Findings Of Fact At all times relevant hereto, respondent, Narcisco J. Ramirez, held land surveyor license number LS0002779 issued by petitioner, Department of professional Regulation, Board of Professional Land Surveyors. Respondent currently operates a land surveying firm known as South Atlantic Services of Florida, Inc. located at 7350 Southwest 41st Street; Miami, Florida. Respondent received a two year degree in civil engineering from City College of San Francisco in 1969 and has worked for various firms as a land surveyor in the Miami area since 1971. He has been a registered land surveyor in Florida since July, 1975. In March, 1984, respondent was contacted by a real estate salesman and requested to perform a "boundary survey" and "sketch" of a parcel of land owned by one M. P. Smith McNiely. The land in question involved various lots, including Lots 23, 25-30, 34-36 and 38 located in a subdivision known as DeSoto Heights which lies adjacent to Southwest 304th Street, Southwest 105th Terrace, and Southwest 168th Street in Dade County, Florida, just north of the City of Homestead. The property was to be sold, and the survey was intended to assist the seller in determining a sales price on the property. Ramirez interpreted the request to mean that only a "preliminary sketch" would be initially done, and if requested by the owner, a "complete survey" would be performed at a later date. He was paid $650 for the initial work, and expected an additional fee of $2,500 to $3,000 for the complete survey. According to Ramirez, a preliminary sketch is not as accurate as a complete survey, has substantially less information, may contain errors, and does not require a certification by the surveyor that it meets all required professional standards of surveying. Ramirez assigned the field work to an employee named Roberto Collado, who no longer lives in Florida. The field work consisted of determining the property corners, and providing a sketch to the real estate salesman. Ramirez did not certify that minimum technical standards had been met but did sign and seal the drawing on March 22, 1984. At the same time he provided the following certification: I HEREBY CERTIFY: that the attached sketch of survey represents a recent survey made under my direction, and is true and correct to the best of my knowledge and belief. There are no encroachments unless shown thereon. Ramirez also added the following in bold lettering: NOTE: BOUNDARY SURVEY ONLY. No elevations secured or any other featured at the owners representative s request. A short time later, Frank Makowski, also a registered land surveyor and a former professional colleague of Ramirez some ten years earlier was contacted by an attorney (David Liebman) who was handling the sales transaction of McNiely's property. The closing was being held up because Ramirez's survey reflected a house sitting on both lots 36 and 37. Makowski was requested to verify the encroachment onto lot 36, and to ascertain the true location of the property boundaries. Makowski initially contacted Ramirez and requested a copy of his sketch and field notes. These were supplied by Ramirez, who gave no indication to him that the work was only "preliminary" in nature. Makowski then sent out a field team to survey the property. It found that the west boundary on the Ramirez survey was actually thirty-three feet off, which caused the purported encroachment on lot 36. The sketch made by Ramirez was deficient in a number of respects as established by uncontradicted expert testimony. To begin with, the parties have stipulated that the survey did not comply with the minimum technical standards for land surveying as set forth in Chapter 21HH- 6, Florida Administrative Code. These include Rules 21HH- 6.03(1), (2), (4), (6)-(8), (12), (18)-(20), and 21HH- 6.06(1), Florida Administrative Code, as alleged in the administrative complaint. For example, it contained no certification, did not reflect all bearings and angles, and monumentations were not set. In short, the Ramirez survey technique and procedure was not in conformance with the procedure required by generally accepted and prevailing standards of land surveying. Moreover, even though it was identified as a "boundary survey;" expert testimony established that the project was indeed a survey within the meaning of the term and it had to meet such technical standards or plainly provide a disclaimer to indicate that such standards were not met. In September, 1983, respondent was engaged by an engineering firm to "secure ground elevations along the above property (Southwest 168th Street and Southwest 192nd Avenue, Dade County) and then relate said elevations to a Dade County Bench Mark," and to "prepare a sketch of survey showing said existing ground elevations." For this he was to be paid $150. The property was owned by Alfred and Linda Wilson. Ramirez first obtained by telephone a bench mark on September 30, 1983; from the Dade County Surveying Department and then sent a field crew to complete the task. The bench mark he selected was across a canal and some three-quarters of a mile from the property in question in an area with heavy undergrowth. This made an accurate measurement more difficult to perform. The accuracy of vertical control surveys (elevations) is essential since this determines whether a parcel of land must have fill added in order to install a septic tank and well. It also affects the flood insurability of a home. Such surveys are subject to the minimum technical standards of the profession, as adopted by agency rules, unless the survey is a "specific purpose survey." In that event the same must be clearly stated on the face of the survey. In this case Ramirez, merely noted on the face of the sketch: "preliminary sketch, only elevations are included in this sketch of survey, no horizontal distances were measured nor controls set and distances shown along the sketch are for location purposes only." He also certified that "the elevations shown refer to a National Vertical Geodetic Datum of 1929, Bench Mark, were secured by us under my direction and are true and correct to the best of my knowledge and belief." Ramirez considered the project to be a "special purpose sketch" and therefore did not believe he had to certify that minimum technical standards had been met. Indeed, he conceded that such standards had not been met in preparing the documents. Makowski was requested to perform a survey on the Wilson property on June 12, 1984 to verify the accuracy of Ramirez s survey. He found the actual elevations to be approximately two feet lower than those reflected on Ramirez's sketch. 2/ The accuracy of Makowski's findings was corroborated by a survey previously performed by another surveyor in 1979. That survey, which is a public record on file with the Dade County Subdivision Control Department, indicated that because of the property's low elevation, fill was required to meet flood criteria. Through the testimony of Makowski and another expert land surveyor, James E. Beadman, it was established without contradiction that Ramirez's work failed to comport with minimum technical standards of the land surveying profession. For example, Ramirez had insufficient field notes, he used too few turning points, and did not perform a loop closure. Further, there is no bench mark description or certification by Ramirez on the survey, and Ramirez used a Linker rod to transfer elevations from one bench mark to another in contravention of accepted standards. Had Ramirez desired to qualify his elevation survey in accordance with agency rules, he should have identified his survey as a topographic survey and indicated that improvements were not located. By calling it an elevation survey, Ramirez did not change its true character of being a topographic survey. Rule 21HH-6.06, Florida Administrative Code, requires that when a survey is not performed, a surveyor should "state that such sketch is not a survey" on the face of the sketch. All other surveys must meet minimum technical standards, and by signing and sealing the drawings, a surveyor certifies as such. Ramirez justified his work in the McNiely project as being simply preliminary in nature. If he conducted a complete survey at a later time, he would then obtain more information, and correct any errors present on the initial drawings. Similarly, he viewed the Wilson survey as a special purpose sketch," and one not requiring compliance with minimum technical standards. Ramirez has performed hundreds of surveys in the past fifteen years; and there is no evidence of any formal disciplinary action having been instituted against him for negligence or misconduct. Both surveys were eventually performed in an accurate manner by Makowski. There were no complaints filed against Ramirez by either client. The complaint herein stems from Makowski who reported the alleged violations to petitioner after reviewing Ramirez's work.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as set forth in the conclusions of law portion of this orders and that he be fined $1000 and placed on two years probation. All other charges should be DISMISSED. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 7th day of August, 1985.
The Issue The issue in this case is whether an amendment to the Metropolitan Dade County comprehensive plan adopted as Item No. 6, Ordinance No. 94-192, is "in compliance", as those terms are defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Village of Key Biscayne (hereinafter referred to as the "Village"), is a local government (a municipal corporation) located within Dade County, Florida. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department, among other things, is charged with responsibility for the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). Respondent, Metropolitan Dade County (hereinafter referred to as "Dade County"), is a political subdivision of the State of Florida. Dade County is responsible under the Act for the preparation, processing, and review of land use plans and amendments thereto within its jurisdiction. Intervenor, Marine Exhibition Corporation (hereinafter referred to as "Marine"), is the applicant for the amendment which is at issue in this case. Marine is the owner of the Miami Seaquarium (hereinafter referred to as the "Seaquarium"), a saltwater oceanarium and tourist attraction located in Dade County, Florida. The Village's Standing. The Seaquarium is located on Virginia Key, an island located in Biscayne Bay. The Seaquarium is connected with the mainland of Dade County by the Rickenbacker Causeway. The Village is located on Key Biscayne. Key Biscayne is an island located in Biscayne Bay. Key Biscayne is connected to Virginia Key. Key Biscayne is connected with the mainland of Dade County through Virginia Key. The Rickenbacker Causeway runs through Virginia Key, past the Seaquarium, over a bridge onto Key Biscayne. The Causeway becomes Crandon Boulevard, which runs to and through the Village and ends at Cape Florida, at the southeastern corner of Key Biscayne. Virginia Key and Key Biscayne are located within the jurisdictional boundaries of Dade County. The closest Village boundary to the Seaquarium is located approximately 2 and 1/4 to 2 and 1/2 miles from the Seaquarium property. The Village is located completely within Dade County's jurisdictional boundaries. The Village, therefore, owns property located in Dade County. The Village conducts all of its business within its city limits, located on Key Biscayne. The weight of the evidence failed to prove that the plan amendment at issue in this proceedings will "produce substantial impacts on the increased need for publicly funded infrastructure" of the Village or will create a "substantial impact on areas designed for protection or special treatment within the [Village's] jurisdiction." See Section 163.3184(1)(a), Florida Statutes. The Village raised objections by oral and written comments concerning the proposed amendment (hereinafter referred to as the "Proposed Amendment"), at public hearings during the period of time commencing with the transmittal hearing and ending when the Proposed Amendment was adopted by Dade County. The Village's objections and comments did not include objections or comments concerning density and intensity standards. The Seaquarium. The Seaquarium is located on thirty-seven acres. The property is owned by Dade County and has been subject to a long-term lease to Marine. Dade County also owns all structures erected on the site and all marine mammals. The Seaquarium has been in operation at its present site since 1954. The Seaquarium has a history of providing entertainment, educational and recreational uses to residents and visitors to Dade County. Existing uses of the Seaquarium include approximately ten marine mammal exhibits and corresponding shows featuring these mammals, a marina, theme-oriented gift shops and restaurants. Educational activities at the Seaquarium include: (a) a program to train teachers in marine science and student field trips (over 75,000 students attend the past year) in cooperation with Dade County and Broward County, Florida; (b) the largest manatee rehabilitation and recapture program in the United States; (c) an internship program with the Mast Academy, a magnet school for gifted high school students; and (d) research and development exchange programs with the National Oceanographic and Atmospheric Administration (hereinafter referred to as "NOAA"). Florida Quality Development Designation. Marine decided to improve its facilities at the Seaquarium through a project it labeled "Seaquarium Village." Marine initially sought and obtained a designation from the Department of the Seaquarium Village as a Florida Quality Development (hereinafter referred to as "FQD"), pursuant to Chapter 163, Florida Statutes. The Seaquarium Village project was subsequently challenged by the Village pursuant to Section 163.3215, Florida Statutes. The Village alleged that Seaquarium Village was not consistent with Dade County's comprehensive plan (hereinafter referred to as the "Plan"). The Third District Court of Appeal entered an opinion on November 9, 1993, finding that the project was inconsistent with the Dade County Comprehensive Development Master Plan (hereinafter referred to as the "Plan"). Village of Key Biscayne v. Dade County, 627 So.2d 1180 (Fla. 3d DCA 1993), rev. den., 639 So.2d 976 (1994). The Proposed Amendment. The Plan includes a Land Use Element. The Land Use Element identifies locations in Dade County where various land uses, including intensities of use, will be allowed during the period for which the Plan applies. The land uses are also depicted on the Future Land Use Map. One of the land uses provided for in the Plan is the "Parks and Recreation" land use. The Seaquarium is located within the "Parks and Recreation" Land Use Plan map category of the Plan. The Plan includes the following descriptive text concerning the "Parks and Recreation" Land Use Plan map category: Certain commercial activities that are supportive of the recreational uses and complementary to the resources of the park, such as marine supply stores, fuel docks or tennis and golf clubhouses may be considered for approval in the Parks and Recreation category. Other commercial recreational, entertainment or cultural uses may also be considered for approval in the Parks and Recreation category where complementary to the site and its resources. Marine filed an application in November of 1993 with Dade County seeking approval of a modification of the "Parks and Recreation" land use category for the site of the Seaquarium. The proposed modification ultimately adopted by Dade County, after Dade County and Marine cooperated to agree on the proposed language, provides for the addition of the following language immediately after the descriptive text quoted in finding of fact 24: [Included in the category is the Seaquarium, a unique tourist attraction with a long history of educational, entertainment, and recreational benefit both to residents of Dade County and to visitors. Notwithstanding any other provisions in the Parks and Recreation section of the Land Use Plan Element, in order to continue and to enhance its contributions to the community, this facility may be authorized to renovate, expand, and increase the variety of its educa- tional, recreational and entertainment attractions. Accordingly, the following additional uses may be permitted at the Seaquarium site: recreational and educational uses, restaurants, gift shops, marine or water amusements, and environmentally- related theaters.] 1/ The Proposed Amendment does not apply to any Parks and Recreation site other than the Seaquarium site. Following transmittal of the Proposed Amendment to the Department, the Department issued its Objections, Recommendations and Comments report (hereinafter referred to as the "ORC"), on or about September 1, 1994. In the ORC the Department objected, in relevant part, to the lack of adequate data and analysis to demonstrate the compatibility of the Proposed Amendment with the surrounding land uses and raised questions concerning whether the proposed project was in a Coastal High Hazard Area. In response to the ORC, Dade County provided the following information to the Department: (a) the record of the transmittal and adoption hearings; (b) Chapter 9J-11 deliverables; (c) information on the surrounding land uses in the vicinity of the Seaquarium; (d) the Seaquarium FQD; (d) the Seaquarium ADA; and (e) information concerning coastal high-hazard area. The proposed Seaquarium modification of the Parks and Recreation Land Use Element was adopted by Dade County on October 13, 1994, by Ordinance No. 94- 192. In December, 1994, after review of the Proposed Amendment and the additional information provided by Dade County, the Department issued a Notice of Intent to Find the Proposed Amendment in Compliance. The decision of the Department was challenged by the Village on or about December 30, 1994. Intensity or Density of Use. The Act provides the following regarding the Future Land Use plan element required to be included in all comprehensive plans: . . . designating proposed future general distribution, location, and extent of the uses of land for residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other categories of the public and private uses of land. . . . Each land use category shall be defined in terms of the types of uses included and specific standards for the density or intensity of use. . . . Section 163.3177(6)(a), Florida Statutes. See also Rule 9J-5.006(3)(c)7., Florida Administrative Code. The requirement of Section 163.3177(6)(a), Florida Statutes, concerning densities and intensities applies to all comprehensive plans and amendments thereto. "Densities" and "intensities" are objective methods of determining the extent to which land may be utilized. "Densities" are usually expressed in terms of the number of units allowed per acre of land. Rule 9J-5.003(33), Florida Administrative Code, defines "density" as "an objective measurement of the number of people or residential units allowed per unit of land, such as residents or employees per acre." This definition of "density" was first adopted by rule in 1994. Densities are usually associated with residential uses. "Density" requirements are not relevant to the Proposed Amendment because it does not involve residential use of land. "Intensities" are most often expressed in terms of spatial uses, such as the amount of allowable floor space, lot coverage, or height. Rule 9J- 5.003(63), Florida Administrative Code, defines "intensity" as "an objective measurement of the extent to which land may be developed or used, including the consumption or use of the space above, on natural resources; and the measurement of the use or demand on facilities and services." This definition of "intensity" was first adopted by rule in 1994. The purpose of requiring density and intensity standards is to promote intelligent planning which allows for the measurement of developments on natural resources and infrastructure capacity, and allows the evaluation of compatibility with surrounding land uses. Initial Approval of the Plan. The Plan was submitted to the Department for initial review in 1988. The Plan was one of the first comprehensive plans reviewed pursuant to the Act by the Department. At the time of the Department's initial review of the Plan, there was no definition of density or intensity provided by rule. The definitions of density and intensity included in Rules 9J-5.003(33) and (63), Florida Administrative Code, were not adopted until 1994. The Parks and Recreation category of the Plan, when originally submitted for review, was required to include an intensity standard. The Plan's definition of the Parks and Recreation land use category did not, however, contain a specific restriction on intensity of use such as a floor area ratio, maximum lot coverage, or height restriction. Rather than include a specific intensity restriction in the Plan, Dade County elected to describe the types of nonresidential uses which would be allowed under the Parks and Recreation land use category. Dade County restricted allowable uses to those which are complementary to the site and its natural resources. Dade County believed that its description of allowable uses constituted an adequate intensity standard, providing an objective measurement of the extent that land could be developed, the use and demand on natural resources, and the use and demand on facilities and services. Dade County is the largest county in Florida. It includes approximately 2000 to 2100 square miles. Dade County, therefore, elected to emphasize its natural resources and public service impacts on a "macromanagement" basis. The Parks and Recreation land use category included in the Plan allows a wide range of park and recreational uses, including "neighborhood parks, area parks, metropolitan parks, regional and state parks, including Everglades National Park, [and] tourist attractions such as the Seaquarium, Metro Zoo, [and] Viscaya . . . ." Transcript, Vol. III, Page 402. The Department approved the Plan without objection, recommendation or comment with regard to the definition of the Parks and Recreation land use category. The "Baby Seal Policy". The Department's policy concerning the application of the Act to growth management plans has evolved since the initial plans were reviewed. The Department has recognized that some of the plans it initially approved may be "less than perfect". In recognition of this problem, the Department found it necessary to develope a policy to deal with plans that do not comply with the Department's interpretation of the Act now that the Department has more experience interpreting and applying the Act. The Department's response to the problem of dealing with plans that may not comply with the Act, but have previously been approved, is referred to as the "Baby Seal Policy". This policy has been described as follows: Local government A's comprehensive plan provides that ten baby seals may be killed over the planning period while local government B's plan provides that no baby seals may be killed. Both plans are initially approved by the Department. Subsequently, the Department adopts a rule that prohibits the killing of baby seals. Local government A then amends its plan to allow the killing of eight baby seals rather than ten. Local government B also amends its plan to allow the killing of two baby seals. In applying the "Baby Seal Policy" the Department would approve local government's amendment because it moves local government A's plan closer to complying the prohibition against killing baby seals. Local government B's amendment would not be approved, however, because it moves its plan further from complying with the prohibition. The Department's Baby Seal Policy was developed so that the Department can comply with the requirement of Rule 9J-5.002(2)(h), Florida Administrative Code, that the Department consider as part of its review of plan amendments whether an amendment makes substantial progress towards consistency with applicable requirements of the rules and the Act. Rule 9J-5.002(2)(h), Florida Administrative Code, requires consideration during the review of a proposed plan amendment of the following: Whether the provision at issue constitutes substantial progress over existing provisions regarding consistency with and furtherance of Chapter 163, the State Comprehensive Plan, Strategic Regional Policy Plan and this Chapter, where the existing provisions are in a plan or plan amendment previously found in compliance. The Department's "Baby Seal Policy" encourages local governments to adopt amendments to previously approved plans (which may not be in compliance with all provisions of the Act and/or Chapter 9J-5, Florida Administrative Code), which bring those plans closer to being in compliance with the Act and/or Chapter 9J-5, Florida Administrative Code. I. Application of the Baby Seal Policy to the Proposed Amendment. The Department recognizes that the Parks and Recreation land use category of the Plan may not be in compliance with the requirements of Chapter 9J-5, Florida Administrative Code, because it does not provide for the type of intensity standard now required by Rule 9J-5.003(63), Florida Administrative Code. The Proposed Amendment, however, continues Dade County's choice of describing the Parks and Recreation land use category by specifying the types of allowable uses at the Seaquarium. There is no doubt that the Proposed Amendment includes uses allowable on the Seaquarium site which, when read alone and without regard to the Plan's overall definition of the Parks and Recreation land use category, are broad. The Proposed Amendment clearly does not include the type of intensity standard now required by Rule 9J-5.003(63), Florida Administrative Code. The Proposed Amendment does, however, provide more detail as to the allowable uses on the Seaquarium site than currently included in the Parks and Recreation land use category. Consequently, the Proposed Amendment does provide greater certainty for indentifying the potential impacts of development at the Seaquarium site than the current definition of the Parks and Recreation land use category. The Proposed Amendment does, therefore, move the Plan in the direction of compliance with Chapter 9J-5, Florida Administrative Code, in furtherance of the Baby Seal Policy and as required by Rule 9J-5.002(2)(h), Florida Administrative Code. Internal Consistency. Internal consistency between and within elements of a growth management plan is required by the Act. Internal consistency must be maintained when a plan is amended. Without consistency in the provisions of a plan, it will not be clear what actions are allowable and unallowable under a plan. The Proposed Amendment provides that certain modifications of the Seaquarium site will be allowable under the Plan "[n]otwithstanding any other provisions in the Parks and Recreation Section of the Land Use Plan Element . . . ." This language creates a clearly designated exception to, or deviation from, other requirements of the Land Use Plan Element. A clearly specified exception to, or deviation from, a provision in a plan does not create an inconsistency. The evidence failed to prove that the Proposed Amendment creates an internal inconsistency with the Plan. Data and Analysis. Plan amendments must be supported by data and analysis. Rules 9J- 5.005(2) and 9J-5.006(2), Florida Administrative Code. Dade County provided, in addition to information concerning the surrounding area and coastal high hazard areas requested by the Department, the FQD and the Application for Development Approval (hereinafter referred to as the "ADA"), to the Department in support of the Proposed Amendment. While the FQD and the ADA pertain to a specifically proposed development, these documents contain data concerning the Seaquarium site, the only site to which the Proposed Amendment applies. Although the Proposed Amendment is not limited to the project approved in the FQD or the portion of the ADA which relates expressly to the project approved in the FQD, the ADA contains information concerning the only site to which the Proposed Amendment applies. That information, or data, and the analysis thereof is relevant to a determination of whether the Proposed Amendment should be approved. The information contained in the ADA is useful in estimating the impacts of the types of development that are permissible pursuant to the Proposed Amendment and not just the impacts of the development addressed in the FQD. The FQD and the ADA also provide information concerning what type of project may reasonably be expected at the Seaquarium site. Much of the pertinent data contained in the ADA also constitutes the best information available concerning the Seaquarium site and, therefore, the subject of the Proposed Amendment. While the only expert witness called by the Village, Mr. David Russ, opined that the FQD does not constitute the data and analysis required in support of the Proposed Amendment, Mr. Russ did not give a similar opinion concerning the ADA. Nor had Mr. Russ read the ADA. Non-development specific data provided to the Department in the ADA included information concerning services and facilities related to development at the site. In particular, data is included in the ADA concerning traffic and emergency services (proposed traffic improvements, trips, the existing roadway network, the applicable level of service and projected background traffic). Data was also provided in the ADA concerning wastewater, drainage and potable water (existing water distribution and transmission systems, pervious and impervious conditions), and solid waste. Data and analysis concerning the natural resources of the Seaquarium site was also included in the ADA. Existing on-site vegetation and wildlife are inventoried and information concerning air quality and wetlands is provided. Data and analysis concerning historical and archeological resources is also provided in the ADA. Question 12 of the ADA provides information concerning the need for renovation and expansion of the Seaquarium site. Data and analysis concerning the need for redevelopment of the site was unrefuted by competent, substantial evidence. The Department was also provided with data and analysis concerning the area which surrounds the site. Surrounding uses included the University of Miami Rosentiel School of Marine and Atmospheric Sciences, the United States National Marine Fisheries Laboratory Station and offices, the National Oceanographic and Atmospheric Administration offices, the Mast Academy, the City of Miami Marine Stadium and the Metro Dade County Central Regional Wastewater Treatment Facility. The Seaquarium and redevelopment which would be allowable pursuant to the Proposed Amendment are compatible with these surrounding uses. The Village's suggestion that the data and analysis provided to the Department in the FQD and the ADA (which had not been read by the Village's expert witness) was not sufficient because the FQD pertains to a specific project is not supported by the weight of the evidence. The FQD and, more importantly, the ADA contain sufficient data and analysis to support the allowable land uses of the Proposed Amendment. In addition to suggesting that the data and analysis provided to the Department is insufficient because the data and analysis relates to a specific project, the Village has argued that insufficient data and analysis has been provided with regard to intensity of use. This argument is essentially an extension of the Village's argument concerning the lack of an intensity standard. There is as much, or more, data and analysis provided with the Proposed Amendment concerning intensity of use as there is to support the existing Parks and Recreation land use category. The data and analysis to support the Parks and Recreation land use category which is presumed to exist, may also be relied upon in reviewing a plan amendment. Additionally, the data and analysis provided as a part of the ADA is sufficient to support the maximum intensity of use allowable pursuant to the Proposed Amendment. The evidence failed to prove that there was not adequate data and analysis to support a determination that the Proposed Amendment is "in compliance".
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order dismissing the Amended Petition for Administrative Hearing Pursuant to Section 120.56, Florida Statutes, filed by the Village of Key Biscayne. DONE and ENTERED this 31st day of July, 1996, in Tallahassee Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1996.*
The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, John William Renner (Respondent) was licensed as a land surveyor in the State of Florida, having been issued license number LS 0004739. Respondent has been a licensed land surveyor since July 13, 1989. The minimum technical standards for surveys are set forth in Rule 21HH- 6, Florida Administrative Code, (Rule) of the Board of Professional Surveyors and Mappers (Petitioner). The Rule sets forth minimum standards which are expected and required of all surveyors. No deviation from the required minimum standards are permitted. A surveyor must first satisfy the minimum technical standards before applying community standards of local custom to a survey. On or about March 30, 1992, Respondent performed a survey of a lot described as: Lot 13, Block 1, Plat I of Sky Lake, according to the plat recorded in Plat Book 39, Pages 133-134, as recorded in the public records of Palm Beach County, Florida. Different surveyors, examining Respondent's survey, would have differing opinions regarding his survey. However, no deviation from the required minimum technical standards is permitted. As part of Petitioner's investigation of Respondent's alleged violations of the Rule, Petitioner requested a copy of the original survey. Respondent had misplaced the original and never complied with Petitioner's request. Petitioner obtained the original survey from the title company. The survey was certified by Respondent with his signature and seal. It is undisputed that Respondent's product is a boundary survey. However, he failed to state on the survey the type of survey that the certified drawing represents. The subdivision in which the Lot is located is platted. The boundary survey plats the Lot. Since the filing of the administrative complaint against him, Respondent has become aware that his surveys must identify the type of survey that his certified drawings represent. Respondent made field notes during the preparation of the survey. Field notes are records of observations and measurements made in the field and support the survey. Also, as part of its investigation, Petitioner requested a copy of Respondent's field notes which contained the measurements that he had made in the field. Respondent could not locate his field notes and was, therefore, unable to produce them; but agreed to produce the field notes when he located them. Respondent failed to maintain his field notes. Prior to hearing, through discovery, Respondent informed Petitioner that he had located his field notes but again failed to produce them to Petitioner. Finally, at hearing, approximately two years after Petitioner's investigative request, Respondent produced his field notes. Respondent's boundary survey provides, among other things, that the "Bearings Are Based On Plat." The plat is not a line; it is a document. Respondent failed to provide the well-established line upon which the bearings are based. Groups of lots within a platted subdivision are controlled by permanent control points (PCP) and permanent reference markers (PRM). The PRMs define the boundaries of a subdivision. The distance between the PCPs is referred to as a record distance which is shown on the subdivision plat of record. After a surveyor locates the PCPs and the PRMs, the surveyor measures the distance from PCP to PCP and from PRM to PRM. The measured distance in the field is compared with the recorded distance. Rarely are the recorded distance and the measured distance the same. In a discrepancy, with the acceptable margin of error, each lot between the PCPs receives its proportionate share of the measurement. Respondent's field notes indicate that he measured from PCP to PCP. However, there is no indication on the survey that he made the measurement. Respondent failed to show on the survey drawing the discrepancy between the recorded distance and the measured distance in the field. The discrepancy is four-hundreths of a foot, which is not significant in and of itself, but is important because the discrepancy adds more that 600 feet to the PCP. The plat of the subdivision indicates a 180 foot wide canal right of way along the west property line of the Lot. It is undisputed that Respondent failed to show the canal right of way on his survey drawing. Respondent's survey drawing indicates a fence along the north property line of the Lot. Nevertheless, it is undisputed that Respondent's dimensions are inadequate and insufficient to show the distance from the fence to the property line, i.e., the proximity of the fence to the property line. Also, Respondent's survey drawing shows three squares drawn along the south side of the residence on the Lot, showing concrete improvements. Even though Respondent's field notes indicate measurements for the squares, his survey drawing fails to identify the squares, as to what they represent, and fails to show their dimensions. As a result, no determination can be made as to whether the concrete improvements may affect property value. A surveyor is given some latitude as to whether a concrete improvement is fixed and pertinent to the survey, and, therefore, deference is given to the surveyor's judgment. Respondent's survey drawing indicates that the concrete improvements are not fixed and not pertinent to the survey. Appearing on Respondent's survey drawing are the three abbreviations BM, C. B. S., and CL, with the C and L intersecting. These abbreviations are not generally used by the public. BM and C. B. S. are not shown in the legend. Even though the abbreviation CL is in the legend, the C and L are not intersecting. A finding is made that the abbreviation CL, with the C and L intersecting, is not included in the survey's legend. Respondent's survey indicates the basis for elevations, referencing that "Elevations Based on County BM CL Old Boynton", with the C and L intersecting. BM is the abbreviation for benchmark. The survey did not describe the benchmark, identify the county or provide the published elevation. Referenced elevations must be based on an established benchmark. If a benchmark is referenced, its description should be sufficient to locate the benchmark and use it. Respondent's benchmark description fails to provide a basis for locating the benchmark or determining its elevation. In June 1992, after attending a minimum technical standards seminar, Respondent responded to allegations made by a Mr. Dennis Painter regarding the survey. 1/ In his response, Respondent agreed with some of the allegations, and, as a result, Respondent indicated that he made the appropriate revisions to the survey. No evidence was presented at hearing regarding the nature of Mr. Painter's allegations, so there was no opportunity to examine Respondent's responses as they relate to the allegations made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Surveyors and Mappers enter a final order: Reprimanding Respondent; Imposing a $500 administrative fine; and Placing Respondent on probation for one (1) year under terms and conditions deemed appropriate by the Board. DONE AND ENTERED this 7th day of February, 1997, in Tallahassee, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1997.
Findings Of Fact Sarasota County's Comprehensive Plan Amendment RU-5 was adopted, as Sarasota County Ordinance No. 91-41, on July 3, 1991. RU-5 amends the 1989 "Revised and Updated Sarasota County Comprehensive Plan," which is also known as "Apoxsee." Res Judicata and Collateral Estoppel.-- The 1989 plan, Apoxsee, is the subject of the Final Order, Hiss v. Sarasota County, ACC 90-014, DOAH Case No. 89-3380GM (the Hiss Final Order). The Hiss Final Order resulted from the Section 163.3184(9) formal administrative proceeding Hiss initiated after notice by the Department of Community Affairs (the DCA) of its determination that the adopted Sarasota County comprehensive plan was "in compliance." After a final hearing, a Division of Administrative Hearings hearing officer entered a Recommended Order on August 14, 1990, recommending that, for certain specified reasons, the plan be found to be not "in compliance." After consideration of the Recommended Order and exceptions to it filed by Hiss, by the County and by the intervenors, the DCA determined that the plan was not in compliance, concluded that, with the exception of the remedial actions recommended by the hearing officer, the Recommended Order should be adopted. The DCA submitted the Recommended Order to the Administration Commission for final agency action (the Hiss Final Order), which was taken on June 4, 1991. The Hiss Final Order recited in part 4/: PRELIMINARY STATEMENT * * * The Recommended Order divides Hiss' numerous allegations for the plan's noncompliance into four categories: the first alleging adoption in a manner inconsistent with the minimum criteria regarding public participation, the second involving the Recreation and Open Spaces Element, the third involving the Future Land Use Element and Future Land Use Map, and the fourth involving urban sprawl. The Hearing Officer concluded that the plan was in compliance with regard to the first, second and fourth of these categories. But, with regard to the third category, the Future Land Use Element and Future Land Use Map, the Hearing Officer concluded that the plan was not in compliance for a number of reasons. * * * ACTION ON THE RECOMMENDED ORDER Pursuant to Section 120.57(1)(b)10., Florida Statutes, the Commission accepts the Findings of Fact and the Conclusions of Law contained in the Recommended Order . . . with the exception of the recommended Remedial Action to the extent inconsistent with the Remedial Action ordered below. The Sarasota County comprehensive plan, therefore, is determined to be not in compliance for the reasons set forth in the Recommended Order and the following remedial action is ordered. REMEDIAL ACTION The following remedial action pursuant to the schedule in paragraph 15, below, is hereby ordered to bring the comprehensive plan of Sarasota County into compliance: * * * a. Plan amendments ordered herein shall be prepared by the County and transmitted to the Department of Community Affairs by September 30, 1991. DCA by October 15, 1991 shall certify to the Commission that the plan amendments have been received. In the event the plan amendments are not received by that date the DCA shall notify the Commission by October 31, 1991 and the Commission shall review the matter as to the appropriate action to be taken. DCA shall report to the Commission on the progress of its review of the plan amendments by February 15, 1992. DCA shall forward a recommendation to the Commission regarding the County's conformance with the remedial action ordered herein no later than June 1, 1992. SANCTIONS Under the circumstances of this case, the Commission exercises its discretion to impose no sanctions on the County at this time. The Commission retains jurisdiction, however, to consider sanctions available under Chapter 163, Florida Statutes, and to impose sanctions in the future if the County fails to comply with the remedial actions of this order. Paragraph 10 of the "Remedial Actions" portion of the Final Order, which required the County to amend Policy 1.1.2 and add or amend other appropriate objectives and policies in the Public Facilities Plan as described therein, contained the following footnote: "Clarifica- tion of the language in the amendments ordered by Remedial Action 10, so long as they do not depart from the purposes of the remedial actions ordered, may be made by the County subject to review and compliance determinations by the Department of Community Affairs and this Commission." The Walton Tract. The Walton Tract is approximately 6,151 acres of land in south central Sarasota County. It is about a mile east of Interstate 75 and is presently undeveloped with vegetation typical of the pine flatwood community. At the time Apoxsee was adopted, the County was in the process of planning for a solid waste disposal complex on the Walton Tract but had not yet identified an exact landfill site on the tract. In Apoxsee, the entire Walton Tract was identifed as the general area for the proposed Central County Solid Waste Disposal Complex, and the entire Walton Tract was designated as "Public Resource Lands." Prior Proceeding.-- In part, the Recommended Order adopted in the Hiss Final Order found: Neither the FLUM nor the FLUE designates a category of land devoted to conservation use. Designations tending to include conservation uses are Public Resource . . .. The Public Resource Lands designation is assigned to, among other parcels, the Walton Tract where any preservation or conservation uses will be subjected to the use of a part of the tract as a landfill, as discussed in Paragraphs 246 et seq. The primary provision in the plan describing the uses associated with Public Resource Lands is Policy 1.2 of the FLUE, which is "[t]o acquire and protect Public Resource Lands." In addition, FLUE Policy 1.2.3 permits environmental management practices on such lands, including controlled burning. These provisions are readily applicable to the other three parcels designated as Public Resource Lands and the part of the Walton Tract undisturbed by the landfill. However, these provisions are inconsistent with the portion of the Walton Tract proposed for use as a major landfill and other areas affected by this intensive use. * * * The inclusion of the entire Walton Tract in the Public Resource Lands is inconsistent with the proposed use of a substantial part of the tract as a major landfill. If the County eliminates this inconsistency by designating the actual landfill area and other affected areas as institutional or other public facilities, the Public Resource Lands designation would be consistent with the conservation designation. If the actual landfill area remains designated as Public Resource Lands, the designation of the Walton Tract as Public Resource Lands precludes, to the exclusion of fair debate, a finding that the Public Resource Lands designation is consistent with the criterion of a conservation designation. * * * It is fairly debatable that the plan is consistent with the criterion of a policy addressing intergovernmental coordination with respect to the conservation, protection, and appropriate use of interjurisdictional vegetative communities. With one exception, it is fairly debatable that the plan is consistent with criteria of policies addressing the protection of natural reservations and the designation of environmentally sensitive lands. [F.A.C. Rule 9J-5.013(2)(b)7. and 9.] To the exclusion of fair debate, the plan is not consistent with the latter two criteria as applied to the designation of the entire Walton Tract as Public Resource Lands, despite the intended use of part of the tract as a major landfill. The early stages of planning for the landfill may prevent the plan from dealing specifically with the likely environmental impacts of a landfill yet to be designed or sited. However, the plan should contain many of the provisions of the management plan promised for the Walton Tract. If, as the Supportive Material indicates, the landfill disturbs one-third of the Walton Tract, siting the landfill among the important environmental resources in the area is a critical task requiring more from the plan than inaccurately designating the entire tract as Public Resource Lands or promising the issuance of a management plan at some point in the future. The plan fails to provide guidelines for a detailed management plan, and guidelines are especially critical for the coordination of a major landfill with sensitive natural resources in the area. Detailed and effective safeguards in the plan for the Walton Tract and surrounding natural resources would require that the landfill project conform to these requirements. If some aspect of the landfill design prevents conformance with such plan provisions, the County may amend the plan with in [sic] compliance with all procedural requirements of the Act, including public participation and review by DCA. Absent effective provisions concerning the landfill to be placed in the Walton Tract, it is impossible to find that the plan contains policies addressing implementation activities for the protection of existing natural reservations. The Walton Tract is designated in its entirety as Public Resource Lands, and the conversion of part of this land to a landfill is not consistent with the protection of the entire tract. The same findings apply with respect to the designation of environmentally sensitive land because the Walton Tract is the site of critical natural resources, including various types of wetlands, part of Cow Pen Slough, and part of the Myakka River floodplain, as well as a bank of part of the Myakka River. * * * 402. To the exclusion of fair debate, the FLUM is not consistent with provisions to protect and acquire environmentally sensitive lands due to the conflict between the Public Resource Lands designation of the Walton Tract on the FLUM and the proposed use of part of the tract as a major landfill . . .. In part, the Recommended Order adopted in the Hiss Final Order concluded: 76. Based on the ultimate findings of fact contained in Paragraphs 366 and 367, the plan . . . is consistent with the criterion of the designation on the FLUM of proposed conservation land uses, if the designation of the part of the Walton Tract proposed for actual landfill use and any other affected area are redesignated from Public Resource Lands to another designation such as institutional or other public facilities. Otherwise, the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with the criterion of the designation on the FLUM of proposed conservation land uses. * * * Based on the ultimate findings of fact contained in Paragraphs 376 et seq., the plan is consistent with these [9J-5.013(2)(c)7.-9.] criteria with one exception. The plan is not in compliance with the Act and Chapter 9J-5 because the treatment of the entire Walton Tract is not consistent with criteria of the protection of existing natural reservations and designation of environmentally sensitive land for protection. The designation of the Walton Tract as Public Resource Lands despite the proposed use of part of the tract as a landfill demands, to the exclusion of fair debate, more specificity in the plan coordinating the land uses that will be permitted on the tract with the sensitive natural resources already there. Because of the intense use proposed for part of the tract and the proximity of important natural resources, the promise to adopt later a management plan for the Walton Tract is insufficient. . . . The proposed uses and special features of the Walton Tract require that, regardless of its future land use designation, the plan provide details of the management plan, if the plan is to contain policies addressing implementation activities for the protection of environmentally sensitive lands and existing natural reservations. [Fn. 43.--This determination remains applicable even if the County redesignates the Walton Tract as institutional or other public facilities. Although arguably redesignation could result in the tract losing its status as an existing natural reservation, the tract, or at least parts of it, would continue to represent environmentally sensitive lands, whose status is unaffected by any change in designation.] * * * 109. Based on the ultimate findings of fact contained in Paragraph 402, the plan is not in compliance with the Act and Chapter 9J-5 because the FLUM is not consistent with FLUE objectives and policies to protect and acquire environmentally sensitive lands with respect to the designation of the entire Walton Tract . . .. The Hiss Final Order required the following Remedial Action pertinent solely to the Walton Tract: 5. The County shall revise the section in the solid waste portion of the Public Facilities chapter that refers to "landfill Site Feasibility Report: Walton Tract and Central County Solid Waste Disposal Complex - Preliminary Cost Estimate" to reflect that the Walton Tract is currently only one potential location for the proposed landfill, subject to additional study. The County shall also adopt a policy requiring that at such time as a final decision is made on the location and type of solid waste treatment facility to be developed, the Future Land Use Plan Map Series and Public Facilities chapter will be amended accordingly to reflect that decision. The RU-5 Walton Tract Amendments.-- In part, RU-5 amends Figure 23, a part of the Future Land Use Map (FLUM) Series, to delineate 2,972 acres of the Walton Tract as "Public Resource Lands" and 3,179 acres of the Walton Tract as "Central County Solid Waste Disposal Complex and other Government Use." RU-5 specifically locates a proposed solid waste disposal complex on 550 acres of the 3,179 acres designated as "Central County Solid Waste Disposal Complex and other Government Use." The 2,972 acres in the Walton Tract designated as "Public Resource Lands" were zoned Open Use Conservation (OUC) by Sarasota County Ordinance 90-54. RU-5 also amends the Public Facilities Element of the Sarasota County Comprehensive Plan (Apoxsee) by adding Objective 2.6 and Policy 2.6.1. Objective 2.6 is: To develop a solid waste disposal complex and site which is economically feasible and which has minimal environmental impacts. Policy 2.6.1 states: The Central County Solid Waste Disposal Complex shall minimize, to the greatest extent possible, potential environmental impacts consistent with the adopted stipulations contained within Ordinance No. 90-54 and Resolution No. 91-149. Prior to development of the Central County Solid Waste Disposal Complex a resource based Land Management Program shall be adopted consistent with the "Principles for Evaluating Development Proposals in Native Habitats" and all other relevant policies in the Environment Chapter. The Public Facilities Supportive Material adopted as part of RU-5 states: The Board also approved a special exception for a 550 acre parcel for the Solid Waste Disposal Complex including a sanitary landfill and other uses associated with the landfill operations. * * * In order to minimize potential environmental impacts to the greatest extent possible, stipulations in the special exception approval include requirements for submission of studies such as the completion of a background Water Quality Monitoring Plan and a resource based Land Management Program, prior to the development of the landfill or other associated operations. Data and Analysis.-- The RU-5 amendments relating to the use of a portion of the Walton Tract for the Central County Solid Waste Disposal Complex are supported by the best available data and by appropriate analysis of the data. The County utilized all the appropriate data available at the time of the adoption of RU-5. All analysis required to be performed on the data through the time of the final hearing was performed and taken into consideration. Both the data and the analysis of the data through the time of the final hearing support the selection of the Walton Tract site for the Central County Solid Waste Disposal Complex. The total functional population of Sarasota County is projected to increase from 337,471 in 1990 to 475,353 in 2010. Meanwhile, with the closure of numerous unlicensed dump sites in the early 1970s, the County began operating the Bee Ridge Landfill in 1972. Although two of the County's four municipalities formerly operated landfills, those facilities have been closed due to environmental problems. Bee Ridge currently is relied on to serve all the municipalities as well as the entire unincorporated area of Sarasota County. Bee Ridge receives an average of 1,400 tons of solid waste per day (511,000 tons a year). Even assuming a 50% reduction in solid waste disposal through recycling, the County is projected to require solid waste disposal facilities capable of land filling over 850,000 tons per year. A County study entitled Solid Waste Management and Resource Recovery Plan, completed in 1980, indicated that landfilling would likely remain an essential means of managing the County's solid waste stream for the foreseeable future and that it would be necessary to obtain a replacement facility for the Bee Ridge Landfill. The Bee Ridge Department of Environmental Regulation (DER) permit expires in 1995. Bee Ridge was not constructed with liners meeting current DER permit requirements. Although the County has installed an underground "slurry wall" at the perimeter to attempt to prevent contamination from leaching out, there is no assurance that DER will renew the permit. In any event, Bee Ridge is projected to reach its maximum height by the mid-1990s. In addition, the ability to expand Bee Ridge is not assured, due to strong opposition from neighboring property owners. In 1986, the opportunity arose to acquire the Walton Tract without the use of condemnation, and the County authorized a specific feasibility study performed on the 6,151 acre tract. The study examined the parcel in terms of Florida statutory landfill requirements, physical characteristics of the site, hydrogeology and soils, landfill block configurations, environmental considerations, and regulatory agency comments. Although the study indicated that only 3,600 acres would be required for a landfill, the entire tract was purchased on advice of professional staff to maximize siting flexibility and ensure sufficient areas for perimeter buffers, wetland mitigation, and wildlife conservation areas. The purchase price was $8.6 million, paid out of the proceeds of an $80 million Solid Waste System Revenue Bond Issue. Preliminary cost estimates were prepared for the initial 20 years of the life of a landfill on the site. The estimate came to $39 million. At the time the Revised and Updated Sarasota County Comprehensive Plan was being compiled in the years prior to its adoption in 1989, the County had not yet identified an exact landfill site on the Walton Tract. Accordingly, Apoxsee identified the entire Walton Tract was identified as the general area for the proposed Central County Solid Waste Disposal Complex. The Walton Tract was also designated entirely as "Public Resource Lands" since the County regarded the "Public Resource Lands" use designation to permit public facilities in careful conjunction with large conservation areas of important native habitat, e.g., a potable water wellfield and water treatment plant on the Carlton Reserve; a solid waste disposal complex on the Walton Tract; and RV parks, campsites and active recreation facilities at Oscar Scherer State Recreation Area and Myakka River State Park. In the spring and summer of 1991, after entry of the Hiss Final Order, the Board of County Commissioners held public hearings to determine whether the Walton Tract should once again be designated as the site for the Central County Solid Waste Disposal Complex to accommodate a Class I landfill, composting areas for yard waste and yard waste/sludge recycling, and a Class III landfill for construction debris, and, if so, to determine the specific location and extent of the Complex, in the context of a rezoning and special exception proceeding. During the course of the hearings the County Commission considered detailed presentations by the county professional staff, expert consultants and the public concerning the suitability of the Walton Tract site, as well as other sites, for a solid waste disposal complex. The Commission also considered, as part of the evidence, a Draft Alternative Siting Study prepared by the engineering firm Camp Dresser & McKee (CDM) to meet the regulatory requirements of the EPA and Corps of Engineers under Section 404 of the Clean Water Act and the requirements of the Recycle Now! Chapter Amendment. At the conclusion of the hearings, the County Commission, by Ordinance 90-54 rezoned 3,179 acres of the Walton Tract to Government Use (GU) and 2,972 acres to Open Use Conservation (OUC). The Commission, by Resolution 91-149 also designated a reduced 550 acre site (instead of a 1,187 acre site) for the Central County Solid Waste Disposal Complex subject to final action on Comprehensive Plan Amendment RU-5, which was adopted by Ordinance 91-41 on July 23, 1991, after another public hearing at which all the evidence from the rezoning and special exception hearings was received into the record. (a.) Economic Feasibility.-- The Walton Tract site is centrally located in the County, between what are planned to be the County's major population concentrations, and close to the Laurel Road interchange with I-75 which is committed to be constructed by FDOT in 1993 under an agreement with the County. This location provides efficient transportation access to the rest of the County. The trend in solid waste management is toward centralizing solid waste disposal facilities due to the cost of the facilities, including the cost of permitting; the ability to achieve economies of scale; the increased reliability inherent in operating a limited number of facilities; and the advantages of focusing budget-limited management and regulatory compliance resources. Transportation costs with a centralized facility are offset by the use of transfer stations which greatly compress the solid waste to reduce the number of trips from the transfer station to the central facility. Sarasota County is already successfully using this system. The Draft Alternative Siting Study identifies three other properties besides the Walton Tract as suitable. During the public hearings before the County Commission, however, two of the sites (D and E) were strongly opposed by citizens living around those potential sites and the third site (G) was closer to the Myakka River and could be in conflict with the Myakka River Wild and Scenic Management Plan. From the standpoint of economic feasibility, the County Commission was advised: The County has certain bond obligations due to the purchase of site F [the Walton Tract] to provide a solid waste disposal facility. The legal and future bond financing issues must be considered against the potential benefits of selecting another site. The County's bond counsel also advised the County Commission that, if the County elected not to locate the solid waste disposal complex on the Walton Tract, the County would have to pay back to the Solid Waste System Revenue Bond enterprise fund the fair market value of the Walton Tract from some other revenue source. (b.) Adjacent Property.-- In contrast to the other suitable sites, the property owners closest to the proposed site on the Walton Tract are not opposed to the solid waste disposal complex in light of the County's ability to provide 1,000 foot buffers and avoid access conflicts due to the size and location of the Walton Tract. Due to the 6,151 acre size of the Walton Tract, the solid waste disposal complex, as approved by the County Commission, including all borrow pits, is located more than 8,000 feet from the closest point on the Myakka River, a designated Wild and Scenic River, and the testimony indicates that heavy equipment would not be heard on the river. Due to the flexibility in siting the solid waste disposal complex, and the 100 foot height limitation placed on the landfill by the County Commission, the landfill will not be seen on Lower Myakka Lake or the Myakka River. Due to the location of the solid waste disposal complex on the Walton Tract, together with the hydrogeologic characteristics of the site, no adverse impact on the Carlton (Ringling MacArthur) Reserve potable water wellfield located several miles to the east across the Myakka River is to be anticipated. The restriction of the solid waste disposal complex and associated borrow pits to the northwest portion of the Walton Tract and the designation by the County Commission of the remainder of the property as Public Resource Lands results in approximately 3,000 acres of the Walton Tract, contiguous to Myakka River State Park and the Carlton Reserve to the east, being placed in a conservation land use designation, linking these natural areas into a contiguous system of 55,000 acres of high quality native habitat in protected public ownership. (c.) Character of the Walton Tract.-- Hundreds of hours over a period of approximately five years were spend on-site at the Walton Tract by experts in environmental, engineering and other scientific disciplines to collect and analyze data on soils; topography; natural resources, including habitats, flora, and fauna; and historic resources to determine whether, and where, a solid waste disposal complex should be sited on the tract that would be economically feasible and minimize environmental impacts. Every wetland and upland habitat on the Walton Tract as well as likely ecological corridors and preservation areas, including the Myakka River 100 year floodplain and mesic hammocks, have been identified and verified in the field. The methods that were used to identify habitats, including likely habitats of threatened and endangered species, met professionally accepted standards, particularly for planning purposes. Environmental constraints were identified at the beginning of the assessment of the Walton Tract and drove or determined the siting process. Over the course of a five year period, there were no sightings of threatened or endangered species that would render the designated site of the complex or the borrow pits unsuitable for the proposed use. The designated site was suitable from the standpoint of minimizing environmental impacts. The pine flatwoods and isolated wetlands within the solid waste disposal complex footprint are neither rare nor endangered, constituting 57% and 17% of the area of the County, respectively, and there are suitable formerly improved pasture areas on the site to mitigate these wetlands on a type-for- type, one-for-one ratio. There is also a large 300 acre area adjacent to Cow Pen Slough suitable for mitigation by rehydrating wetlands previously impacted by the channelization of Cow Pen Slough in the 1960's. The proposed location of the landfill on the site is the most appropriate from the context of habitat, wetlands and wildlife. The complex and borrow pits protect water resources by being located outside the watershed of the Myakka River and outside the 100 year floodplain of Cow Pen Slough. Also, the Class I landfill will be elevated approximately three feet above grade, and the entire solid waste disposal complex will be surrounded with a bermed stormwater management system at least five feet above grade that will not only treat the stormwater to required standards but also provide additional protection against flooding beyond a 100 year flood event. The reduced 550 acre size of the solid waste disposal site is reasonable for meeting the solid waste recycling and disposal needs of the County for a 20 year planning period. CDM used the best available data, including the Federal Emergency Managment Agency (FEMA) Flood Insurance Rate Maps (FIRM), in siting the complex out of the 100 year floodplain. (The U.S. Soil Conservation Service 1985 Flood Plain Management Study of the Cow Pen Slough is not reliable data with respect to the extent of the 100 year floodplain.) The site designated for the landfill on the Walton Tract has no geotechnical or water resource factors that would preclude it from being suitable for a landfill. There is no realistic danger of groundwater contamination of either the surficial or the deeper Floridan aquifer beneath the landfill in light of the required multiple liners and the required leachate collection and treatment systems. A modern landfill operation is not necessarily incompatible with surrounding wildlife. The landfill would be limited to an exposed working face of solid waste no more than 100 feet by 200 feet which must be covered daily. This reduces the landfill's attactiveness to seagulls and other scavengers. Many species of birds, including sandhill cranes, woodstorks, and bald eagles, continue to be seen within several hundred yards of the working face of the Bee Ridge landfill and its heavy equipment. Over the 12 year existence of the Bee Ridge landfill, there has been no quantifiable decline in such wildlife. The herd of deer adjacent to the landfill had increased substantially over that period. Internal Consistency.-- It was not the intent of RU-5's Public Facilities Objective 2.6 and Policy 2.6.1 that the specifically designated site for the solid waste disposal complex on the Walton Tract would be invalidated if any other possible site were found to have even marginally less environmental impact. Although there are other sites arguably with less environmental impacts, according to a rating system developed for evaluating the suitability of potential sites, other factors also went into the selection of the Walton Tract site. Both Public Facilities Objective 2.6 and Policy 2.6.1 contemplate the development of a solid waste disposal complex and site. They mean that the designated site should be developed in a manner which reduces environmmental impacts as much as possible. It certainly is at least fairly debatable that they contemplate the development of the Walton Tract site as a landfill. RU-5's amended "Principles for Evaluating Development Proposals in Native Habitats," Section VI.A.2.e., provides in part: In cases where a wetland is no longer capable of performing defined environmental functions and providing defined environmental values, or in cases where no other reasonable alternative exists other than disrupting a wetland, some alteration may be allowed. As amended by RU-5, this portion of the "Principles for Evaluating Development Proposals in Native Habitats" focuses on wetland mitigation requirements on other portions of a landowner's property, when a wetland must be altered to allow reasonable, beneficial use of the property. Section VI.A.2.e. of these principles does not require the County, or any other property owner, to demonstate, prior to developing their property, that there is "no reasonable alternative location in the County which impacts less wetlands or an equivalent acreage of wetlands of less environmental value." It certainly is at least fairly debatable that they do not. The Supportive Material for Apoxsee's Recreation and Open Space Element states: "Large portions of the Walton Tract cannot be used for landfill purposes because they are in the floodplain of either the Myakka River or the Cow Pen Slough." Nothing in RU-5 is inconsistent with this data and analysis. The acreage being used for the landfill and associated uses are not in the floodplain. Through RU-5, Recreation Policy 1.1.4 of Apoxsee provided: "Ecologically benign, non-consumptive, resource-based uses shall be implemented at the Walton Tract and the Ringling-MacArthur Reserve." On March 10, 1992, RU- 6 was adopted and amended Recreation Policy to provide: "Recreational uses implemented on the Walton Tract and the T. Mabry Carlton, Jr., Memorial Reserve [formerly known as the Ringling-MacArthur Reserve] shall be limited to activities which are ecologically benign, non-consumptive and resource based." It is at least fairly debatable that this policy does not refer to the portion of the Walton Tract designated for use as a landfill. Future Land Use Element (FLUE) Objective 1.1, as amended through RU-5, restricts land uses on Public Resources Lands by requiring the County: "To protect environmentally sensitive lands, conserve natural resources, protect floodplains, maintain water quality, and maintain open space." FLUE Objective 1.2 is: "To acquire and protect Public Resource Lands." The implementing policies under FLUE Objective 1.2 include: Policy 1.2.1 -- Sarasota County shall attempt to coordinate efforts to acquire public lands for conservation, preservation and open space. Policy 1.2.2 -- Provide adequate buffering of Public Resource Lands for potentially incompatible adjacent land uses. Policy 1.2.3 -- Permit normal management practices associated with native habitats. Again, it is at least fairly debatable that these objectives and policies do not preclude the designation of a part of the Walton Tract for use as a landfill. The Supportive Material for Apoxsee's FLUE states that the County will adopt "detailed management plans" for the Walton Tract (and the Ringling- MacArthur Reserve) and adds: In conjunction with the development of a portion of these two County-owned properties as a waste disposal complex and potable water supply, respectively, subtantial acreage is to be preserved to provide for wildlife corridors, wetlands protection, buffering zones, recreation, education, and open space uses. It is critical that any development within, and adjacent to, these Public Resource Lands be compatible with their inherent environmental values as well as the public values ascribed to them. The management plans . . . will address this issue. The County has not yet adopted a management plan for the Walton Tract landfill. But Public Facilities Policy 2.6.1 incorporates the detailed protective stipulations contained in Ordinance 90-54, which zoned the Walton Tract "Government Use" and "Open Use, Conservation," and in Resolution 91-149, which designated the site of the Central County Solid Waste Disposal Complex. These stipulations: require submission of a background water quality monitoring plan for review and approval by the County Natural Resources Department; require a preapplication meeting with the Stormwater Management, Natural Sciences, and Pollution Control Divisions prior to submission of a Master Stormwater Management Plan; limit post development runoff volumes to predevelopment volumes for storm events up to the mean annual (2.33-year) storm; require design and planting of littoral zones in all stormwater detention lakes in accordance with the County Land Development Regulations; require design and planting of littoral zones in all borrow lakes in accordance with the County's Earthmoving Ordinance; require submission of a final mitigation plan, including engineer drawings and plans for creating and maintaining adequate hydroperiods in created wetlands for review and approval by the Natural Sciences Division; require clear delineation and, during construction, marking of Preservation/Conservation areas; require appropriate sediment control devices around buffers of all wetlands within 500 feet of construction; prohibit disturbances in any Perservation/Conservation area except in approved construction areas or to provide approved access roads, fire lanes, utility transmission lines or nature trails; require notification to the Natural Sciences Division for determination of appropriate remedial action in the event listed species are observed; prohibits development of the solid waste disposal complex until a resource-based Land Management Program is prepared, approved and adopted; and limits the height of the landfill to 100 feet. In addition, Public Facilities Policy 2.6.1 prohibits development of the solid waste disposal complex until a resource-based Land Management Program is adopted consistent with the detailed requirements of the "Principles for Evaluating Development Proposals in Native Habitats" and the policies of the Environment Chapter of Apoxsee, e.g., Environment Policy 5.5.13, as well as Recreation Policy 1.1.4 and Future Land Use Policies 1.2.2 and 1.2.3. The Hiss Final Order does not require that a detailed management plan be adopted as part of RU-5 in order for RU-5 to amend the FLUM Series to designate a portion of the Walton Tract as the new County landfill. Rather, it was critical that the 1989 "plan fails to provide guidelines for a detailed management plan, and guidelines are especially critical for the coordination of a major landfill with sensitive natural resources in the area." (Emphasis added.) Recommended Order, Finding of Fact 378. It stated that "the plan should contain many of the provisions of the management plan promised for the Walton Tract." (Emphasis added.) Recommended Order, Finding of Fact 377. While not specifying the management plan guidelines believed to be necessary, the Hiss Final Order found that the plan was not "consistent with criteria of policies addressing the protection of natural reservations and the designation of environmentally sensitive lands [referring to F.A.C. Rule 9J-5.013(2)(b)7. and 9.]." (Emphasis added.) Recommended Order, Finding of Fact 376. Elsewhere, it found it "impossible to find that the plan contains policies addressing implementation activities for the protection of existing natural reservations." (Emphasis added.) Recommended Order, Finding of Fact 379. F.A.C. Rule 9J-5.013(2)(b)7. and 9. require objectives that "[protect] existing natural reservations identified in the recreation and open space element" and "[designate] environmentally sensitive lands for protection based on locally determined criteria which further the goals and objectives of the conservation element." The plan, as amended through RU-5, contains guidelines for a management plan for the Walton Tract that are sufficiently detailed to meet the requirements of F.A.C. Rule 9J-5.013(2)(b)7. and 9. RU-5 is not inconsistent with the Support Material referred to in Finding 49, above. The final version of the management plan is not data or analysis that must precede the amendment of the FLUM Series. RU-6 amended Environment Policy 5.5.3 to read: By July 1, 1992, the Sarasota County Board of County Commissioners shall have adopted criteria for conducting and staff shall have conducted an analysis to identify habitats of high ecological values and strategies to physically link natural areas into a contiguous system. The criteria for identifying these areas should consider several major factors including the presence of endangered species, outstanding water resources, high quality natural habitat, and value as a wildlife corridor. The Future Land Use Map Series shall be revised to show the location of these areas of high quality ecological value. This provision is not inconsistent with RU-5. The portion of the Walton Tract designated for development as a landfill is made up of pine flatwoods and isolated, seasonal wetlands which are neither rare nor endangered habitats. Except for a minor portion of the westernmost borrow pit, it is outside the 100-year floodplain. 5/ It is outside the watershed of the Myakka River. It is set back from habitats of threatened or endangered species, as well as surrounding property owners. It is reasonably sized to meet the solid waste recycling and disposal needs of the County for the 20-year planning period. Consistent with Environment Policy 5.5.3, the 2,971 acres of the Walton Tract which RU-5 leaves designated Public Resource Land includes those areas which are contiguous to Myakka River State Park and the Carlton Reserve to the east, linking natural areas into a contiguous system, and providing protection to the outstanding water resources and high quality habitat in the Myakka River watershed and in the Cow Pen Slough watershed in the southernmost portion of the Tract. Historic and Archaeological Preservation.-- In part, the Recommended Order adopted in the Hiss Final Order found: 362. To the exclusion of fair debate, the plan is not consistent with the criterion of the depiction on the ELUM of historic resources. The depicted archaeological sensitivity zones, which represent projections of possible sites, do not purport to represent the location of, for example, the 78 or 79 sites on the Florida Master Site Plan and other historical resources, which are concededly vulnerable to development. In part, the Recommended Order adopted in the Hiss Final Order concluded: As relevant to the determinations contained in this section, . . . Rule 9J- 5.006(1)(a)(11), . . . requires that the "following generalized land uses shall be shown on the existing land use map or map series: . . . Historic resources." Rule 9J-5.003(35) defines "historic resources" to mean: all areas, districts or sites containing properties listed on the Florida Master Site File, the National Register of Historic Places, or designated by the local government as historically, architecturally, or archaeologically significant. Based on the ultimate findings of fact contained in Paragraph 362, the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with the criterion of showing historic resources on the ELUM. For instance, there are 78 or 79 sites in the Florida Master Site File that are, by definition, historic resources, but are not shown on any ELUM. The Hiss Final Order required the following Remedial Action pertinent to historic and archeological preservation: 2. The County shall revise its existing land use map to show the location of historic resources, including the generalized location of sites listed in the Florida Master Site File or National Register of Historic Places or otherwise designated by the County as historically, architecturally or archaeologically significant. * * * 4. The County shall revise its Future Land Use Plan Map Series to include the historic resources mentioned in paragraph 2 above. RU-5 amends the Historic Preservation Chapter of Apoxsee to indicate that the map provided in Figure 3 in the Future Land Use Map (FLUM) Series shows the location of "National Register sites and other historically significant sites in Sarasota County." It also amends Figure 3 to identify 78 National Register sites from the Florida Master Site File. Appendix A to "Section 3: Sites in Unincorporated Sarasota County Listed in the Florida Master Site File" also is amended to list these sites. In essence, RU-5 follows from the updating of the supporting documentation to Apoxsee by adding to the Existing Land Use Map (ELUM) Series and the FLUM Series verified historically significant sites in Sarasota County, namely the sites found on the National Register and on the Florida Master Site File List. The County also has performed extensive study of portions of the County in an effort to locate significant historic and archaeological sites. The study has located many potential sites. However, the sites have not yet been fully evaluated to determine if they are historically, architecturally or archaeologically significant. Therefore, they have not yet been added, or proposed to be added, to the National Register or the Florida Master Site File List, and they do not appear in Apoxsee, as amended by RU-5. The County's determination not to identify and depict more sites on RU-5 is supported by the best available data and analysis. In addition, RU-5 adopted Future Land Use Element (FLUE) Policy 1.13.1 which provides for the coordination of land uses with the protection of historical resources. As part of the process for issuing development orders, the County has incorporated review by the County Historian to determine the likelihood of the site being historically significant, and the County places conditions on various development permits to protect historically significant sites. Except for the failure of Apoxsee, before RU-5, to depict the locations of, "for example, the 78 or 79 sites on the Florida Master Site Plan and other historical resources, which are concededly vulnerable to development," the Historic Preservation Chapter of Apoxsee already has been exhaustively scrutinized and found to be internally consistent and in compliance. See Hiss Final Order. Floodplain Delineation and Protection.-- In part, the Recommended Order adopted in the Hiss Final Order found: To the exclusion of fair debate, the FLUM is not consistent with criteria of the depiction of floodplains; Big Slough, whether it is classified as a river, floodplain, or wetland; and minerals and soils. . . .. The omission of floodplains is complete. Nothing in FLUM-2 corresponds to the floodprone areas shown in Figure 27 in the Supportive Material. For example, the Conservation/Preservation areas surrounding the Myakka River are not coextensive with the larger floodplain of the Myakka River depicted in Figure 27. The omission of floodplains is exacerbated by the absence of plan provisions providing effective protection for these critical natural drainage features, except for the Myakka River floodplain. * * * To the exclusion of fair debate, the plan is not consistent with criteria of objectives to ensure the protection of floodplains (other than that of the Myakka River), floodplain- associated soils, and wetlands (due to the inadequacy of the mitigation provision). Policy 5.5.8 of the Environment Element promises to adopt land development regulations to regulate develop- ment and specify necessary design standards for floodplains. In the absence of any undertaking in the plan to require that land uses in the floodplains be consistent with their function, Policy 5.5.8 does not resemble an objective ensuring the protection of floodplains. To the exclusion of fair debate, the plan is not consistent with criteria of objectives to coordinate the future land uses with topography, soil conditions, and availability of facilities and services, with respect to floodplains and the unrestricted use of septic tanks 6/ in the Urban area. The Supportive Material advises that future land uses in the floodplains must be less intensive than in the past. Except for the Myakka River floodplain, the plan fails to coordinate future land uses with the unique topography and soil conditions of the floodplains because the plan does not require that any development in the floodplains be consistent with their functions. In part, the Recommended Order adopted in the Hiss Final Order concluded: 83. Based on the ultimate findings of fact contained in Paragraphs 372 et seq., the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with criteria of the depiction on the FLUM of floodplains, Big Slough (regardless of its classification as a river, wetland, or floodplain), and minerals and soils. * * * 96. Based on the ultimate findings of fact contained in Paragraph 388, the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with criteria of objectives to ensure the protection of flood- plains other than that of the Myakka River, floodplain-associated soils, and wetlands due to the inadequacy of the mitigation provisions. 7/ The Hiss Final Order required the following Remedial Action pertinent to floodplain delineation and protection: The County shall amend "Figure 27: 100-year Floodprone Areas" to depict the location of all 100-year floodplains . . . and adopt Figure 27, as amended, as an addition to the Future Land Use Map Series. The county shall amend "Figure 5: General Soil Associations in Sarasota County" to indicate general locations of known sand and gravel deposits, and adopt Figure 5, as amended, as an addition to the Future Land Use Map Series. * * * 9. The County shall adopt a new policy in the Future Land Use Plan, to provide that no development order shall be issued which would permit development in floodplains or on floodplain- associated soils that would adversely affect the function of the floodplain, or that would degrade the water quality of water bodies associated with the floodplains in violation of any local, state or federal regulation, including water quality regulations. In part, RU-5 amends FLUE Objective 1.1 to state: "To protect environmentally sensitive lands, conserve natural resources, protect floodplains, maintain water quality, and maintain open space." RU-5 also adds the following policies: Policy 1.1.5: "All future development shall be consistent with the detailed master plans for each drainage basin as they are adopted through the Basin Master Planning Program." [Revision of Environment Policy 2.1.8.] Policy 1.1.6: "No development order shall be issued which would permit development in 100-year floodplains, as designated on Federal Emergency Management Agency [FEMA] Flood Insurance Rate Maps [FIRM] or adopted County flood studies, or on floodplain associated soils, defined as Soils of Coastal Islands, Soils of the Hammocks, Soils of Depressions and Sloughs, and Soils of the Floodplains and shown in figure 5, that would adversely affect the function of the floodplains or that would degrade the water quality of waterbodies associated with said floodplains in violation of any local, State, or federal regulation, including water quality regulations." Policy 1.1.8: "'Figure 27: 100 - Year Floodprone Areas' shall be adopted as Future Land Use Plan Map 5." Policy 1.3.2: "'Figure 5: General Soil Associations In Sarasota County' shall be adopted as Future Land Use Plan Map 4." RU-5 also adds Environment Policy 5.8.2: Floodplain functions shall be protected by application of the Land Development Regulations (Ordinance No. 81-12, as amended) and Goals, Objectives, and Policies of the Public Facilities and Future Land Use Plans. RU-5 adds Public Facilities Policy 3.2.8: New development in the 100-year floodplains shall be consistent with the Goals, Objectives and Policies of the Environment, Public Facilities, and Future Land Use Plans. By virtue of the RU-5 amendments, which use the best available data (the FEMA FIRM) and appropriate analysis, the Apoxsee now depicts the floodprone areas in the County and plans appropriately for their protection. It is at least fairly debatable that the plan provisions are internally consistent. Septic Tanks.-- In part, the Recommended Order adopted in the Hiss Final Order found: A similar lack of coordination exists with respect to the unrestricted use of septic tanks in Urban areas. The Supportive Material discloses "chronic" septic tank failures in areas south of the City of Sarasota, south of Venice, and in the Englewood area at the southern tip of the County on the coast. The last area is one of the few areas remaining near the coast with significant amounts of vacant, unplatted land. Each of the three areas is adjacent to estuarine waters. The Supportive Material cautions that, without centralized sewer in the Englewood area, the County's last remaining shellfish harvesting area, which is in Lemon Bay, is threatened. The Englewood area also includes wellfields that draw upon the surficial aquifer, which is highly susceptible to contamination in this region. Failing to coordinate future land uses with topography, soil conditions, and availability of facilities and services, the plan allows the unrestricted use of septic tanks in these critical Urban areas. Promises to study the problem, prioritize areas for centralized hookup, and in the meantime "discourage" the use of on-site sewage disposal systems offer little in the face of chronic failures of on-site sewage disposal systems and the absence from Table 80 of any expenditures for a centralized wastewater treatment system. Sarasota Exhibit 38, which is the 1986 Englewood Sector Plan, illustrates, in its discussion of septic tanks, the historic lack of coordination between future land uses and topography, soil conditions, and the availability of facilities and services. The Sector Plan notes that the soils of the majority of undeveloped lands in the Englewood area are poorly drained with less than two feet between the surface level and the groundwater table. A 1970 study by the County Health Department concluded: "Based on test results it would appear that Englewood has already reached the point where further development without adequate centralized sewerage facilities will lead to increased problems with regard to fecal pollution of ditches and waterways." [Fn. 30--The Sector Plan mentions various requirements imposed by the County that, if incorporated into the plan, would help coordinate future land uses with topography, soil conditions, and availability of facilities and services. County Ordinance 81-12 prohibits septic tanks within 100 feet of a 25-year floodplain unless the lot is at least five acres. The same ordinance reportedly requires that "the groundwater table be maintained at not less than forty-eight (48 inches) [apparently from the bottom of the drainfield]." Sector Plan, p. VI-4. Also, the County requires hookup to centralized wastewater systems for all new residential subdivisions within one-quarter mile of an existing sewer line, although this requirement can be waived. Id. at pp. VI-4 and VI-5. Finding insufficient septic-tank restrictions imposed by the Department of Health and Rehabilitative Services, the County has adopted several ordinances regulating on-site sewage disposal systems. Plan, p. 166. Ordinances 83-14, 83-83, and 86-03 detail these requirements, but Appendix D, 2 does not describe them in much detail. More important, the restrictions contained in all of these ordinances did not find their way into the operative provisions of the plan.] Sector Plan, p. VI-4. In the context of a plan that allows unrestricted use of septic tanks anywhere in the Urban area, coordination is not achieved by a plan provision requiring "reasonable assurance" that development proposals within the watersheds of existing public potable surface waters (i.e., the upper Myakka River, both Myakka Lakes, and Big Slough) will not "degrade the quality of such water." Nor is coordination achieved by a provision offering the general assurance of protection and conservation of surface water and groundwater resources, or another provision promising the adoption of land development regulations to specify "design standards" in environmentally significant/sensitive areas like watersheds and water recharge areas. No plan provisions guide the review of specific development proposals. The plan contains no performance or design standards or any requirements to guide the preparation of such standards. [Fn. omitted.] The vague provisions governing the use of septic tanks in the Urban area do not provide, in the plan, a meaningful basis upon which to coordinate, in the plan, future land uses with topography, soil conditions, and availability of facilities and services. In part, the Recommended Order adopted in the Hiss Final Order concluded: 97. Based on the ultimate findings of fact contained in Paragraphs 390 et seq., the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with the criterion of an objective to coordinate future land uses with topography, soil conditions, and the availability of facilities and services, with respect to floodplains and the unrestricted use of septic tanks in the Urban area. Besides the provisions already mentioned in connection with floodplain delineation and protection, the Hiss Final Order required the following Remedial Action pertinent to septic tanks: . . .. The Public Facilities Element, Future Land Use Element, and other appropriate elements must contain objectives, with principles, guidelines and standards, to coordinate future land uses with topography, soil conditions, and available facilites and services, with respect to both floodplain protection and the use of septic tanks. The County shall amend Policy 1.1.2 and add or amend other appropriate objectives and policies in the Public Facilities Plan, as follows 8/: * * * Policy 3.2.2 The County shall prohibit the installation of septic tanks in areas designated urban on the Future Land Use Plan Map Series, unless the installation and use shall not adversely affect the quality of groundwater or surface water or adversely affect the natural function of floodplains; further, the County shall adopt regulations which, to the maximum extent permitted by law, mandate hookup of existing as well as new development to a centralized wastewater treatment system. RU-5 amends Public Facilities Policy 3.2.2 to provide: The County shall prohibit the installation of septic tanks in areas designated Urban and Barrier Island on the Future Land Use Plan Map Series, unless the installation and use shall not adversely affect the quality of groundwater or surface water or adversely affect the natural function of floodplains as required by the provisions of the County Land Development Regulations (Ordinance No. 81-12, as amended); Ordinance No. 83-83, regulating design, construction, installation, utilization, operation, maintenance and repair of individual on-site sewage disposal systems, as amended; and any more stringent regulations applicable. Further, the County shall revise as necessary or adopt regulations which, to the maximum extent permitted by law, mandate hookup of existing as well as new development to a centralized wastewater treatment system, when available. The County has admitted, for purposes of effectuating a settlement, that Public Facilities Policy 3.1.2 is not in compliance for the reasons set forth in the settlement Stipulation between the Department and the County. By the Stipulation, the County agrees to further amend Public Facilities Policy 3.2.2 by amending the last sentence to read: Further, the County shall require that all buildings served by on-site sewage disposal systems, except approved on-site greywater systems, connect to a publicly owned or investor-owned sewerage system within one year of notification by the County that such a system is available as defined in Chapter 10D-6.042(7), F.A.C. The County shall establish procedures for the notification of sewer availability. RU-5 also amends Public Facilities Policy 3.2.5 to make clear that the requirement for compliance with federal, state and local permit laws extends to individual on-site systems. It also provides: Soil surveys shall be required for septic tank permits. No individual on-site systems shall be permitted where soil conditions indicate that the system would not function without degrading water quality or where land alterations necessary to accommodate the system would interfere with drainage or floodplain functions. RU-5 also amends Public Facilities Policy 3.2.9 to provide: By 1994, the County shall begin implementation of its wastewater resource management program to be completed by 2020. The comprehensive plan, including the Captial Improvements Element, shall be amended by 1994 to reflect implementation of the program. Priority shall be given to providing centralized service to areas experiencing septic tank failure and areas where water quality has been adversely affected by current disposal methods. RU-5 added Environment Policy 5.8.3: Septic tanks shall not adversely affect water quality in accordance with Ordinance No. 83-83 and goals, objectives and policies of the Public Facilities and Future Land Use Plans. The vast majority of septic tanks in the County were installed prior to the adoption of increasingly stringent County regulations during the 1970s and 1980s. Since the early 1980s, there have been virtually no subdivisions approved for septic tanks in urban areas. With one seldom-used exception, all urban subdivisions (densities greater than one dwelling unit per acre) are required to have central sewerage facilities. (The exception, for subdivisions of half-acre lots where central water is provided, has proven not to be economically feasible for the developer in most cases.) Virtually all new subdivisions are being connected to large franchised systems. Consistent with Public Facilities Policies 3.2.2 and 3.2.5 and FLUE Policy 1.1.6, current regulations already provide that no septic tanks or drainfields are permitted within 100 feet of the 25-year portion of the 100-year floodplain. Under current County regulations, all lots are required to meet the County standards. When a septic tank system fails, the property owner is required to upgrade the system to the current county standards to the maximum extent physically possible on the property. Apoxsee's Capital Improvements Element provides for the expenditure of $3,403,000 for expansion of the County-owned centralized sewerage system. The County Health Department is currently developing a priority list for the extension of central sewerage systems into the older subdivisions in the County which are experienceing septic tank system failures due to the age of the systems. Funding for the extension of central sewerage into septic tank subdivisions is awaiting completion and approval of the priority list and an estimate of the costs. The timing of funding and implementation under RU-5 is reasonable and is supported by the best available data and appropriate analysis. Apoxsee specifically coordinates the density of urban development with central water and sewer service through FLUE Policies 1.7.2 and 1.7.3, as well as the application of the Urban Area Residential Checklist and the Urban Area Residential Density Matrix, which substantially reduces urban density when central water and sewer service are not provided. Potable Water Wellfields.-- In part, the Recommended Order adopted in the Hiss Final Order found: 242. The plan contains provisions conserving potable water and recharge areas. In the Public Facilities Element, for instance, Objective 3.1 is "[t]o establish a program of identifying and protecting existing and potential potable water supply sources." Policy 3.1.1 speaks of the adoption of a wellhead protection program by 1990, although this promise is nullified by the condition that the adoption of such a program is "subject to engineering studies and future deliberations and considerations." * * * Wellfields receive little direct protection in the plan. Objective 3.1 of the Public Facilities Element is "[t]o establish a program of identifying and protecting existing and potential potable water supply sources." As the language of this objective suggests, no such program exists, and the ensuing policies do little, if anything, in identifying implementation activities designed to achieve this objective. As already noted, Policy 3.1.1 states that the County will "ensure adequate protection for potable water supply systems," as well as recharge areas, "by initiating efforts to prepare and implement a wellhead protection program by 1990, subject to engineering studies and future deliberations and considerations." * * * Important protection of waterwells is derived from general provisions applicable to groundwater and potable water. Provisions governing groundwater have been discussed in connection with groundwater recharge. Provisions protecting potable water protect wellfields to the extent that groundwater provides potable water. For instance, Policy 5.3.2 of the Environment Element provides that the County shall implement water conservation measures. Measures to conserve water include the use of wastewater or stormwater runoff as a potable water source, as envisioned by Policies 2.1.4 and 2.1.5 of the Public Facilities Element. Likewise, Policy 1.2.6 promises that the County "will continue to explore ... water conservation strategies in cooperation with regional water supply authorities and other local entities." Water conservation measures will obviously protect wellfields by reducing demand and the possibility of overpumping. * * * 371. It is fairly debatable that the FLUM is consistent with criteria of the depiction of waterwells . . .. * * * It is fairly debatable that the plan is consistent with criteria of objectives and policies addressing the conservation of potable water, protection of natural groundwater recharge, and protection of waterwells. . . . . . .. With one exception, it is fairly debatable that the plan is consistent with criteria of policies addressing the protection of natural reservations and the designation of environmentally sensitive lands. To the exclusion of fair debate, the plan is not consistent with the latter two criteria as applied to the designation of the entire Walton Tract as Public Resource Lands, despite the intended use of part of the tract as a major landfill. * * * 385. It is fairly debatable that the plan is consistent with the criterion of an objective addressing the protection of water quality by the restriction of activities known to affect adversely the quality and quantity of identified water sources, including waterwells. The requisite protection is attained by policies protecting surface water and groundwater and conserving potable water, such as by investigating the use of treated wastewater effluent and stormwater runoff as potable water sources. * * * 387. It is fairly debatable that the plan is consistent with criteria of objectives to ensure the protection of waterwells . . .. In part, the Recommended Order adopted in the Hiss Final Order concluded: Based on the ultimate findings of fact contained in Paragraph 371, the plan is consistent with criteria of the depiction on the FLUM of waterwells . . .. There are no cones of influence that are required to be depicted on the FLUM because the Southwest Florida Water Management District has not identified any cones of influence in the County. According to Rule 9J-5.003(18), a "cone of influence" is "an area around one or more major waterwells the boundary of which is determined by the government agency having specific statutory authority to make such a determination based on groundwater travel or drawdown depth." * * * 91. Rule 9J-5.013(2)(c)1. requires that the plan contain "policies address[ing] implementation activities for the": 1. Protection of water quality by restriction of activities known to adversely affect the quality and quantity of identified water sources including existing cones of influence, water recharge areas, and waterwells[.] 92. Based on the ultimate findings of fact contained in Paragraphs 380 and 385-386, the plan is consistent with criteria of objectives addressing the conservation of potable water and protection of natural groundwater recharge areas and policies addressing implementation activities for the protection of water quality by restricting activities known to affect adversely sources of potable water. * * * 95. Based on the ultimate findings of fact contained in Paragraph 387, the plan is consistent with criteria of objectives to ensure the protection of waterwells . . .. The only pertinent thing RU-5 did with respect to potable waterwells was to amend Public Facilities Policy 3.1.1 to indicate that, whereas the 1989 plan stated that County was "initiating efforts to prepare and implement a wellhead protection program by 1990," by the time of RU-5, the plans were to "continu[e] efforts to immediately implement a wellhead protection program." The delay in implementation of the program was predicated on County staff's advice: The extension of the deadline . . . allows for the need to establish base line data and because of the extensive requirements for monitoring such a program. . . . In the face of this explanation, the intervenors did not prove that the extension of the deadline was not supported by the best available data and appropriate analysis. RU-5 also added Public Facilities Policy 3.1.2 Sarasota County will continue working in close cooperation with the Southwest Florida Water Management District and other professional regulatory agencies to develop and evaluate the feasibility of adopting a model wellhead protection ordinance for major public supply wells and well fields shown on the Future Land Use Map Series. This effort may include requests to the SWFWMD for cooperative funding or technical assistance to conduct an inventory and assessment of existing and potential public supply wells areas and conditions. and Public Facilities Policy 3.1.3 For existing and proposed public supply wells shown on the Future Land Use Map or Map Series, a zone of protection shall be delineated within which land use will be regulated to protect public water supply resources, consistent with the wellhead protection program. Where cones of influence have been delineated, the zone of protection shall be consistent therewith. Where cones of influence have not been determined, Sarasota County shall use its best available data to consider delineating interim protection zones of between 200 feet to 400 feet in radius, depending on variables including, but not limited to, soil characteristics and surrounding uses. When DCA found fault with the absence of an explicit time frame for implementation of the wellhead protection program in Public Facilities Policy 3.1.2, the County admitted, for purposes of effectuating a settlement, that Public Facilities Policy 3.1.2 was not in compliance for the reasons set forth in the settlement Stipulation between the Department and the County. The settlement Stipulation amends the first sentence of Public Facilities Policies 3.1.2 as follows: Sarasota County will continue working in close cooperation with the Southwest Flroida Water Management District and other professional regulatory agencies to develop a model wellhead protection ordinance, culminating in Sarasota County adopting a wellhead protection ordinance during fiscal year 1992 for major public supply wells and well fields shown on the Future Land Use Map Series. The Department agrees that this amendment would bring RU-5 into compliance. The balance of the intervenors' criticism of the potable waterwell protection amendments in RU-5 are foreclosed by the Hiss Final Order, as recited above. Wetlands Mitigation.-- In part, the Recommended Order adopted in the Hiss Final Order found: 266. The mitigation requirement applicable to Marshes, Sloughs, or Wet Prairies addresses the habitat function of these wetlands. However, this requirement does not address the critical drainage function of those wetlands altered because "no other reasonable alternative exists." The drainage function is especially pertinent to Marshes and Sloughs, which are contiguous wetlands. Additional findings concerning the treatment of wetlands are at Paragraph 315 below. [Fn. 17 omitted.] * * * 315. Ignoring alterations to wetlands causing the loss of drainage functions, the mitigation requirement fails even to ensure the protection of the habitat function of wetlands, whose loss triggers the obligation to mitigate. The mitigation provision leaves to the developer the task of monitoring the success of the artificial wetlands created to replace converted wetlands. Assuming that developer monitoring may suffice with County supervision, the plan supplies no standards by which to evaluate a mitigation project or sanctions by which to enforce a mitigation agreement. These short- comings undermine the protection afforded Swamps, Marshes, and Wet Prairies. Testimony established that many wetland-mitigation projects fail, largely due to the absence of performance standards and failure to monitor. The Hiss Final Order contains no conclusions of law regarding wetlands mitigation. However, for reasons not readily apparent from the Final Order, the Remedial Action 13 does address wetland mitigation by requiring the County to "amend the Freshwater Wetlands section 'Principles for Development Proposals in Native Habitats.'" In most respects, RU-5 follows the specified remedial action. In those respects, the intervenors are foreclosed from challenging RU-5's amendment to the "Principles for Evaluating Development Proposals in Native Habitats." In some respects, there are difference between the specified remedial action and RU-5. The Remedial Action in the Hiss Final Order requires that the "Principles for Development Proposals in Native Habitats," Section VI.A.2.e., be amended to read: All alterations in wetlands which result in a loss of wetlands shall be mitigated on at least a two-to-one basis for wooded wetlands. Mitigated wetlands shall restore the type, nature and function of the altered wetland. A wetland mitigation, maintenance, and monitoring plan based on best available technology shall be submitted for review and approval by the County prior to or concurrent with the preliminary plan or site and development plan development review process. The success of mitgation shall be monitored by the applicant or his designees and shall also be subject to monitoring and enforcement by the County. Except as otherwise authorized herein, wetlands shall not be filled, drained, dredged, or converted to lakes or borrow pits. Instead, RU-5 amends the "Principles for Evaluating Development Proposals in Native Habitats," Section VI.A.2.e., to read: All alterations in wetlands which result in a loss of habitat, shall be mitigated in accordance with performance standards adopted by the Board of County Commissioners. These performance standards shall ensure that the recreated wetlands provide values and functions equal to or, particularly in the case of an impacted or degraded wetland, greater than those of the wetland qualifying for alteration. Reasonable assurance shall be provided such that the recreated wetland will exhibit the defined environmental function, nature, and, where hydrologically feasible, similar type of the altered wetland. Mitigation ratios shall be as follows: One-to-one for herbaceous wetlands and two-to-one for wooded wetlands, in accordance with Level I performance standards; or Two-to-one for herbaceous wetlands and four-to-one for wooded wetlands in accordance with Level II performance standards. General Requirements for Level I and Level II Performance Standards: For all projects, a wetland mitigation, maintenance, and monitoring plan based on best available technology shall be submitted for review and approval by the County prior to or concurrent with the preliminary plan or site and development plan development review process. All federally listed threatened and endangered plant species shall be preserved, protected or relocated pursuant to a transplantation program to be implemented prior to construction authorization. The success of mitgation shall be monitored by the Applicant or his designees and shall also be subject to monitoring and enforcement by the County. Except as otherwise authorized herein, wetlands shall not be filled, drained, dredged, or converted to lakes or borrow pits. Specific performance standards shall be contained in the County's Land Development Regulations (Ord. 81-12, as amended). Criteria for Level I Performance Standards: Level I standards shall include the following: the diversity of plants in the wetlands to be impacted shall be approximated in the recreated wetland; the habitat value of the recreated wetland shall approximate or exceed that of the wetland to be impacted; similar substrate shall be provided in the recreated wetland; success criteria (e.g., plant survival, animal diversity, hydroperiods) shall be established based on the best availabale technology, and shall be met before monitoring can be completed; and a hydroperiod maintenance plan, acceptable to the County, shall be prepared. Mitigation at ratios as described in (1), above, and based on success criteria for Level I performance standards may be provided prior to the alteration of any wetland qualifying for alteration. Mitigation with Level I performance standards may be provided in a defined area that is part of an environmental system or corridor that can enhance wildlife values and functions. Off-site wetland mitigation shall be allowed only where on-site mitigation or preservation is not feasible, as determined by the County. Criteria for Level II Performance Standards: Level II standards shall include the following: recreated wetlands shall be planted with at least three different native species at specific distances between plants; mulching may be used in lieu of planting; a hydroperiod maintenance plan, acceptable to the County, shall be prepared; and monitoring of success shall be required for at least three years. The County has admitted, for purposes of effectuating a settlement, that Section VI.A.2.e. of the "Principles for Evaluating Development Proposals in Native Habitats" is not in compliance for the reasons set forth in the settlement Stipulation between the Department and the County. Under the settlement Stipulation, the County has agreed to revise Section VI.A.2.e. to specify that the "federally listed threatened and endangered plant species" to be preserved includes "those species that are listed or are C1 candidates for listing by the U.S. Fish and Wildlife Service; listed as threatened or endangered by the Florida Department of Agriculture and [C]onsumer [S]ervices pursuant to the Preservation of Native Flora Act, Section 581.185, Floirida Statutes; and listed by the Convention on International Trade in Endangered Species of Wild Fauna and Flora." There is no basis in the record for the intervenors contentions that RU-5, as amended by settlement Stipulation between the DCA and the County, is contrary to the required Remedial Action or inconsistent with the Growth Management Act. 9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administration Commission enter a final order that: (1) Sarasota County's RU-5 amendments to its comprehensive plan are not in compliance, but only for the reasons set out in the settlement Stipulation between the County and the DCA; (2) that the RU-5 amendments are otherwise in compliance; and (3) that the County be required to take the remedial action agreed to in the settlement Stipulation. RECOMMENDED this 31 day of August, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 31 day of August, 1992.
The Issue Whether or not Respondent has violated Sections 472.033(1)(a), and (h), and 455.227(1)(b), Florida Statutes, and Rules 21HH-2.001(3) and 21HH-6.003, Florida Administrative Code, by failure to comply with a valid Final Order of the Board of Professional Land Surveyors.
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Board of Professional Land Surveyors, with the responsibility to prosecute administrative complaints pursuant to Chapters 455 and 472, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Amended Administrative Complaint, Respondent Bertin C. Tash was licensed as a professional land surveyor in the State of Florida, holding license number LS 0002292. By Final Order entered December 31, 1985, the Board of Professional Land Surveyors issued a Final Order in case number 0049353 (previously DOAH Case No. 85-0285), a prior disciplinary action against Respondent. Among other terms of that Final Order, Respondent was placed on probation for twenty-seven months and further was required during the course of that twenty-seven month probation to: ... submit 25 surveys representative of his land surveying practice which shall be accompanied by field notes and record plats to the board for its review. Additional information regarding the surveys may be requested. Five surveys shall be submitted within three months from the filing of this final order; thereafter, five surveys shall be submitted at six month intervals during the period of probation. Respondent shall attend the first available continuing education seminar in his area on the minimum technical standards within 12 months from the filing of this order or as soon after as possible. Evidence of Respondent's attendance and successful completion of the course shall be furnished to the board through the proctor or instructor of the continuing education course... (Emphasis supplied.) It is noted that although the "certificate of service" for the copy of the Final Order admitted in evidence as part of Petitioner's Exhibit 3 is unsigned, Respondent admitted receipt thereof, that no appeal was taken therefrom, and that he understood the terms of the Final Order. Twenty-seven months from December 31, 1985 would fall on April 1, 1987. Twelve months from December 31, 1985 would fall on January 2, 1986. Respondent initially complied with the Final Order by submitting two sets of five surveys, the second in December, 1986. However, some type of dispute arose between Respondent and the Board's monitor of Respondent's probation about whether the monitor could require corrections to be done by Respondent to those surveys already submitted and about whether or not Respondent could be required to submit his field notes for the surveys. Respondent seems to have resisted the clear language of the Final Order (see emphasized language in Finding of Fact No. 4, supra) upon a personal belief that these requirements were unconstitutional, invaded his privacy, or exposed him to ethical charges by his clients. There is nothing in the record, to support this ideation of Respondent, and eventually, Respondent altered his position. Respondent did not submit any further surveys until November, 1988 after the instant case was already in progress, at which time he had modified some of his views with regard to field notes. He then attempted to comply with the Final Order by submitting corrected surveys. However, in error, he sent these surveys not to the Board, but to the attorney for the Department of Professional Regulation where they were retained. This submittal was considerably beyond the April 1, 1987 probationary period and whether considered corrections of the second five surveys or an additional five surveys would not constitute the twenty-five surveys required by the prior Final Order. The Respondent failed to complete a seminar on minimum technical standards between the entry of the Final Order on December 31, 1985 and the date of formal hearing on December 14, 1988. Petitioner submitted proof that such courses were available in West Palm Beach, Respondent's hometown, on May 20, 1987, and in adjoining Broward County on May 21, 1988. Clearly, neither of these courses was available to Respondent during the probationary time frames set out in the Final Order and Findings of Fact Nos. 4 and 5 supra. Petitioner submitted no proof of the availability of other such courses during the appropriate time frames, but it appears undisputed that these were the only qualifying courses "in his area" and that the Board would have accepted Respondent's late completion of either course as his compliance with the continuing education requirement in the Final Order. The Board even went so far as to reserve space for Respondent at the May 21, 1988 course in Broward County. Respondent's testimony that he was too ill to attend the May 30, 1987 course is unrefuted. Respondent's testimony that he had, no private means of transportation to the May 21, 1988 course is also unrefuted but he did not show unavailability of public transportation. Moreover, Respondent testified that until the date of formal hearing, he had resisted, upon grounds of his personal ethical ideation, the concept of learning from, or submitting himself to critiques by, any local professionals who conducted continuing education seminars in land surveying.
Recommendation That the Board of Professional Land Surveyors enter a Final Order finding Respondent guilty of two counts of violating Section 472.003(1)(h) Florida Statutes, and imposing a three-month suspension of Respondent's license, subject to an extension of such suspension to a maximum of one year or until Respondent completes the continuing education course required by the prior Final Order, whichever comes first, and imposing thereafter three years' probation to follow immediately upon the lifting of the suspension, during which three years' probation Respondent shall be required to submit an appropriate number of surveys to be determined by the Board for review by the Board. DONE and ENTERED this 13th day of February, 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3108 The following constitute specific rulings upon the parties' respective Proposed Findings of Fact (PFOF) pursuant to Section 120.59(2), Florida Statutes. Petitioner's PFOF: 1-5 are all accepted. Respondent's PFOF: PFOF 1 discusses the nature of several exhibits and objections ruled upon in the course of formal hearing, does not constitute a relevant or material proposed fact and is not dispositive of any issue at bar. The same subjects are addressed within the RO at FOF 3-4 and 8 to the degree they impinge on this proceeding. PFOF 2 is rejected in part and accepted in part in FOF 8 to the degree it comports with the greater weight of the credible record evidence as a whole. PFOF 3 is accepted in part in FOF 6. The remainder of the proposal is rejected as irrelevant, immaterial, and not comporting with the greater weight of the credible record evidence as a whole. PFOF 4,5,7 and 8 are rejected as mere argument of position or legal argument. PFOF 6 is accepted in part in FOF 7. The remainder of the proposal is rejected as immaterial or mere argument of position or legal argument. COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bertin C. Tash 5100 Spruce Avenue West Palm Beach, Florida 33407-2846 Allen Smith, Jr. Executive Director Board of Professional Land Surveyors 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32299-0750 =================================================================
The Issue The general issue for determination in this case is whether Amendment 00-D1 to Sumter County’s comprehensive plan (the “Plan Amendment”) is "in compliance" with the Local Government Comprehensive Planning and Land Development Act, Sections 163.3161 through 163.3217, Florida Statutes. (All statutory references are to the 2000 codification of the Florida Statutes.) The initial Petition to Request Administrative Hearing (Petition) alleged numerous reasons why the Plan Amendment should be found not "in compliance." But from the time of the initial Petition--through the Joint Prehearing Stipulation, opening statement at final hearing, and Proposed Recommended Order (PRO)--Petitioners reduced the number of reasons why they contend that the Plan Amendment is not "in compliance" to the following: simultaneous conversion of Future Land Use (FLU) from Agricultural to PUD allegedly inconsistent with parts of the County's Plan's; alleged lack of demonstrated need for land use allocations contrary to Section 163.3177 and Florida Administrative Code Rules Chapter 9J-5 (all rule citations are to the Florida Administrative Code); conversion of FLU from Agricultural to PUD allegedly inconsistent with the Plan's Policy 4.6.1.1 (the so-called "90% rule"); and alleged failure to discourage urban sprawl contrary to Rule 9J-5.0006(6). These are the only compliance issues that still have to be addressed in this proceeding. In addition, Intervenor contends that Sumter Citizens Against Irresponsible Development (SCAID) does not have standing.
Findings Of Fact Intervenor, the Villages of Lake-Sumter, Inc., owns land in the northeast part of Sumter County on which Intervenor plans to construct a mixed-use development of regional impact (DRI) known as the Villages of Sumter. The proposed DRI will encompass approximately 4,679 acres and is anticipated to contain: 11,097 residential dwelling units; 1,250,000 square feet of commercial area; 250,000 square feet of office area; 157,000 square feet of institutional area; 120,000 square feet of hotel (300 rooms); 100,000 square feet convention center; 23,500 square feet of movie theater (8 screens); 512 acres of golf courses (126 holes); 8 marina slips; 602 acres of wildlife management and Kestrel foraging areas; 162 acres of lakes, 162 acres of roads, 31 acres of parks and buffers; and 227 acres of stormwater and open space. The proposed DRI will feature neighborhood and town centers and will extensively utilize clustering, open spaces, and buffering as part of its design. It is anticipated that the Villages of Sumter DRI will have an internal vehicle capture rate of over 60%--i.e., over 60% of vehicle trips starting in the DRI will not go outside the DRI. The DRI will provide water, sanitary sewer, stormwater management, aquifer recharge areas, and other governmental services as part of its development. Eighty percent of the residents in the Villages of Sumter DRI will have to be occupied by persons 55 of age or older, and no one under 19 will be permitted to reside within this DRI. When Intervenor filed its Application for Development Approval (ADA) for the Villages of Sumter DRI, Intervenor also requested the subject Plan Amendment to accommodate the DRI, including a change in the Future Land Use Element (FLUE) and FLUM from Agricultural use to UEA and PUD. The ADA itself served as a major part of the data and analysis supporting the Plan Amendment. (Another major part of the data and analysis was the Evaluation and Appraisal Report (EAR) prepared by the County in 1995.) The western part of the northern boundary of the Plan Amendment parcel (i.e., the Villages of Sumter DRI) will be the western part of the southern boundary of a related DRI developed by Intervenor known as the Tri-County Villages. From there, the Tri-County Villages DRI extends north to the southern border of Marion County and east to the western border of Lake County. (Towards the east, the northern boundary of the DRI drops just a little south of the southern border of Marion County.) Tri- County Villages is a large mixed-use DRI. It includes residential, commercial, recreational, and open space land uses. Prior to the Tri-County Villages DRI, Intervenor or its predecessor also developed other related mixed-use DRIs to the east in Lake County. SCAID was formed in 1993 or 1994 to oppose the Tri- County Villages DRI and 1994 comprehensive plan amendments adopted to accommodate the Tri-County Villages DRI. SCAID, T. Daniel Farnsworth, and James E. Boyd filed a petition initiating Sumter Citizens Against Irresponsible Development, T. D. Farnsworth, and James E. Boyd vs. Department of Community Affairs and Sumter County, DOAH Case No. 94-6974GM, to oppose DCA's determination that the County's 1994 amendments were "in compliance." SCAID, Farnsworth, and Weir are collaterally estopped to deny facts established in DOAH Case No. 94-6974GM (SCAID I). (Latham and Roop are not estopped.) See Conclusions of Law 63-64, infra. In any event, all Petitioners agreed to official recognition of the Final Order entered in DOAH Case No. 94-6974GM. Among the facts established by adoption of the Recommended Order by the Final Order in SCAID I was the history of the earlier DRIs, the Tri-County Villages DRI, and the comprehensive plan amendments required by the Tri-County Villages DRI: [¶4] [I]ntervenor [Villages] is the owner and developer of the Tri- County Villages development located in unincorporated Sumter County. Development which predated the existing Tri-County Villages development commenced in approximately 1968 with Orange Blossom Garden North (OBGN). OBGN was an approximately 1,000-acre project owned and operated by Orange Blossom Hills, Inc. as a mobile home retirement community located mostly in the Town of Lady Lake, Florida. That community lies in the northwestern corner of Lake County, which adjoins the northeastern corner of Sumter County. Because the development of OBGN commenced prior to July of 1973, it is vested for purposes of development of regional impact (DRI) review pursuant to Section 380.06(20), Florida Statutes. [¶5] In 1987, Orange Blossom Hills, Inc. submitted an Application for Development Approval (ADA) with the Town of Lady Lake which requested authorization to develop Orange Blossom Gardens South (OBGS). The OBGS development was an approximately 595-acre extension of the vested OBGN retirement community and was determined by the DCA and Town of Lady Lake to be a DRI. On January 18, 1988, the Town of Lady Lake approved the proposed OBGS development. [¶6] In 1989, Orange Blossom Hills, Inc. submitted to the Town of Lady Lake and the County an ADA requesting a substantial deviation from the OBGS DRI. The substantial deviation request sought authorization to develop Orange Blossom Gardens West (OBGW). OBGW was planned as an approximately 1,700-acre extension to the OBGS DRI. The Town of Lady Lake approved the substantial deviation request through the issuance of an Amended Development Order on May 7, 1990. The County approved the development within its jurisdiction on May 29, 1990. [¶7] In September 1993, intervenor, as successor to Orange Blossom Hills, Inc., submitted an ADA to the County which requested a substantial deviation from the OBGS and OBGW DRI's. By submitting this latest development, intervenor sought to add approximately 1,960 acres to the existing OBGS and OBGW DRI's and modify the development already approved by adding a total of 6,250 residential units and 910,000 square feet of commercial square footage. The overall development was renamed Tri-County Villages. The development order approving the substantial deviation for Tri-County Villages was adopted by the County on September 20, 1994. [¶8] On September 20, 1994, or prior to approval of the Tri-County Villages development substantial deviation, but in conjunction with it, the County adopted plan amendment 94D1 by Ordinance No. 94-6. On November 10, 1994, the DCA determined the amendment to be in compliance. That amendment amended the plan's Future Land Use Map (FLUM) to revise the land use designations on approximately 1,960 acres of land. Specifically, the plan amendment designated as Planned Unit Development (PUD) all areas of the approved OBGW DRI and the additional 1,960 acres referred to in Exhibit 1 of 94D1 as parcels 5 and 8. Prior to the amendment, parcels 5 and 8 had been designated predominantly as agricultural, with small pockets of rural residential. [¶9] The plan amendment also revised the FLUM by extending the urban expansion area to include all of parcels 5 and 8. Prior to the amendment, only a small section of parcel 8 was included in the urban expansion area. [¶10] The plan amendment further included several textual revisions to the Future Land Use Element (FLUE), including a revision to FLUE Policy 1.5.7 concerning the ratio of commercial square footage to residential units and the addition of FLUE Objective 1.14 and Policies 1.14.1 - 1.14.6, which essentially incorporated the concept of sector planning into the plan. [¶11] Finally, the plan amendment revised Policy 2.1.5 of the Sanitary Sewer Element which, subject to submission of appropriate data and analysis, and Department of Environmental Protection approval, reduced the established level of service for sanitary sewer throughout the Tri-County Villages development. SCAID I, 17 F.A.L.R. 4527, 4531-32 (Dept. Community Affairs Aug. 1995). (The Recommended Order may also be found on WESTLAW at 1995 WL 1052949.) At its inception, the Tri-County Villages DRI was projected to build-out in approximately 2015. When the Tri- County Villages DRI first began construction in late 1992, the developer pulled 24 building permits. In 1993, the County issued 406 residential building permits, 365 of which were pulled for the Tri-County Villages DRI. In 1997, the developer pulled 1,052 building permits for the Tri-County Villages DRI. To date, approximately 13,000 homes have been built in the Tri- County Villages DRI. Based upon present projections, the Tri- County Villages DRI is anticipated to be substantially built-out in 2003-04, 12 years ahead of its initially projected build-out date of 2015. Presently, there are numerous cultural and recreational activities, shopping options, medical and governmental services available to residents within the Tri-County Villages DRI. While still designated as a UEA and PUD on the County's FLUM, the Tri-County Villages DRI in fact is a self-contained urban area, especially in the context of Sumter County. Sumter County is mostly rural. According to the 1995 EAR, the County's permanent (non-seasonal) population was projected to be: 38,961 for 1998; 56,000 for 2005; and 64,200 for 2010. The unincorporated portion of the County contains 334,903 acres, approximately 99,436 acres of which are state- owned conservation lands, and approximately 202,000 acres of which are agricultural lands. There are five municipalities in the County--Wildwood, Bushnell (also the County seat), Center Hill, Coleman and Webster. None are as urbanized as the Tri- County Villages DRI. Simultaneous Conversion Objective 7.1.2 of the County's comprehensive plan provides in pertinent part: Upon adoption of this plan, Sumter County shall . . . provide for a compatible and coordinated land use pattern which establishes agriculture as the primary use outside of the urban expansion area boundary and insures retention of agricultural activities, preserves natural resources and discourages urban sprawl. In pertinent part, the County Plan's Policy 7.1.1.2(e) provides that the County's land development regulations governing PUDs should be based on and consistent with the following standards for densities and intensities: Within the Urban Expansion Area, a base density of up to 8 residential units per gross acre in residential areas and 6 units per gross acre in commercial areas are allowed. . . . . Outside of an Urban Expansion Area, a base density of up to 4 residential units per gross acre in residential, commercial and agricultural areas are allowed. Policy 7.1.5.1 allows PUDs "in the following land use districts and at the following densities/intensities of use": 8 dwellings per gross acre in "Residential Areas Inside UEA"; 6 dwellings per gross acre in "Commercial Areas Inside UEA"; and 4 dwellings per gross acre in "Res./Comm. Uses Outside UEA." Petitioners contend that the foregoing objective and policies somehow combine to preclude the simultaneous conversion of Agricultural FLU to UEA and PUD; they appear to contend that these policies necessitated an intermediate conversion to UEA. (Protection of agricultural lands was raised in a more general sense, but this precise issue was not raised prior to final hearing.) But Petitioners argument not only is not persuasive, it is not even easily understood. It is at least fairly debatable that the objective and policies do not combine to preclude simultaneous conversion of Agricultural FLU to UEA and PUD. Even without prior notice of this precise issue, one of the County's expert witnesses in land planning persuasively testified that the cited objective and policies do not combine to preclude simultaneous conversion of Agricultural FLU to UEA and PUD. Even Petitioners' expert land planner ultimately agreed that there is nothing in the Florida Statutes or Florida Administrative Code Rules Chapter 9J-5 to prevent conversion of agricultural uses to more urban uses. Demonstrated Need As reflected in previous Findings of Fact, the subject Plan Amendment is for a highly mixed-use PUD. Of the many mixed uses involved, Petitioners focus on the allocation of land for residential use in their challenge to the demonstration of need for the Plan Amendment. In this context, demonstrated need refers to the existence of adequate data and analysis to demonstrate the need for additional allocation of residential dwelling units on the FLUM. Petitioners assert that the methodology utilized by the County to project need is flawed. Determination of the need for a certain allocation of residential densities starts with a projection of population on the planning horizon (2020). In doing so, all available data and analysis must be considered. (Petitioners also assert that Policy 7.1.2.5(b)1. of the County's comprehensive plan requires such an analysis "utilizing professionally accepted methods," but that policy speaks to additional densities and allocations of land use for developments proposed in agricultural areas, while the Plan Amendment in this case converts the agricultural land to UEA and PUD.) For the purpose of analyzing whether there is a demonstrated need for this Plan Amendment, the County's planner, Roberta Rogers, relied upon need projections made in conjunction with the preparation of the County's EAR. The EAR, prepared in 1999, included a projection of the County's population for the 2020 planning horizon. The EAR projected that the permanent population of unincorporated Sumter County, by the year 2020, will be 79,475. (The total County permanent population is projected to be 94,205.) One of the purposes of an EAR is to provide data and analysis for comprehensive plan amendments. In preparing the population projections reflected in the EAR, Rogers began her analysis by referring to the projections for Sumter County formulated by the Bureau of Economic and Business Research ("BEBR"), as reported in 1996. The 1996 BEBR Report actually reflected projections made in 1995. BEBR publishes yearly reports that state both the estimated current and the projected future populations for each Florida county. The population projections reflected in BEBR Reports are based upon historical trends of 10-15 years' duration. Because the development in the Tri-County Villages DRI is a relatively recent phenomenon, Rogers believed that reliance upon the BEBR projections alone would have resulted in a significant under-projection of the County's future population. As a consequence, Rogers added an annual rate of growth of 1000 building permits per year through 2005 and 500 permits per year through the remaining portion of the planning period for the Tri-County Villages and the Villages of Sumter. Her approach was a conservative approach, since the actual number of building permits issued for the Tri-County Villages DRI in the past two years has significantly exceeded 1000 per year. Rogers conferred with BEBR, prior to completing her analysis, and was assured that her approach was appropriate. Such an adjustment for the Villages is particularly appropriate since the Villages cater to a very specific segment of the population, i.e., persons 55 and above. Over the twenty- year planning horizon relevant to the Plan Amendment, the population of persons in Florida aged 55 and above will increase dramatically as the "baby boomer" population ages. The demand for residential housing for these senior citizens will show a similar dramatic increase. Henry Iler, the Petitioners' land planning expert, took the contrary position, opining that no additional growth factor should be added to the 1996 BEBR projections. However, Dr. Henry Fishkind, an expert in demography who was involved in the original development of the BEBR population projection methodologies, directly contradicted Iler's opinion, concluding instead that Ms. Rogers' methodology was appropriate. As Dr. Fishkind stated that [Sumter] county has experienced a dramatic structural change to its population growth and development because of the Villages, and that has altered the characteristics of its population growth. In light of that, the use of past trends, which is what the bureau [BEBR] does, is simply extrapolate past trends, would not be appropriate, for it would not have taken into account that major structural change. Ms. Rogers identified the structural change, she measured its amount, and then she added on to the bureau's projections, which were extrapolations of the past trends. That's a very appropriate adjustment, and it's the kind of adjustment that econometricians and economists make on a regular basis. DCA's analysis concurred that the high absorption rates in the Tri-County Villages DRI had to be taken into account. To have ignored the explosion of growth in the Tri- County Villages DRI, particularly in view of the generally accepted expectation that the population to be served by the Tri-County Villages and by the Villages of Sumter will experience tremendous growth, would have resulted in an inaccurate population forecast. Even Iler had to concede that he was aware of building permit data being used to project population figures. It is simply not his preferred methodology to use such information. Thus, Rogers' projection of the County's total population for the year 2020 appropriately incorporated all available and relevant data and was formulated using an accepted methodology. While not part of their PRO, Petitioners previously attacked the County's population projections by questioning the continued success of the Villages to attract out-of-state retirees. Primarily through Weir's testimony, they attempted to raise the specter of a reduction of sales and Intervenor's subsequent financial ruin. But there was no credible evidence to support Petitioners' prophecy of doom. On the evidence presented in this case, it would be more rational from a planning standpoint to expect the Villages to continue to be a marketing and financial success. Having reasonably projected future population, it was then incumbent upon the County to determine how many dwelling units would be needed to accommodate anticipated housing needs. This determination was made by Gail Easley, an independent planner retained by the County to assist Rogers in preparation of the EAR. Easley performed this calculation for the County. Easley used 2.46 as the average number of persons per dwelling unit in the County, a figure taken from the BEBR reports (not from 1990 census information, as Iler incorrectly surmised.) There was no evidence that a number other than 2.46 was appropriate. It would not be appropriate for the number of dwelling units needed in the future to be calculated simply by the division of the anticipated population by the average household size. Rather, it is appropriate to apply a "market factor" (or multiplier) in order to ensure that there is a choice of types of housing and to accommodate lands that are not actually useable for residential construction. Even Petitioner's expert, Henry Iler, agreed that the use of a market factor was appropriate in order to ensure sufficient housing supply and to avoid an increase in housing prices. Easley furnished Rogers with the market factor for the EAR. The market factor chosen by Easley was 1.5, a factor she viewed as conservative and as appropriate for a jurisdiction that is beginning to urbanize. In more rural counties, a higher market factor, such as 2.0, should be used. While Iler implied that a lower marker factor would be more suitable, the record clearly established that the market factor used by Easley fell within the range of reasonable choices. (In SCAID I, the ALJ expressly found, in paragraph 31 of the Recommended Order, that the 1.87 market factor used by the County on that occasion was reasonable and actually low compared to factors used for other comprehensive plans that had been found to be "in compliance." As reflected by this Finding of Fact, facts and circumstances bearing on the choice of a market factor for Sumter County have not changed significantly to date. Cf. Conclusion of Law 64, infra.) Applying the 1.5 market factor to the projected population and average household size, the County determined that 62,274 dwelling units will have to be accommodated during the twenty-year planning horizon. (This includes 48,461 units in permanent housing, 9,113 in seasonal housing, and 4,700 in transient housing.) The County then allocated those dwelling units in various land use categories. Much of Petitioners' PRO on this point was devoted to criticizing parts of the evidence in support of the demonstration of need. They state the obvious that Easley did not perform a demonstration of needs analysis for the Plan Amendment in the EAR, but that was not the purpose of the EAR; nonetheless, the EAR contained valuable data and analysis for use in the demonstration of need analysis for the Plan Amendment. Petitioners also questioned DCA's reliance on the DRI ADA in conducting its demonstration of need analysis, based on the timing of the ADA and Plan Amendment submissions and decisions; but it is not clear what it was about the timing that supposedly detracted from DCA's demonstration of need analysis, and nothing about the timing made it inappropriate for DCA to rely on the data and analysis in the ADA. Petitioners criticized Rogers' reference to up-to-date building permit information that was not offered in evidence; but this information only further supported Rogers' demonstration of need analysis. Petitioners asserted that one of Intervenor's witnesses may have overstated residential sales in the Tri- County Villages DRI (1,750 sales a year versus evidence of 1,431 building permits for 1999); but the witness's statement was not used in any of the demonstration of need analyses. Finally, Petitioners attacked one of Intervenor's witnesses for an alleged "conflict of interest, a lack of professional integrity and an indication of bias"; but the basis for this allegation supposedly was evidence that the witness worked for the County while also working for Intervenor or its predecessor for a few years in the late 1980's, not enough to seriously undermine the credibility of the witness's testimony in this case (which in any event had little or nothing to do with the demonstration of need analyses.) It is at least fairly debatable that the County's demonstration of need was based on relevant and appropriate data, and professionally acceptable methodologies and analyses. Likewise, it at least fairly debatable that the County's projections regarding housing needs, the growth in the retirement population, and the absorption rates achieved in the existing Tri-County Villages DRI adequately support the allocation of 11,000 dwelling units permitted by the Plan Amendment. So-called "90% Rule" The County's Plan Policy 4.6.1.1 provides: The County shall maintain approximately 90% of its land area in land uses such as agricultural (including timberland, mining and vacant), conservation, and open (recreation, open space etc.) land uses for this planning period. (Emphasis added.) This policy is found in the Utilities Element of the County's comprehensive plan under a goal to protect and maintain the functions of the natural groundwater aquifer recharge areas in the County and under an objective to protect the quantity of aquifer recharge. Although couched as an approximation, the policy has been referred to as the "90% rule." Based on the evidence presented in this case, it is at least fairly debatable that the subject Plan Amendment is not inconsistent with Policy 4.6.1.1. The primary debate had to do with the proper treatment of certain "open space" provided in the Tri-County Villages DRI and the Villages of Sumter DRI-- 1,032 acres in the former and 2,135 acres in the latter. This "open space" consists of golf courses, preserves, wetlands, parks/buffers, and some stormwater/open spaces. Petitioners' expert refused to count any of this acreage for purposes of the so-called "90% rule" because, while the FLUE and FLUM have Agricultural, Conservation, and Recreation land use categories, there is no category designated "Open Space." (Meanwhile, there is an entire element of the plan entitled "Recreation and Open Space.") The witnesses for the County and DCA counted those 3,167 acres. They reasoned persuasively that the policy's express mention of "open space" (as opposed to a specific land use category designated "Open Space") supports their position. They also argued persuasively for the logic of including "open space," which serves the objective of the policy to "protect quantity aquifer recharge quantity," even if there is no specific land use category designated "Open Space." Counting the 3,167 acres of "open space" in the two DRIs, the percentage calculated under Policy 4.6.1.1 exceeds 90% for existing land uses. Omitting that land, as well as another 500 acres that should have been counted, Petitioners' expert calculated 88.96%. Petitioners' expert also calculated a lower percentage (85.34%) by using land uses he projected for the end of the planning period. However, Petitioners' expert conceded that it was not clear that Policy 4.6.1.1 should be interpreted in that manner. If so interpreted, it would be possible for all plan amendments reducing agricultural, conservation, and open FLUs to be prohibited even if existing land uses in those categories did not fall below "approximately 90%" for another 20 years. It is at least fairly debatable whether such a result is logical, or whether it is more logical to wait until existing land uses in those categories did not fall below "approximately 90%" before prohibiting further FLUE and FLUM amendments. Urban Sprawl Petitioners contend that the Plan Amendment fails to discourage urban sprawl. They attempted to prove seven urban sprawl indicators. But their evidence was far from sufficient to establish any beyond fair debate. Petitioners did not prove that the Plan Amendment promotes, allows or designates for development substantial areas of the jurisdiction to develop as low intensity, low density, or single-use development or uses in excess of demonstrated need. To the contrary, while gross residential density may be relatively low (2.4-2.6 units per gross acre), the Plan Amendment PUD provides for highly mixed-use development, not single-use development, and densities in residential areas within the PUD are significantly higher (up to 5.6 units per acre), especially for Sumter County. Petitioners also did not prove that the Plan Amendment promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development, or that the Plan Amendment promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. To the contrary, the evidence was that part of the northern boundary of the Plan Amendment parcel coincides with the western part of the southern boundary of the Tri-County Villages DRI, and the Villages of Sumter PUD will be an extension of the Tri-County Villages DRI, which already has all the characteristics of an existing urban area. The reason why the eastern part of the northern boundary of the Plan Amendment parcel does not coincide with the southern boundary of the Tri-County Villages DRI is the existence of land in between which is already in use and not available to become part of the Plan Amendment PUD. Development will not be in a radial or ribbon pattern like (usually) commercial development along main roadways; nor will development be isolated. Petitioners did not prove that the Plan Amendment fails to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities, and dormant, unique and prime farmlands and soils. Obviously, conversion of agricultural land eliminates such land from agricultural use. But the Plan Amendment protects adjacent agricultural land by phasing development starting from existing urban areas in the Tri-County Villages DRI by mixing in open and recreational uses throughout the Villages of Sumter PUD and by providing some additional buffer between the periphery of the PUD and adjacent agricultural lands. Petitioners did not prove that the Plan Amendment fails to maximize the use of existing public facilities and services. Indeed, Petitioners' land use planning expert admitted at the hearing that he "didn’t have the time or expertise, really, to try to evaluate this particular question." To the contrary, the evidence was that the Plan Amendment PUD will include water, sanitary sewer, stormwater management, aquifer recharge areas, and other governmental services as part of its development. In addition, impact to schools will be minimal or non-existent due to the character of the PUD as a retirement community. Petitioners did not prove that the Plan Amendment fails to provide a clear separation between rural and urban uses. To the contrary, the evidence was that clustering, open spaces and buffering in the Villages of Sumter PUD will provide a clear enough separation between rural and urban uses. Petitioners did not prove that the Plan Amendment discourages or inhibits in-fill development or the redevelopment of existing neighborhoods and communities. Specifically, Petitioners argued that in-fill in the City of Wildwood will be discouraged. But the evidence was to the contrary. Not only would development of the kind envisioned in the Plan Amendment PUD be unlikely to occur in Wildwood, sufficient land is not available for such a development there. Actually, the Plan Amendment might encourage in-fill in Wildwood, where service providers for the Villages of Sumter might be expected to reside. SCAID SCAID was formed in 1993 or 1994 by a small group of Sumter County citizens for the purposes of preserving the "rural lifestyle" of Sumter County, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. SCAID has about 80 members, who are not required to pay dues. The majority of SCAID's members live in Sumter County, including all of the individual Petitioners in this case. SCAID is not incorporated but has by-laws drafted in 1995 or 1996. The by-laws provide for election of officers for one-year terms, but SCAID has not had an election of officers since 1994. Petitioner, T. Daniel Farnsworth, is and always has been SCAID's president. The evidence was that, when former SCAID member James Boyd resigned, Petitioner Linda Latham was appointed to replace him as secretary. SCAID has held just two meetings since its inception. Approximately 15-20 persons attended each meeting. Most communication with members is by regular and internet mail. Financial contributions are solicited from time to time for litigation efforts initiated by SCAID. Farnsworth, on behalf of SCAID, submitted comments on the Plan Amendment to the County between the transmittal hearing and the adoption hearing. Farnsworth and Weir also testified on behalf of Petitioners at final hearing. The other individual Petitioners did not.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, under Section 163.3184(9)(b), the Department of Community Affairs enter a final order that Sumter County's Amendment 00-D1 is "in compliance." DONE AND ENTERED this 20th day of February, 2001, 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 20th day of February, 2001. COPIES FURNISHED: Martha Harrell Chumbler, Esquire Nancy G. Linnan, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Box 190 Tallahassee, Florida 32302-0190 Jane M. Gordon, Esquire Jonas & LaSorte Mellon United National Bank Tower Palm Beach Lakes Boulevard, Suite 1000 West Palm Beach, Florida 33401-2204 Terry T. Neal, Esquire Post Office Box 490327 Leesburg, Florida 34749-0327 Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Council Department of Community Affairs 2555 Shumard Oak Boulevard Suite 325 Tallahassee, Florida 32399-2100
The Issue The issues in this case are those which arise through the allegations set forth in an Amended Administrative Complaint brought by the State of Florida, Department of Professional Regulation against the Respondent. In its operative terms, Respondent is said to have committed violations of Sections 472.033(1)(g) and (h) and 472.005(4)(b), Florida Statutes. Factually, Respondent is said to have entered into a contract with Leonard Freed for the performance of land surveying services on a parcel of property which Freed owned. The contract price is said to be $6,000.00. Allegedly the Respondent began and had partially performed the work and had received $3,000.00 from Freed in payment. Respondent is alleged to have been negligent in his performance of the job in that he based an initial survey on a preliminary lot layout in contravention of the requirements of Chapter 21HH-6, Florida Administrative Code. It is further alleged that the contract entered into between the Respondent and Freed was such that the Respondent was called upon to design streets and layouts to include grades and drainage and that this arrangement exceeds the scope of the Respondent's land surveyors license. Finally, some reference is made to the fact that Respondent had previously been disciplined by the Board of Land Surveyors in Case No. 54633 for which he was fined $1,000.00 and ordered to serve 27 months probation, through the terms of a Final Order entered by that Board on October 1, 1985.
Findings Of Fact Those persons who are engaged in the profession of land surveying in the State of Florida are licensed by and subject to the discipline of the State of Florida, Department of Professional Regulation, Board of Professional Land Surveyors. This arrangement is in conjunction with the requirements of Chapters 120, 455, and 472, Florida Statutes and rules associated with those statutory provisions. At all times relevant to this case, Respondent, Frederick R. Bolt, was licensed as a Professional Land Surveyor through the State of Florida, Department of Professional Regulation and held license number LS 0003510. On or about July 31, 1987, Respondent entered into a contract with one Leonard Freed to perform land survey services on a parcel of property owned by Freed. Said parcel of property is described in the contract as the Dorcas property. Total contract price was $6,000.00. According to the contract, a copy of which may be found as part of Petitioner's Composite Exhibit No. 2, part of the work to be done by Respondent related to the Dorcas parcel was "street design & layout to include all grades and drainage." At the point and time where the contract was signed Respondent was paid $1,000.00. Subsequently, on August 18, 1987, a second installment of payment was given to the Respondent in the amount of $2,000.00. As related in Petitioner's Exhibit No. 8, Respondent had been the subject of disciplinary action by the Board of Professional Surveyors on a prior occasion. In that instance, the Respondent was found in violation of Sections 472.021 and 472.027, 472.033(1)(a), (g) and (h) and 455.227(1)(b) Florida Statutes, as well as Rules 21HH-2.01 and 21HH-6, Florida Administrative Code. The gravamen of the Administrative Complaint which underlies this prior disciplinary action related to the performance of his land surveying work and the performance of that work through a firm which had utilized a fictitious name and that had not been possessed of a certificate of authorization as required by Chapter 472, Florida Statutes. A $1,000.00 fine was imposed and the Respondent was placed on a period of probation for 27 months from the date of the Final Order, which date is October 1, 1985. During the probationary period Respondent was required to submit 25 surveys over to the Board for its review, representative of his practice and accompanied by field notes and record plat.
The Issue Whether the amendment to the Wakulla County Comprehensive Plan adopted by the Board of Commissioners of Wakulla County in Ordinance No. 2002-28 is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes?
Findings Of Fact Wakulla County Wakulla County sits on the western side of the Big Bend, an area of Florida that joins its panhandle to the state's peninsula separating the Gulf of Mexico and the Atlantic Ocean. Bounded on the north by Leon County, on the east by Jefferson County, on the west by Franklin and Liberty Counties, and on the south by the Gulf, more than 67 percent of the land area of Wakulla County is in public ownership. The bulk of publicly owned lands is in the Apalachicola National Forest. The land area of the County under public ownership is designated Conservation on the County's Future Land Use Map (the FLUM). Under the County's Comprehensive Plan only publicly- owned lands may be designated Conservation. The publicly-owned land lies mostly in the western portion of the County although it extends into the eastern half at the County's southern edge along the coast. Accordingly, almost all of the land area available for development to serve the population, including the City of Crawfordville, lies within the eastern portion of the County. There are two Urban designations under the County's Comprehensive Plan: Urban-1 and Urban-2. There are three areas in the eastern half of the county that have received Urban designations: Panacea and Shell Point, on the coast, and an area in and around the City of Crawfordville. Viewed on a percentage basis, Wakulla County has emerged recently as one of the fastest growing counties in the state. Professionals and retirees account for some of this growth and have served to increase the demand for new subdivisions with homes larger than traditional homes in the county. Geomorphology One of the most distinctive aspects of the County is its geomorphology. It lies entirely within the Gulf Coastal Lowlands physiographic province described by Florida Geological Survey's Bulletin No. 60 as: . . . characterized by generally flat, sandy terrain [that] extends from the coast inland to approximately the 100 foot contour line. In the panhandle of Florida, the east-west trending Cody Scarp forms the boundary between the Gulf Coastal Lowlands and the topographically higher Tallahassee hills to the north. In Wakulla County, the Gulf Coastal Lowlands include the poorly-drained pine flatwoods, swamps, and river basins that extend from the Gulf north into Leon County . . . . [T]he Gulf Coastal Lowlands are locally divided into a series of geomorphic subzones. (Petitioners' Ex. 60, p. 4). A geomorphic subzone that occupies almost all of the eastern half of Wakulla County is the Woodville Karst Plain. The Woodville Karst Plain With extensions into southern Leon County and western Jefferson County, the Woodville Karst Plain takes up almost all of the eastern part of Wakulla County, that is the portion of the county east of the Apalachicola National Forest. It is described by the Florida Geographical Survey, (FGS) an entity within the Department of Environmental Regulation as follows: East of a line drawn roughly north-south through the towns of Crawfordville and Panacea, the topography is comprised of an essentially flat veneer of sand overlying karstic limestone bedrock. Elevations average less that 35 feet above [mean sea level]. * * * The Woodville Karst Plain comprises the entire eastern portion of Wakulla County. Bounded on the west by the Apalachicola Coastal Lowlands, it extends eastward into Jefferson County and north to the Cody Scarp. A surface veneer of generally less than 20 feet of quartz sand lies on the karstic St. Marks Formation and Suwannee Limestone. The result is a topography of low sand dunes and sinkholes sloping gently towards the coast. Vegetation patterns on the plain vary with the degree of drainage. High and well-drained relict sand dunes at the north edge of the plain support a flora of pines, black-jack, and turkey oak trees. In contrast, wetter areas to the south are populated by cypress and bay trees . . . . Id., p. 7. The distinctiveness of the geomorphology of eastern Wakulla County is due to the Woodville Karst Plain's numerous karst features. Karst Features Karst features result when the limestone bedrock has been eroded by acidic rain water. If the erosion is sufficient to dissolve through the limestone sub-strata in a vertical fashion, there occur sinkholes or "Karst windows," a direct connection between the surface water and the aquifer. A wetland may be a karst feature, as well, although geologic tests are necessary to confirm whether a wetland is, in fact, a karst feature. A karst aquifer like the one below the Woodville Karst Plain is a limestone aquifer where extensive dissolution of limestone has occurred as the result of the acidic water interacting with it. If one were to examine the plain from above with the perspective of seeing the holes in the rock that lead to the aquifer, the plain would look like Swiss cheese. Because of the scattering of karst windows, sinkholes, caves and other features that give Karst topography a resemblance to Swiss cheese, Karst topographies like the Woodville Karst Plain are "typically highly vulnerable to contamination." Id. In karst settings where the aquifer is unconfined, as in the case of the Woodville Karst Plain, common contaminants such as fertilizers or household chemicals that reach or are deposited on the land surface are rapidly recharged to the aquifer through percolation or overland flow to a sinkhole. The Woodville Karst Plain's nature as an area of high recharge to the Floridan Aquifer is also promoted by its thin layer of clean sand that overlies the limestone. There are karst features, such as sinkholes, caves, springs and wetlands associated with these features throughout the State of Florida. These features put the state in a "fairly unique position." (Tr. 365). Among the prominent karst features in the Woodville Karst Plain that were the subject of evidence at the hearing are three: Wakulla Springs, the Spring Creek series of submarine spring vents, and Swirling Sink, the sinkhole into which Lost Creek flows at its termination not far from the Property at issue in this proceeding. Wakulla Springs A prominent feature of the Woodville Karst Plain, Wakulla Springs is a system of caves or conduits through which underground water flows before reaching the surface. It is located to the northeast of the Property at issue in this proceeding. Pollutants affecting Wakulla Springs come from the City of Tallahassee upgradient from the Springs. The contamination "stems from storm events, rain events, and runoff from the City of Tallahassee." (Tr. 391). The evidence in this proceeding did not establish that development on the Property will create adverse impacts to Wakulla Springs because the Property is downgradient from Wakulla Springs. There is another set of springs at issue in this proceeding for which the evidence leads to different conclusions: the fresh water springs the waters of which flow from Spring Creek through Karst features to discharge into the salt waters of the Gulf. Spring Creek Springs The Spring Creek submarine group, a series of seven spring vents that discharge fresh water into the Gulf of Mexico, begin at Spring Creek, five or six miles to the southeast of the property. Like Wakulla Springs, water flows through caves and conduits before emerging. Unlike Wakulla Springs in which the water flows only to the surface of land, waters from the Spring Creek group flow into the Gulf of Mexico. Freshwater springs in the state of Florida are estimated to number nearly 600. A first magnitude spring is one that "produce[s] the greatest amount of water." Petitioners' 54, p. 9. Of Florida's 33 first magnitude springs, the Spring Creek submarine group is the largest. The Spring group, therefore, is also the largest spring of the 600 or so in our State, the totality of which "may be the largest concentration of freshwater springs on Earth." Id., at 1. "Florida's Springs, Strategies for Protection and Restoration," prepared for the Secretary of the Department of Environmental Regulation and the Citizens of the State of Florida, by The Florida Springs Task Force in November of 2002, was data available to the County and DCA when the Amendment was considered. It states: A spring is only as healthy as its recharge basin . . . The groundwater that feeds springs is recharged by seepage from the surface through direct conduits such as sinkholes. Because of this, the health of spring systems is directly influenced by activities and land uses within the spring recharge basin. (Petitioners' Ex. 54, p. 11). The Florida Geological Survey is in the Division or Resource Assessment and Management in the Department of Environmental Protection. Its Special Publication No. 47 (the Special Publication), is entitled "The Spring Creek Submarine Group, Wakulla County, Florida," and is dated 2001. It states that "[g]round-water flow in the karst drainage system of the upper Floridan aquifer system of the Woodville Karst Plain is likely controlled in part by the fracture (lineament) pattern in the carbonate bedrock . . . ." Petitioners' No. 61, p. 10. A lineament is a "geologic term for a linear fracture or fault that typically is observed either in the field or through photographic analysis." (Tr. 395). The question "would . . . karst features be part of what caused a geologist to conclude that a lineament was present," elicted this response from Tim Hazlett, Ph.D., an expert in hydrogeology: Yes. The karst features and the lineaments typically coincide in karst environments because the lineaments provide preferential pathways for flows, so you'll get sinkholes, for example, that line up along a lineament. That's very typical in a karst situation. Id. The narrative in the Special Publication refers to Figure 7 which shows the fracture pattern of lineaments that run along Lost Creek and then continues in a southeasterly direction to Spring Creek. The Figure indicates "[p]ossible underground flow from Lost Creek to Spring Creek." Petitioners' No. 61, p. 11. The Special Publication states that "[b]ased on the predominant ground-water pattern of the Woodville Karst Plain, and the trend of the lineaments associated with both Lost Creek and Spring Creek, it is postulated that the upgradient source of groundwater supplying the Spring Creek springs is, at least in part, the surface water from Lost Creek. Lost Creek Originating in the Apalachicola National Forest just north of the county line, Lost Creek flows to the southeast. After crossing the Leon County line, it rambles roughly nine miles through forested lands in Wakulla County. The creek terminates when it turns underground into Swirling Sink, a sinkhole at a point southwest of the center of Crawfordville. As Intervenor Suber states in review of Petitioner Lambou's testimony, "Lost Creek is a surface stream that flows from Leon County, southeast through western Wakulla County to the western edge of the Woodville Karst Plain, where it disappears underground approximately a mile west of Crawfordville at a bridge at U.S. 319." Intervenor's Proposed Recommended Order, Para. 53, p. 15. When Lost Creek floods, waters to the southeast of the point at which the creek "disappears" form a sump or bowl in an area of low elevation that is contained within the bounds of State Road 319, State Road 98 and Rehwinkle Road. Also contained within these bounds and in the midst of the sump is the site of that with which this proceeding is concerned: the Property. The Property The Property is a 266-acre undeveloped tract located in the County off of Rehwinkel Road southeast of the City of Crawfordville. Formerly owned by St. Joe Timber Company, it is now owned by David F. Harvey, Rhonda K. Harvey, and L. F. Young. The timber company had used the Property for silviculture. The owners intend to sell it to Brad Suber for development purposes. The Property is bisected by a bay/cypress wetland. It occupies "on the order of 85 . . . [to] 86 acres" (tr. 580) of the Property. The wetland is described by others including Intervenor Suber as "large" (Suber PRO, p. 4, para. 13). The acreage it occupies on the Property will be referred-to in this order as the "Large Wetland." A report entitled "Environmental Report on Vegetation Communities, Wetlands, Protected Species and Wildlife on Rehwinkel Road Parcel Wakulla County, Florida" was prepared by Florida Environmental & Land Services, Inc., at the request of Intervenor Suber. On page 3 of the report, the Large Wetland is described: AREA 5 - Large bay/cypress wetland through center of parcel. This area comprises approximately 85 acres of the parcel. The swamp characteristics were similar throughout the swamp (except in AREA 9). Dominant tree species include bald cypress, black gum, red maple, sweetbay magnolia, and swamp tupelo. Many of the titi individuals were large enough to consider in the canopy layer. There were few shrubs other than titi and young individuals of the canopy species. There was essentially no groundcover layer because of long inundation periods, the winter sampling and a closed canopy. The trees showed evidence of long periods of inundation such as lichen lines, buttressing, hummocking, and stained trunks. There was heavy inundation within the access roads. No flows were evident. Joint Ex. 2, p. 367, (e.s.) The reference to the acreage of the Large Wetland was not intended to be a "definitive wetland delineation," rather "it was intended to just give an idea of [the] size . . . of the [Large] [W]etland . . . " (Tr. 859). Other evidence of record, however, establishes that the approximation was quite accurate. (See paragraphs 56 and 57, below). The Large Wetland occupies at least 85 acres of the Property. A delineation using an acceptable current methodology could yield a figure significantly more than 85 acres. Portions of the Large Wetland are within the 100-year flood plain and are subject to flooding. The Large Wetland extends roughly from the east side of the Property to the west where it connects with the Lost Creek watershed. The Property also contains a portion of an isolated cypress swamp and numerous small wet depressional areas, each less than two acres in size, on the Northern Portion of the site. The acreage of wetlands in the Northern Parcel is not included in any reference in this order to the acreage of the Large Wetland. The Property does not currently contain any significant residential or non-residential development or structures. Near-by Land Uses The Property is contiguous to land with the following FLUM designations: Urban-1 and Agriculture to the north; Rural- 1 and Rural-2 to the east and southeast; and Agriculture to the southwest and west. Lands located to the north, east and southeast of the Property are developed with scattered low density residential uses or are vacant. These lands include nearby agricultural land and a 1,100-acre tract recently re-designated Rural-1 from Agriculture. Land use bordering the property on the south, southwest and west is Agriculture. There is also a golf course to the south. The designation of use of the land bordering the Property on the southeast is Rural-2. Rural-1, Rural-2, and Agriculture Rural-1, also referred to by the Wakulla County Comprehensive Plan (the Plan) as "Agriculture/Rural Fringe," is a conventional agriculture and low density residential designation. Residential densities in the Rural-1 future land use category are one unit per five acres on paved County or state roadways, or one dwelling unit per ten acre on unpaved roadways. Rural-2, the designation of twenty of the acres of the Property re-designated by the Ordinance, is described in the Plan: Description - This designation provides for development of rural areas near emerging urban areas with a range of agricultural, residential, and supporting limited commercial activities. In addition, this classification includes some existing subdivisions. Specific areas for residential and commercial development in this designation are not shown on the map but are governed by the policies in this section which include criteria for the different kinds of development. (Joint Ex. 3, FLUE-8). The description states that existing rural enclaves, those "isolated from traditional rural or urban services such as central water and sewer service" (id.), are also identified by the Rural-2 designation. Industrial uses are prohibited in Rural-2. Commercial development on arterial and collector roads subject to conditions is permitted. Public land use including schools subject to certain conditions is permitted. Residential development is permitted, as are "[g]eneral agriculture and forestry activities . . . along with accessory activities." Id. The density limitations for residential in Rural-2 are "up to one (1) unit per two (2) acres with central water service or one (1) dwelling unit per five (5) acres without." Id., at FLUE-8 and 9. Actual density permitted, however, is based on access: Where average lot sizes (exclusive of open space in cluster or PUD developments) are less than (5) acres, each lot shall have frontage on a paved public road or on a private road maintained by an owners association and meeting the standards of Traffic Circulation Element Policy 2.3. Where average lot sizes . . . are greater than five (5) acres but less than ten (10) acres, each lot shall have frontage on a public road or on a private road meeting [certain standards]. Where average lot sizes . . . are ten (10) acres or more, access shall be provided. Id., at FLUE-9. The Plan has requirements for calculating residential density in areas that are wetlands or habitats for threatened or endangered species or wetlands. Habitat density is "maintained at the residential land use density for that land use designation." Id. Wetland density is "at an overall density of one (1) unit per twenty (20) acres." Id. Agriculture is also referred to in the Plan as "Primary Agriculture." Description - This designation is designed to address large scale timber industry and/or farming activities on privately owned property, along with limited non- agricultural uses. Joint Ex. 3, p. FLUE-4, Future Land Use Policy 1.2.2.(1). Uses allowed include forestry and agricultural uses and processing activities, including ancillary processing uses such as sawmills, residential uses at a maximum overall density of one unit per 20 acres, and public uses. Id., Policy 1.2.2.(2) and (3). Application for a Map Amendment The process that led to the Ordinance's passage in October of 2002 commenced on December 28, 2001, with the submission of the Owners' application for a comprehensive plan map amendment. The Owners applied for an amendment that changed all 266 acres, the 246 acres of Agriculture and the 20 or Rural- 2, to Urban-1. Urban-1, is also referred to in the Plan as "Urban Fringe." Description - This designation provides for higher density development in rural areas which are near urban areas or which are intended to become urban during the planning period. When full urban services are in place, an area designated for Urban-1 shall be converted to Urban-2 through the plan amendment process. This designation also accommodates existing clusters of development not strictly consistent with the Rural designation. Joint Ex. 3, p. FLUE-10, Future Land Use Element Policy 1.2.5.(1). Permitted uses under Urban 1 include residential and commercial development. Public uses including schools are permitted under certain circumstances. Light industrial and manufacturing uses may be permitted subject to location and compatibility standards. Among the density/intensity limitations in 1.2.5 of the Plan are residential at one unit an acre where no central sewer is available and at two units an acre where soil tests determine suitability for septic tanks and where central water is available. Under the proposed amendment, therefore, the maximum density allowable on 266 acres of Urban-1 would be 524 units. As explained elsewhere in this order, however, only 202 acres were re-designated Urban-1, making 404 units the maximum density pursuant to the re-designation. Transmission to DCA The proposed map amendment and two proposed text amendments were transmitted to DCA for review on May 6, 2002, with copies to various review agencies. Included in the plan amendment transmittal package was a copy of a recorded agreement entered by the property owners and Wakulla County entitled "A Development Agreement Restricting the Density of a Comprehensive Plan Amendment." Joint Ex. 1, p. The agreement restricts development on the 266-acre property "to facilitate the Owner's request" to "residential density maximum of one dwelling unit to the acre of uplands and developed on central sewer and water" Joint Ex. 1, p. 65. The restriction "shall run with the land and permanently restrict the use of the said land." Id. p. 66. Despite the maximum density allowable under the Amendment of 404 units, the Development Agreement restricts maximum density to 202 units. Development Agreements are data. Nonetheless, as explained by Charles Gauthier, the DCA's Chief of the Bureau of Local Planning, The review of future land use map amendments needs to be based on the maximum development potential available through the comprehensive plan. Development agreements, while important information, are outside the plan, so the level of development or other commitments in a development agreement aren't part of the direct plan or review, but its important information to understand the specific development agreement that's occurring. (Tr. 118, 119). This testimony is taken to mean that DCA review of a Comprehensive Plan Amendment must be conducted on the basis of maximum allowable density under the Amendment even if that density is restricted by the Development Agreement. Other data in the agreement, however, such as data related to provision of public services is relevant to a "compliance" determination. Regional Planning Council Objection On June 13, 2002, the Apalachee Regional Planning Council (RPC) issued its report. The RPC objected to the map amendment proposed by the Owners on four grounds, each followed by a recommendation. The first three objections related to density, commercial use and access. The RPC recommended density of no more than one unit per acre, retention of square footage policies concerning commercial development and provision of additional access. The fourth objection and recommendation concerned wetlands and floodplain areas: Objection 4: Of the 266 acres proposed to be changed to Urban 1, approximately 100-110 acres are wetland and 130-140 acres are within the 100 year floodplain. Recommendation: Do not include the wetland and floodplain areas in the land use change. Joint Ex. 2, p. 204. State Agencies Other Than DCA The Department of Environmental Protection (DEP) reported its review of the proposed change in a letter dated June 18, 2002. It provided comments and recommendations, also expressing concern about wetland and flood plain area protection: As indicated in the site assessment reports provided, a significant portion of the Rehwinkel Road Parcel is located within Flood Zone A on the Wakulla County Flood Insurance Rate Map, Panel #120315 0250 B (1983). The flood plain wetlands at the center of the site contain drainage soils (primarily Lakeland, Otela and Ortega sands). The uplands to the north also contain numerous wet depressional areas - likely karstic sinkhole features. The Department recommends that the proposed residential development be limited to upland areas outside of Flood Zone A and that wetland/floodplain areas be given a conservation designation to prevent encroachment after initial construction. Prior to finalizing infrastructure development plans for the subject parcel, delineation and state verification of the landward extent of wetlands should be obtained, in accordance with the guidelines of Rule 62-340, F.A.C. Because the proposed development would be located on highly- permeable soils adjacent to seasonally inundated areas, we recommend that the applicant consider a full range of planning strategies to buffer wetlands/floodplain, limit impervious surfaces and treat stormwater to protect groundwater and nearby surface water resources. The proposed central water and sewer systems will reduce potential water quantity and quality impacts from potable water well withdrawals and septic tank system contamination. Early coordination of project plans with the Department's Northwest District Branch Office in Tallahassee is recommended to facilitate infrastructure design and prevent future permitting problems. Joint Ex. 2, p. 205. The Department of State reported that an archaeological site is recorded as a "general vicinity" site adjacent to the Property and that "aboriginal 'house' sites" are reported throughout the area. Id., p. 192. It stressed the "county's responsibility to ensure its historic sites and properties are considered when land use changes occur" and recommended "that the county sponsor a systematic survey of this parcel before allowing any changes in land use which will increase its density or intensity." Id. The Department of Transportation (DOT) had no objections, comments or recommendations as of its June 4, 2002, communication by letter with DCA. The communications from the RPC, DEP, Department of State, and DOT were reviewed by DCA prior to its issuance of an ORC Report. ORC Report Issuance of an "Objections, Recommendations and Comments" Report (an ORC) by the Department of Community Affairs is done whenever DCA has problems with a comprehensive plan amendment that could lead to a finding that the amendment was not in compliance if left unresolved. An ORC was issued to Wakulla County for the proposed FLUM amendment. The ORC, under cover of a letter to the Chairman of the Wakulla County Board of Commissioner dated July 18, 2002, stated the following: Objections, Proposed Amendment 3: The proposed map amendment does not demonstrate the suitability of this site for development considering the extensive wetlands and floodplains in the areas that are proposed for conversion to the Urban-1 Future Land Use Category. The proximity to the water table to the land surface, existing karst sinkhole features, extensive wetlands and 100 year floodplain indicate a high potential for water quality degradation and ground water contamination. Development of the southwestern portion of the site would require constructing road access through extensive wetlands and would place the singe access road within the 100 year floodplain. Potential isolation of this site during floods creates the potential for public safety, emergency management and evacuation problems. The proposed amendment is not consistent with Rule 9J-5.006(2)(b)1. and (2)(e), FAC, concerning site suitability; Rule 9J-5.-- 6(3)(b)4, requiring protection of natural resources; Chapter 163.3178(d)(d) concerning public evacuation during natural disasters; and Rule 9J-5.006(2)(c) and Chapter 163.3177(6)(a) concerning need analysis. Recommendations: The land use change should be limited to the northern parcel with road access. The large, contiguous areas of wetlands and floodplain areas and the southern isolated parcel should not be included in this proposed land use change to the Urban-1 Future land Use Category at this time. Designation of the wetland areas as Urban on the FLUM implies a development potential. Wetlands and floodplains should be designated appropriately on the FLUM to prevent encroachment from incompatible land uses. Currently, the Conservation Future Land Use Category as written in the County's comprehensive plan is intended only for publically [sic] owned lands. This category could be amended to also afford protection to environmentally sensitive, privately owned land. A needs analysis of the Urban 1 and 2 areas of Crawfordville should be done to support the need for the proposed land change. Consistency with Chapter 187, Florida Statutes. The proposed amendment is not consistent with the following provisions of Chapter 187, FS: !87.201(10), FS, [sic] concerning the protection of ecological systems such as wetlands. 187.201(16), FS, concerning direction development to areas that can accommodate growth in an environmentally acceptable manner and the separation of urban and rural uses. By addressing the objections noted in Section I., these inconsistencies with Chapter 187, FS, can be addressed. Joint Ex. 2, p. 223-4. An ORC Report provides an opportunity for DCA to raise questions about a proposed plan amendment and seek additional information. If the local government rejects DCA's recommendation, that does not necessarily mean that a plan amendment will be found not in compliance. Response to the ORC In response to the ORC, the County left 64 acres of the Large Wetland under the Agriculture designation. It did so after determining the Large Wetland to constitute 63.8399 acres of the Property. In computing the size of the Large Wetland, the County did not follow DEP's recommendation that it use the delineation methodology prescribed by Rule 63-340, Florida Administrative Code. Instead, the County used a Florida Land Use, Cover and Forms Classification System map, (the FLUCCS), the source of which was "FDEP," that shows the Large Wetland to be "63.8399 acres," (Joint Ex. 2, p. 196, 197), or slightly less than 64 acres. No data other than the FLUCCS was used by the County in determining the size of the wetland. The 64 or so acres identified on the FLUCCS was omitted from the proposed land use change and was left under the pre-amendment Agriculture designation as suggested by DCA in its ORC. Other available data, existing at the time of the Amendment, such as an orthoquad aerial depiction, demonstrate that the Large Wetland is significantly larger than 64 acres. Using soil maps and a planimeter, as explained by Petitioners' witness Craig Diamond: . . . generated large[] numbers. The flood plain is far greater than the wetlands on site, and the soils maps . . ., includes some . . . soils that are saturated or that exhibit moderate constraints with regard to drainfields. You . . . end up with number greater than 85 acres . . ., it's up in the hundred acre-plus range. (Id.) The decision of the County to leave only 64 acres of the Large Wetland was not based on the best available data. Use of available data existing at the time of the Amendment and that is better than the FLUCCS, such as aerial photography, soil maps, topographical maps and floodzone maps would have yielded a much higher number of acres than 64, just as did the approximation submitted with the proposed plan amendment by Mr. Suber. The size of the Large Wetland is at least 85 to 86 acres, and may be significantly greater. The Future Land Use Map Amendment On October 21, 2002, Wakulla County amended its Future Land Use Map (the FLUM). The Amendment was accomplished with the passage of Ordinance Number 2002-28, (the Ordinance) by the Board of County Commissioners of Wakulla County. The Amendment is described in the body of the Ordinance in technical terms: Future Land Use Map: Herein adopts the FLU Map revision as shown on the FLU Map dated October 21, 2002, consisting of: A revision or modification resulting from the adoption of the proposed County FLU Map Amendment Application Number CP01-05 of Amendment Cycle 2002-02, as cited in the ORC report by the Department of Community Affairs, from Agriculture and Rural-2 to Urban-1 Land Use Designation; Joint Ex. 1, Ordinance Number 2002-28, Amendment Ordinance, Page Three, Section 2. In essence, the Amendment changed to Urban-1, two FLUM designations of the Property in Eastern Wakulla County. The designations were changed from Rural-2 as to 20 acres of the Property and from Agriculture as to 182 acres of the Property. The 64 acres of the property not re-designated as Urban-1 remained designated as Agriculture. Given the configuration of the 64 acres of the Property left under the Agriculture designation, there are three separate parcels in the Property that were re-designated Urban- One is a portion on the Property north of the parcel (the Northern Parcel) that contained the 20 acres that had been Rural-2, as well as acres that had been agriculture. The second is a small portion to the northwest of the property (the Sliver) that is surrounded, for the most part by the Large Wetland. The third is a portion on the Property south of the Large Wetland (the Southern Parcel). Transmission to DCA, Review and an "In Compliance" Determination The Map Amendment was transmitted to DCA for review on November 1, 2002. On December 11, 2002, DCA issued its Notice of Intent to find the adopted Map Amendment in compliance. On January 30, 2002, the Apalachee Regional Planning Council approved a recommendation from its staff that the Amendment was consistent with the Apalachee Strategic Regional Policy Plan. In the meantime, on January 2, 2003, DCA received the petition for formal administrative hearing that initiated this proceeding. The Parties Petitioners Robert Alessi, Ronald Capron, Chad Hanson, Victor Lambou, and David Westmark are all residents of Wakulla County and owners of property in the county. Alessi and Capron live adjacent to the site of the FLUM Amendment that is the subject of this proceeding. All five of the Petitioners submitted written or oral comments to Wakulla County during the period of time between transmittal of the Amendment to the Department for review and final adoption of the Amendment by Wakulla County. Wakulla County (the County) is a local government subject to the provisions of the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes. The County adopted the Amendment found "in compliance" by DCA that is the subject of this proceeding. The Department of Community Affairs (DCA or the Department) is the state land planning agency. It has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (the Growth Management Act). Among its responsibilities is the review of local government comprehensive plans and amendments pursuant to the Growth Management Act. The Department's Notice of Intent to find the contested Amendment "in compliance" is the agency action that is at issue in this proceeding. Intervenor Brad Suber is a resident of Wakulla County. He is the developer and contract vendee of the property that is the subject of this proceeding. Mr. Suber's contract with the Property's Owners obligates him to pursue the Amendment, zoning and permits for development of the property at his sole expense. Mr. Suber hired experts necessary to prepare and process the plan amendment application. Like the Petitioners, he also submitted written and oral comments to the County during the period of time between transmittal of the Amendment to DCA and final adoption of the Amendment by Wakulla County. The parties agree that the Petitioners and Intervenor Suber are affected persons as defined by the Growth Management Act with standing to participate in this proceeding. Petitioners' Challenge Petitioners raise issues that fall into seven categories: (1) failure to protect wetlands and other environmental resources; (2) lack of water and sewer; (3) flooding (4) lack of supporting data and analysis; (5) urban sprawl (6) lack of need for the amendment; and, (7) internal inconsistency with the existing Wakulla County Comprehensive Plan. Wetlands and Environmental Resources The County requires protection of the 100-year flood plain, prohibits disturbance of wetlands except to avoid a taking, requires that predevelopment water quality of wetlands be maintained, and requires that the water quality of Wakulla County's groundwater resources be maintained at or above state standards. Development is allowed in flood plains under the County's Plan, and flood plains are common throughout the eastern part of the County. The Comprehensive Plan's Objectives and Policies mitigate the impacts of a future land use map amendment. They do not excuse, however, an FLUM amendment that is based on data that is convincingly incorrect. The DRASTIC Maps referred to in Infrastructure Element Policy 1.3.1(2), show that all of eastern Wakulla County is in one of the environmentally sensitive categories. The Plan allows the use of septic tanks in these areas because if septic tanks were prohibited in environmentally sensitive areas, the limitation on development in eastern Wakulla County would be severe. The applicant submitted an environmental assessment of the property with the original plan amendment application. Figure 3 in the environmental report identifies the soil types and soil distribution on the property based on the U.S. Department of Agriculture's Soil Survey of Wakulla County, Florida, the data source referenced in Future Land Use Element Policy 5.12. Table 8 in the Soil Survey indicates whether the various soil types have slight, moderate, or severe constraints for the use of septic tanks for various types of buildings. The southern parcel is comprised of Lakeland sand and Otela fine sand. Both are considered upland soil types with only slight constraints for the use of septic tanks for dwellings without basements. The northern parcel consists of several soil types with the following constraints for use of septic tanks for dwellings without basements: 21 Lakeland Sand (predominant type) slight 17 Ortega fine sand slight 14 Ridgewood fine sand moderate 7 Otela fine sand slight 35 Rutledge severe Each of the above soil types is considered to be an upland soil, except for Rutledge soil located in the flood plain portion of the northern parcel. In addition, Plummer soil with severe constraints for use of septic tanks are located on the small area to the west of the northern parcel. These are not large areas compared to the remaining property and are not proposed for development in Mr. Suber's conceptual site plan. Soils with severe constraints are subject to state and local permitting standards at the development stage to insure that groundwater is not adversely affected. The Urban-1 future land use category authorizes residential uses at a density of two units per acre where soil tests determine suitability for septic tanks and where central water is available. The use of septic tanks on the property could adversely affect water quality by increasing the level of nitrates in the groundwater. The Wakulla County Comprehensive Plan contains the following objectives and policies related to septic tanks and water quality: OBJECTIVE 5: Development activities shall ensure the protection of natural and historic resources, and shall be limited where severe topographical and/or soil conditions exist. The land development codes shall be revised to implement this objective and the following policies: Policy 5.12: Proposed development in areas of severe soil limitations or topographic conditions, as identified in the U.S. Department of Agriculture, Soil Conservation Service, Soil Survey of Wakulla County, Florida (dated March 1991), shall be subject to density limitations and performance standards. The land development regulations shall establish these limitations and standards, including, but not limited to, the requirement that all development not served by sewer systems meet Florida Department of Health and Rehabilitative Services (HRS) standards for septic systems, Rule 10D-6, F.A.C., and requirements that certification of soil suitability be submitted for the technical review process prior to permitting of commercial buildings. Policy 7.5: All development in areas without central sewer services shall be governed by the provisions of section 381.0065, F.S., regulating on-site sewage disposal systems, and Chapter 64E-6, F.A.C., which regulates the installation of individual sewerage disposal facilities, unless otherwise specified. (Joint Ex. 3, pp. FLUE-23, 26, 28, Future Land Use Element.) OBJECTIVE 1.3: The County will implement mandatory requirements for inspections, operations and maintenance of on-site wastewater treatment systems. Policy 1.3.1: Use of on-site wastewater treatment systems shall be limited to the following conditions: * * * (2) Use of septic tank systems or alternative systems for new development will be allowed subject to modification in areas that are environmentally sensitive based on FDEP's "DRASTIC" map and other sources deemed appropriate. Policy 1.3.3: Issuance of all development orders or permits will be conditioned upon demonstration of compliance with applicable federal, state and local permit requirements for on-site wastewater treatment systems. (Joint Ex. 3, pp. IE-3, 4, Infrastructure Element.) Findings related to Wetlands and Natural Resources are in paragraphs 6-26 and 28-33, above. Sewer and Water Currently, there are no water or sewer services at the site of the Property. Subject to amendment of the City of Sopchoppy's Comprehensive Plan, water to the Property can be provided by City of Sopchoppy Water, as stated in the plan amendment application and as relayed to the County Planning Commission and Board of County Commissioners by Mr. Suber's engineer. County sewer lines are located within one or two miles of the Property in two locations. Although the provision of sewer services to the Property is the responsibility of Wakulla County, any sewer lines run to the Property will be constructed at the expense of the owners or developer. The lines will be conveyed to the County. Joe Richey, the County's Director of Community Development, testified that Wakulla County is the sewer provider, and that capacity is available to serve development of the subject property. Capacity is a term that relates to the size of the sewer plant. The existence of "capacity" does not mean the County has a plan or intends to provide sewer lines. Department staff recommended that DCA not find the amendment in compliance in part because there was no corresponding amendment to the capital improvements schedule setting out the time frame for when public facilities would occur, who was going to pay for them and who was responsible for maintaining them. While the County may not have a plan, the developer would be responsible for running sewer lines to the property and would turn the lines over to the County under the Development Agreement between the County and the property owners. The agreement reflects the commitment of both that the subject property be served by central sewer. There is no requirement that a local government have a future conditions map for water and sewer facilities. At some time before development on the subject property occurs, the County's Plan should be amended to reflect the provision of sewer services to the property if it is developed on sewer. It is not necessary, however, that Wakulla County amend its Capital Improvement Element of its Plan to reflect the provision of sewer service to the property concurrent with the subject future land use map amendment. The plan amendment application, the Development Agreement and the testimony at hearing reflect that the Property will be developed with central water and sewer. Flooding Department staff testified there was not enough information provided by the County on flooding problems associated with the Amendment: great deal of Wakulla County is in various hurricane evacuation zones . . . because of the limitations of the site being in a hundred-year flood plain and in a wetlands system, . . . if a hurricane or a storm event came through and the property was flooded, there would be difficulty evacuating the residents from that property. [DCA Staff] felt like the County had not provided us information to refute that. (Tr. 91, 92). But Joe Blanchard, Director of Wakulla County Emergency Management, testified that there is adequate road capacity on Rehwinkel Road to evacuate residents of 404 units, the maximum allowed under the Amendment. Director Blanchard also testified that if 404 units were built on the Property and were to be evacuated in the event of flooding, that there is not currently capacity to shelter them but that there is hope to have adequate shelter soon: We probably do not [have adequate shelter for 404 new units at the Property] . . . [T]hrough a grant hopefully we will have the Shadeville School very soon approved. It is now approved as a shelter, it just doesn't have the shutters in place. Once the Shadeville School is complete, we will have a surplus of shelter space. (Tr. 1089). He was not asked a question about current capacity to shelter residents of the 202 units to which the Property is restricted by the Development Agreement. "Storm surge is the abnormal rise in water level caused by the wind and pressure forces of a hurricane or tropical storm. Storm surge produces most of the flood damage and drownings associated with storms that make landfall or that closely approach a coastline." Petitioners' Ex. 21, Introduction. Most of the Property would be inundated by storm surge during a Category 2 Hurricane, a hurricane with less force and storm surge than a Category 3. (See Petitioners' Ex. 21, Plate No. 5. Petitioners offered no evidence at hearing, other than Mr. Blanchard's reference to evacuation in the event of a Category 3 hurricane, of the contents of an applicable county or regional hurricane evacuation plan. Data and Analysis Following the staff recommendation, DCA determined that "the data was somewhat weak and the analysis was weak, but . . . relevant, and given the nature of the amendment, ultimately appropriate." (Tr. 117). The data concerning the size of the Large Wetland was not merely weak. It was incorrect. It was also determined above the staff level at DCA that "there was a lack of adequate issues . . . adverse impacts to find the amendment not in compliance . . . essentially . . . there was a lot of smoke but no real fire with the amendment . . . [because] the staff recommendation was more based on the incomplete analysis." (Tr. 120, 121). From this record, it appears that with regard to wetlands incorrect data was used by the County. This data was not corrected when DCA conducted its review that led to its finding of "in compliance." Furthermore, the analysis conducted after the staff recommendation did not include available data and analysis that indicate adverse impacts to natural resources related to the Large Wetland. It must be recognized that each future land use category in the County's Plan that allows residential use contemplates that wetlands will be included in the category and limits densities in those wetlands. Furthermore, there is no express statutory or rule prohibition against including wetlands in a land use category that authorizes development, and the County's Plan, which does just that, has been found in compliance. That is not to condone, however, an amendment that is founded on incorrect data or incomplete analysis. This record demonstrates that the amendment designated at least 21 acres of the Large Wetland as Urban-1 and that the designation poses a potential for pollution to groundwater and surface waters. The amendment is not supported by available data and analysis concerning the wetlands and the impact development could have on natural resources. The County did not react to available data with regard to the wetlands and natural resources in an appropriate way when it designated 202 acres of the Property Urban-1. Need Both Intervenor's expert land use planner and the County's Director of Community Development testified that there is a need for the map amendment. The opinion of Intervenor's expert is generally based upon the location of the property adjacent to the urbanizing Crawfordville area; the fact that the number of units potentially authorized by the map amendment is largely offset by urban lands acquired by the state and federal governments in the Coastal High Hazard Area (CHHA) that are no longer available for urban development; continuing state acquisition efforts in environmentally sensitive areas; the relatively few future land use map amendments for residential uses that have occurred since Plan adoption; and an analysis of population projections compared to the residential development potential of the various future land use categories under the County's Comprehensive Plan. Rule 9J-5.006(2)(b) provides: (2) Land Use Analysis Requirements. The element shall be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2), F.A.C. * * * An analysis of the character and magnitude of existing vacant and undeveloped land in order to determine its suitability for use, including, where available: 1. Gross vacant or undeveloped land area . . . . Wakulla County has not tracked development and does not have information available on undeveloped land. Since Rule 9J-5.006(2)(b)1. expressly requires an analysis of vacant or undeveloped land area only if the data is available, the amendment cannot be found not "in compliance" for failure to comply with Rule 9J-5.006(2)(b)1. Rule 9J-5.006(2)(c) requires: An analysis of the amount of land needed to accommodate the projected population, including: The categories of land use and their densities or intensities of use; The estimated gross acreage needed by category; and A description of the methodology used. The Property is located immediately adjacent to the City of Crawfordville urban area and other lands designated Urban-1 on the County's Future Land Use Map. The Courthouse in Crawfordville is the center of the County and is approximately 1.2 miles from the property. Crawfordville is the County seat where public buildings and services are located. It is the County's employment center, with banks, grocery stores, beauty salons, and other businesses, all within a few miles of the property. The only other areas of the County designated for urban development are in Panacea and Shell Point. Both of these areas are within the CHHA. The County's Comprehensive Plan contains policies to discourage high-density growth in the CHHA, direct population concentrations away from the CHHA, and limit public expenditures that subsidize development in the CHHA. It is more appropriate to encourage development adjacent to the growing Crawfordville area than in the CHHA or other areas of the County. In 1999, the State of Florida acquired 41 acres in the CHHA in Panacea for conservation and recreation land uses. This land is designated Urban-2 on the County's Future Land Use Map. The maximum potential residential density on the 41 acres acquired by the State was 164 dwelling units. In 2001, the federal government acquired 90+ acres near Shell Point for a wildlife refuge. This property is also in the CHHA and is designated Urban-1 on the County's Future Land Use Map. The maximum potential residential density on this 90+ acre acquisition is at least 180 dwelling units. Wakulla County is in the process of preparing a plan amendment to change the use of land for all government acquisitions of land that have occurred in the County. Based on the Future Land Use Map, all such acquisitions are redesignated to the Conservation future land use category, which is consistent with the public purposes for which the lands are acquired. The Amendment at issue in this case will result in a maximum potential increase of 375 residential units on the property, based strictly on the density limitations in the future land use categories. The combined maximum potential density on the properties acquired by the State and federal governments is 344 residential units. If the maximum development potential on the subject property is offset by the maximum development potential of the recently acquired public lands, the Amendment will increase the overall maximum potential residential density in Wakulla County by only 31 dwelling units. The analysis of Intervenor's expert contained a number of computational errors. These errors did not affect the offset of the loss of residential land purchased by government. Urban Sprawl When taken as a whole, the Amendment does not contribute to urban sprawl. The property abuts urban areas near the "downtown" section of Crawfordville. It is within a development corridor for the County. It is a relatively small parcel of land. Internal Inconsistency Petitioners contend that the Amendment produces an internal inconsistency because policies of the conservation element relied upon for protection against adverse impacts to wetlands and natural resources have not been implemented by the County through the adoption of land development regulations. The Department responded with an explanation of its scope of review of amendments to comprehensive plans: [DCA's] assumption and . . . review [is] based on the policies in the plan, and [the] premise that these polices were followed through on. The Department does not have any direct purview over land development regulations or development permits . . . [I]f third parties believe the County had not put land development regulations in place or had in place inconsistent regulations or was issuing inconsistent development permits, Chapter 163 offers different challenge mechanisms for those matters. [DCA] review is . . . based on the corners of the plan and the policies of the plan . . . (Tr. 178, 179).
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 amendment to the Future Land Use Map of Wakulla County's Comprehensive Plan passed by Ordinance 2002-28 of the Board of Commissioners of Wakulla County be determined to be not "in compliance." DONE AND ENTERED this 11th day of July, 2003, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 11th day of July, 2003. COPIES FURNISHED: Colleen M. Castille, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 David Jordan, Acting General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Terrell K. Arline, Esquire 3205 Brentwood Way Tallahassee, Florida 32308-2705 Debra A. Swim, Esquire 1323 Diamond Street Tallahassee, Florida 32301 Donna Biggins, Esquire 515 North Adams Street Tallahassee, Florida 32301 Craig Varn, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Sherry A. Spiers, Esquire Law Offices of Robert C. Apgar, P.A. 320 Johnston Street Tallahassee, Florida 32303
The Issue Whether Respondents failed to abide by various minimal technical standards applicable to the practice of surveying and mapping, in violation of Florida Administrative Code Rules 5J- and 5J-17.052, or were guilty of negligence in the practice of surveying and mapping, all in violation of section 472.0351, Florida Statutes (2012),1/ and if so, what is the appropriate sanction.
Findings Of Fact The Department is the state entity charged with regulating the practice of land surveying and mapping, pursuant to chapter 472, Florida Statutes. At all times material to this case, Mr. Haas was licensed as a professional surveyor and mapper in the state of Florida, with license number LS3708. Mr. Haas was employed by Exacta, which holds license number LB7337. A complaint was filed with the Department on January 27, 2014, by Mr. Charles B. Hatcher of Associated Surveyors, Inc., alleging numerous minimum technical standards errors on a survey prepared by Mr. Haas on September 25, 2012. Petitioner has failed to prosecute Mr. Haas or Exacta for the violations alleged in the complaint made by Mr. Hatcher, on January 27, 2014. Administrative complaints alleging identical counts were filed against Mr. Haas and Exacta. Count I alleges that some of the field data was not dated. Count I also alleges that the coordinates are not on the same datum as the survey, and thus, the survey map cannot be substantiated. Page 12 of Exhibit P-1, a page of computation notes, does not contain the date the information was observed and collected. Further, it is clear that page 12 is not simply a continuation of pages 10 and 11 (which are two halves of the same document) but is instead a separate document that is undated. Data shown in the raw data file and coordinates list differed from that reflected on the survey map. It appeared, however, that the data had been rotated and translated. Rotation and translation is an accepted survey technique which allows modern instrumentation to record data based upon an assumed initial point and bearing, and then calculate all further points and bearings relative to that initial measurement. This information recorded by the instrument must then be rotated and translated back to match the actual points and bearings on a parcel. The Department failed to show that the survey map could not be substantiated. As Mr. Gloer testified during cross examination: Q. My question is, wasn't it clear to you that the assumed bearing that Mr. Blackmon made, our party chief, on page 4 in his instrument-–in his data collector between Points 1 and 2 of a bearing of north zero degrees, or an azimuth of north zero degrees--isn't it clear to you that then in order for it to make sense on this drawing and all the other lines too, that you would have to rotate that to get on the same bearing basis? Doesn't that jump out to you as an expert, having done over 2,000 surveys? A. At the time two years-–well, it's been a year. A year ago when I did this original review, I based it on the data that was supplied to me. Now that you have explained it to me and I see that there is a note here that said they rotated it, yes, it's clear to me now, yes. Count II alleges that the field notes that are dated show a date of 9/24/12, while the survey drawing shows a field work date of 9/25/12. The parties stipulated as to the different dates shown on these documents.2/ The dated field notes show that field work was performed on September 24, 2012. The clear and convincing evidence is that the date of data acquisition was September 24, 2012, while the date on the survey drawing is September 25, 2012. Count III notes that the survey shows a found 3/4" iron rod at the point of beginning, notes that this appears to be the same corner shown on the coordinate list as point number 8, and states that the field notes do not show the setting or locating of the corner. The complaint concludes that this corner is not supported by accurate survey measurements. The notation "P.O.B." is found at the lowest corner of the property on the survey map, and underneath the corner is found the note "3/4 FIR NO ID." According to the Surveyor's Legend found on page 2, this indicates that the point of beginning is marked by a 3/4 inch found iron rod without identification, as Mr. Gloer testified. While page 12 shows a point marked as "set #8 @ DEED Dist/Dist frm 5 & 152" on the lot corner, it indicates this monument was set, and does not indicate a found iron rod. Point "6" has no notation at all on page 12 and does not appear to be aligned on the southeast property line, but point 6 is reflected in the raw data file and the coordinates list. The measurements to point 6, and description of it, are consistent with and support the property corner marked as the P.O.B. on the survey map. Count IV alleges that bearings shown on the survey as measured are not substantiated by the survey measurements in the raw data or coordinate list. Mr. Gloer testified that he inversed the data from the coordinates and that the bearings were different. However, as he admitted, he did not consider that the recorded survey measurements might reflect an assumed initial location and bearing and that they would therefore need to be rotated and translated to substantiate the bearings shown on the survey map. The Department failed to show by clear and convincing evidence that the bearings shown on the survey were not substantiated by measurements. Count V alleges that the three points used to locate the improvements, monumentation, and control for the survey are not part of a closed traverse and are not based on redundant measurements. As Mr. Gloer testified, the distance between points 1 and 2 was verified by redundant measurements: once measuring the distance from point 1 to point 2, and once measuring the distance from point 2 back to point 1. However, the angle created between points 2, 1, and 150 was not similarly measured on more than one occasion or from the opposite direction. Respondents argue that use of an instrument such as the robotic total station used here, which takes numerous measurements very quickly and then averages them, is, by definition, taking redundant measurements. However, Mr. Gloer testified that in his expert opinion, "redundant" measurement has a more specific meaning. It requires that an "independent check" be made. He noted that if a rodman had the rod on his toe, all of the measurements almost instantaneously taken and averaged by an instrument would reflect the same incorrect information and so these multiple readings would not serve the purpose of revealing the mistake and preventing the error. Only an independent measure, like shooting the distance backwards, would likely reveal the error and thus meet the purpose of a "redundant" measurement. The angle created between points 2, 1, and 150 was not verified by redundant measurements. Count VI alleges that the survey is based on found monumentation on the parcel being surveyed. No attempt was shown to find the point of commencement or boundary monumentation along the boundary of Beauclerc Gardens Replat, both of which are called for in the description. The legal description provides in part, "commence at an iron pipe located in the northeasterly line of Section 40, Township and Range aforementioned, at a point where said line is intersected by the line dividing Sections 31 and 32." Mr. Gloer testified that to ensure that the position of the boundary of real property was determined in complete accord with this real property description, an attempt to find the point of commencement and the boundary of Beauclerc Gardens Replat was required, and that there was no evidence that this was done. However, no evidence was presented to indicate that the survey as conducted was not in complete accord with the property description as attached to the survey map. Count VII alleges that the survey does not tie to an established identifiable real property corner. As Mr. Gloer testified, the parcel being surveyed was described by metes and bounds. Nothing on the survey tied into any identified corner of Beauclerc Gardens. The survey did not tie into a real property corner of either lot 1 or 2 of Beauclerc Gardens, which were the closest lots. Instead, the survey was tied to a monument on the line south of Beauclerc Terrace on that right-of-way, identified on page 12 as point "151." That point was not an established identifiable real property corner of Beauclerc Gardens. As Mr. Gloer testified, the survey did not tie to an established identifiable real property corner. Count VIII alleges that the field notes and raw data do not show either the fence corner or the water meter that supposedly made the two nearby corners inaccessible. The computation notes at page 12 and the survey map on page 1 do not show a monument set at the most easterly corner of the lot, but they do show an offset point and reasonably indicate that a water meter is at the corner. Similarly, neither the computation notes nor survey map show a monument set at the most westerly corner of the lot, but the survey map shows an offset monument and has an indication that there is a fence post at the corner. Mr. Gloer noted that neither the water meter nor the fence post, if they existed, had been positively located on the field notes or raw data as being at the corners.3/ Mr. Gloer noted that the coordinates list indicated that the location of the water meter was calculated. Count IX alleges that there is a monument shown in the field notes, point number 6, but not shown on the survey. As discussed earlier in connection with Count III, the field computation notes appear to show two monuments in fairly close proximity to the southernmost corner of the property. The survey map at page 1 shows only one monument at this corner, labeled "P.O.B." and described as "3/4 FIR NO ID" which, as noted above, refers to a 3/4 inch found iron rod without identification. This descriptive information appears to correlate with the side shot of point 6 found on page 6 of the raw data file and page 9 of the coordinates list. While the field notes are confusing, the Department did not show by clear and convincing evidence that point number 6 was not shown on the survey. Count X alleges that all the monuments were tied by side shots without a redundancy of the measurements. The raw data at page 4 indicate that the 1/2 inch found iron pipe and cap marked with "R. Miller," which is shown as the easternmost monument on the survey, was located by a side shot, a single measurement, and that Mr. Blackmon only turned one angle and one distance to that point. Similarly, the data at page 5 show that the 1/2 inch found iron pipe with no identification which is shown as the northernmost monument on the survey was located by a single side shot. Again, the data on page 6 show that the 3/4 inch found iron rod without identification which is shown as the southernmost monument and point of beginning on the survey was located by a side shot. The data sheets show no other ties to these points taken from another position, or otherwise demonstrate that redundant measurements were taken. Count XI alleges that the survey dated September 25, 2012, was negligently prepared. On this point, the Transcript records: Q. And then one final question, Mr. Gloer. In your professional opinion, expert opinion, do you believe that these ten MTS violations that you have discovered, taken as a whole constitutes-–of the minimum technical standards, taken as a whole, constitutes negligence in the practice of surveying and mapping in the State of Florida? A. I do. This question and answer, predicated on considering ten other violations as a whole, offers no insight as to whether a fewer number of violations might constitute negligence, or whether some of the violations are so serious, or are of such a nature, that they might do so even standing alone. No evidence was introduced at hearing to indicate that Mr. Haas' professional license has been previously disciplined. Exacta was the subject of five earlier administrative complaints alleging violations of Minimal Technical Standards, which were the subject of a Settlement Stipulation. Given the terms of the stipulation, there is no competent evidence showing that Exacta committed prior offenses. However, the Corrected Final Order Approving Settlement Stipulation constitutes prior disciplinary action against Exacta.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services, Board of Professional Surveyors and Mappers: Finding Wesley Brian Haas and Exacta Land Surveyors, Inc., in violation of section 742.0351(1)(h), Florida Statutes, for failing to conduct surveying and mapping in accordance with the minimum technical standards prescribed by Florida Administrative Code Rules 5J-17.051(2)(b)3., 5J-17.051(3)(b)3., 5J-17.051(3)(b)15.b.(II), 5J-17.052(2)(a)8., and 5J- 17.052(2)(b)7.; imposing an administrative fine of $1500.00 on Wesley Brian Haas; and imposing an administrative fine of $4000.00 on Exacta Land Surveyors, Inc. DONE AND ENTERED this 14th day of April, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 14th day of April, 2015.
Findings Of Fact At all times pertinent to the allegations involved in this administrative hearing, the Respondent, Dennis Heasley, was a licensed land surveyor having been issued license number LS 3466 by the State of Florida. In January 1981 Respondent was an employee of James Bushouse and Associates, a land surveying firm. On January 31, 1981, MidSouth Engineering (MidSouth), a licensed land surveying company, entered into a contract with Figg and Muller Engineers, Inc., and the State of Florida, Department of Transportation, to provide engineering and land surveying services for the new Sunshine Skyway Bridge project. On June 10, 1981, MidSouth entered into a contract with Bushouse for Respondent, Heasley, and other Bushouse employees to perform some of the land survey services called for in the contract MidSouth had with the Department of Transportation. Thereafter, MidSouth entered into an agreement with Respondent Heasley and one Jorge R. Saniz providing that, for a fee of $200,000.00 Heasley and Sainz would provide land surveying and consulting services to MidSouth for its work under its state contract. On or about June 26, 1981, Heasley and Sainz began their work under the agreement with MidSouth, and the work called for by the agreement was satisfactorily completed by July 31, 1981. Thereafter, Heasley billed MidSouth for the unpaid remainder of the contract price and was paid. The contract between MidSouth and the State of Florida provided for payment by the State based on crew day rates wherein the State would pay so much money per crew day expended. The work in issue here was to take no more than 85 crew days with an upper limit on payment to be approximately $300,000.00. Respondent actually completed the work in 34 days. His speedy completion of the job resulted in MidSouth receiving less under its contract than anticipated. Shortly after completion, he became an employee of MidSouth. In the course of his continuing employment, he worked on some other aspects of the bridge project that were awarded to MidSouth. Respondent's lump-sum contract with MidSouth called for payment to him of $200,000.00. Out of that sum he was supposed to pay all his and Sainz' job expenses which included the salary, housing, and feeding of the employees he hired to perform the actual surveying work. His understanding with MidSouth called for him to utilize approximately 12 to 16 crew members. During the time the work was being performed, Respondent and Mr. Sainz rented a house near the work-site in which crew members were provided a place to live. Food paid for by Respondent Sainz was provided as were laundry facilities. The sums paid for these items as well as the transportation of the workers and the worker's salaries were to come from the $200,000.00 fee paid by MidSouth. Payments were made on the basis of periodic draws. Either Heasley or Sainz would contact MidSouth and state that some money was required for expenses and a sum was furnished. As this sum was expended Respondent would ask for more. He indicates that the relationship was like a game in that he asked for as much as he thought he could get and MidSouth would pay as little as it thought it could get away with. In any event, no actual per diem monies were paid by Respondent to the employees who were working on the survey crew. Respondent admits that during the 34 days this arrangement was in effect, he kept very few records and receipts. He relied on MidSouth to keep all the expense records and whatever receipts he received for money spent, he sent in to MidSouth which made up the payroll for Heasley and Sainz' crew members from the times he called in. Several months after the subcontract between Heasley, Sainz, and MidSouth was completed, Heasley was called by Tom Heinly, Executive Vice- President of MidSouth and his immediate supervisor, with a request that he, Heasley, prepare, sign and submit a list of per diem expenses for the crew which worked on the contract referenced above. In the course of the conversation, Heinly asked that it be prepared a certain way. In response, Respondent told Heinly that he could not do that because he had not paid the money as per diem payments but had provided payment in kind in the form of food, lodging, and laundry. Heinly advised Respondent to think about it and later called back again asking that Heasley prepare and sign a statement indicating per diem money paid. Heinly argued that MidSouth was entitled to the money and asked that Heasley do this as a favor. Again, Heasley refused. The third time Heinly called Heasley, he indicated that the list would be strictly a memorandum between Heasley and MidSouth to account for some of the money advanced by MidSouth and that the list had nothing to do with the State. Heinly assured Heasley that the improper, inaccurate list would not go to the State since this was one of Heasley's concerns. Heinly indicated that he had talked with representatives of the State and had been assured that it was legitimate to file an invoice such as this. Heasley was led to believe that the State would not reimburse MidSouth for advances made for in-kind payments but would reimburse for actual per diem expenses. Ultimately, since Heasley was convinced by Heinly that MidSouth was entitled to be reimbursed for these monies and since, to the best of his recollection, he, Heasley, had paid out in in-kind expense a sum similar to that claimed on the per diem list, it would be all right to so certify. Therefore, he agreed to sign the list after the third request. The list which Heasley signed was prepared by MidSouth personnel, not Heasley, and was brought to Heasley by Mr. Duffer, MidSouth's chief accountant. Respondent does not recall going over the list at the time he signed it and verified neither the names nor the amounts set out thereon. When he checked it over much later, he found that some of the names on the list should not have been there. Respondent admits signing the document and admits that the document as signed was false. When investigators from the State Attorney's Office initially talked with Mr. Heasley about this incident he was less than forthright. Though they had advised him they were investigating the relationship between MidSouth and the Department of Transportation, the tenor of their questions indicated to him that they were investigating him and his answers were evasive and, in fact, erroneous. However, when he subsequently found out the nature of the investigation, he attempted to get word to the investigators that he would like to continue the discussion. He was unable to do so, however, and was not interviewed by these officials again. He was, however, subsequently interviewed by Mr. Cartwright who, in mid to late 1981, was conducting an investigation into the MidSouth, Heasley and Sainz relationship with the Skyway Bridge project. An engineer with the State had expressed some concern regarding invoices submitted by MidSouth and the preliminary inquiry showed some cause for concern. As a result, a full investigation was begun which revealed that MidSouth had little if any documentation to cover invoices submitted to the State. It also showed that the company's accounting procedures and internal control were almost nonexistent. As a part of the investigation Cartwright interviewed Heasley who admitted that he had signed the documents referred to above regarding per diem payments. Heasley also admitted that in some cases the payees did not receive the money claimed but in his opinion, the bottom line balanced out and MidSouth was entitled to the total sum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Dennis Heasley's license as a land surveyor in the State of Florida, be placed on probation for a period of two years, under such terms and conditions as shall be established by the Board of Land Surveyors, and that he be reprimanded and pay an administrative fine of $1,000.00. DONE AND ENTERED this 16th day of January 1985 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January 1985. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 E. C. Deeno Kitchen, Esquire Melissa Fletcher Allaman Post Office Drawer 1170 Tallahassee, Florida 32302 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen R. Smith, Jr. Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
