.10 to guide development in the Sand Hills STZ. The Policy begins: The Sand Hills Area is an established and continually evolving community with unique character and environmental assets that warrant a special planning approach to ensure the preservation and protection of its distinctive qualities. Due to its beautiful natural landscapes, picturesque areas, and its strategic location east of the West Bay Area Sector Plan (Centered around the Northwest Florida Beaches International Airport) and nearby transportation corridors--State Road 77, County Road 388, and State Road 20, development and growth will continue to occur in the Sand Hills Community. The Sand Hills Rural Community Special Treatment Zone is an overlay area that has been established to maintain the area's character while protecting its significant natural resources and advancing Bay County's Wide Open Spaces strategy (Map 3.7). The Sand Hills Rural Community Special Treatment Zone encourages efficient development and infill within an area that has the capacity to service future growth. Guiding principles for the Sand Hills STZ are set forth in new Policy 3.4.10: Protect important recharge areas from the effects of irresponsible development. Create a sense of place by implementing design and landscape standards. Promoting civic and community uses, and providing interconnection between uses, community parks, and open space that protect and enhance the character of the Sand Hills Community. Provide for sustainable development and environmentally responsible design. Maintain the character of the Sand Hills Rural Community while providing for neighborhood commercial, retail, office, and civic uses located within designated commercial area and corridors, appropriately scaled to meet the needs of the Sand Hills Community. Promote an integrated network of local streets, pedestrian paths, and bicycle and equestrian trails. Access management policies that promote development patterns which reduce automobile trip length. Provide for a range of housing types for all ages, incomes, and lifestyles. Provide centralized utilities for all new developments in a planned, coordinated and efficient manner. Policy 3.4.10.1 would allow properties designated Rural Residential to increase from 1 du/ac to 4 du/ac if central water and sewer are available and other conditions are met as set forth in Policy 3.4.10.4. Policy 3.4.10.2 has special conditions applicable to commercial development, such as a maximum floor area ratio of 30 percent. General Commercial land uses are only permitted in three designated "Commercial Nodes." Policy 3.4.10.3 creates special conditions applicable to agricultural uses in the Sand Hills STZ. Policy 3.4.10.4 establishes criteria for new development in the Sand Hills STZ, including the requirement for a site analysis by a licensed engineer or geologist. This requirement is imposed to protect karst features and aquifer recharge areas. This Policy also requires enhanced stormwater treatment and buffers around karst features, low impact design and landscaping standards, and open space requirements. Policy 3.4.10.5 requires the County to complete a plan by January 2012 for the expansion of water and sewer facilities into the Sand Hills STZ and to "retrofit" existing septic tanks by connecting properties to central sewer lines. New developments, regardless of density, are required to connect to central sewer lines if they are within 1,000 feet. Policy 3.4.10.6 addresses roadway access management to reduce reliance on State Road 77 and preserve levels of service. Internal Inconsistency Petitioner contends that the Plan Amendment is inconsistent with existing Policy 3.4.4 which states, in part, that rural community STZs are intended: to promote infill development into existing rural developed areas that will allow residents to work, shop, live, and recreate within one relatively compact area while preserving the rural and low density land uses in the designated and surrounding areas. Petitioner has a misunderstanding about Policy 3.4.4 that is the basis for several of her objections to the Plan Amendment. Petitioner focuses on the words "preserving the rural and low density land uses" and fails to see that the primary purpose of the policy is to enhance communities out in the rural areas of Bay County by encouraging the creation of a "nucleus" of mixed land uses in a compact development, while preserving the rural character of the surrounding area. Petitioner also asserts that the Plan Amendment is inconsistent with Policy 3.4.4 because the policy refers to "existing" developed areas, but the Plan Amendment allows residential density increases on some lands that are currently undeveloped. Petitioner's interpretation of the wording in the policy is not the only interpretation that can be given to the words and it is not the interpretation that Bay County gives to the words. Bay County interprets existing developed areas as a general reference to the areas that are currently recognizable as the core of village-like features, rather than a finite group of parcels. Policy 3.4.4 refers to the designation of rural community STZs "consistent with the Wide Open Spaces Strategy." A 7-page document entitled "Wide Open Spaces Strategy" was admitted into evidence as Petitioner's Exhibit 41. It is stated in the strategy that: This policy is an attempt by the Board of County Commissioners to focus its infrastructure planning and construction efforts. In no way should this policy be construed to discourage anyone choosing to live in the rural area. Rather, the Board is establishing the parameters and expectations that should be associated with that choice. The significance of the strategy to a compliance determination is not clear. It does not appear in the Comprehensive Plan and it may not have been properly adopted by reference. See § 163.3711(1)(b), Fla. Stat. Policy 3.4.4 states that a rural community STZ is to be "designated" consistent with the strategy, but this Plan Amendment does not designate the Sand Hills STZ. There are general statements in the strategy that fail to account for more specific policies of the comprehensive plan. For example, the strategy states that the County will limit residential development in rural communities to 1 du/3 ac, even though the Comprehensive Plan clearly allows 1 du/ac on Rural Residential lands if the lands are on paved roads. Statements in the policy regarding rural services do not reflect the existing public services and utility planning in the Sand Hills STZ. These disharmonies between the Wide Open Spaces Policy and the Comprehensive Plan suggest that the strategy is a collection of general statements that are not intended to have the same force and effect as the policies of the Comprehensive Plan. The record evidence is insufficient to show the intended role of the strategy in Bay County's comprehensive planning. The record evidence is insufficient to show that the Plan Amendment is inconsistent with the strategy. Petitioner contends that the Plan Amendment is inconsistent with Policy 6.10.5 of the Conservation Element, which states: "The County will maintain rural densities and intensities of development in identified high aquifer recharge areas." The existing rural densities in the Sand Hills STZ (1 du/10 ac and 1 du/3 ac) are not changed by the Plan Amendment. The existing suburban densities of 1 du/ac cannot be increased unless the parcels are connected to central water and sewer systems. Therefore, the purpose of Policy 6.10.5--to protect aquifer recharge areas--is achieved by the Plan Amendment. The stated "performance measure" for Policy 6.10.5 is the maintenance of rural designations on the FLUM. The Plan Amendment maintains rural designations on the FLUM. Petitioner contends that the Plan Amendment is inconsistent with Policy 3.2.3 because it conflicts with the intent of the policy to limit the Sand Hills STZ to rural levels of service. However, Policy 3.2.3 does not prohibit the County from providing central services in the Rural STZs. The service area map for the Sand Hills STZ shows that central water and sewer services are already planned. The County already provides central sewer and water to the public school located in the Sand Hills STZ. Petitioner claims that the Plan Amendment, for the first time, allows general commercial uses within the Sand Hills STZ, but General Commercial uses were already allowed in the Sand Hills STZ. In summary, Petitioner failed to prove facts showing that the Plan Amendment causes the Comprehensive Plan to be internally inconsistent with any goal, objective, or policy of the Comprehensive Plan. Data and Analysis Petitioner asserts that there is insufficient data and analysis to support the need for increased residential density to meet population projections for the area. A local government can accommodate more than the projected population. See § 163.3177(6)(a)4., Fla. Stat. The Plan Amendment responds to growth pressures in the Sand Hills STZ, modifies antiquated subdivisions, and furthers numerous other general and specific goals, objectives, and policies of the Comprehensive Plan to promote well-designed, environmentally-protective, infrastructure-efficient, high- quality communities. Petitioner contends that the Plan Amendment is not supported by appropriate data and analysis regarding the protection of aquifer recharge areas. However, the evidence offered by Petitioner only established that she wants the Plan Amendment to be more protective. Petitioner's expert hydrogeologist, Dr. Kincaid, admitted that the County had taken "strong" and "aggressive" measures in the Plan Amendment to protect water quality, but said he wished the County had done more to address water withdrawals. There was no evidence presented indicating that there is insufficient water available to serve the Sand Hills STZ. The Northwest Florida Water Management District has exclusive authority to regulate water withdrawals in Bay County. See § 373.217(2), Fla. Stat. The Deer Point Lake Hydrologic Analysis is the principal data and analysis that the Plan Amendment is based upon. In addition, the Plan Amendment is supported by the analysis presented at the final hearing by Dr. Kincaid and Steve Peene. Petitioner did not present data and analysis showing that the Plan Amendment would be harmful to water resources. Petitioner contends that the Plan Amendment is not supported by data and analysis regarding impacts on species and habitats. Petitioner did not explain what additional data and analysis would be required regarding species and habitat when the lands affected by the Plan Amendment are already designated for residential and commercial development. Petitioner refers to comments made by the Fish and Wildlife Conservation Commission, but those comments are also unexplained, and are hearsay. The Conservation Element of the Comprehensive Plan addresses the protection of natural resources, species, and habitat. The Plan Amendment does not remove any goal, objective, or policy of the Conservation Element. Petitioner did not show the Plan Amendment would be harmful to species and their habitat. A large area where septic tanks are used can be expected to be a source of groundwater contamination because a significant number of septic tanks will fail. The Plan Amendment includes a new map which depicts priority areas for retrofitting existing parcels that use private wells and septic tanks and connecting the parcels to central water and sewer lines. Petitioner contends that the mapping is not supported by data and analysis. The priority areas were selected based on development density and proximity to Deer Point Lake. Those data are sufficient to support the mapping of priority areas. Petitioner produced no contrary data and analysis. In summary, Petitioner failed to prove facts showing that the Plan Amendment is not supported by relevant and appropriate data and analysis. Urban Sprawl Petitioner contends that the Plan Amendment encourages urban sprawl, but her evidence was not persuasive. According to Petitioner's theory of sprawl, every rural town and village would be an example of sprawl because they all "leap frog" from urban areas over agricultural and rural lands. Leap frogging as an indicator of sprawl usually involves a leap from an urban area to an area of undeveloped rural lands which will be transformed into urban or suburban land uses. That is not the situation here. The Plan Amendment's application of modern planning principles to enhance the quality and functionality of an existing rural community does not indicate urban sprawl. Petitioner contends that the Plan Amendment triggers most of the 13 indicators of urban sprawl that are set forth in section 163.3177(6)(a)9., but she failed to prove the existence of any indicator. The Plan Amendment does not promote the development of a single use or multiple uses that are not functionally related. It does not promote the inefficient extension of public facilities and services. It does not fail to provide a clear separation between urban and rural uses. In summary, Petitioner failed to prove facts showing that the Plan Amendment constitutes a failure of Bay County to discourage the proliferation of urban sprawl. Other Compliance Issues Petitioner contends that the Plan Amendment's provisions regarding infrastructure were not shown to be financially feasible, but the record evidence shows otherwise. Bay County has water and sewer facilities with sufficient capacity to serve the Sand Hills STZ. Furthermore, the new law eliminated the financial feasibility provisions of section 163.3177. Petitioner contends that the Plan Amendment improperly changes the FLUM, but the Plan Amendment does not change the FLUM. The rural community STZs are overlays that do not change FLUM designations. Petitioner contends that the Plan Amendment does not address hurricane evacuation times, but did not show that there is any legal requirement for Bay County to address hurricane evacuation times for amendments affecting lands outside of areas of hurricane vulnerability. Petitioner alleges that the Plan Amendment is inconsistent with the requirements of section 163.3177 related to energy conservation and efficiency, but the law cited by Petitioner was eliminated by the new law. Petitioner stated at the final hearing that her real objection is that the Plan Amendment promotes subdivisions far away from employment centers. Growth in the Sand Hills STZ is likely to be affected by and run parallel to growth in the adjacent West Bay Sector Plan because it is a developing employment center. Furthermore, the Plan Amendment is designed to make the Sand Hills STZ more self-sustaining, which would reduce vehicle miles. Petitioner contends that the Plan Amendment does not include sufficient standards and measures for the implementation of its new policies. The Plan Amendment is primarily self- implementing, in that it sets forth specific conditions for development. In addition, the Plan Amendment includes guiding principles that can be used in the application of existing land development regulations (LDRs) or the adoption of new LDRs. There also are references in the Plan Amendment to other regulatory programs that will be used to implement the policies. Petitioner claims the Plan Amendment was not coordinated with Washington County, but she did not prove the claim. In summary, Petitioner failed to prove facts showing that the Plan Amendment is not in compliance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment is in compliance. DONE AND ENTERED this 18th day of October, 2011, 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 18th day of October, 2011.
The Issue The issue is whether the Evaluation and Appraisal Report (EAR) amendments for the Bay County (County) Comprehensive Plan (Plan) are in compliance.
Findings Of Fact The Parties Diane C. Brown resides and owns property within the County, and she submitted written and oral comments to the County during the adoption process of Ordinance No. 09-36. The County is a local government that administers its Plan and adopted the Ordinance which approved the changes being contested here. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The EAR Process The County's first Plan was adopted in 1990 and then amended through the EAR process in 1999. As required by law, on September 5, 2006, the County adopted another EAR and in 2007 a Supplement to the EAR. See County Ex. 1C and 1D. The EAR and Supplement were found to be sufficient by the Department on December 21, 2007. See County Ex. 1E. After the EAR-based amendments were adopted by the County and transmitted to the Department for its review, the Department issued its Objections, Recommendations and Comments (ORC) report. After making revisions to the amendments in response to the ORC, on October 20, 2009, the County enacted Ordinance No. 09-36, which adopted the final version of the EAR-based amendments known as "Charting Our Course to 2020." See County Ex. 1B. On December 15, 2009, the Department issued its notice of intent determining that the EAR-based amendments were in compliance. See County Ex. 1F. Notice of this determination was published in the Panama City News Herald the following day. See County Ex. 1G. The EAR is a large document comprised of five sections: Overview Special Topics; Issues; Element Reviews; Recommended Changes; and a series of Maps. Section 163.3191(10), Florida Statutes, requires that the County amend its comprehensive plan "based" on the recommendations in the report; subsection (2) also requires that the County update the comprehensive plan based on the components of that subsection. The EAR-based amendments are extensive in nature, and include amendments to all 13 chapters in the Plan. However, many provisions in the 1999 version of the Plan were left unchanged, while many revisions were simply a renumbering of a provision, a transfer of a provision to another element, a change in the format, or an otherwise minor and non-substantive change. Although the EAR discusses a number of issues and concerns in the first three sections of the report, the EAR- based amendments must only be based on the recommended changes. See § 163.3191(10), Fla. Stat. Therefore, it was unnecessary for the County to react through the amendment process to the discussions in the Issues and Element Reviews portions of the EAR. For example, the EAR discusses air quality and mercury but made no specific recommendations to amend the Plan to address either subject. Also, nothing in chapter 163 or Department rules requires that the County implement changes to the Plan that parrot each specific recommendation to the letter. So long as the revisions are "based" on an area of concern in the recommendations, the statutory requirement has been satisfied. Section Four of the EAR contains the "Recommended EAR- Based Actions and Corrective Measures Section 163.3191(2)(i)." See County Ex. 1C, § 4, pp. 1-9. Paragraph (2)(i) of the statute requires that the EAR include "[t]he identification of any actions or corrective measures, including whether plan amendments are anticipated to address the major issues identified and analyzed in the report." Section Four indicates that it was intended to respond to the requirements of this paragraph. Id. at p. 1. Finally, the only issue in this proceeding is whether the EAR-based amendments are in compliance. Therefore, criticisms regarding the level of detail in the EAR and Supplement, and whether the County adequately addressed a particular issue in those documents, are not relevant. A determination that the EAR was sufficient in all respects was made by the Department on December 21, 2007. In her Amended Petition, Petitioner raises numerous allegations regarding the EAR-based amendments. They can be generally summarized as allegations that various text amendments, including entire elements or sub-elements, are inconsistent with statutory and rule provisions or are internally inconsistent with other Plan provisions, and that the County failed to properly react to changes recommended in the EAR. Because this is a challenge to an in-compliance determination by the Department, Petitioner must show that even though there is evidence to support the propriety of these amendments, no reasonable person would agree that the amendments are in compliance. See Conclusion of Law 90, infra. Objections Administrative Procedures - Chapter 1 Petitioner contends that new policy 1.4.1(4) is inconsistent with sections 163.3181 and 187.201(25)(a) and (b)6., which generally require or encourage effective citizen participation, and rule 9J-5.004, which requires a local government to adopt procedures for public participation. She also contends the County should not have deleted policy 1.4.2, which required the County to provide notices (by mail and sign postings) beyond those required by chapter 163. The new policy simply provides that notice of public hearings be provided for in accordance with chapter 163. There is no statutory or rule requirement that more stringent notice requirements be incorporated into a plan. The new notice requirements are consistent with the above statutes and rule. It is fairly debatable that the changes to the Administrative Procedures part of the Plan are in compliance. Future Land Use Element (FLUE) - Chapter 3 Petitioner has challenged (a) one policy that creates a new planning area; (b) the County's failure to adopt new energy standards in the FLUE; and (c) the adoption of new development standards for two land use categories in Table 3A of the FLUE. Table 3A describes each land use category in the Plan, including its purpose, service area, designation criteria, allowable uses, density, intensity, and development restrictions. See County Ex. 1A, Ch. 3, pp. 3-5 through 3-17. These contentions are discussed separately below. Southport Neighborhood Planning Area New FLUE policy 3.4.8 creates the Southport Neighborhood Planning Area (Southport), a self-sustaining community with a functional mix of uses. See County Ex. 1A, Ch. 3, pp. 3-20 and 21. The effect of the amendment is simply to identify Southport as a potential planning area that includes a mixture of uses. This follows the EAR recommendations to create "new areas where residents are allowed to work, shop, live, and recreate within one relatively compact area while preserving the rural and low density land uses in the area[,]" and to create "higher density rural development." County Ex. 1C, § 4, p. 2. Southport is located north of the greater Panama City area in an unincorporated part of the County near or adjacent to the proposed new intersection of County Road 388 and State Road 77. Southport is also identified in new policy 3.2.5(8) as a Special Treatment Zone (STZ) that is designated as an overlay on the Future Land Use Map Series. Id. at p. 3-5. (There are seven STZs in the Plan that act as overlay districts on the FLUM. Overlays do not convey development rights.) Petitioner contends that policy 3.4.8 is inconsistent with sections 163.3177(6)(a) and (d), (8), and (9)(b) and (e), and rules 9J-5.005(2), (5), and (7), 9J-5.006(5), and 9J-5.013. More precisely, Petitioner generally contends that the amendment will encourage urban sprawl; that there is no need for the additional development; that there are no central water and wastewater facilities available to serve that area; that there is no mechanism for monitoring, evaluating, and appraising implementation of the policy; that it will impact nearby natural resources; that it allows increased density standards in the area; and that it is not supported by adequate data and analysis. Most of the data and analysis that support the establishment of the new planning area are in the EAR. They are found in the Introduction and Overview portion of Section One and the FLUE portion of Section 3 of the Element Reviews. The County Director of Planning also indicated that the County relied upon other data as well. Although the new policy allows an increase in maximum residential density from five to 15 dwelling units per acre, paragraph (b) of the policy specifically requires that "all new development [be] served by central water and sewer." Petitioner's expert opined that the new community will create urban sprawl. However, Southport is located within the suburban service area of the County, which already allows densities of up to five dwelling units per acre; it is currently developed with low-density residential uses; and it is becoming more urban in nature. Given these considerations, it is fairly debatable that Southport will not encourage urban sprawl. The new STZ specifically excludes the Deer Point Reservoir Protection Zone. Therefore, concerns that the new policy will potentially threaten the water quantity and quality in that reservoir are not credited. In addition, there are other provisions within the Plan that are designed to protect the reservoir. Petitioner criticized the County's failure to perform a suitability analysis before adopting the amendment. However, a suitability study is performed when a land use change is proposed. Policy 3.4.8 is not an amendment to the FLUM. In fact, the Plan notes that "[n]othing in this policy shall be interpreted as changing the land use category of any parcel of the [FLUM]." County Ex. 1A, Ch. 3, p. 3-21. In determining the need for this amendment, the County took into consideration the fact that except for the Beaches STZ, the EAR-based amendments delete residential uses as an allowed use in commercially-designated lands. The number of potential residential units removed from the commercial land use category far exceeds the potential number of residential units that could be developed at Southport. Thus, the new amendment will not result in an increase in residential units. Petitioner also contends that the County should have based its needs analysis using Bureau of Economic and Business Research (BEBR) estimates. The County's population projections are found in the Introduction portion of the EAR and while they make reference to BEBR estimates, they are not based exclusively on those data. See County Ex. 1C, § 1, pp. 2 and 3. However, there was no evidence that the estimates used by the County are not professionally acceptable. Where there are two acceptable methodologies used by the parties, the Department is not required to evaluate whether one is better than the other. See § 163.3177(10)(e), Fla. Stat. ("the Department shall not evaluate whether one accepted methodology is better than another"). The County's estimates are professionally acceptable for determining need. The other objections to the amendment have been considered and found to be without merit. Therefore, it is at least fairly debatable that the amendment is in compliance. Neighborhood Commercial - Table 3A The purpose of this commercial category is to "provide areas for the convenience of residential neighborhoods so as to generate a functional mix of land uses and reduce traffic congestion." County Ex. 1A, Ch. 3, p. 3-15. Allowable uses include, among others, supermarket centers, restaurants, public facilities, and other similar uses. The County amended the intensity standard for this category by allowing development that is "[n]o more than 50-feet in height." Id. Petitioner asserts that the new 50-foot height limitation for commercial buildings results in the amendment being inconsistent with rule 9J-5.006 because it is not based on adequate data and analysis. Petitioner further argues that the standard is internally inconsistent with FLUE objective 3.9 and policy 3.9.1 and Housing Element objective 8.5, which relate to compatibility. Finally, Petitioner alleges that it will cause unsustainable density in the category and create new demands for public services. The EAR contains a section that analyzes data regarding residential development in commercial land use categories. See County Ex. 1C, § 2. There is, then, data and analysis that support the amendment. The 50-foot height limitation actually limits the intensity that would normally be allowed under current Land Development Regulations (LDRs) if this limitation were not in the Plan. Therefore, it will not increase the intensity of development within this district. Because the Plan specifically provides that the category is for "areas [with] low-intensity commercial uses that will be compatible with adjacent or surrounding residential uses," and such uses must be located "outside subdivisions . . . unless intended to be included in the subdivisions," compatibility issues with adjacent residential areas should not arise. Petitioner failed to establish beyond fair debate that the amendment is not in compliance. Seasonal/Resort - Table 3A This land use category is designed for transient occupancy (temporary seasonal visitors and tourists) under chapter 509, rather than permanent residents. It is limited to areas with concentrations of accommodations and businesses that are used in the tourist trade. See County Ex. 1A, Ch. 3, p. 3- The category includes a new intensity standard for buildings of "[n]o more than 230-feet in height." Id. Petitioner contends that this intensity standard is inconsistent with section 163.3177(6)(d), (8), and (9) and rules 9J-5.005(2) and (5), 9J-5.006, and 9J-5.013. These provisions require that an amendment protect natural resources, that it be based on the best available data and analysis, and that it be internally consistent with other Plan provisions. Petitioner also points out that the land use category is located in or adjacent to the Coastal High Hazard Area, that the amendment allows an increase in density, and this results in an inconsistency with statutes and rules pertaining to hurricane evacuation zones. Prior to the adoption of the EAR-based amendments, there was no intensity standard in the Plan for this land use category and all development was governed by LDRs. Pursuant to a recommendation by the Department in its ORC, the new standard was incorporated into the Plan. Before making a decision on the specific height limitation, the County considered existing condominium construction on the beach, current LDR standards for the district, and whether the new standard would create an internal inconsistency with other Plan provisions. Therefore, it is fair to find that adequate data were considered and analyzed. The new height limitation is the same as the maximum height restriction found in the Seasonal Resort zoning district, which now applies to new construction in the district. Because condominiums and hotels that do not exceed 230 feet in height are now allowed within the district, and may actually exceed that height if approved by the County, the amendment is not expected to increase density or otherwise affect hurricane evacuation planning. Historically, transient visitors/tourists are the first to leave the area if a hurricane threatens the coast. Petitioner also contends that the amendment will create compatibility problems between existing one- or two-story residential dwellings in the district and high-rise condominiums, and that the County failed to adequately consider that issue. However, before a condominium or other similar structure may be built, the County requires that the developer provide a statement of compatibility. It is fairly debatable that the new intensity standard is in compliance. Energy Issues Petitioner alleges that the new amendments do not adequately address energy issues, as required by section 163.3177(6)(a). That statute requires, among many other things, that the FLUE be based upon "energy-efficient land use patterns accounting for existing and future electric power generation and transmission systems; [and] greenhouse gas reduction strategies." However, amendments to objective 3.11 and policy 3.11.5, which relate to energy-efficient land use patterns, adequately respond to these concerns. See County Ex. 1A, Ch. 3, pp. 3-27 and 3-28. In addition, new Transportation Element policy 4.10.3 will result in energy savings and reduce greenhouse gases by reducing idle times of vehicular traffic. See County Ex. 1A, Ch. 4, p. 4-12. It is fairly debatable that the energy portions of the Plan are in compliance, and they promote energy efficient land use patterns and reduce greenhouse gas emissions, as required by the statute. Transportation Element - Chapter 4 The EAR contains 14 recommended changes for this element. See County Ex. 1C, § 4, pp. 2-4. Item 2 recommends generally that bike paths be installed in or next to certain areas and roadways. Id. at p. 2. Petitioner contends that this recommendation was not implemented because it is not included in the Recreation and Open Space Element. However, one section of the Transportation Element is devoted to Bicycle and Pedestrian Ways and includes objectives 4.14 and 4.15 and policies 4.14.1 and 4.15.1, which respond to the recommendation. See County Ex. 1A, Ch. 4, pp. 4-14 and 4-15. In addition, the General Strategy portion of the element requires the County to install alternative transportation systems where a demonstrated need exists. Id. at p. 4-1. Petitioner contends that by limiting bike paths only to where there is a demonstrated need, the County has not fully responded to the recommendation. This argument is illogical and has been rejected. It is fairly debatable that the above amendments are in compliance. Groundwater Aquifer Recharge - Chapter 5F As required by section 163.3177(6)(c), the County has adopted a natural groundwater aquifer recharge element. See County Ex. 1A, Ch. 5F. The goal of this sub-element, as amended, is to "[s]afeguard the functions of the natural groundwater recharge areas within the County to protect the water quality and quantity in the Floridan Aquifer." County Ex. 1A, Ch. 5, p. 5F-1. The EAR contains three recommended changes for this part of the Plan: that the County update its data and analysis to identify areas of high and/or critical recharge for the Floridan aquifer; that it include in the data and analysis an examination of existing LDRs which affect land uses and development activities in high recharge areas and note any gaps that could be filled through the LDRs; and that it include within the data and analysis a study of potential impacts of increased development in high recharge areas, including reasonable development standards for those areas. See County Ex. 1C, §4, pp. 4-5. Petitioner contends that "the objectives and policies pertaining to protecting water recharge areas" are inconsistent with sections 163.3177(6)(d) and 187.201(7) and rules 9J-5.5.011 and 9J-5.013, which require that the Plan protect groundwater; that they violate section 163.3177(8) and rule 9J-5.005(7), which require measurable objectives for monitoring, evaluating, and appraising implementation; and that the County violated section 163.3191(10) by failing to respond to the recommended changes in the EAR. In response to the EAR, in July 2009, the County prepared a watershed report entitled "Deer Point Lake Hydrologic Analysis - Deer Point Lake Watershed," which was based on a watershed management model used by County expert witness Peene. See County Ex. 4. The model used for that report is the same model used by the Department of Environmental Protection (DEP) and the United States Army Corps of Engineers. The study was also based on data and analysis prepared by the Northwest Florida Water Management District. The purpose of the analysis was to look at potential future land use changes in the Deer Point watershed and assess their ultimate impact upon the Deer Point Reservoir, which is the primary public water supply for the County. The model examined the entire Deer Point watershed, which is a much larger area than the Deer Point Lake Protection Zone, and it assumed various flows from rain, springs, and other sources coming into the Deer Point Reservoir. The study was in direct response to a recommendation in the EAR that the County undertake a study to determine if additional standards were needed to better protect the County's drinking water supply and the St. Andrews estuary. See County Ex. 1C, § 4, p. 5. Another recommendation was that the study be incorporated by reference into the data and analysis of the Plan and be used as a basis for any amendments to the Plan that might be necessary. Id. at p. 6. Pursuant to that recommendation, the report was incorporated by reference into Objective 5F.1. See County Ex. 1A, Ch. 5, p. 5F-1. The evidence supports a finding that the report is based on a professionally accepted methodology and is responsive to the EAR. The model evaluated certain future land use scenarios and predicted the level of pollutants that would run off of different land uses into the Deer Point Reservoir. Based on this analysis, Dr. Peene recommended that the County adopt certain measures to protect the groundwater in the basin from fertilizers, stormwater, and pesticides. He also recommended that best management practices be used, that septic tanks be replaced, and that any new growth be on a centralized wastewater treatment plant. Petitioner's expert criticized the report as not sufficiently delineating the karst features or the karst plain within the basin. However, the report addresses that issue. See County Ex. 4, p. 2-36. Also, Map 13 in the EAR identifies the Karst Regions in the County. See County Ex. 1C, § 5, Map 13. One of the recommendations in the EAR was to amend all goals, policies, and objectives in the Plan "to better protect the Deer Point watershed in areas not included within the Deer Point Reservoir Special Treatment Zone, and [to] consider expanding the zone to include additional areas important to preserving the quantity and quality of water entering the reservoir." County Ex. 1C, § 4, p. 6. Besides amending the sub-element's goal, see Finding of Fact 31, supra, the County amended objective 5F.1 to read as follows: By 2010 protect groundwater resources by identifying and mapping all Areas of High Aquifer Recharge Potential to the Floridan Aquifer in Bay County by using the data and analysis contained in the Deer Point Lake Hydrologic Analysis - Deer Point Watershed, prepared by Applied Technology and Management, Inc., dated July 2009. In addition, policy 5F-1.1 requires that the County use "the map of High Aquifer Recharge Areas to establish an Ecosystem Management overlay in the Conservation Element where specific land use regulations pertaining to aquifer water quality and quantity shall apply." Also, policy 5F-1.2 requires the identification of the Dougherty Karst Region. Finally, the EAR and Map 13A were incorporated by reference into the Plan by policy 1.1.4.4. These amendments sufficiently respond to the recommendations in the EAR. While Petitioner's expert criticized the sufficiency of the EAR, and he did not believe the report adequately addressed the issue of karsts, the expert did not establish that the study was professionally unacceptable or otherwise flawed. His criticism of the County's deletion of language in the vision statement of the sub-element that would restrict development density and intensity in areas known to have high groundwater aquifer potential is misplaced. An amendment to a vision statement is not a compliance issue, and nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to limit "density and intensity" in high aquifer recharge areas. On this issue, the EAR recommended that the County's drinking water supply be protected by using "scientifically defensible development standards." County Ex. 1C, § 4, p. 5. The amendments accomplish this result. Petitioner also contends that while new policy 5F.3 and related policies are "good," the County should have collected additional data and analysis on the existence of swallets, which are places where streams flow underground. Again, nothing in chapter 163 or chapter 9J-5 requires the County to consider swallets. Also, a contention that policy 5F3.2 allows solid waste disposal facilities in high recharge areas is without merit. The policy requires that the County continue to follow chapter 62-7 regulations (implemented by DEP) to protect water quality of the aquifers. In addition, a moratorium on construction and demolition landfills has been adopted, and current LDRs prohibit landfills within the Deer Point Reservoir Protection Zone. Petitioner also criticized the sufficiency of policy 5F.4, which requires the implementation of LDRs that limit land uses around high aquifer recharge areas. The evidence establishes that the new policy is sufficient to achieve this purpose. It is at least fairly debatable that the new amendments protect the natural resources, are based on the best available data and analysis, include measurable objectives for overseeing the amendments, and respond to the recommended changes in the EAR. Conservation Element - Chapter 6 The purpose of this element is to conserve the natural resources of the County. Petitioner contends that "many of the amendments [to this chapter] are not consistent with applicable rules and statutes, and that a number of recommendations in the EAR pertaining to the Conservation Element were not implemented as required by Section 163.3191(10)." These contentions are discussed below. Air pollution While the EAR discusses air pollution, there were no specific recommendations to amend the plan to address air quality. See County Ex. 1C, Element Reviews, Ch. 6, pp. 1 and Petitioner contends, however, that current Plan objective 6.3, which was not amended, is not protecting air quality and should have been revised to correct major air quality problems in the County, including "the deposition of atmospheric mercury caused by fossil fuel burning power plants and incinerators." Objective 6.3 requires the County to maintain or improve air quality levels, while related policies 6.3.1 and 6.3.2 require that the County's facilities will be constructed and operated in accordance with state and federal standards. The policies also require that the County work through state and federal agencies to eliminate unlawful sources of air pollution. Notably, the County does not regulate emissions or air pollution, as that responsibility lies within the jurisdiction of other state and federal agencies. It is fairly debatable that the County reacted to the EAR in an appropriate manner. Policies and Objectives in Chapter 6 Petitioner contends that policy 6.1.1 is inconsistent with section 163.3177(8) and rule 9J-5.005(2) because: it is not supported by adequate data and analysis; it does not implement the EAR recommendations, as required by section 163.3191(10); it is inconsistent with section 163.3177(9)(b) and (f) because it results in "inconsistent application of policies intended to guide local land use decision[s]"; it is inconsistent with sections 163.3177(6)(d) and 187.201(9) and (10) and rule 9J- 5.013 because it fails to adequately protect natural resources, including isolated wetlands; and it is internally inconsistent with other Plan provisions. Policy 6.1.1 provides that as a subdivision of the State, the County "will, to the maximum extent practicable, rely upon state laws and regulations to meet the conservation goals and objectives of this Plan." Item 9 in the recommended changes recommends that the County should resolve the ambiguities and inconsistencies between various policies and objectives which rely on the jurisdiction of state laws and regulation on the one hand, and objective 6.11 and implementing policies, which appear to extend wetland jurisdiction to all wetlands, including isolated wetlands not regulated by the Northwest Florida Water Management District. See County Ex. 1C, § 4, p. 6. The real issue involves isolated wetlands, which at the time of the EAR were not regulated by the Northwest Florida Water Management District. The EAR did not recommend a specific solution, but only to resolve any apparent "ambiguity." Through amendments to policy 6.11.3, which implements objective 6.11, the County reacted to the recommendation. These amendments clarify the Plan and provide that wetlands in the County will be subject to the Plan if they are also regulated by state and federal agencies. Any ambiguity as to the Plan's application to isolated wetlands was resolved by the adoption of new rules by the Northwest Florida Water Management District, which extend that entity's jurisdiction to isolated wetlands. See Fla. Admin. Code Ch. 62-346. This was confirmed by County witness Garlick, who explained that the Plan now defers to the wetland regulations of state and federal agencies. Therefore, any inconsistencies or ambiguities have been resolved. Petitioner contends that objective 6.2 and implementing policy 6.2.1 are inconsistent with statutes and a rule which require protection of natural resources because they focus on "significant" natural resources, and not all natural resources. With the exception of one minor change to the policy, the objective and policy were not amended, and the EAR did not recommend that either be revised. Also, testimony established that existing regulations are applied uniformly throughout the County, and not to selected habitat. Finally, the existing objective and related policies already protect rare and endangered species in the County. Objective 6.3 requires that the County "maintain or improve air quality levels." For the reasons cited in Finding of Fact 45, the objective is in compliance. Objective 6.5 requires the County to maintain or improve estuarine water quality consistent with state water quality standards, while policy 6.5.1 delineates the measures that the County will take to achieve that objective. See County Ex. 1A, Ch. 6, pp. 6-4 and 6-5. Except for one minor change to paragraph (3) of the policy (which is not in issue), neither provision was revised. Also, the EAR did not recommend any changes to either provision. Notwithstanding Petitioner's contention to the contrary, the County was not required to revise the objective or policy. Policy 6.5.2 requires that the County "protect seagrass beds in those areas under County jurisdiction" by implementing certain enforcement measures. County Ex. 1A, Ch. 6, p. 6-5. The policy was only amended in minor respects during the EAR process. Petitioner contends that the County failed to amend the policy, as required by the EAR, and this failure results in no protection to natural resources. However, the EAR only discusses the policy in the Issues section. See County Ex. 1C, § 2, p. 7. While the EAR emphasizes the importance of seagrass beds to marine and estuarine productivity, it has no recommended changes to the objective or policy. Even so, the County amended policy 6.5.2(5) by requiring the initiation of a seagrass monitoring program using Geographic Information System (GIS) mapping by 2012. See County Ex. 1A, Ch. 6, p. 6-6. It is at least fairly debatable that the objective and policy are in compliance. Objective 6.6 requires the County to "protect, conserve and appropriately use Outstanding Florida Waters, Class I waters and Class II waters." County Ex. 1A, Ch. 6, p. 6-6. Its purpose is to ensure the quality and safety of the County's primary drinking water supply. Id. The objective was not amended and remains unchanged since 1999. Except for a recommendation that the County give a land use designation to water bodies, there were no recommended changes for this objective or related policies in the EAR. Because land use designations are for land, and not water, the County logically did not assign a land use to any water bodies. Petitioner contends that the objective and related policies are not based on the best available data and analysis and are not measurable, and that they fail to protect Lake Powell, an Outstanding Florida Water, whose quality has been declining over the years. Because no changes were recommended, it was unnecessary to amend the objective and policies. Therefore, Petitioner's objections are misplaced. Notably, the Plan already contains provisions specifically directed to protecting Lake Powell. See, e.g., policy 6.6.1(1), which requires the County to specifically enforce LDRs for Lake Powell, and objective 6.21, which requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." County Ex. 1A, Ch. 6, pp. 6-6 and 6-24. Petitioner's expert also criticized the objective and related policies on the ground the County did not adequately identify karst areas in the region. However, nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to collect new data on the existence of karst areas. Petitioner also points out that objective 6.6 and policy 6.6.1 are designed to protect Deer Point Lake but were not amended, as required by the EAR, and they fail to adequately protect that water body. For the reasons expressed in Finding of Fact 55, this contention has been rejected. Objective 6.7, which was not amended, provides that the County "[c]onserve and manage natural resources on a systemwide basis rather than piecemeal." County Ex. 1A, Ch. 6, p. 6-8. Related policies, which were not amended except in one minor respect, require that the County implement programs in "Ecosystem Management Areas." These areas are illustrated on Map 6.1 of chapter 6. Petitioner contends that even though they were not amended, the objective and policies are not supported by adequate data and analysis, they fail to contain measurable standards, and they are not responsive to a recommendation in the EAR. Because no changes were made to these provisions, and the EAR does not recommend any specific changes, the contentions are rejected. The 17 water bodies comprising the Sand Hill Lakes are identified in policy 6.9.1. Policy 6.9.3, which also implements objective 6.9, continues the practice of prohibiting development with a density of greater than one unit per ten acres on land immediately adjacent to any of the Sand Hills Lakes outside designated Rural Communities. See County Ex. 1A, Ch. 6, p. 6- (The three Rural Communities in the County have been designated as a STZ and are described in FLUE policy 3.4.4.) The policy has been amended by adding new language providing that "[p]roposed developments not immediately adjacent to, but within 1320 feet of a Sand Hill Lake, and outside of a designated Rural Community, will provide, prior to approval, an analysis indicating that the development will not be too dense or intense to sustain the lake." Id. Other related policies are unchanged. The amendment was in response to a recommendation in the EAR that all goals, objectives, and policies be amended to more clearly define the area around the Sand Hill Lakes within which densities and intensities of land must be limited to ensure protection of the lakes. See County Ex. 1C, § 4, p. 6. Petitioner contends that the amended policy is inconsistent with various statutes and rules because it contains no specific standards for site suitability assessment and does not restrict density bordering on the lake; it does not implement the EAR; it is not based on EAR data and analysis; and it does not contain procedures for monitoring and evaluating the implementation of all policies. Policy 6.9.3 applies to agricultural areas outside of rural communities where the maximum density is now one dwelling unit per ten acres, and to properties that are designated as agriculture timber, which allows one dwelling unit per 20 acres. Contrary to Petitioner's assertion, it does not change the established densities on those land use categories. Before a property owner can convert a land use affected by the policy, the applicant will be required to provide an analysis that the new development will not be too intense or dense to sustain the lake. It is at least fairly debatable that the amendment responds to the EAR recommendation, that it will not increase density, that it is based on sufficient data and analysis in the EAR, and that adequate standards are contained in the policies to ensure proper implementation. Objective 6.11 requires the County to "[p]rotect and conserve wetlands and the natural functions of wetlands." County Ex. 1A, Ch. 6, p. 6-14. A challenge to an amendment to policy 6.11.3(3), which relates to setbacks or buffers for wetlands, has already been addressed in Case No. 10-0859GM. Policy 6.11.3 provides that in order "[t]o protect and ensure an overall no net loss of wetlands," the County will employ the measures described in paragraphs (1) through (6) of the policy. Petitioner contends that by using the standards employed by state and federal agencies for wetlands in paragraph (2), the County has abdicated its responsibility to protect natural resources. However, as previously discussed, the recent assumption of jurisdiction over isolated wetlands by the Northwest Florida Water Management District allows the County to extend these measures to all wetlands in the County. Petitioner also contends that the term "no net loss" in policy 6.11.3 is not measurable. Through its GIS system, though, the County can monitor any loss of wetlands. This was confirmed by County witness Garlick. In addition, the County will know at the development order phase whether any federal or state agency requires mitigation to offset impacts to wetlands. It is at least fairly debatable that the amendments to policy 6.11.3 will protect all wetlands, including isolated wetlands. Objective 6.12 requires that by the year 2012, the County will "develop a GIS layer that provides baseline information on the County's existing wetlands. This database will be predicated on the USFWS [United States Fish and Wildlife Service] National Wetlands Inventory (Cowardin et al 1979) hierarchy of coastal and inland (wetlands) represented in North Florida. This inventory shall be developed through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands." County Ex. 1A, Ch. 6, p. 6-15. Related policies 6.12.1, 6.12.2, and 6.12.3 require that the County (a) use the GIS database to identify, classify, and monitor wetlands; (b) adopt LDRs which further the objective and policies; and (c) track in the GIS database the dredge and fill permits issued by DEP. Id. Petitioner criticizes the County's decision to wait until 2012 to develop a GIS layer; contends that policy 6.12.2 improperly defers to LDRs; asserts that the policy lacks meaningful standards; and contends it is not responsive to the EAR. The evidence presented on these issues supports a finding that it is at least fairly debatable that the amendments are in compliance. The EAR-based amendments deleted objective 6.13, together with the underlying policies, which related to floodplains, and created new provisions on that subject in the Stormwater Management Sub-Element in Chapter 5E. This change was made because the County concluded that floodplain issues should more appropriately be located in the stormwater chapter. The natural resource values of floodplains are still protected by objective 5E-9 and related policies, which require that state water quality standards are maintained or improved through the County's stormwater management programs. See County Ex. 1A, Ch. 5E, p. 5E-7. Also, "flood zones" are retained as a listed "significant natural resource" in Conservation Element policy 6.2.1. See County Ex. 1A, Ch. 6, p. 6-3. It is at least fairly debatable that the transfer of the floodplain provisions to a new element does not diminish protection of that resource. Finally, Objective 6.21 (formerly numbered as 6.23) requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." Except for renumbering this objective, this provision was not amended, and there is no specific recommendation in the EAR that it be revised. Therefore, the contentions that the existing policy are not in compliance are not credited. Coastal Management Element - Chapter 7 The recommended changes for this element of the Plan are found on pages 7 and 8 of Section 4 of the EAR. In her Proposed Recommended Order, Petitioner contends that the entire element is inconsistent with section 163.3191(10) because the County did not follow the recommendations in items 1, 2, and 4. Those items generally recommended that the County update the data and analysis supporting the element to reflect current conditions for, among other things, impaired waters. This was done by the County. Accordingly, the County adequately responded to the recommendations. Petitioner also contends that policy 7.1.1 improperly deferred protection of coastal resources to the LDRs. The policy reads as follows: 7.1.1: Comply with development provisions established in the [LDRs] for The Coastal Planning Area (Chapter 10, Section 1003.2 of the Bay County [LDRs] adopted September 21, 2004) which is hereby defined as all land and water seaward of the landward section line of those sections of land and water areas seaward of the hurricane evacuation zone. County witness Crelling established, however, that there are numerous other policies in the element that govern the protection of natural resources. Petitioner contends that no changes were made to provide additional guidance in policy 7.2.1 (formerly numbered as 7.3.1) to improve estuarine water quality even though multiple water bodies are listed as impaired. Except for a few clarifying changes, no revisions were made to the policy. Policy 7.2.1 does not reduce the protection for impaired waters. The minor rewording of the policy makes clear that the protective measures enumerated in the policy "will be taken" by the County to maintain or improve estuarine water quality. It is fairly debatable that the element and new objectives and policies are in compliance. Petitioner contends that amended objective 7.2 (formerly numbered as 7.3) will lead to less protection of water quality. The objective requires the County to "[m]aintain or improve estuarine water quality by regulating such sources of pollution and constructing capital improvements to reduce or eliminate known pollutants." County Ex. 1A, Ch. 7, p. 7-2. Its purpose is to regulate all known potential sources of estuarine pollution. The evidence fails to establish that the amended objective will reduce the protection of water quality. Policy 7.3.1 was amended to delete the requirement that areas with significant dunes be identified and mapped and to provide instead that the County may impose special conditions on development in dune areas as a part of the development approval process. See County Ex. 1A, Ch. 7, p. 7-4. This change was made because the EAR recommended that a requirement to map and identify dune systems be deleted due to the "extremely dynamic nature of beach and dune systems." County Ex. 1C, § 4, p. 7. A similar provision in the Conservation Element was transferred to the Coastal Management Element to respond to the recommended change. The County adequately responded to the recommendation. Petitioner contends that amended policy 7.3.2 (formerly numbered as 7.4.1) does not include sufficient standards to protect significant dunes. The amended policy requires that where damage to dunes is unavoidable, the significant dunes must be restored and revegetated to at least predevelopment conditions. It is at least fairly debatable that the standards in the policy are sufficient to protect dunes. In summary, the evidence does not establish beyond fair debate that the revisions to chapter 7 are not in compliance. Housing Element - Chapter 8 Petitioner contends the entire element is inconsistent with section 163.3191(10) because the County failed to react to recommendations in the EAR; and that new objective 8.16 and related policies 8.16.1, 8.16.2, and 8.16.3 are inconsistent with section 163.3177(9)(e) and rules 9J-5.005(6) and (7) because they fail to identify how the provisions will be implemented and thus lack specific measurable objectives and procedures for monitoring, evaluating, and appraising implementation. Petitioner focused on item 4 in the Recommended Changes for the Housing Element. That recommendation reads as follows: 4. The revised data and analysis should also include a detailed analysis and recommendations regarding what constitutes affordable housing, the various state and federal programs available to assist in providing it; where it should be located to maximize utilization of existing schools, medical facilities, other supporting infrastructure, and employment centers taking into consideration the costs of real property; and what the likely demand will be through the planning horizon. The objectives and policies should then be revised consistent with the recommendation of the analysis, including the creation of additional incentives, identification on the Future Land Use Map of areas suited for affordable housing, and, possibly amending the County Land Development Regulations to require the provision of affordable housing if no other alternatives exist. County Ex. 1C, § 4, p. 8. Item 1 of the Recommended Changes states that "[t]he County should implement those policies within the Housing Element which proactively address affordable housing, and in particular Policy 8.15.1 outlining density bonuses, reduced fees, and streamlined permitting, to provide incentives for the development of affordable housing." Id. Policy 8.15.1 was amended to conform to this recommendation. The new objective and policies address incentives for the development of affordable housing. While item 4 is not specifically addressed, the new objective and policies address the County's housing concern as a whole, as described in the Recommended Changes. Also, the new objective and policies contain sufficient specificity to provide guidance to a user of the Plan. It is fairly debatable that the element as a whole, and the new objective and policies, are in compliance. Intergovernmental Coordination Element - Chapter 10 Although discussed in the Element Reviews portion of the EAR, there are no recommended changes for this element. See County Ex. 1C, § 3, pp. 1-5. Petitioner contends that because the County deleted objective 10.5, the entire element conflicts with the EAR recommendations, and it is inconsistent with two goals in the state comprehensive plan, sections 163.3177(6)(h)1. and (9)(b) and (h), and rules 9J-5.015 and 9J-5.013(2)(b)8. The deleted provision required the County to "establish countywide resource protection standards for the conservation of locally significant environmental resources." Besides deleting this objective, the County also deleted objective 10.1, which provided that the County "will take the lead role toward the creation of an 'intergovernmental forum' as a means to promote coordination between various jurisdictions and agencies." County Ex. 1A, Ch. 10, p. 10-1. To support her argument, Petitioner relies upon a concern in the Issues part of the EAR that states that "countywide resource protection standards have not been established" and that "consistency of regulation between jurisdictions" must be observed. See County Ex. 1C, § 2, p. 45. Mr. Jacobson, the County Planning and Zoning Director, pointed out that the County currently has numerous interlocal agreements with various municipalities and does not require authorization from the Plan to adopt these agreements. Objective 10.5 was deleted because the County cannot implement its regulations in the various municipalities, and protection of natural resources is addressed in other portions of the Plan. He also noted that the "intergovernmental forum" discussed in deleted objective 10-1 is not required by any statute or rule. It is at least fairly debatable that the element is in compliance and does not violate any statute or rule. (i) Capital Improvements Element - Chapter 11 Petitioner contends that the County failed to implement three recommended changes in the EAR and therefore the entire element is in violation of section 163.3191(10). Those recommendations include an updating of information on the County's current revenue streams, debts, commitments and contingencies, and other financial matters; a revision of policy 11.6.1 to be consistent with Recreation and Open Space Element policy 9.71 with regard to recreational levels of service (LOS); and the development of a five-year schedule of capital improvements. See County Ex. 1, § 4, p.9. Policy 11.6.1 has been substantially revised through the EAR process. Table 11.1 in the policy establishes new LOSs, including one for local parks, regional parks, and beach access points. The County has also adopted an updated five-year Capital Improvement Plan. See County Ex. 36. That exhibit includes a LOS Analysis for recreational services. The same exhibit contains a breakdown of financial matters related to capital improvements. It is fairly debatable that the element is in compliance. Petitioner also contends that objective 11.1 and policy 11.1.1 are not in compliance. Both provisions remain unchanged from the 1999 Plan, and the EAR did not recommend that either provision be amended. The contention is therefore rejected. Other Issues All other issues not specifically addressed herein have been considered and found to be without merit, contrary to the more persuasive evidence, or not subject to a challenge in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the EAR-based amendments adopted by Ordinance No. 09-36 are in compliance. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 30th day of June, 2011.
The Issue The central issue in this case is whether Petitioner's request to modify permit no. 5601095728 should be approved or denied.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Petitioner, William Schulman, as trustee, is the owner of a parcel of real property consisting of approximately ten acres located on Hutchinson Island in St. Lucie County, Florida. On July 3, 1986, Petitioner was issued permit no. 5601095728 and became authorized to fill 1.5 acres of impacted wetlands in accordance with specifications and drawings which had been approved by the Department. Petitioner was required to provide mitigation in connection with the permit which included: the installation of culverts to allow tidal circulation to adjacent wetlands; scraping down a .5 acre area and planting smooth cordgrass; and dredging an area approximately sixty feet wide to allow an access to the Indian River. Petitioner has performed the above-described mitigation. The permit also required Petitioner to execute and record a Conservation Easement which included the .5 acre to be scraped and planted with cordgrass. This easement has not been recorded in accordance with the permit guidelines. Instead, Petitioner sought to modify the permit to allow an additional 1.5 - 2.0 acres to be filled. This proposed area encompassed the smooth cordgrass and an area of mangroves which were to be part of the conservation easement. By letter dated July 10, 1987, Petitioner provided drawings to the Department to further identify the area subject to the requested modification. The proposed modification would result in the permanent loss of white mangrove and cordgrass marsh. This marsh is connected to Class II waters (Indian River) via the dredged opening described in paragraph 2. Petitioner's ten acre parcel is bounded to the north by the platted Windmill Village subdivision; to the east is a commercial area which fronts on SR A-1-A; to the southwest of the property is a diked area known as Impoundment 12; to the west is a man-made lake referred to as "Black's Lake" at the hearing; and further to the west is the Indian River. As part of the original mitigation, Petitioner dredged a sixty foot opening connecting Black's Lake to the Indian River. The culverts required by the original mitigation connected Black's Lake to Impoundment 12, Petitioner's parcel to Black's Lake, and Impoundment 12 to the Indian River. As mitigation for the modification sought, Petitioner has proposed to provide four additional culverts to connect Impoundment 12 with Black's Lake. The record in this cause is unclear as to the present ownership of Impoundment Further, no owner has given consent to the proposed installation of additional culverts. The mitigation proposed for Impoundment 12 is not on Petitioner's property. As additional mitigation for the modification, Petitioner has proposed to provide two culverts which would connect a ditch on Petitioner's property to Black's Lake. On September 4, 1987, Petitioner provided materials from the St. Lucie County Mosquito Control District to the Department in support of the requested modification. The information suggested that with the installation of additional culverts, the tidal activity within Impoundment 12 would be improved and would thereby eliminate most of the mosquito breeding within that area. On October 14, 1987, the Department notified Petitioner of its intent to deny the modification to permit no. 5601095728. Thereafter, Petitioner timely filed for a formal review and these proceedings resulted. By stipulation, the parties agreed that the Department has jurisdiction of the project and the proposed modification to the permit. The proposed mitigation seeks to increase tidal exchange within Impoundment 12. Petitioner has not offered evidence to illustrate how the mitigation would directly benefit Petitioner's property. The tidal replication in Black's Lake is approximately 90 percent of that within the Indian River. The tidal replication within Impoundment 12 is approximately 60 percent of that within Black's Lake. Petitioner anticipates that the addition of culverts connecting Black's Lake to Impoundment 12 would increase the tidal exchange to the impoundment. Impoundment 12 consists of approximately 120 acres. Due to a dike which divides the property, only 80 + or - acres would be affected by the proposed mitigation. To effect 100 percent tidal replication within Impoundment 12 the dike separating it from the Indian River to the west would have to be removed. Since that solution is highly unlikely, authorities have sought to achieve tidal exchange via 40' culverts which are 30 inches in diameter and which have been placed to breech the dikes surrounding the impoundment. The most desirable locations for these culverts would be directly connecting Impoundment 12 to the river. That is not Petitioner's proposal. Petitioner proposes to connect Impoundment 12 with additional culverts to Black's Lake. The opening to the river from the lake would not be increased. Consequently, it is unlikely the replication within the lake will increase. The sole objective of Petitioner's proposed mitigation would simply cause more water to tidally flow from the lake to Impoundment 12. Increased flow to Impoundment 12 would enhance the likelihood of achieving tidal inundation which would make mosquito breeding less frequent. While it is expected that the Mosquito Control District would have to continue applying larvicide to Impoundment 12, its use may be less often. Optimally, tidal inundation would occur at least once a week. Currently, Impoundment 12 receives this desired inundation only during the fall season when the waters are high enough to flood the remote areas. Increasing the number of culverts would also increase the points of access and would allow the water to move more slowly through the openings. While there is no evidence to establish the locations for the placement of the proposed culverts, in theory, the placement would be to maximize the tidal exchange. A slower exchange through the culverts would benefit organisms moving through the system. The slower rate would also enhance the use of the passages by fish. To be lost by the modification are .5 acre of smooth cordgrass and 1.25 - 1.50 acres of mature, functioning mangroves. The mangroves are predominantly of the white variety with some reds scattered. They are approximately 20 feet in height. If allowed to remain undeveloped, it is anticipated that the cordgrass area will aid in the recruitment of additional mangroves. Mangroves provide several benefits to estuarine systems. The leaf litter is a primary source of food for organisms in the lower end of the food chain such as fish and crabs. Fish, birds and mammals use mangroves for cover from predators. Birds also use the mangroves for perching and nesting and feed on insects and crabs associated with the trees. Mangroves in Impoundment 12 and the Petitioner's property (which will be lost by the modification) currently provide these benefits. It has not been demonstrated that the increased tidal flow to Impoundment 12 will quantitatively improve the benefits offered by mangroves to the existing system. Smooth cordgrass is a food source for birds, fish and mammals. Not only do organisms feed on the cordgrass, but they also feed on the leaves and seeds of the associated growth of spike rush and fungus. Mammals use the cordgrass for cover and some birds nest there. The following listed birds have been identified on Petitioner's property and Impoundment 12: snowy egret and little blue heron, which are species of local concern, and the brown pelican which is on the federal list of endangered species. Also observed at the location was the roseate spoonbill. Mammals identified on the Petitioner's property included raccoon, marsh rabbit and rat. The loss of the Petitioner's mangroves and cordgrass will decrease the habitat area currently used by mammals, fish and birds. Moreover, the mangrove population on Hutchinson Island is on the decline. Wetland areas have been decreasing due to development over the last 20 years. Numerous dredge and fill projects previously permitted by the Department have allowed filling of mangrove areas. Fish currently inhabiting the area which are expected to be adversely affected by the loss of the mangroves and ditch area include: snook (a species of special concern), tarpon, mojarra, and striped mullet. The increased water flow to Impoundment 12 does not offset this loss. Windmill Village By The Sea Homeowners Association, Inc., is a nonprofit corporation consisting of property owners occupying approximately 46 duplexes to the north of Petitioner's property. The 13 individual intervenors (Sophie Holler, Jackson and Mildred Gray, Terry and Norine Young, Einer Nielsen, Richard and Alphild Chase, Jack and Pat Donohue, and Robert and Lynn Chandler) are homeowners on Aqua Ra Drive north of and contiguous to Petitioner's property.
The Issue At issue in this proceeding is whether a development order (building permit) issued by Monroe County to John and Alice Scott, Owners, and Hugh E. Rhodus, General Contractor, for the construction of a vertical seawall/dock on Lots 31 and 32, White Marlin Beach subdivision, Matecumbe Key, Monroe County, Florida, is consistent with the Monroe County Comprehensive Plan and land development regulations.
Findings Of Fact The Property Respondents John and Alice Scott are the owners of two canal front lots known as Lots 31 and 32, White Marlin Beach subdivision, Matecumbe Key, Monroe County, Florida. Lots 31 and 32 were acquired in 1968 and 1970 and are undeveloped. The subject lots are in incorporated Monroe County, Florida, and are zoned Improved Subdivision (IS). The Scotts reside on a third lot facing the bay that is across the street from the subject lots. Respondents' lots are within the Florida Keys Area of Critical State Concern. The land where the White Marlin Beach subdivision is located was at one time all mangroves and other trees. The subdivision was created in 1955-56 by means of dredge and fill activities. During the late 1960s and early 1970s, the shorelines of Lots 31 and 32 were even with an existing bulkhead on an adjacent lot. Very small mangroves were beginning to revegetate the shorelines. By 1979-1980, some shoreline erosion had occurred on the lots, estimated at 5-6 feet. At some unknown time thereafter, additional shoreline erosion occurred, estimated at its greatest point to be approximately 10 feet from the original platted fill line. At the time the permit application was considered and at the time of the hearing, the revegetated mangroves had grown into a substantial fringe of high complexity, running the entire 117-foot length of the two lots and varying from 5 to 15 feet in width. Some of the trees are as tall as 12 feet. The area in which the mangroves have revegetated slopes gently toward the canal. It constitutes a shallow water habitat which, in addition to the mangrove vegetation, supports crabs, juvenile fish, algae, and seagrasses. The expert witnesses of both Petitioner and Respondent testified that the mature mangrove fringe on the two lots has stabilized the land area adjacent to the canal. Landward of the mangrove fringe, the lots are comprised of unconsolidated sand used to create the lots. The edges of the fill material form a gentle slope from as low as six inches up to 24 inches at one extreme. Upland erosion is occurring along the edge of the unconsolidated fill, washing down the slope of the fill into the mangroves. Erosion of the edges of upland fill is a common occurrence in the Florida Keys. 10 The unconsolidated fill material where the erosion is occurring constitutes the uplands portion of the lots and is caused by weather events (wind and rain), rather than by tidal or wave action. There is active boating traffic on the subject canal; many large commercial and pleasure boats use the canal. Marine fuel and supplies are sold at Angelo's. There is a commercial fishing "village" located at and around Angelo's. To reach open water, i.e., the Gulf bay, boats must pass lots 31 and 32 after leaving Angelo's. Most of the other lots on the same canal as lots 31 and 32 are primarily protected by seawalls. The Scotts, under the subject seawall permit, are seeking to tie in to the adjoining seawall for consistency in community character and appearance. The adjoining property owners and many of the neighboring property owners want the mangroves removed and a seawall built to protect lots 31 and 32. Permit Application and Issuance On March 11, 1992, the Scotts applied to Monroe County for a permit to construct a seawall on Lots 31 and 32, White Marlin Beach subdivision. The Scotts' seawall permit application was denied by Pat McNeese, the Monroe County Environmental Resources Director, based upon her conclusion that erosion was not occurring on the lots and thus a seawall was not allowed under the Monroe County land development regulations. The Scotts appealed Ms. McNeese's decision to the Monroe County Planning Commission. As part of their evidence, Respondents offered a certified land survey conducted on November 1, 1992, which shows that the approximate shoreline of the property is at its greatest point roughly 10 feet landward of the platted shoreline. After hearing, the Planning Commission upheld Ms. McNeese's decision to deny the permit. The Scotts then appealed the Planning Commission's decision to the Monroe County Board of County Commissioners. The Board overturned the Planning Commission. The Board found that the Scotts are entitled to a permit to develop a seawall for erosion control under the provisions of Section 9.5-345(m)(2)(b), Monroe County Code. On April 19, 1993, Monroe County issued building permit number 9230005939 which is the subject of this proceeding. The permit was rendered to the Department on April 21, 1994, and was appealed by the Department 45 days thereafter. Monroe County Comprehensive Plan and Land Development Regulations The Monroe County Comprehensive Plan contains various policies directed toward preservation or conservation of the Keys environment and maintenance of water quality. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, states, in part, that: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique, oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land uses that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitats of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated Aquatic Preserves under Ch. 253.39 et seq. the [sic] Florida Statutes. The Monroe County Comprehensive Plan, Volume II, Sec. 2-115 entitled "Enforcement" provides: A major component of any future land use element is the need to strictly enforce implementing regulations. If Monroe County is to achieve the promise of this Plan, it is essential that all persons involved in the land development process adhere to the requirement of this Plan and that the integrity of the development review process be protected. The Monroe County Comprehensive Plan, Future Land Use Element, Volume II, Natural Vegetation Management Policies provides: In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations to minimize destruction of natural vegetation and modification of landscape. Guidelines and performance standards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. * * * 3. Regulations controlling development in areas characterized primarily by wetland vegetative species such as mangrove and associated vegetation will emphasize preservation of natural vegetation to the maximum degree possible. * * * 8. The existing County ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. * * * Of all the natural landforms and features which must be given due consideration in their protection, protection of the shoreline is of prime concern. . . . Chapter VII, Coastal Zone Protection Element, Marine Resources Management Policies section, Future Land Use Element, Monroe County Comprehensive Plan, Volume II, states that: Recognizing the crucial role that the marine environment plays in the local economy, the protection, conservation, and management of marine resources will be viewed as an issue requiring the County's utmost attention. In an effort to protect and conserve marine resources, emphasis will be placed on protecting the entire marine eco-system. 1.2. To this end, maintenance of water quality; protection of marine flora and fauna, including shoreline vegetation; and preservation of coral reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system. Utilization of marine resources will be judged sound or unsound from the standpoint of whether or not a permitted use insures conservation and long-term maintenance of the resource. * * * Land and water activities which are incompa- tible with the preservation of marine resources because of their potential adverse effects will be prohibited, restricted, or carefully regulated depending upon the nature of the activity and the extent of potential impact. Development of bulkheads (the vertical component of a seawall) is characterized in the Monroe County Comprehensive Plan as "shoreline modification" and is addressed in Volume II as follows: Shoreline Modification Shoreline generally requires some degree of modification before it can be utilized for development of any sort. But such modification, unless carefully planned, can have adverse effects far beyond the area directly altered for development. For this reason, all shoreline modifications are subject to close scrutiny and regulation by local, State and Federal agencies. The following guidelines should be used at the local level to minimize the impact of shoreline modifications of different types. Bulkheads and Bulkhead Lines Bulkhead lines should be set at, or landward of, the mean high water line or the landward boundary of the shoreline protection zone, which- ever is applicable. Where possible, sloping rip-rap structures and coastal vegetation should be used rather than vertical seawalls. The Monroe County land development regulations provide in pertinent part: Sec. 9.5-288. Bulkheads, seawalls, riprap and fences. Bulkheads, seawalls, riprap and fences may be allowed as principal uses where it is demonstrated that their purpose is for erosion protection or upland protection (except for the Big Pine Area of Critical County Concern). Seawalls, in any configuration to include integral steps, ladders, platforms, quays, wharfs, and integral docks landward of seawalls, are permitted, with or without a principal building, in all land use districts for the purpose of erosion control. . . . Riprap placement is permitted without a principal structure for erosion control. * * * Sec. 9.5-335. Purpose of environmental perform- ance standards. It is the purpose of this division to provide for the conservation and protection of the environmental resources of the Florida Keys by ensuring that the functional integrity of natural areas is protected when land is developed. * * * Sec. 9.5-345. Environmental design criteria. (m) Mangroves and Submerged Lands: Except as provided in paragraph (3), only piers, docks, utility pilings and walkways shall be permitted on mangroves and submerged lands; All structures on any submerged lands and mangroves shall be designed, located and constructed such that: All structures shall be constructed on pilings or other supports; Bulkheads and seawalls shall be permitted only to stabilize disturbed shorelines or to replace deteriorated existing bulkheads and seawalls; * * * d. No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; No fill shall be permitted in any natural water body; No fill shall be permitted in any manmade water body unless the applicant demonstrates that the activity will not have a significant adverse impact on natural marine communities. * * * Sec. 9.5-4. Definitions. (W-1) Water at least four (4) feet below mean sea level at mean low tide means locations that will not have a significant adverse impact on off- shore resources of particular importance. For the purpose of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet and all designated aquatic preserves under Florida Statutes section 258.39 et seq. The land development regulations must be implemented in a manner consistent with the Monroe County Comprehensive Plan. Seawall The shoreline is generally the area between mean high water and mean low water. For regulatory purposes, the "shoreline" is considered to be mean high water. While a seawall will protect shoreline property, there are negative impacts associated with development of seawalls which merit consideration. In this case, development of the permitted seawall would involve elimination of the existing mature mangrove fringe, which filters upland runoff, and filling in the shelf, including submerged lands, which provides habitat for juvenile fish, crabs and algae. Water quality in the White Marlin Beach canals will deteriorate as additional seawalls are constructed. Wave force is increased as waves bounce off one seawall and then another, which in turn brings up sediments which may contain pollutants. Increased wave force also draws sediments out from under existing bulkheads, causing or contributing to their deterioration and adding to the suspended sediments in the canal. Riprap and coastal vegetation absorb rather than intensify wave energy. While some amount of shoreline erosion occurred on Lots 31 and 32 during the 1970s and at some time thereafter, the shorelines on Lots 31 and 32 are now stabilized by the existing mangrove fringe. Since the shorelines of Lots 31 and 32 are not presently eroding, that portion of the permit which authorizes the removal of the shoreline vegetation and development of a vertical seawall is not consistent with the Monroe County land development regulations. Rip-Rap Even if shoreline erosion were occurring, a seawall or bulkhead to stabilize the shoreline would still not be authorized under the Monroe County Comprehensive Plan and land development regulations. The shoreline on Lots 31 and 32 is gently sloping, with only about 1-1/2 feet of silt over the bedrock within the mangrove fringe. Rip-rap would be feasible on Lots 31 and 32 if shoreline erosion were to be currently taking place. Upland Erosion The Scotts are experiencing some erosion on the edges of the upland fill on Lots 31 and 32, caused by wind, rain, digging crabs, and the spreading roots of mangrove trees. Such erosion on the edges of upland fill is common in the Florida Keys. Construction of a vertical seawall, which is a shoreline stabilization technique, is not appropriate to address an upland erosion problem. Erosion of upland fill material is commonly addressed by use of a retaining wall landward of the shoreline. Development of a retaining wall on Lots 31 and 32 would not necessitate removal of the existing shoreline vegetation and placement of fill on submerged lands as authorized under the subject permit. Fill Behind Seawall The plans approved with the subject permit authorize the placement of fill behind the seawall. A portion of the proposed fill would be placed below mean high water on submerged lands. Section 9.5-345(m)(2)(4), Monroe County Code, prohibits the placement of fill in a manmade water body unless the applicant demonstrates that the activity will not have a significant adverse impact on natural marine communities. The mangrove community and submerged shelf that exist on lots 31 and 32 are natural marine communities. The permanent obliteration of the shoreline vegetation and elimination of the submerged lands that presently exist on Lots 31 and 32 would be a significant adverse impact on natural marine communities. Accordingly, the placement of fill on the submerged lands on Lots 31 and 32 is not authorized under the Monroe County land development regulations. Docks Section 9.5-345(m)(2)(d), Monroe County Code, requires that docking facilities be developed only where a water depth of at least minus four feet mean low water (-4 MLW) exists. The plans approved under the subject permit show a water depth of zero (0) feet MLW at the waterward extent of the proposed seawall/dock. The Scotts' intention is to align the seawall spanning Lots 31 and 32 with a seawall on an adjacent lot. Water depth in that approximate location, which differs from the approved site plan and is therefore not authorized by the permit, is 1.6 feet at low tide. There is not adequate water depth at the waterward side of the proposed seawall/dock, as shown either on the approved plan or as described in testimony, to accommodate a docking facility on Lots 31 and 32. Further, because the dock has a vertical seawall component, it is not designed to be constructed on pilings or other supports, as required by Section 9.5-345(m)(2)(a), Monroe County Code. Accessory Use The Monroe County land development regulations define an accessory use or structure as a use or structure that serves a principal use and is located on the same lot or lots under the same ownership and in the same land use district as the principal use or structure. The regulation specifically prohibits the establishment of an accessory use prior to the principal use to which it is accessory. Accessory uses are generally regulated based upon whether the accessory use is located on the same property as the principal use. Under the County definition of accessory use, when dealing with a single lot, the principal use must be established first. The reference to the plural "lots" accommodates larger projects which typically encompass more than one lot, such as hotels and multifamily projects. It would also encompass an individual's residence where the lots were aggregated for development. The intent of the regulation is not to restrict the accessory uses to any one of those individual lots, but to recognize that the accessory use can also extend and cover all of the lots where the principal use is located. The regulation was adopted to cure an ongoing problem in the Keys of speculative development where shoreline improvements were developed without the establishment of principal uses to increase the value of saleable lots. In this case, the principal use (the Scotts' residence) is not located on either of the two lots for which the permit was issued. To allow development of those properties prior to the establishment of principal uses on them would be inconsistent with the Monroe County land development regulation and the purpose for which it was adopted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying permission to develop the vertical seawall/dock authorized under Monroe County building permit number 9230005939 and denying all other relief requested by the Respondents. It is further recommended that such final order specify those items set forth in paragraphs 45 and 46, Conclusions of Law, as changes in design and circumstances necessary to enable the Scotts to obtain a permit to stabilize the upland fill on the lots and entitle them to a permit or permits for docking facilities. DONE AND ENTERED this 14th day of October 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October 1994. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by the Petitioner: With the one exception mentioned immediately below, all proposed findings of fact submitted by the Petitioner have been accepted, with occasional editorial modifications in the interest of clarity and accuracy. The one exception is paragraph 25, which was rejected as unnecessary repetition or summary of findings already made. Findings proposed by the Respondents: Paragraph 1: Accepted in substance. Paragraph 2: Rejected as subordinate and unnecessary details in view of the de novo nature of this proceeding. Paragraphs 3, 4, 5, 6, 7, 8, 9, and 10: Accepted in substance. Paragraph 11: Rejected as contrary to the greater weight of the evidence. (There is conflicting evidence on this subject. The testimony of the Petitioner's witnesses is found to be more persuasive than the version put forth by the Respondents' witnesses.) Paragraph 12: Accepted in substance. Paragraphs 13 and 14: Rejected as subordinate and unnecessary details. Paragraphs 15 and 16: Both of these paragraphs are rejected as too overly broad and imprecise to be meaningful in the context of the issues in this proceeding. More precise and detailed findings have been made regarding the nature of past and current erosion on the subject property. Paragraph 17: Rejected as too narrow a statement to be accurate. As noted in the findings of fact, other factors are contributing to the upland erosion. Paragraph 18: Rejected as not supported by persuasive competent substantial evidence. Although there is some testimony along the general lines of what is proposed in this paragraph, that testimony appears to be more nearly hyperbole than hard science. Paragraph 19: Rejected as consisting primarily of argument, rather than proposed findings of fact. Further, the last sentence of this paragraph is a conclusion that is contrary to the greater weight of the evidence. Paragraph 20: Rejected as consisting primarily of argument and proposed conclusions of law, rather than proposed findings of fact. Paragraph 21: First two sentences rejected as subordinate and unnecessary details in view of the requirements of the Monroe County Comprehensive Plan and land development regulations. Last sentence rejected as constituting a conclusion that is contrary to the greater weight of the evidence. Paragraph 22: Rejected in part as not fully supported by persuasive competent substantial evidence and in part as irrelevant. (The water being too shallow, it does not particularly matter why it is too shallow.) Paragraph 23: Rejected as subordinate and unnecessary details in view of the requirements of the Monroe County Comprehensive Plan and land development regulations. Paragraph 24: Accepted in substance with some editorial language omitted. Paragraphs 25 and 26: Rejected as constituting conclusions that are contrary to the greater weight of the evidence. COPIES FURNISHED: Sherry A. Spiers Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Carol A. Scott, Esquire KUBICKI, DRAPER, GALLAGHER & MCGRANE, P.A. 1200 City National Bank Building 25 West Flagler Street Miami, Florida 33130 James T. Hendrick, Esquire 617 Whitehead Street Key West, Florida 33040 David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission 311 Carlton Building Tallahassee, Florida 32301
The Issue The issues in this case are: (1) whether Respondent, the Department of Environmental Protection (DEP) should grant the applications of Petitioner, John Rondolino, for an Environmental Resource Permit (ERP) and a Sovereign Lands Consent of Use for a proposed single-family dock on his property on the Rainbow River in near Dunnellon in Marion County, Florida; and (2) whether the landward extent of DEP's wetlands jurisdiction on Petitioner's property should be determined in this proceeding and, if so, the landward extent of those jurisdictional wetlands.
Findings Of Fact Procedural Background On February 23, 2000, DEP received an anonymous complaint regarding the clearing and filling of a parcel of property that was subsequently purchased by Petitioner, John Rondolino. Petitioner's property is Parcel Number 34581-001-02, Section 18, Township 16S, Range 19E, Marion County, 7069 South West 190th Avenue Road Extension, Dunnellon, Florida 34432-2827. Comprising approximately 1.159 acres, the pie-shaped parcel is located adjacent to the Rainbow River, which is a Class III Outstanding Florida Water and an Aquatic Preserve. As a result of the anonymous complaint, DEP inspected the site on February 24, 2000, and determined that a fill violation of Chapter 373, Part IV, Florida Statutes, had occurred. During this inspection, DEP delineated an informal wetland jurisdictional line such that approximately 0.47 acre of the property nearest the river was claimed as state jurisdictional wetlands. On March 29, 2000, Petitioner purchased the property upon which the alleged fill violation had occurred. On May 4, 2000, Petitioner and his wife met with DEP staff and indicated that he wanted to construct a structure for water-related activities (SFWRA)(a single-family dock) and make other improvements to the property. During this meeting, Petitioner challenged DEP's informal wetland jurisdictional line. At Petitioner's request, DEP delineated a second informal wetland jurisdictional line on May 23, 2000. The second delineation was somewhat different than the first but still included approximately the same amount of Petitioner's land within the state's jurisdictional wetlands. In discussion with DEP, Petitioner was informed that, in order to construct a SFWRA and make other improvements within the jurisdictional wetlands, he had to submit an application in accordance with Florida Administrative Code Rule 18-20.007 and Chapter 373, Florida Statutes1. It was recommended that, although Petitioner only wanted to build a single-family dock at the time, he might want to apply for all of the activities planned for the future in a single application. Petitioner was concerned that such an application might lead to expenditures which he did not want to incur at the time. During the summer of 2000, Petitioner consulted the Fowler, White law firm and, after approximately two months, had confirmed to him that it would be best for him to file a single application for all the activities Petitioner planned whether now or in the future. Petitioner authorized the law firm to prepare and file such an application. Petitioner's application was submitted in December 2000, and the law firm sent Petitioner a bill for $2,200 for legal services rendered. The application itself was not placed in evidence, but it was possible to infer some of its content from other evidence. DEP responded to Petitioner's application in January 2001 with a Request for Additional Information (RAI). When Petitioner consulted Fowler, White about a response to the RAI, he was informed that it would require another $15,000 to $20,000 of attorney fees and $25,000 to $30,000 of other professional fees to respond and prosecute the application to completion. In response, Petitioner terminated the relationship with Fowler, White and advised DEP to communicate only with him. Petitioner then responded to the RAI himself by letter dated February 22, 2001. He advised DEP that, in view of the costs associated with aspects of his application other than the proposed dock, as well as other factors, he was "withdrawing that portion of our permit application that deals with filling those portions of the property the DEP has delineated as a wetland." However, he continued to dispute the informal jurisdictional wetlands delineation, notifying DEP that he was "refuting the wetland delineation on the basis of section 62-340.550, F.A.C." and was "requesting in writing what would be considered by the DEP as sufficient hydrologic records or site specific hydrologic data of such a duration, frequency, and accuracy to demonstrate that the records or data are representative of the long-term hydrologic conditions, including the variability in quantity and seasonality of rainfall." (Emphasis in original letter.) If there was no such information available, Petitioner requested a meeting or an agreement "to outline the terms of study, including data collection, the specific model, model development and calibration, and model verification as stated in said section 62- 340.550, F.A.C." As for his proposed dock, Petitioner responded separately that he could not provide the requested information until DEP advised him if the proposed dock was in a Resource Protection Area (RPA) 1, 2, or 3. While DEP was preparing a reply to Petitioner's response to the RAI, Petitioner sent DEP several more letters in the succeeding months. Among other things, these letters repeated Petitioner's request for advice as to the RPA status of the location of his proposed dock. Also, by letter dated March 26, 2001, Petitioner made clear that he was not requesting, and refused to agree to, a formal delineation of the jurisdictional wetlands on his property; and yet by letter dated April 30, 2001, Petitioner informed DEP that he was still waiting for a response to his request to challenge DEP's jurisdictional wetland delineation under Rule 62-340.550. As Petitioner's letters kept coming in, DEP never finalized its reply, and Petitioner did not receive a response to his request until May 2001. One draft of a reply stated that DEP would involve its Wetland Evaluation and Delineation section in Tallahassee to assist in the disputed wetlands delineation on Petitioner's property at no cost to Petitioner and would have directed Petitioner to John Tobe, Ph.D., of that office "for more information regarding hydrologic records and site specific hydrologic data necessary to refute the Department's wetland delineation pursuant to 62-340.550, F.A.C." But this letter apparently never was finalized or sent, and there was no evidence that the information in the draft letter ever was imparted to Petitioner. On May 9, 2001, DEP sent Petitioner a letter preliminarily evaluating his application. Notwithstanding Petitioner's attempt to delete portions of the application dealing with fill of delineated wetlands, the evaluation addressed the entire application and presumed that proposed dredge and fill activities would occur in jurisdictional wetlands. As for the proposed dock, DEP's preliminary evaluation notified Petitioner: that it extended more than 20 percent of the width of the river at that location, contrary to Rule 18- 20.004(5)(a)1; that the proposed terminal platform was 225 square feet, contrary to Rule 18-20.004(5)(b)6; and that it extended out from the shoreline to a depth greater than -4 feet, contrary to Rule 18-20.004(5)(b)3. (None of these citations refers to special requirements for docks in an RPA.) DEP then suggested, based on "a thorough evaluation of the project location," how Petitioner could amend his application to cure those defects, including for Petitioner's use a scaled drawing of a proposed dock alignment in relation to a large bed of paspaladium geminatum (also known as knot grass or Egyptian paspaladium) (RPA 1) and some disturbed knot grass (RPA 2) determined by DEP to exist in the river at the project location. In response, Petitioner wrote DEP a letter dated May 21, 2001, stating that DEP's preliminary evaluation ignored prior correspondence amending Petitioner's proposed dock application which Petitioner said cured the very defects cited in the preliminary evaluation. (None of this alleged previous correspondence was placed in evidence or, except as discussed in Petitioner's letter dated May 21, 2001, referenced in other testimony or evidence.) Petitioner's letter then attached a drawing of the amended proposed dock and repeated the substance of the alleged prior amendments to the dock application: reduction of the length of the dock to 40 feet from the waters edge, terminating in water -3 feet deep, to comply with Rule 18- 20.004(5)(a)1 and Rule 18-20.004(5)(b)3; and reduction of the size of the terminal platform to 160 square feet to comply with Rule 18-20.004(5)(b)6 (although the exact dimensions of the terminal platform were left undetermined, and it appeared from the attached drawing that the 160 square foot terminal platform was alongside the end of the access pier). Petitioner's letter dated May 21, 2001, acknowledged that DEP's proposed alternative alignment and dock structure was designed to avoid the RPA 1 and RPA 2 knot grass beds determined by DEP to exist at the project location. But Petitioner pointed out that under DEP's proposed alignment mooring pilings would have to be eliminated from Petitioner's project, or else they either would encroach into the 25-foot setback from the downriver neighbor's riparian line or the dock structure would have to be moved further upriver, which would place it directly over the knot grass bed. Petitioner's letter dated May 21, 2001, also acknowledged that DEP's drawing depicted the area where Petitioner proposed to place the dock as covered with RPA 1 and RPA 2 knot grass. However, Petitioner's letter disputed the accuracy of DEP's depiction, maintaining that "the area described . . . as 'disturbed emergent grassbed' in fact is an area where the weeds have begun to encroach into the existing access channel and cut off access to the property." On June 4, 2001, DEP issued a Consolidated Notice of Denial. Despite Petitioner's attempt to delete portions of his application dealing with fill of delineated wetlands, the Consolidated Notice of Denial addressed and denied Petitioner's original application in its entirety. In so doing, it also addressed at length Petitioner's position that his proposed fill activities were planned to take place in areas upland of and outside DEP's jurisdictional wetlands and that no ERP was required. In response to DEP's Consolidated Notice of Denial, Petitioner requested an administrative proceeding. During the course of this proceeding, Petitioner has made it clear that he has deleted portions of his application dealing with fill of delineated wetlands, leaving only the application for an ERP and consent of use for his proposed dock. However, he also seeks a determination that DEP's jurisdictional wetlands do not extend landward to the areas Petitioner plans to fill. Jurisdictional Wetlands Delineation DEP's first informal jurisdictional wetlands delineation on February 24, 2000, was performed by Blake Meinecke and Brad Rosenblatt. Both had experience performing jurisdictional wetland delineations for DEP. At the time, Meinecke had been a DEP employee for three years; Rosenblatt had been with DEP for about a year and a half. They walked the property, took photographs, took some soil samples, made field notes, and placed seven flags on the property signifying the landward extent of jurisdictional wetlands at those points. They connected the flags to delineate a jurisdictional wetlands boundary line. The field notes and jurisdictional wetlands boundary delineation indicated that the first flag was placed three feet from the downriver property line and 145 feet landward of the river shoreline; the second flag was placed 28 feet upriver from the first flag and 149 feet from the river shoreline; the third flag was placed 53 feet upriver from the second flag and 113 feet from the river shoreline; the fourth flag was placed 75 feet upriver from the third flag and 97 feet from the river shoreline; the fifth flag was placed 102 feet upriver from the fourth flag and 92 feet from the river shoreline; the sixth flag was placed 121 feet upriver from the fifth flag and 108 feet from the river shoreline; and the seventh flag was placed 147 feet upriver from the sixth flag and 111 feet from the river shoreline. It is not clear from those documents whether the seventh flag was placed directly on Petitioner's upstream property line or at some distance inside the property line. The field notes suggested the presence of two sweet gum trees near the landward extent of the jurisdictional wetlands in the vicinity of the second flag, a bay tree within the jurisdictional wetlands closer to the river between the second and third flags, four bay trees2 within the jurisdictional wetlands at approximately the same distance from the river between the fourth and sixth flags, and bay trees and "osmunda" within the jurisdictional wetlands between the sixth and seventh flags. An Enforcement Inspection Report prepared in connection with the informal wetlands delineation added more specifics, indicating the presence of Magnolia virginianica [sic],3 Liquidambar sturaciflua [sic], Acer rubrum, and Osmunda regalis. It also indicated the presence of "[v]egetated tussocks/hummocks," which were referred to as "hydrologic indicators," and a "[m]ucky modified mineral layer present, greater than 2' [sic] within the first 6 inches." The photographs depicted mucky soils near the river shoreline; it is not clear from the photographs how far landward the obviously mucky soils extend. DEP's second informal jurisdictional wetlands delineation on May 23, 2000, was performed by Allen Shuey, who has 16 years of experience doing and teaching jurisdictional wetlands delineations for DEP and its predecessor agency, assisted by Blake Meinecke. Shuey first re-staked the flags in the positions indicated in the first informal delineation and took soil samples. First, samples were taken in areas where confirmation of muck soils appeared likely. Then soil samples were taken in sandier-looking places farther upslope away from the river where wetland species Shuey saw growing made him suspect that the soils had to be mucky under the sand. Altogether at least 6-20 soil samples were taken. They confirmed to Shuey that the soil was indeed mucky, even where covered with a thin layer of sand. Shuey made some field notes and adjusted the placement of the seven flags on the property signifying the landward extent of jurisdictional wetlands at those points. He then connected the flags to delineate an adjusted jurisdictional wetlands boundary line. As indicated by Shuey's field notes and jurisdictional wetlands boundary delineation, Shuey adjusted the first two flags towards the river, the first by 26 feet and the second by 15 feet; he adjusted the next five flags landward, the third by 21 feet, the fourth by 17 feet, the fifth by 28 feet, the sixth by 14, and the seventh by 8 feet; he also moved the seventh flag upriver by 5 feet. Generally, Shuey moved the boundary line closer to the river on the downriver side of the property and away from the river on the upriver side. As a result, the sweet gum trees no longer were within the jurisdictional wetlands,4 and Petitioner had them removed. Shuey's field notes listed numerous plant species, including water hemlock, dogwood (blue), cephalanthis [sic], Jack-in-the-Pulpit, centella, apios (potato Bear), Boja Maria, Woodwardia, royal fern, and climbing hydrangia [sic] (on sides). Like Meinecke and Rosenblatt before him, Shuey failed to list either of the wetland species Shuey says prompted him to take soil samples farther upslope. His best explanation for these failures was that the lists were not meant to be exhaustive, but he also characterized the failures as "unfortunate." As will be seen, one of the species--Saururus cernuus (common name, lizard's tail)--was later listed in answers to interrogatories; the other-osmunda cinnamomea (a/k/a cinnamon fern)--was never mentioned before Shuey's final hearing testimony. Shuey's notes also indicated mucky mineral soils (2 inches within the first 6 inches), ferns on tussocks, and moisture on the bottom layer of wood chip fill on the property. Except for stating that the climbing hydrangea was "on sides," Shuey's notes did not specify the location of the plants, soils, or moist wood chips on the property. Shuey's Enforcement Inspection Report prepared in connection with his informal wetlands delineation indicated the presence of: Magnolia virginianica [sic], Liquidambar sturaciflua [sic], and Acer rubrum in the tree canopy; Boja maria cylindrica, Cutica mexicana, Cephalanthis [sic] occidentalis, and Cornus foemina in the understory; and herbaceous Woodwardia virginica, Arisaema triphylum, Centella spp., and Osmunda regalis. It also indicated the presence of "[v]egetated fern tussocks/hummocks," which were referred to as "hydrologic indicators," and a "[m]ucky modified mineral layer present, greater than 2' [sic] within the first 6 inches." Shuey's Enforcement Inspection Report also noted: "Vegetation on the property has apparently been cleared since the original inspection of the complaint." Meinecke visited Petitioner's property again on April 23, 2001, with DEP Environmental Specialist Pete Slezinski, who manages biological and resource issues in the Rainbow River Aquatic Preserve. However, they traveled by boat and focused on the proposed dock alignment; they did not consider wetland jurisdictional issues on this visit. DEP's Consolidated Notice of Denial issued on June 4, 2001, stated in part: Selective removal of both herbaceous and canopy species appeared to have taken place within the wetland area. Mulched vegetation remnants from the removal activity appears to have been spread within the bayhead. The bottom of the mulch layer appeared to be moist. The canopy of the wetland area is dominated by sweet bay (Magnolia virginianica [sic]), an obligate wetland species, red maple (Acer rubrum) and sweet gum (liquidambar styraciflua) which are facultative wet wetland species. The understory within the wetland area contained false nettle (Boja maria cylindrica), water hemlock (Cutica mexicana) and buttonbush (Cepahalanthis [sic] occidentalis) which are obligate wetland species, along with blue dogwood (Cornus foemina) a facultative wet wetland species. Herbaceous and groundcover species observed within the wetland area were jack-in-the-pulpit (Arisaema triphylum), pennywort (Centella sp.), Virginia chain fern (Woodwardia virginica), which are facultative wet wetland species, along with royal fern (Osmunda regalis), an obligate wetland species. Soil samples taken throughout the wetland area indicated a prevalent mucky mineral layer at least 2 inches thick, and within the first 6 inches. Hyrologic indicators on site include the presence of fern tussocks. DEP's Consolidated Notice of Denial also stated: Maps and topographic aerials obtained by the Department show that the property is located on the inside of a bend in the Rainbow River. Because of the project location on the point bar, and its associated lower water velocities, the shoreline experiences higher siltation rates due [to] the deposition of suspended solids as the water slows. It can also be observed from historic aerials that the limits of the wetland area on the property have remained constant since 1972. Through Shuey's authorship, DEP also responded to Petitioner's discovery interrogatories in this case on the subject of the jurisdictional wetlands delineation. Except as pointed out in subsequent findings, Shuey's testimony supported the interrogatory answers. Apparently not wanting to stumble into an inadvertent admission that there are two separate wetlands on Petitioner's property, DEP declined to accept Petitioner's requests in several of the interrogatories that, in answering them, DEP "[c]onsider the area upland of the row of bay trees and area water ward [sic] of the bay trees separately." DEP responded consistently that there was "no justification" to do so since "[t]he wetland area delineated" was "one wetland area." Shuey testified that he actually does consider different parts of wetlands separately in certain circumstances. For example, in this case, where there was canopy, he considered the canopy vegetation; where the canopy had been cut, he looked at under-story or, if there was no under-story, ground cover; where there was not even any ground cover due to mowing, he looked only at soils. He used different means of analyzing the different areas in the exercise of professional judgment. Shuey's testimony was not always clear as to exactly how he analyzed the different areas so as to arrive at his jurisdictional wetlands delineation. Asked in Petitioner's interrogatories "whether any portions of Petitioner's property is considered . . . 'inundated' or 'saturated'," DEP responded that the wetlands jurisdictional boundary established by DEP on Petitioner's property was based on the "area [being] considered 'inundated' and 'saturated' to the extent that the area supports water dependent vegetation and has soils which have developed 'Hydric Soil Indicators.'" Asked in Petitioner's interrogatories for "any records of hydrologic evidence of regular and periodic inundation and saturation," DEP limited its response to a 1972 topographic map, a 1996 aerial map, and a Soil Survey published in 1979. Asked in Petitioner's interrogatories to explain how DEP applied "reasonable scientific judgment . . . in evaluating all reliable information," DEP responded that it included within the jurisdictional wetlands land "from the river to where two wetland indicators consistently occurred together, the presence of obligate and facultative wetland plants and soils which had hydric indicators such as the presence of peat soils and/or soils which had a mucky layer or texture." DEP also stated that the 1979 Soil Survey confirmed that soils in the area were "labeled a poorly drained soil unit (Pm-Placid sand)." Asked to detail its analysis, DEP stated: Much of the vegetation in the wetland area had been removed by the Petitioner prior to the [sic] any site visits by the Department. Some of the canopy vegetation was removed and virtually all of the under-story and ground cover had been removed. In determining if the area was a wetland the Department was forced to look at the remaining vegetation [in] all three strata and the remains of vegetation (stumps, branches, leaves etc.) plus the soils in determining that this area was a wetland. A compete species list for the wetland area was not compiled . . .. Only dominant species and species which are crucial to determining the upland edge of the wetland were recorded and/or noted specifically. Species noted on site or recorded in notes but not included in the Denial include: At this point in the answer, DEP listed the following plants listed in Florida Administrative Code Rule Chapter 62-340: in the canopy, Quercus laurifolia (laurel oak), Persea palustris (swamp bay), Sabal palmetto (cabbage palm); in the under-story, Cornus foemina (swamp dogwood), Myrica cerifera (wax myrtle); and, as ground cover, Saururus cernuus (lizard's tail). DEP also listed as ground cover Apios americana (groundnut), which is a vine not listed in the Florida Administrative Code but which a wetland plant. (Vines are not listed in Rule 62-340.450 because it can be difficult to determine where they originate.) DEP stated that it could not answer Petitioner's interrogatory asking for percentages of upland, obligate, facultative wet, and facultative vegetation in the canopy, under- story, and ground cover for two reasons: first, "Petitioner had removed part of the canopy" and "virtually eliminated" the under- story and ground cover (although, DEP maintained, "the dominance of wetland species in an area still can be determined by examination of stumps, vegetation re-sprouts, and the remains of vegetation (branches leaves, etc) which remain"); and, second, no specific cover estimates by strata were taken. Notwithstanding DEP's answers to interrogatories, Shuey insisted in testimony at final hearing that he did visually estimate percentage of cover in the canopy (although he did not make a note of his estimate) and applied test (b) of Rule 62- 340.300(2) to delineate the wetlands on Petitioner's property. When Petitioner asked at final hearing, Shuey provided an estimate of greater than 80 percent cover of obligate and facultative wetland species in the canopy, at least in the forested area closer to the river, based on recently-cut stumps. Pressed further by questioning by DEP counsel, Shuey increased the estimate to "probably greater than 85%." It was clear from the testimony, but it appears that Shuey meant to also qualify the 85 percent coverage estimate to apply to canopy in the forested part of the wetlands based on recently-cut stumps. It appears that the recently-cut stumps included in Shuey's canopy cover estimate are the Persea palustris (swamp bay) reintroduced through DEP's interrogatory answers to the list of species in the canopy after having been deleted from earlier lists and replaced by Magnolia virginiana (sweet bay). As reflected in the previous findings, DEP's interrogatory answer was the first mention of any kind of oak being on the property. This interrogatory answer was given after Petitioner took the position that there were several large laurel oaks (Quercus hemisphaerica) on the property. After the interrogatory answer, Petitioner took the position that Shuey used the incorrect scientific name in the interrogatory answer's listing of the canopy vegetation in the wetland area. In testimony at final hearing, Shuey acknowledged that the interrogatory answer's listing of the canopy vegetation in the wetland area was in error in giving laurel oak as the common name of Quercus laurifolia; he testified that he meant to list swamp bay as the common name for that species. Actually, Quercus laurifolia is an incorrect scientific name; swamp bay is one of the common names for the facultative wetland species, Quercus laurifolia Michauxii. (Another common name for that species is swamp chestnut oak.) Perhaps misled by Shuey's errors, Petitioner also erred in contending that swamp laurel oak cannot be used as either an obligate or a facultative wetland species under test (b) because Quercus laurifolia is not listed under Rule 62-340.450. Quercus laurifolia is not listed, but Quercus laurifolia Michauxii is. In addition to the confusion in naming the different oak species, it also is not clear from the evidence whether the oaks considered by Shuey in estimating canopy cover percentages were laurifolia Michauxii or hemisphaerica. Shown photographs of a number of oak trees on the property, Shuey was unable to identify the species with any certainty. As previously indicated, it was not clear that Shuey testified to a canopy cover percentage for the delineated wetlands area as a whole (as opposed to just the forested portion). But Shuey clearly conceded that, if the trees he identified as laurifolia Michauxii were actually hemisphaerica, the percentage of obligate and facultative wetland species in the canopy of the delineated wetlands area as a whole would be less than 80 percent. As reflected in previous findings, DEP's interrogatory answer was the first mention of lizard's tail being on the property. No lizard's tail or cinnamon fern was evident in any of the photographs placed in evidence by Petitioner. But these photographs were taken by Petitioner in February 2001, well after DEP's site visits; and the evidence was that Petitioner now regularly mows the area upland of the line of bay trees on his property. Even if any lizard's tails or cinnamon ferns were there at the time of the photographs, it is not clear whether the photographs would have been taken close enough or with the necessary resolution to detect these plants, depending on their growth stage. As previously indicated, it appears that in applying test (b) Shuey may have estimated canopy coverage based on recently-cut stumps; he also may have "dropped strata" in places where canopy trees had been cut or were nonexistent so as to estimate cover percentages for lower strata. In places where all vegetation was removed and mowed, it appeared that he relied on soil characteristics. Shuey's testimony at final hearing appears to have been the first explicit notice to Petitioner that DEP also applied test (d) of Rule 62-340.300(2) to delineate the wetlands on Petitioner's property (although it is possible to glean from a fair reading of the interrogatory answers that DEP was not only relying on test (b)). Although Shuey's testimony was not clear, it appears that he may have used test (b) for the part of the wetlands closer to the river and test (d) for the part landward of the line of bay trees. It appears that the indicators DEP variously referred to as vegetated or fern tussocks or hummocks and relied on under test (d) were essentially thick root mats. Like elevated patches of soil that allow plants to grow in places frequently inundated or saturated, these elevated root mats similarly allow plants to survive those conditions. It was not clear from the evidence exactly where Shuey saw these vegetated or fern tussocks and hummocks. Shuey conceded that they did not exist throughout the area DEP delineated as jurisdictional wetlands on Petitioner's property. Neither Shuey, Meinecke, or Rosenblatt took any pictures to verify where these indicators were on the property or even specifically noted or reported exactly where they were found. Although Shuey maintained that some of these indicators were seen landward of the line of bay trees on the property, it is not clear from the evidence whether they actually were found on that part of the property. Shuey testified at final hearing that, contrary to the interrogatory answers, he did not use the 1972 topographic map or any aerial photography in delineating jurisdictional wetlands on Petitioner's property and did not see how they would be useful in this wetlands delineation. He thought their only usefulness in connection with this case might have been to determine whether any wetland vegetation had been removed. DEP also re-called William Vorstadt on the subject of DEP's jurisdictional wetlands delineation on Petitioner's property. Vorstadt visited the site twice, the second time in January 2002, and concurred with Shuey's jurisdictional boundary line. Vorstadt took two sample soil borings, one between the boundary line and the line of bay trees and another landward of the boundary line. Both samples revealed wet, hydric soils which Vorstadt considered to be hydrologic indicators of inundation. At the time of Vorstadt's visits, the area between the line of bay trees and the boundary lined had been well-mowed in the vicinity of the flags Shuey placed on the property. Vorstadt was unable to determine much about the vegetation that might have been there; nor could he determine much about vegetation that might have been there in the past. There was no evidence that any holes were dug at any time by any DEP personnel to establish the level of the water table on Petitioner's property. There was no evidence to establish the seasonal high water table on the property. Petitioner contended that development on lots upriver and downriver from Petitioner's property altered the hydrology on Petitioner's property so that hydric soils can no longer form or be sustained, and wetland vegetation adapted for life in saturated soils no longer can be supported there. But, except with respect to narrow strips of land along the boundary lines between Petitioner's property and the adjoining lots upriver and downriver, there was no evidence whatsoever to prove Petitioner's contention in this regard. (In addition, the evidence was clear that there are at least some jurisdictional wetlands on Petitioner's property.) It appeared from photographs introduced into evidence by Petitioner that relatively narrow strips of land along the boundary lines between Petitioner's property and the adjoining lots upriver and downriver are higher than the rest of Petitioner's property, giving the impression of ridges along the property boundary lines, especially the upriver boundary line. These ridges approximately coincide with the land upriver of the seventh flag and downriver of the first flag placed on the property during DEP's informal wetlands delineations. Petitioner suggested that these ridges were formed when the neighboring property owners filled their lots as part of development and that fill material spilled over onto the property Petitioner purchased. Shuey agreed in testimony that, if the ridges were the result of fill that altered the character of the land, so as to no longer be periodically inundated and saturated, and no longer support wetland plant species, the land no longer would be considered jurisdictional wetlands. However, while it appears that the upriver ridge may well have been part of a berm along that boundary line, there was no proof as to how the smaller apparent ridge on the downriver side came to be. In addition, it was not clear from the evidence whether the ridges should be included in the jurisdictional wetlands on Petitioner's property. Petitioner attempted to utilize various aerial photographs to establish that his property had no jurisdictional wetlands because they showed only evergreen trees. But the only witness who spoke to the aerials was Shuey; and, while acknowledging his inability to discern wetlands from the aerials, Shuey refused to agree that the aerials showed only evergreen trees or that they showed only non-wetlands on Petitioner's property. Besides, as previously found, it was clear that there are at least some jurisdictional wetlands on Petitioner's property. Shuey testified persuasively that the aerials are of little or no use in determining where to draw the line between jurisdictional wetlands and uplands on Petitioner's property. Petitioner introduced in evidence several exhibits to establish that in late 1993 the Southwest Florida Water Management District (SWFWMD) delineated jurisdictional wetlands on the adjacent lot upriver from Petitioner's (the Thurman lot) and on a lot four lots downriver from Petitioner's property (the Grant lot). Petitioner contended that the landward extent of those wetlands delineations "approximated Control Elevation A, the top of the bank of the river which approximates the 31 foot contour line known as Control Elevation A the 10 year flood line." But the exhibits themselves are considered insufficient to prove all of Petitioner's contentions, and Petitioner introduced no other testimony or evidence to explain those wetlands delineations (except the testimony of Shuey, who refused to agree with all of Petitioner's contentions). It is not even clear from the evidence exactly where Control Elevation A, the 31-foot contour line, and 32-foot contour line are in relation to DEP's jurisdictional wetlands boundary on Petitioner's property. In addition, the relevance of the Grant wetlands delineation four lots downriver is questionable; it seems quite possible that site-specific conditions of Petitioner's property, which is at the center of the inside of a bend in the river, would result in a different wetlands delineation. As for the Thurman lot, it appears from some of the exhibits that Petitioner's property (at least on the upriver side of the lot) is lower than the Thurman lot; and the apparent 31-foot contour line sweeps significantly farther landward as it approaches and enters Petitioner's property. It seems that this might explain why wetlands on Petitioner's lot could be larger than those on the Thurman lot. At best, these exhibits raised suspicions that SWFWMD might have approved a wetlands jurisdictional boundary that approximated Control Elevation A (approximately the 31-foot contour line); if so, it also is possible that those delineations were done in error, or that the wetlands delineation methodology used by SWFWMD in 1993 was somewhat different from the current methodology codified in statute and rule, or both.5 Petitioner also introduced numerous exhibits relating to the construction of the canoe launch ramp, boathouse, and observation deck facilities at Rainbow Springs State Park near the river's head. Given the greater distance from Petitioner's property, these exhibits are even less relevant than the exhibits relating to the Grant lot. As Shuey testified, wetlands jurisdictional delineations are site-specific. In addition, like the Grant and Thurman lot exhibits, the State Park exhibits themselves are considered insufficient to prove all of Petitioner's contentions, and Petitioner introduced no other testimony or evidence to explain them (except the testimony of DEP witnesses, who refused to agree with all of Petitioner's contentions). At best, these exhibits raised suspicions that SWFWMD might have approved a wetlands jurisdictional boundary at the State Park that approximated either the shoreline or Control Elevation A (approximately the 31-foot contour line) and that DEP's facilities at the State Park might have been built in part on jurisdictional wetlands. Similarly, Petitioner introduced several generalized topographic and soils maps intended to prove that there are no wetlands on Petitioner's property, or perhaps that Petitioner's property is identical to the Grant and Thurman lots and the State Park property. But these generalized maps were insufficient to prove Petitioner's contentions. The maps themselves are considered insufficient to prove all of Petitioner's contentions, and Petitioner introduced no other testimony or evidence to explain them (except the testimony of Shuey, who refused to agree with all of Petitioner's contentions). Petitioner contended that DEP used one of the topographic maps to support a favorable wetlands delineation in its application to SWFWMD for a permit for the facilities at the State Park. But it actually appears that the map was only used as a location map. Proposed Single-Family Dock Neither party introduced into evidence either Petitioner's consolidated ERP/consent of use application or DEP's RAI. As a result, it cannot be determined from the evidence precisely what Petitioner has proposed or what additional documentation DEP requested. No cross-sections or plan views of the proposed project were in evidence. The only document submitted into evidence by Petitioner to illustrate his proposed dock structure was a partial copy of Petitioner's correspondence to DEP dated May 21, 2001. The letter referred to four attached drawings, but only one was attached to Petitioner's Exhibit 3B. The drawing included in the exhibit was not drawn "to-scale." In addition, it is unclear from the drawing whether the 160 square foot "terminal platform" included the four-foot walkway adjacent to the platform. As Petitioner suggested, the square footage of the terminal platform could be clarified in a final order. A more serious matter is the dock alignment. When the proposed dock is superimposed on DEP's drawing showing the existing knot grass beds adjacent to Petitioner's property, the proposed dock appears to cross and terminate over an area that is either an RPA 1 (knot grass beds "of the highest quality and condition for that area") or an RPA 2 (an area where the knot grass is "in transition with either declining resource protection area 1 resources or new pioneering resources within resource protection area 3"). See Florida Administrative Code Rule 18-20.003(54)-(55) for definitions of RPA 1 and RPA 2. Petitioner contended that his proposed dock alignment actually crosses and terminates over an area "characterized by the absence of any significant natural resource attributes" so as to be neither an RPA 1 nor an RPA 2, but rather an RPA 3. See Florida Administrative Code Rule 18-20.003(56) for definition of RPA 3. There was evidence of some hydrilla (an aquatic plant not considered "significant" but rather a harmful, invasive, exotic nuisance plant) in the vicinity of his proposed dock alignment between the water's edge and the knot grass beds, but Petitioner's evidence did not prove that the knot grass in the vicinity of Petitioner's proposed dock alignment is not continuous--i.e., that there is a clear path or channel between two separate beds of knot grass; to the contrary, the evidence was that the knot grass bed in the river adjacent to Petitioner's property is one continuous bed, mostly RPA 1 and some RPA 2. In addition, the evidence was that at least some of the area of declining knot grass in the vicinity of Petitioner's proposed dock alignment was thicker, more vigorous, and of better quality in the not-too-distant past. It is not clear from the evidence when it was thinned out. In addition, citing Joint Prehearing Statement of Undisputed Facts 29 and 30, Petitioner contended that his dock application fell victim to an invalid DEP policy that all resources in an aquatic preserve are "significant" so as to be either RPA 1 or RPA 2. The evidence failed to prove that DEP has such a policy. Indeed, Joint Prehearing Statement of Undisputed Facts 29 and 30 are to the contrary. While there may be room for Petitioner to quarrel with the interpretation of the RPA 1 and RPA 2 definitions given by one of DEP's witnesses (Pete Slezinski, who thought that any area having native vegetation or animals would be either an RPA 1 or RPA 2), Petitioner did not dispute that knot grass beds have "significant natural resource attributes" so as to qualify as RPA 1 or RPA 2. Petitioner also contended that he was singled out for denial of his proposed dock--i.e., that his would be the first and only dock on the Rainbow River to be denied a permit. Other than some aerial photographs indicating that a neighbor's dock may terminate in the vicinity of a spring head, Petitioner introduced no evidence whatsoever about the circumstances of any dock on the river except for DEP canoe launch ramp, boathouse, and observation deck facilities at the Rainbow Springs State Park near the head of the Rainbow River. The aerial photographs were inconclusive as to how close the neighbor's dock was to the spring head. There also was no evidence as to whether the neighbor's dock was permitted under the DEP rules now in effect or, if so, any particulars of the neighbor's dock application. Petitioner introduced a great deal of evidence concerning the DEP facilities at the State Park upriver. There were numerous photographs, some before construction of the facilities and many more during and after construction. There also was testimony from Slezinski, who had raised questions about initial plans for construction of the facilities. But Slezinski testified to his understanding that steps were taken in response to his concerns so as not to place facilities over any RPA 1 or RPA 2. Viewing the photographs, he was unable to conclude, and it is not clear, that any facilities were in fact placed over any RPA 1 or RPA 2 at the State Park. Petitioner also contended that DEP's denial of his dock application is a punitive measure, not supported by the facts, to deny him water access to his property. As evidence, Petitioner cited DEP's preliminary evaluation contained in its letter dated May 9, 2001, which cited some general requirements for docks in an aquatic preserve but did not specify any of the special requirements for docks over RPA 1 and RPA 2. But the preliminary evaluation contained a proposed dock alignment obviously intended to avoid RPA 1 and RPA 2 to the extent possible. The preliminary evaluation suggested that DEP would grant a modified application (minus mooring piling) in the proposed alignment meeting all of the general requirements. Petitioner attempted to modify his application by letter dated May 21, 2001, to address the general requirements cited in the preliminary evaluation, but he declined DEP's suggested dock alignment. As a result, in considering the modified application, DEP was constrained to apply the special requirements for docks in an RPA 1 or RPA 2. Contrary to Petitioner's contentions, these actions by DEP did not prove any intent to punish Petitioner. Finally, Petitioner contended that certain special rules for docks over RPA 1 or RPA 2--namely, those requiring minimum spacing between deck planks and requiring decking to be elevated--should not be applied because the knot grass in the river adjacent to Petitioner's property is "emergent," i.e., it grows from the bottom to and above the surface of the river and, Petitioner contends, "does not need the same concessions to assure . . . light penetration for the continued survival of the plants." Besides being essentially a rule challenge, a matter addressed in the Conclusions of Law, Petitioner introduced no evidence of the facts he alleges in support of his contention. To the contrary, Petitioner called Slezinski on the subject, and Slezinski attempted to explain that, while knot grass is "emergent," much of the plant is below the water surface and provides the functions of submerged aquatic vegetation. It would follow, and Petitioner put on no evidence to disprove, that knot grass also would have some of the needs of submerged aquatic vegetation for light penetration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP a final order denying Petitioner's application for an ERP and Sovereign Lands Consent of Use for his proposed single-family dock and declining to rule on the jurisdictional wetlands delineation issue for lack of jurisdiction. Jurisdiction is reserved for ten days to rule on the pending motions, if necessary. DONE AND ENTERED this 17th day of May, 2002, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 17th day of May, 2002.
