The Issue The issues to be determined in this case are whether the amendments to the Manatee County Comprehensive Plan adopted through Ordinance No. 11-01 (“Plan Amendments”), are "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2011).1/
Findings Of Fact The Parties Gulf Trust Development, LLC (“Gulf Trust”) is a Florida corporation doing business in Manatee County. Gulf Trust is the contract vendee of property owned by Robinson Farms, Inc. Robinson Farms, Inc., is a Florida corporation doing business in Manatee County and owning real property in the County. Manatee County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to section 163.3184. Standing John Neal, the owner and manager of Gulf Trust appeared and spoke at the May 5, 2011, transmittal hearing for the Plan Amendments and at a later work session of the Board of County Commissioners on the Plan Amendments. Neal testified that, on these occasions, he was speaking for Gulf Trust and for Robinson Farms. William Robinson, the president of Robinson Farms, confirmed that Neal was authorized in advance to represent Robinson Farms at the public meetings on the Plan Amendments. The County contends that there is no evidence that Neal represented any entity other than himself, but the testimony of Neal and Robinson constitutes evidence. The Plan Amendment All coastal communities must have a coastal management element of their comprehensive plans that, among other things, designates the coastal high-hazard area ("CHHA"). See § 163.3178(2)(h), Fla. Stat. The CHHA is defined in the statute as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model." The CHHA must be mapped in the comprehensive plan. See § 163.3178(9)(c), Fla. Stat. The Manatee County planning staff proposed the Plan Amendments as a response to the publication of the 2010 Statewide Regional Evacuation Study for the Tampa Bay Region ("Storm Tide Atlas") by the Tampa Bay Regional Planning Council. The Storm Tide Atlas is a public safety planning tool used to assist local governments with hurricane evacuation planning in a four-county region in the Tampa Bay Area, which includes Manatee County. It incorporates the SLOSH model to predict storm surge heights during hurricanes and includes storm tide zone maps depicting the landward extent of anticipated storm surge for the five categories of storms. The 2010 Storm Tide Atlas made use of a new mapping technique known as LIDAR, a remote-sensing laser terrain mapping system, which is more accurate than past technology used for topographic mapping. The Plan Amendments include an amendment to the definition of the CHHA, which brings the definition in line with the statutory definition. That change is not opposed by Petitioners. Petitioners' opposition focuses on the amended definition of Coastal Evacuation Area ("CEA") and the new maps of the CEA. The CEA is not a term used in chapter 163. The CEA is now defined in the Introduction and Definitions section of the Manatee Plan as follows: The evacuation for a Category 1 hurricane as established in the regional hurricane evacuation study applicable to Manatee County pursuant to Ch. [sic] 163.3178(2)(h), F.S. as updated on a periodic basis. The CEA is a tool for emergency management. It identifies the area where people must evacuate in the event of a category 1 hurricane. The purpose of the CEA is described in Policy 2.2.2.4.2 as follows: To limit population in the Category 1 hurricane evacuation area requiring evacuation during storm events. To limit the amount of infrastructure, both private and public, within the CEA Overlay District and thereby limit magnitude of public loss and involvement in mitigating for loss of private infrastructure to Manatee County residents. To, through exercise of the police power, increase the degree of protection to public and private property, and to protect the lives of residents within the CEA, and reduce the risk of exposing lives or property to storm damage. To accomplish shoreline stabilization along coastal areas by limiting development activity which may adversely impact shoreline stability. To protect coastal water quality by reducing impervious surface along coastal areas, thereby reducing the risk of incomplete treatment of stormwater runoff before discharge into coastal waters. To encourage, establish and maintain vegetative and spatial buffer zones, in order to maintain the capacity of natural vegetative communities in mitigating the negative effects of storm surge and tidal velocity, and the erosive effect of wave action. Policy 2.2.2.4.5 prohibits any amendment to the Future Land Use Map that would increase allowable residential density on lands within the CEA. Whether the CEA and the CHHA are the Same The Plan Amendments would change the definition of the CEA to remove the reference to section 163.31878(2)(h): Coastal Evacuation Area (CEA) - The evacuation Level A for a Category 1 hurricane as established in the hurricane evacuation study applicable to Manatee County, as updated on a periodic basis. Petitioners claim that the current definition of the CEA, cited in paragraph 11, above, makes the CEA identical to the CHHA and that by removing the reference to section 163.3178(2)(h), the CEA and the CHHA would be different for the first time. Although the definition of the CEA refers to section 163.3178(2)(h) where the CHHA is defined, the definition of the CEA does not express the proposition urged by Petitioners -- that the CEA and the CHHA are identical. As explained below, in order to map the CEA, the County begins with the map of the CHHA and then makes adjustments to it. Therefore, it is not illogical for the definition of the CEA to refer to section 163.3178(2)(h). The reference to the statute does not compel an interpretation that the CEA was intended to be identical to the CHHA. Another definition of the CEA appears in Policy 2.2.2.4.1 of the Future Land Use Element ("FLUE"). There, the CEA is defined as "the geographic area which lies within the evacuation area for a Category 1 hurricane." This definition of the CEA does not refer to section 163.3178(2)(h). Some of the testimony from County employees about the relationship between the CEA and the CHHA was ambiguous, but the ambiguity can be attributed to the way the witnesses were examined by Petitioners. Three County planners were each asked to admit that, because the definition of the CEA (in the definitions section of the Manatee Plan) refers to section 163.3178(2)(h), the CEA and the CHHA must be the same thing. The questions confused the witnesses. Kathleen Thompson, the Planning Manager, did not think the CHHA and the CEA are the same, Sharon Tarman, a planner, said they are. John Osborne, the Planning and Zoning Official, said the definition of the CEA "implied" that the CEA and CHHA are the same. A quick glance at the existing maps of the CHHA and the CEA in the Manatee Plan is sufficient to reveal that that the CHHA and the CEA are not the same. See Manatee County Exhibit 1, pages 232-234. The CHHA has irregular boundaries. The CEA is larger and has many regular (straight line) boundaries. Considering the two definition of the CEA, the ambiguous testimony of the County planners, and the CHHA and CEA maps, it is found that one definition of the CEA is ambiguous, but the County intended the CEA and the CHHA to be different and, as implemented, the CEA and the CHHA are different. The proposed change to the definition of the CEA in the definitions section to remove the reference to section 163.3178(2)(h) eliminates the ambiguity in the definition and makes it conform to the definition in FLUE Policy 2.2.2.4.1. It is not a substantive change. The CHHA is the area below a category 1 storm surge line as produced by a computer model. In contrast, the CEA is an evacuation zone. The Storm Tide Atlas states that emergency management officials use several factors in determining evacuation zones, not just storm surge data: [I]t is important to note that the storm tide boundaries are not the only data used in this determination. Local officials use their knowledge of the area and other data such as: areas of repetitive loss, surge depth, freshwater flooding, isolation issues and debris hazards, and typically choose known landmarks to identify boundaries for public warning and information. In Manatee County, emergency management officials started with the CHHA line, and then adjusted the boundaries to follow streets, natural geographical features, and parcel boundaries so that the resulting CEA provided a better tool for emergency management and public information. That is why the CHHA has irregular boundaries, but the CEA has many regular (straight line) boundaries. The proposed CEA includes 10,690 fewer acres than the existing CEA because of the substantial changes that resulted from using the newest generation of the SLOSH model and the new LIDAR technology. The proposed CEA includes 8,365 more acres than are within the proposed CHHA as a result of the adjustment of the CHHA line to coincide with nearby streets and other geographic features, and with parcel boundaries. Petitioners argue that the effect of the change in the definition of the CEA is to add 8,365 acres to the area which is subject to the prohibition in Policy 2.2.2.4.5 against increases in allowable residential density. However, because the change in the definition of the CEA is not substantive, the real effect of the new mapping of the CEA is to reduce the lands subject to the prohibition by 10,690 acres. Public Notice Petitioners contend that public notice requirements were not met for the public hearings for the Plan Amendments. That contention is based on the claim that the Plan Amendments cause 8,365 acres of land to be added to the area subject to the prohibition against future increases in allowable residential density. Because that claim is rejected, Petitioners public notice issues are also rejected. Furthermore, as discussed in the Conclusions of Law, allegations of inadequate public notice are irrelevant in a compliance determination. Data and Analysis Petitioners argue that the Plan Amendments are not based on relevant and appropriate data and analysis. The argument is based in large part on Petitioners' contention that the CEA and the CHHA used to be co-extensive, which is rejected above. Petitioners claim that the County failed to consider flooding, wave height, and other factors when mapping the CEA. The CEA boundaries were placed at streets and other physical landmarks as well as parcel boundaries, in order to make the area subject to evacuation clearer for emergency management officials and the public.2/ This is a sufficient basis to explain the boundaries of the CEA. The relevant data for such a purpose would be the location of the CHHA in relationship to nearby streets, other physical landmarks, and parcel boundaries. Petitioners did not show that any particular CEA boundary was illogical or inappropriate. Mitigation Petitioners contend that the Plan Amendments do not include the mitigation measures referred to in section 163.3178(9)(a). The statute states that a proposed amendment shall be found in compliance with the state coastal high-hazard provisions if: The adopted level of service for out-of- county hurricane evacuation is maintained for a Category 5 storm event as measured on the Saffir-Simpson scale; or A twelve hour evacuation time to shelter is maintained for a Category 5 storm event as measured on the Saffir-Simpson scale and shelter space reasonably expected to accommodate the residents of the development contemplated by a proposed comprehensive plan amendment is available; or Appropriate mitigation is provided that will satisfy Subparagraph 1 or Subparagraph 2 above. Appropriate mitigation shall include, without limitation, payment of money, contribution of land and construction of hurricane shelters and transportation facilities. Required mitigation may not exceed the amount required for a developer to accommodate impacts reasonably attributable to development. A local government and a developer shall enter into a binding agreement to memorialize the mitigation plan. These provisions are stated as alternatives. The mitigation measures referred to in subparagraph 3. are only applicable if the criteria stated in subparagraph 1. or 2. are not met. Petitioners did not prove that the County does not meet the standard described in subparagraph 2. Furthermore, as discussed in the Conclusions of Law, section 163.3178(9) does not require that the mitigation measures described in subparagraph 3. must be included in a comprehensive plan.
Recommendation Based on foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendments adopted by Manatee County Ordinance No. 11-01 are in compliance. DONE AND ENTERED this 2nd day of March, 2012, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2012.
Findings Of Fact Petitioner, Wingfield Development Company (WDC), is a real estate development company located at 390 North Orange Avenue, Suite 1800, Orlando, Florida. In late 1982 or early 1983, WDC began developing a resort project known as Turtleback Beach Club (the project) in Indian River County. When completed, the project will consist of a 256 unit hotel, 68 villas, two swimming pools, a number of cabanas, a reverse-osmosis water plant, and other amenities which will cost approximately $50 million. All structures were designed to be constructed landward of the then existing coastal construction control line (CCCL). The date of establishment of the original CCCL is not of record. From late 1982 or early 1983 until 1987, WDC expended approximately $1.4 million on the project. Among the expenditures were the preparation of extensive cite and design plans, the installation of off-site utilities, and the fabrication and installation of some two hundred pilings and a number of pile caps. All such work was performed landward of the then existing CCCL. On March 5, 1987 respondent, Department of Natural Resources (DNR), reestablished the CCCL in Indian, River County. The new CCCL was more landward than the original CCCL. This resulted in several portions of the project, including all or parts of the villa and hotel, being seaward of the new CCCL. In November 1987 WDC was advised by the Indian River County Building Department to cease construction activities because, after consultation with DNR, it has decided not to make any further inspections. On April 4, 1988 DNR advised WDC by letter that, after making a site review of the project, it had determined that: the foundations for the hotel structure and the cabana located in the southeast portion of the property were `under construction' pursuant to the definition contained in Subsection 16B-33.002(56), Florida Administrative Code, at the time of the reestablishment of the coastal construction control line on March 4, 1987, ... (and that) the remaining five proposed cabana structures located on the south half of the property and shown to be seaward of the new control line, the proposed swimming pools, decks and gazebos, parking areas also shown to be seaward of the new control line and any other proposed landscaping work were not `under construction' pursuant to the definition. The letter added that the: staff shall consider the exemption status for the hotel and the one cabana under construction void if construction activity on these structures remains idle for a period of six months from the date of receipt of this exemption determination and prior to completion of the structures. Finally, the letter required petitioner to submit: a proposed `build out' schedule (that) would entail providing (the) staff with specifics of where (petitioner) expect(s) the overall project to be at ninety (90) day intervals up through completion of the structures located seaward of the coastal construction line. The staff feels that two years should be more than ample time with which to complete that portion of the project located seaward of the coastal construction control line. Progress must be maintained on each structure during each six month interval. Additionally, should your project fall short of any ninety day progress levels to be referenced in your `build out' plan, your project will lose it's (sic) exemption status and all remaining portions of the project, seaward of the control line will require a permit from the (DNR) in accordance with the provisions of Section 161.053, Florida Statutes. Because the letter offered a point of entry to contest the proposed agency action, WDC requested a section 120.57(1) hearing. At the same time, it continued construction on the project. On November 25, 1988 DNR issued further proposed agency action in the form of a letter advising WDC that, based upon a review of WDC's exemption file, the exempt status of the project had been "lost" and that any further construction activity seaward of the CCCL would require a permit from DNR under section 161.053. The receipt of this advice prompted WDC to file a second request for a section 120.57(1) hearing and a petition seeking to invalidate what it perceived to be an illicit rule, or in the alternative, the two rules from which the statements were drawn. WDC contends that DNR's requirement that, once a project is given an exempt status, it must remain under active construction and the owner must submit for DNR's approval a "build out" schedule, is an illicit rule since such a requirement is not contained in DNR's rules. Under state law, as implemented by DNR, no construction activity may take place seaward of a CCCL without a permit from DNR. However, any projects that are under construction at the time of the establishment of the CCCL are exempt from such permitting requirements. Under the current DNR organizational structure, the Division of Beaches and Shores (Division) is charged with the responsibility of administering and enforcing the CCCL regulatory program. The Division's Bureau of Coastal Engineering and Regulation has been assigned the task of performing a site review of all projects for which local building permits have been issued at the time of the establishment of a CCCL. If a project is under construction, as defined in DNR rules, at the time of the establishment of the CCCL, the owner may continue his activities even if the structures are seaward of the CCCL. A determination as to whether a structure is under construction at the time a CCCL is reset does not take into consideration the impacts the structure will have on the beach and dune system. This is because DNR considers such a determination to be regulatory in nature, and such impacts would be irrevelant to that decision. The Division construes its authority as also permitting it to require an exempt project to remain under active construction once it receives an exempt status. It does so on the notion that this insures that the exemption status was obtained in good faith, and the builder intended to go forward with the construction in a timely manner and as originally conceived. It has been DNR's experience that some property owners have engaged in a minimal construction program to circumvent the regulatory process. To prevent this, DNR has imposed a requirement that, if construction activity ceases for a period of six months or more, the exempt status will be lost. A six month time period was used because DNR realized that short, unforeseeable delays of less than six months were not uncommon. This policy has been uniformly applied, without discretion to agency personnel to do otherwise, on all projects classified as exempt. In addition, DNR has required project owners to submit to DNR staff a so-called "build out" schedule containing a construction schedule at ninety day time intervals with a time certain for completion of the project. This requirement, although infrequently used, has been uniformly imposed, when needed, upon all exempt projects, including that of WDC. The agency concedes that there is no specific statutory language authorizing the above requirements. However, it takes the position that these requirements are authorized and sanctioned by chapter 161 as a whole and by rules 16B-33.002(56) and 16B-004(1), which happen to be the rules challenged by WDC. Those rules read as follows: 16B-33.002 Definitions. (56) "Under construction" is the continuous physical activity of placing the foundation or continuation of construction above the foundation of any structure seaward of the established coastal construction or setback line. Under construction does not include application for or obtaining a building permit, a site plan approval or zoning approval from the appropriate local government agency having jurisdiction over the activity, purchasing construction materials, placing such construction materials on the site, clearing or grading the site in anticipation of construction, site surveying, continuation of site work beyond the limits of the foundation including landscape work or construction of nonhabitable major structures or rigid coastal or shore protection structures, or reactivating construction after substantially all construction activity has remained stopped for a period of six months or more. 16B-33.004 Exemptions from Permit Requirements. (1) Any structures under construction prior to the establishment of a coastal construction control line in a particular county are exempt from the provisions of Section 160.053, Florida Statutes, and this Chapter, except as noted in Subsection 161.053(12), Florida Statutes. Respondent acknowledges that there is nothing in rule 16B-33.004(1) that specifically authorizes it to impose the challenged requirements. However, it relies upon that part of the rule which reads "except as noted in Subsection 161.053(12), Florida Statutes" as implicitly authorizing this action. That statute removes the exempt status of a project if there are any subsequent modifications which "require, involve, ,or include any additions to, or repair or modification of the existing foundation of that structure." According to the Division director, it construes that language as authorizing it to make a determination as to whether the project owner has made any substantial changes in the nature of the project or if construction has been continuous. Respondent also relies upon rule 16B-33.002(56) which defines the term "under construction" as being "the continuous physical activity of placing the foundation or contination of construction above the foundation of any structure seaward of the established coastal construction control or setback line." The Division interprets this language to mean that construction must be continuous and without a cessation of activities of more than six months. This rule language is bottomed on subsection 161.053(9) which reads in pertinent part that "the provisions of this section do not apply to ... structures existing or under construction prior to the establishment of a coastal construction control line as provided herein; provided such structures may not be materially altered except as provided in subsection (5)." Finally, the agency relies upon subsection 161.053(1)(a) which sets forth the legislative intent behind the establishment of CCCLs. Among other things, the purpose of a CCCL is to protect, the beaches and dunes from imprudent construction which can "provide inadequate protection to upland structures." In the words ,of the Division director, DNR interprets this language to mean that it has the authority to "go back and look at projects once they are declared exempt, and to make sure that they remain exempt under the statute." The DNR documents which grant exemptions do not contain any reference to requirements that there be continuous construction on the project and that a build out schedule be submitted thereafter. Even so, DNR contends it is merely granting a "conditional" exemption conditioned on the project owner maintaining active and continuous construction. It posits further that, without such authority, its regulatory program would be rendered ineffective. However, the Division director conceded that, even without the imposition of these requirements, DNR still has authority to regulate all structures which are constructed seaward of the CCCL and to prohibit any material changes to an existing or partially completed structure. Petitioner intends to complete its project, but contends it cannot do so at the pace required in DNR's build out schedule. Also, WDC points out that it is unable to secure permanent financing for the project since lender's are uncertain if DNR will approve the build out schedule and allow construction to go forward or instead precipitously halt the construction. There have been no construction activities on the project since November 1988.
The Issue The issue is whether the plan amendments adopted by Ordinances 97-56, 97-59, 97-61, 97-63, 97-64, 97-66, and 97-67 are in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Background On November 14, 1997, Respondent Collier County (the County) adopted numerous amendments to its Growth Management Plan (the Plan). The County adopted these Plan amendments (the Plan Amendments) pursuant to its Evaluation and Appraisal Report (EAR). By law, local governments must assess their comprehensive plans every seven years and prepare an EAR. On December 24, 1997, Petitioner Department of Community Affairs (DCA) published its Notice of Intent to find the Plan Amendments not in compliance with the criteria of Chapter 163, Part II, Florida Statutes (Chapter 163), and Chapter 9J-5, Florida Administrative Code (Chapter 9J-5). A detailed Statement of Intent is attached to the Notice of Intent. The petition of DCA incorporates the Statement of Intent. The petition of Intervenors Collier County Audubon Society, Inc., and Florida Wildlife Federation (Intervenors) also incorporates by reference the Statement of Intent. The petitions cite 16 grounds for a determination that the Plan Amendments are not in compliance with Chapter 163 and Chapter 9J-5, although, at hearing, Intervenors dropped Issue 5. Intervenor Collier County School Board (School Board) intervened to defend the Plan Amendments regarding the siting of schools. The parties stipulated to the standing of all of the parties. The Plan, as amended by the Plan Amendments (County Exhibit 1), discloses repealed and added language by strikeouts and underlines, respectively. All but two of the issues involve amended Plan provisions. The two exceptions are the Intergovernmental Coordination Element (ICE) (Issue 1) and Housing Element (Issue 4). In Issue 1, DCA and Intervenors challenge ICE Policy 1.2.6 and its effect of allowing schools to be sited anywhere in Collier County. Although the County did not amend ICE Policy 1.2.6, it substantially amended another Plan provision with the effect of relaxing restrictions on the siting of schools. In Issue 4, DCA and Intervenors challenge Plan provisions governing farmworker housing as not supported by the best available data and analysis. Although the County did not amend these Plan provisions, Petitioner and Intervenors contend that updated data and analysis demanded that the County do so. Issue 1 ICE Policy 1.2.6 states: The County shall continue to coordinate with the Collier County School Board on the site selection for new schools and the provision of infrastructure, particularly roads, to support existing and proposed school facilities in accordance with the Interlocal Agreement adopted in accordance with Chapter 163.3177 F.S. on June 25, 1996. Although unamended by the Plan Amendments, ICE Policy 1.2.6 is subject to challenge because of the effect of other EAR amendments on school siting. Plan Amendments in the Future Land Use Element (FLUE) affect school siting, but the effect of other Plan Amendments is to restrict slightly school-siting standards. For instance, prior to the Plan Amendments, the Plan generally allowed schools in areas designated Agricultural/Rural. As amended, FLUE II.g adds some restrictions to schools as a land use in areas designated Agricultural/Rural. This provision reads: Community facilities such as churches, group housing uses, cemeteries, and schools which shall be subject to the following criteria: Site area and school size shall be subject to the General Educational Facilities Report submitted annually by the Collier County School Board to the Board of County Commissioners. The Site must comply with the State Requirements for Educational Facilities adopted by the State Board of Education. The site shall be subject to all applicable State or Federal Regulations. The County made the identical change in permitting schools in the Conservation designation. For the Urban designation, the County repealed the identical former language, but, in adding schools as a permitted use, did not include the three bulleted provisions quoted above. However, a Plan Amendment to the Sanitary Sewer Subelement (Sanitary Sewer) outweighs the slight restrictions added in the Plan Amendments to the FLUE and results in a net relaxation of the school-siting standards. In the Plan Amendments, the County repealed Sanitary Sewer Subelement (Sanitary Sewer) Policy 1.1.6, which provided: By January 1, 1990, review existing criteria and regulatory framework for septic tank installations and determine the suitability of same for Collier County by December 31, 1990, implement local ordinances regulating septic tank installations if above review indicates need to do so. Prior to its repeal, Sanitary Sewer Policy 1.1.6 threatened the continued reliance on septic tanks, especially for more intensive uses, such as schools. Although reliance upon septic tanks is not the School Board's preferred means of disposing of sanitary sewage, the School Board has determined that the use of septic tanks is economically feasible. At present, septic tanks exclusively serve the sanitary sewer needs of one public school, Big Cypress Elementary School, which is located on Golden Gate Boulevard east of State Road 951 and is attended by over 1000 students. As long as Sanitary Sewer Policy 1.1.6 was in effect, the School District was on notice that its ability to site schools without regard to the availability of central sewer, including larger package plants, was in doubt. The repeal of Sanitary Sewer Policy 1.1.6 eliminates that doubt and invites school-siting decisions without regard to Plan-imposed, or at least -threatened, requirements of central sewer. As a result of the Plan Amendments, the Plan effectively allows the School District to site schools through the entire range of future land use designations, including conservation areas. In place of regulating school uses like other land uses--i.e., in the Plan--the County instead has elected to resolve school-siting issues through another means--i.e., an Interlocal Agreement, which is mentioned in Sanitary Sewer Policy 1.2.6. However, the use of the Interlocal Agreement, rather than the Plan, attenuates public participation, precludes plan challenges by the public or DCA under Chapters 163 and 9J-5, and fails to ensure that the two parties will site schools consistent with the minimum criteria of Chapters 163 and 9J-5. Withdrawing school-siting decisions from the comprehensive planning process interferes with the ability of the Plan to address the demand that schools will place upon public facilities, such as traffic, sewer, water, solid waste, drainage, and recreation. As do the County and School Board in the Interlocal Agreement, the Florida Department of Education likewise recognizes the direct effects of school siting. Section 1.4(2) of the State Requirements for Educational Facilities, 1997, published by the Florida Department of Education, identifies numerous factors that school boards should consider in siting schools, including the compatibility of uses of adjacent property, the capacity of roads, and the effect (on the buildings) of siting in a floodplain. As the floodplain can affect the school, so the school can affect the floodplain, but the effects of schools on natural and manmade resources receives little, if any, attention in the State Requirements for Educational Facilities or the Interlocal Agreement. When addressing public facilities, the educational planning documents focus on the effects upon the users of the school, such as the capacity of the roads to accommodate the parents driving their children to school or the location of the school in an area safe from flooding. Schools also have indirect effects on natural and manmade resources, especially when a public school is sited in a relatively undeveloped area. Induced sometimes by the availability of relative inexpensive land and developer-provided incentives, the construction of a public school exemplifies the "if you build it, they will come" scenario. The construction of a public school may compete with excess road capacity as a development-attractor to a relatively undeveloped area within a larger area undergoing brisk population growth. Thus, school- siting decisions may have large indirect effects on the natural and manmade resources in an area, well in excess of the impact of the school itself or the demand upon public facilities made by its users. DCA and Intervenors have proved by a preponderance of the evidence that, after consideration of the Plan Amendments affecting the siting of schools, ICE Policy 1.2.6 is inconsistent with the criterion of designating the future general distribution, location, and extent of educational uses of land. By ignoring the issue of school-siting in the Plan, the County has failed to address, in the planning process and in the Plan, issues such as the proximity of schools to existing or future residential development, the identification of land uses incompatible with schools, and the prohibition of the siting of schools in locations that fail to preserve environmentally sensitive lands, such as floodplains, unique native habitats, or habitats for listed species. By relaxing its school-siting standards, the Plan fails to meet the pleaded minimum criteria of land use planning and forfeits an opportunity to discourage urban sprawl and encourage a comprehensive planning solution to the challenges of population growth and the development and redevelopment of land. Issue 2 As amended, Natural Groundwater and Aquifer Recharge Subelement (Groundwater) Objective 1.2 replaces a promise to adopt a groundwater protection ordinance by August 1, 1989, with the following: Implement the Collier County Ground Water Protection Ordinance that includes: regulation of land use activities County-wide as well as within wellfield protection zones surrounding identified public water supply wellfields and identified sensitive recharge areas; and County-wide ground water quality criteria, to protect the County's ground water resources as well as sensitive recharge areas. Groundwater Policies 1.2.1 through 1.2.4 provide: The Ordinance will address both existing and projected future land use and surface activities. Apply action criteria specified in the Collier County Ground Water Protection Ordinance to both existing and future regulated development according to procedures specified in the Ordinance to protect the County's ground water resources. The Ordinance will continue Apply criteria for ground water protection specified in enforcement procedures specified in the Ordinance, to provide an appropriate level of protection to sensitive recharge areas. The Ordinance will address the breaching of confining units by improper well construction, rock mining and other excavations, blasting and other similar activities. Apply the criteria of those sections of the Collier County Ground Water Protection Ordinance that address: breaching of confining units by improper well construction, rock mining and other excavations, blasting, and other similar activities to protect recharge of the Surficial Aquifer System, to planned/permitted future development. The County will implement the Ordinance in a manner to minimize duplication of effort between the County and other State agencies. Implementation of the Collier County Ground Water Protection Ordinance will follow Ordinance procedures, and other internal County procedures in a manner to minimize duplication of effort among County, municipal, and State agencies. DCA and Intervenors have proved by a preponderance of the evidence that Groundwater Objective 1.2 does not supply a specific, measurable, intermediate end that is achievable and marks progress toward a goal. As presently formulated, this objective is nothing but a promise of the implementation of a land development regulation whose regulatory content or performance criteria are omitted from the Plan. The objective defers the establishment of regulatory content and performance standards to the land development regulations. The objective itself offers no protection to the groundwater resources or aquifer recharge areas because the County has relegated this crucial task to the land development regulations. The deferral and relegation of regulatory content and performance standards--required by Chapters 163 and 9J-5--to the land development regulations gravely undermines the entire comprehensive planning process for several reasons. Through deferral and relegation, the County retains the ability to amend or repeal the regulatory content and performance standards without a Plan amendment, which means without the public participation, agency review, and opportunity for a hearing that must accompany Plan amendments. Through deferral and relegation, the County insulates the regulatory content and performance criteria that are required to be in the Plan from determinations of consistency with the criteria of Chapters 163 and 9J-5 (including the crucial criteria of minimum content and supporting data and analysis), the regional policy plan, and the state comprehensive plan. Deferral and relegation to land development regulations do not insulate the provisions setting regulatory content and performance criteria from a consistency determination with the provisions of the Plan. However, the deferral and relegation effectively limit substantially affected persons to challenging the consistency of the land development regulations with the Plan, although this may be a meaningless right if the Plan lacks the required regulatory content and performance standards, against which the land development regulations may be compared. Also, because the comparison is between a land development regulation and Plan provision, the result of a finding of any inconsistency raises the likelihood of the elimination of the land development regulation, rather than the Plan provision with which it is in conflict, due to the relative ease of amendment or repeal of land development regulations as opposed to Plan provisions. Lastly, through deferral and relegation, the County insulates any regulatory content and performance criteria from an enforcement action, under Chapter 163, concerning development orders that are inconsistent with Plan provisions. Although other enforcement actions may be available for development orders inconsistent with land development regulations, the Chapter 163 action provides the added safeguards of statutory intervention by the Florida Department of Legal Affairs and recognition of relatively broad standing among private parties. DCA and Intervenors have proved by a preponderance of the evidence that the four policies do not identify programs and activities by which the County will achieve the planning goals or objectives that the policies are supposed to serve. Like Groundwater Objective 1.2, Policies 1.2.1, 1.2.2, 1.2.3, and 1.2.4 improperly defer and relegate to the land development regulations the identification of those programs and activities that are required to be in the Plan. The policies are impermissibly vague because they rely on land development regulations to identify the programs and activities necessary to achieve goals and objectives, rather than identify in the Plan the programs and activities, possibly leaving to the land development regulations the task of providing an additional level of detail for these programs and activities. For the reasons stated in Paragraphs 26-30 above, the County has improperly deferred and relegated to the land development regulations descriptive material that must be contained in the Plan. DCA and Intervenors have proved by a preponderance of the evidence that the Plan, including Groundwater Objective 1.2, is inconsistent with the criterion of an objective protecting the functions of natural groundwater recharge, and the Plan, including Groundwater Policies 1.2.1 through 1.2.4, is inconsistent with the criterion of regulating land use and development to protect the functions of natural groundwater aquifer recharge areas. Issue 3 Drainage Subelement (Drainage) Policy 1.1.2 provides: Outline how to iImplement procedures and projects within the County's Land Development Code and those procedures delegated by South Florida Water Management District during 5 year planning time frame to ensure that at the time a development permit is issued, pre- development versus post development discharge rates are monitored to assure that adequate water management facility capacity is available or will be available when needed to serve the development. The flaws of the Drainage Policy 1.1.2 start with the County's failure to adopt, in the Plan, an enforceable level of service (LOS) standard for drainage. Drainage Objective 1.2 provides that the County shall "Adopt Maintain adopted level of service standards for basins and sub-basins identified in the Water Management Master Plan." This master plan appears to be a part of the land development regulations, not the Plan. For the reasons stated in Paragraphs 26-30 above, this deferral and relegation of a crucial and required provision of a Plan--i.e., setting a drainage LOS--undermine the Plan's approach to drainage. Drainage Policy 1.2.1 formerly provided that the County would use the findings from a study to be conducted under the master plan to "identify existing levels of service for all the drainage basins and sub-basins." A parenthetical note states that the County completed this task in May 1990. New Drainage Policy 1.2.1.A provides, for "future 'private'" development, that the drainage LOS standards are the "water quantity and quality standards" specified in various ordinances that are not incorporated into the Plan. New Drainage Policy 1.2.1.B assigns "existing 'private'" development and "existing or future public drainage facilities" LOS standards identified in the master plan. For such development, a table assigns letters to various basins, but the meaning of the letter is not explained in the Plan. The net effect of this objective and policies is that the Plan defers and relegates to the land development regulations the crucial task of setting comprehensive drainage LOS standards--comprehensive in the components of drainage (e.g., hydroperiod, rate, quality, and basin) and comprehensive in the scope of development (i.e., all private and public development and redevelopment, including public development, not just "public drainage facilities"). In the context of other Drainage provisions, Drainage Policy 1.1.2 is essentially useless. It defers and relegates to the land development regulations the regulatory content (including setting a drainage LOS), performance criteria, and identification of programs and activities. On its face, given the failure of the Plan to set a drainage LOS, Drainage Policy 1.1.2 promises nothing more than the monitoring of post- development runoff. DCA and Intervenors have proved by a preponderance of the evidence that the Drainage Policy 1.1.2 does not identify programs and activities by which by which the County will achieve the planning goals or objectives that the policy is supposed to serve and that the Plan lacks a policy regulating land use and development to protect the functions of natural drainage features. Issue 4 This issue raises the question whether the County relied on the best available data when preparing Plan provisions concerning farmworker housing. In their joint proposed recommended order, the County and School Board offer proposed Plan amendments providing for the collection of new farmworker housing data in 1998, the analysis of the data in 1999, and the adoption of any necessary Plan amendments in 2000. This is consistent with the tenor of the testimony of their witnesses: the County wants more time to conduct more studies to determine if farmworker housing needs may have lessened somewhat. The data and analysis accompanying the revisions to the Housing Element (Housing) include analysis of 1990 census data done by the Shimberg Center at the University of Florida. Tables showing the percentage in the unincorporated County of owners and renters, respectively, paying more than 30 percent of their income for housing reveal that, for persons with annual incomes of less than $10,000, the percentages are 76.1 and 95.9; for persons with annual incomes of $10,000 to $19,999, the percentages are 44.3 and 75.9; and for persons with incomes of $20,000 to $34,999, the percentages are 32.3 and 31.4. After reciting these data, the Housing data and analysis state: The previous tables indicate a strong need for more affordable owner and rental opportunities throughout the County. Very low, low[,] and moderate income families who pay more than 30 [percent] of their gross monthly income on housing cost are considered to be "cost burdened" according to the U.S. Department of Housing and Urban Development. As a County witness testified, 85-90 percent of County farmworkers reside in Immokalee. According to the County's own data, 36.8 percent of the housing units in the Immokalee area are substandard. The next highest area has 13.4 percent substandard housing, and the next highest has 4.7 percent substandard housing. Of the 4507 units in the Immokalee area, 101 lack plumbing, 74 lack kitchens, and 134 have more than 1.01 persons per room (with some units appearing in more than one category). After reciting these data, the Housing data and analysis state: As the housing stock continues to age, there is a need to provide housing rehabilitation programs for the very low to moderate income rental and owner occupied households in order to prevent continuing deterioration and potential substandard housing conditions. After displaying other data, the Housing data and analysis report that various tables prepared by the Shimberg Center project a very large deficit of affordable, renter occupied and owner occupied dwelling units for the years 2000, 2005 and 2010. Local estimates have not been calculated but efforts to address the estimated deficits are identified in the Housing Element. According to the Shimberg Center data, there is a county wide need for 4,973 affordable rental units and 9,500 affordable owner occupied units by 2000 for a total of 14,473 affordable housing units. Responding to these data, the Housing data and analysis state: The City [Naples] established a goal of encouraging the development of 500 affordable housing units each year within the urban area boundaries identified in a 1994 Interlocal Agreement. Based upon County data collected for this Interlocal Agreement's 500 unit goal, the statistics indicate that 30 [percent] of all single family building permits issued since July 1994 meet the Interlocal Agreement[']s affordable housing criteria. Since the adoption of this Interlocal Agreement, an average of 600+ affordable housing units have been produced countywide each year. Since the urban area target of 500 unit[s] per year has been met, it is recommended that the target be increased to 750 units countywide. A target of 750 units countywide is realistic based upon building permits and [certificates of occupancy] issued annually. The tables contain a comprehensive projection of affordable housing for all income ranges and are not limited to persons with moderate or less annual incomes. Thus, for unincorporated Collier County, one table discloses a deficit of 287 units by 2010 for persons making over $150,000 annually. Addressing farmworker housing specifically, the Housing data and analysis mention the County's 1994 Immokalee Housing Study. Housing designated exclusively for farmworkers consists of privately owned migrant labor camps and Farm Worker Village, which was built with the assistance of the Farmers Home Administration and is owned and operated by the County. The Housing data and analysis note that farmworkers "are also housed in a variety of other housing that is usually substandard, deteriorated or overcrowded." The Housing data and analysis report that farmworker housing in the Immokalee area includes migrant labor camps and shared housing. The Housing data and analysis note that there is no farmworker housing located on the farms in the Immokalee area. According to the Housing data and analysis, the 109 migrant camps in the County comprise 1987 units. The County owns and operates 571 one- to four-bedroom units for rent at affordable rates, but, at the time of the survey, there were 60 applications on the waiting list for these units. The County also has 276 Section 8 certificates from the Farmers Home Administration. Families paying more than 30 percent of their income on housing are eligible for these certificates, which are limited to housing expenses in rural areas. Surveying existing studies, the Housing data and analysis concludes that 4.5 persons reside in each farmworker household. Restating projections from the County's 1994 Immokalee Housing Study, the Housing data and analysis report that, in 2005, farmworker housing demand will consist of 10,711 permanent units and 3251 seasonal units for a total of 13,962 units. For 1995, the Housing data and analysis calculate that the 2961 available seasonal units could accommodate, at 4.5 persons per dwelling unit, 13,324 of the 33,134 seasonal residents, leaving a shortfall of housing for nearly 20,000 seasonal residents or, at 4.5 persons per dwelling unit, 4402 units. However, this analysis understates projected needs for farmworker housing because, without analysis, it uses for all future years the current estimate of 4.5 persons per dwelling unit without considering whether greater availability of affordable housing would reduce the number of persons per dwelling unit. The dispute begins to emerge when the Housing data and analysis note the obvious difficulty of establishing accurate farmworker population figures and conclude that the population increases are relative to the amount of acreage in production at the time of the population count. The County contends that future farmworker housing demands are artificially high because they do not reflect recent trends reducing agricultural operations. However, the County's contentions are unsupported by data and analysis collected in accordance with a professionally recognized methodology. To the contrary, the County elsewhere in the Plan estimated that seasonal farmworker residents, who are present in the Immokalee area during the winter months, would increase by 25 percent after 1992 "to reflect the anticipated expansion of the citrus industry." FLUE, page 57. The County elsewhere relied on the projection of the South Florida Water Management District that agricultural water demands will increase by 46 percent from 1990 to 2010. Conservation, page 35. According to the FLUE data and analysis, nearly 6000 acres of land in the Immokalee area were devoted to agricultural uses. This is only about 2.5 percent of the nearly 250,000 acres in agricultural uses in the County and only about 0.4 percent of the 1.3 million acres in the County. The County's contention of declining needs for farmworker housing repudiates the findings and conclusions of the County's own 1994 Immokalee Housing Plan and the Shimberg Center's more recent work. Rather than address these data and analysis in preparing the Housing goals, objectives, and policies, the County relied on speculation and conjecture that farmworker housing needs may have declined, or may soon decline, due to a perceived decline in agricultural operations. No data indicate what agricultural operations have declined or may decline or, more importantly, the effect of any such decline on the need for farmworker housing. The County did not analyze even this conjecture and speculation from the perspective of other relevant data and analysis, such as the leveling off of a decline, in the mid-1990s, in tomato farming; possibly offsetting trends in other labor-intensive farming; possibly offsetting trends in labor-intensive farming around Immokalee; and trends in Hendry County labor-intensive farming and the impact of Hendry County farmworkers choosing to reside in Immokalee. The available data and analysis reveal ongoing shortages in affordable housing of nearly 15,000 units by 2000. For migrant farmworkers, the available data and analysis suggest a shortage of nearly 4500 units in 1995. The data and analysis suggest that other farmworker substandard housing units will be lost to attrition. Except as it involves farmworker housing, the County relied on a 25 percent increase in farmworkers after 1992 and a 46 percent increase in agricultural water demands from 1990 to 2010. Ignoring the available data and analysis, the County relied on vague concerns about a reduction in labor-intensive agricultural operations in support of its development of affordable housing strategies that do not focus on the unique and pressing needs of farmworkers. The following Plan provisions repeatedly fail to respond adequately to the quantitative and qualitative housing needs of farmworkers. Housing Objective 1 is to increase by only 500 units annually the number of new affordable housing units for persons earning a wider range of incomes than do farmworkers "to continue to meet the housing needs of all current and future very-low, low[,] and moderate income residents of the County, including those households with special needs such as rural and farmworker housing in rural Collier County." Failing to focus measurably the affordable-housing effort on farmworker housing, Housing Policy 1.4 states: Affordable housing will be distributed equitably throughout the County using strategies which include, but are not limited to, density bonus agreements and impact fee waivers or deferrals. In addition, affordable housing will be located where adequate infrastructure and services are available. Housing Objective 2 is to create a nonprofit housing development corporation by 2000, with representatives from business, government, housing advocates, and the general community, to assist the County in achieving the annual goal of 500 new units, as stated in Housing Objective 1. Housing Policy 2.1 is to increase the supply of housing for very low, low, and moderate income residents, including farmworker housing, through the use of existing programs, such as low income housing tax credits, density bonuses, and impact fee waivers or deferrals. DCA and Intervenors have proved by a preponderance of the evidence that the cited Housing objectives and policies are not supported by the data and analysis. In preparing the revised provisions of the Housing Element, the County relied on speculation and anecdotal evidence of reductions in the numbers of farmworkers, declining to address the professionally collected data and analysis of that data, including the County's own data- collection and -analysis. DCA and Intervenors have proved by a preponderance of the evidence that the Plan lacks policies providing guidelines or criteria for the location of farmworker housing. The data and analysis reveal a crucial need for such housing in the Immokalee area, but the Plan, most notably Housing Policy 1.4, fails to address these data and analysis by failing to focus affordable- housing efforts for farmworkers where the need is greatest. The Plan also fails to establish locational criteria or guidelines to assure that the farmworker housing best serves the needs of the farmworkers. Issue 5 Prior to these amendments, Golden Gate Area Master Plan (Golden Gate) Policy 2.2.3 provided that the County would apply the stricter of its special development standards or Chapter 28-25, Florida Administrative Code, to applications for development within South Golden Gate Estates. However, these amendments repealed Golden Gate Policy 2.2.3 and replaced it with new Golden Gate Policy 2.1.4, which provides that the County will apply Chapter 28-25, Florida Administrative Code, to applications in "those Golden Gate Estates units located within the Big Cypress Area of Critical State Concern." The state rules limit site alterations to 10 percent of the total site, limit impervious areas to 50 percent of the site, and prohibit alteration of the natural flow of water. The effect of the Plan Amendment is to remove these land use restrictions from the part of the South Golden Gate Estates that is not in the Big Cypress Area of Critical State Concern. As reported in the Golden Gate data and analysis, "hailed as the world's largest subdivision," the Golden Gates Estates subdivision encompasses about 170 square miles or eight percent of the County. Golden Gates Estates is located in central Collier County. Part of Golden Gate Estates is located east of Interstate 75, north of the point at which the interstate turns east and heads toward Miami. South Golden Gate Estates is located south of Interstate 75. Gulf American sold 95 percent of the lots in Golden Gate Estates by 1965. South Golden Gate Estates comprises around 17,000 parcels, including about 10,000 parcels under 2.25 acres. Approximately 2000 people live in South Golden Gate Estates, although the actual number may be higher due to unpermitted construction. About 8000 people live in the remainder of Golden Gate Estates. Totaling 94 square miles, South Golden Gate Estates is surrounded by the Florida Panther National Wildlife Refuge to the north, the Picayune Strand State Forest and Belle Meade (about 16,000 acres on the CARL list for state acquisition) to the west, the Cape Romano/Ten Thousand Islands Aquatic Preserve to the south, and Fakahatchee Strand State Preserve to the east. The Fakahatchee Strand State Preserve is separated from Big Cypress National Preserve to the east by State Road 29. Northwest of the Cape Romano/Ten Thousand Islands Aquatic Preserve is Rookery Bay Aquatic Preserve, which lies between Marco Island and Naples Bay. Major public conservation lands in the County--all near Golden Gate Estates--include Big Cypress National Preserve (534,947 acres), Fakahatchee Strand State Preserve (65,524 acres), and Florida Panther National Wildlife Refuge (24,300 acres). Major additions include another 100,000 acres added to the Big Cypress National Preserve, but in the northeast part of the County away from Golden Gate Estates, and 30,000 acres in Golden Gate Estates (with nearly 12,000 acres already acquired). A large portion, if not all, of South Golden Gate Estates is proposed for state acquisition under the Save Our Everglades program, but progress, until recently at least, has been slow. The state has imposed the Big Cypress Area of Critical State Concern over the entire County east of Golden Gate Estates, as well as a large area south of South Golden Gate Estates. Most of the Area of Critical State Concern encompasses publicly owned land, but privately owned land is also within the Area of Critical State Concern. DCA contends that the data and analysis do not support the Plan Amendments that are the subject of Issue 5. The effect of the replacement of one policy with another policy is to relax development restrictions in the part of Golden Gate Estates outside of Areas of Critical State Concern. The Drainage data and analysis describe the patterns of surface water runoff characteristic of the County prior to alteration of these natural drainage features. In general, there is a nearly imperceptible ground slope in the County from a high point near Immokalee in the north-northeast corner of the County to the south and southwest to the Gulf of Mexico. Slopes as little as 4 inches per mile are common east of State Road 29; slopes of 12 inches per mile are typical to the west of State Road 29. Prior to construction of artificial drainage facilities, the runoff traveled slowly through long sloughs, which are shallow but wide depressions, and extensive cypress forests in its journey toward the estuaries and bays of the Gulf of Mexico. The natural rhythm between the wet season and the slow, natural drainage left vast parts of the County, including what is now Golden Gate Estates, seasonally inundated. The natural drainage patterns attenuated the runoff, so as to permit the upstream deposit of much of the sediments and nutrients borne by the runoff prior to its entry into rivers and bays. The natural drainage patterns also created native habitat for various plant and wildlife species seeking the periodic or permanent wetlands hydrated by the runoff. The first major disturbance of this natural drainage process came with road construction. Development of roads in the County typically involved the excavation of a canal and the application of the excavated material into the road base, so as to raise the road surface above the surrounding water level. State Road 29, which runs south from Immokalee to Everglades City in the southeast corner of the County, was constructed in this matter in 1926, as was U.S. Route 41 (Tamiami Trail) two years later, reportedly in a transaction in which Baron Collier constructed the road in return for a conveyance from the state of what became Collier County. The logging industry used the same process to construct tramways for transporting cypress logs during the 1950s. The extension of these early canals allowed the expansion of agricultural and other uses of seasonally or permanently inundated lands. The Drainage data and analysis conclude their description of this process as follows: The above described method of "ditch and drain" development in Collier County resulted in a haphazard series of canals that had a tendency to lower the water table and change the flow patterns of the natural drainage basins. In addition to canals, many dikes were constructed around very large tracts of land and the water levels lowered by pumping to create agricultural land. This combination of development events impacted large areas of wetland and began to concentrate the flow of stormwater run-off instead of allowing the traditional sheetflow across the land. In the area adjacent to Naples, developers had cut canals in order to lower the water table and facilitate the construction of housing. In the late 1950s and early 1960s, Gulf American Corporation took this practice to a new level in the development and worldwide marketing of 173 square miles of land and water that came to be known as Golden Gate Estates. Prior to development, much of the area consisted of waterbodies several feet deep through the wet season. In general, the area was flat swamp lands featuring cypress forests, pine forest islands, and wet and dry prairie. In order to market Golden Gate Estates as a vacation and retirement community, Gulf American undertook a vast drainage project in an effort to eliminate from the landscape and waterscape waterbodies several feet deep through the wet season and flat swamp lands featuring cypress forests, pine forest islands, and wet and dry prairie. Major components of this effort were clearing 813 miles of paved and limerock roads and dredging 183 miles of canals, which drain into the Gordon River, Naples Bay, and Faka Union Bay. The County approved the Golden Gate Estates subdivision in early 1960, and, five years later, 90 percent of the land had been platted and sold in parcels of 1.25, 2.5, and 5 acres. As the Golden Gate data and analysis explain, the County rezoned the area to low-density residential when it became apparent that it could not provide essential facilities and services. The artificial drainage facilities that replaced natural drainage features and converted land from water facilitated the urbanization of the County. Urbanization brought large increases in impervious surface. Large increases in impervious surface produced even more and faster runoff and a decrease in percolation into the groundwater system. The effect on the artificial drainage system was to overwhelm it during major or serial storm events, resulting in flooding. Flooding completed the cycle by resulting in additional artificial drainage facilities. The addition of more artificial drainage capacity adversely affected natural resources in several respects. The addition of more artificial drainage capacity accelerated the rate at which canals transported stormwater into the Gulf, so as to eliminate or reduce the duration of flooding. But the rushing stormwater destabilized channels and reduced the opportunity for natural filtration of sediments and nutrients. The bays and estuaries into which the stormwater eventually runs thus received increased loads of sediments from destabilized channels and increased loads of sediments, nutrients, and pollutants from decreased filtration. Another effect of the addition of more artificial drainage capacity was to lower the water table elevation at all times, not just during the wet season. Thus, the canals overdrained large areas, including Golden Gate Estates, leaving them especially vulnerable to fire during the dry season and droughts during the wet season. The Golden Gate data and analysis report that the annual acreage consumed by fire increased eightfold after Golden Gate Estates was drained so as to alter the hydroperiod and lower the water table. The fires became more severe, eliminating the organic (humus) part of soils and thus discouraging post-fire, vegetative recolonization. The replacement of natural drainage features with artificial drainage facilities dramatically altered natural hydroperiods and, in so doing, destroyed wetlands and wetlands habitat, encouraged saltwater intrusion, and degraded estuaries and eliminated marine habitat by altering the timing and amount of freshwater infusions on which commercially harvested fin fish, shellfish, and sport fish depend at some point in their life cycle. The effect of artificial drainage facilities on water quality, water quantity, and hydroperiod adversely affected recharge of the surficial aquifer, on which the County depends for most of its drinking water. The surficial aquifer receives 90 percent of its recharge from rain and surface flow with direct infiltration from rainfall being the most important source of recharge of the water table aquifer, according to the Groundwater data and analysis. As the Drainage data and analysis concede, artificial drainage facilities have reduced aquifer recharge, which is often best served during flood events when the drainage facilities are overwhelmed. Additionally, as the Groundwater data and analysis note, runoff-transported pollutants can enter the groundwater, just as they can enter surface waters. The Groundwater data and analysis state that protection of natural groundwater recharge relies on land use restrictions that ensure that land uses do not change the recharge process in terms of timing, water quantity, or water quality. The Groundwater data and analysis identify two factors as affecting timing and water quantity: covering recharge areas with impervious surfaces and overdraining recharge areas by canals. In terms of water quality, the Groundwater data and analysis warn of pollutants introduced directly into the water table aquifer by stormwater detention/retention facilities, sewage treatment percolation ponds and absorption fields, and septic systems. Based on a formula developed by the Environmental Protection Agency that considers, among other things, water table elevation and soil permeability, the Groundwater data and analysis warn that County groundwater is highly sensitive to groundwater contamination. In particular, the Groundwater data and analysis recommend the investigation of possible groundwater contamination through the agricultural use of pesticides and fertilizer and the residential use of septic tanks in the area of the East Golden Gate Wellfield. The Groundwater data and analysis recommend, among other things, land use controls around wellfields, areas of high transmissivity, and major hydrological flowways. In light of the deleterious impacts of artificial drainage facilities on water quality, water quantity, and aquifer recharge, the Drainage data and analysis suggest that the drainage LOS standards address these three factors. The Drainage data and analysis state that it is "essential" that the stormwater management standards concerning water quality provide treatment levels "at least compatible with current state requirements. Drainage, page D-I-3. Regarding water quantity, the Drainage data and analysis state that the standards must provide adequate flood protection for developed areas and sufficient water to maintain aquifers, wetlands, and estuarine systems. The Drainage data and analysis discuss the difficulties the County experienced in trying to set a drainage LOS. Historically inadequate systems compounded the problem. Developments permitted prior to 1977, including all of Golden Gate Estates, were designed only to protect against flooding in the event of the ten-year storm, and these developments have an inconsistent record in meeting even these relaxed standards. The County required post-1977 development to meet the more demanding standards of the 25-year, 3-day storm event, and these developments have generally done so. The Drainage data and analysis report that the County hired consulting engineers in 1989 to prepare the Stormwater Management Master Plan. Out of this work emerged LOS standards using water quality as a function of the storm event, water quantity, and the potential of the area to provide aquifer recharge. However, neither the Plan nor even the Drainage data and analysis disclose these drainage LOS standards. The discussion of the drainage LOS standards does not focus extensively on basin issues as to water quantity. Another feature of a drainage LOS, the basin in which runoff is naturally found is important because drastic alterations of basin may alter the periodic, natural changes in salinity necessary to the health of the receiving estuaries. Due to the flatness of the topography, basins in the County naturally shift, depending on the location of rainfall and amount of rainfall compared to the capacity of the natural drainage features. Roads that run along the barely perceptible ridge lines defining a basin change the dynamic of location and amount of rainfall compared to the capacity of the natural drainage feature, so as possibly to change the basin receiving the resulting runoff. Roads that cut across ridge lines have an obvious effect on receiving basins. Canals have similar effects on these basins. Citing the results of the Stormwater Management Master Plan, the Drainage data and analysis list the ten major basins in the County. However, after listing these basins, the Drainage data and analysis note: At this time, an aggressive stormwater management capital improvement project construction is not proposed. The intent is to respond to the will of the local citizens as they petition the Board of County Commissioners to design and construct stormwater management improvements through the creation of taxing and/or assessment districts. The omission of the drainage LOS standards from the Plan (and, although not strictly relevant, even from the data and analysis) precludes an determination of the scope and effect of the County's decision not to schedule stormwater improvements until residents demand such public facilities. Nothing in the Plan allows the informed reader to learn whether the County's undisclosed drainage LOS standards have adequately blended the objective of natural-resource protection with the objective of flood control. Nothing in the Plan allows the informed reader to learn of the extent to which the County must apply these undisclosed drainage LOS standards to development, redevelopment, and unchanged land uses (i.e., retrofitting). The effect of the omission of drainage LOS standards from the Plan is heightened by certain water-quality trends during the ten-year period ending in 1989, coupled with the County's reduction in water-quality monitoring during the ensuing ten years. Map LU-92 in the Conservation data and analysis identifies 24 "estuarine bays" from the Lee County line south to Everglades City. These bays include Clam Bay, which is just north and west of the terminus of Pine Ridge Road; Doctors Bay, which is immediately north of Naples; Naples Bay, which is immediately south of Naples and receives water from the Gordon River and Haldeman Creek; Rookery Bay, which is south of Naples about midway between Naples and Marco Island and receives water from Henderson Creek; and Faka Union Bay and Fakahatchee Bay, which are roughly midway between Marco Island and Everglades City. According to the Conservation data and analysis, the worst water quality reported by the Department of Environmental Protection in a 1994 statewide assessment of water quality was the estuarine portion of the Gordon River, which violated water quality standards for conductivity and dissolved oxygen. Rated as "threatened or moderately impaired" in this study, Naples Bay violated water quality standards for conductivity. A portion of the Henderson Creek Canal violated water quality standards for conductivity and dissolved oxygen. The Conservation data and analysis note that the County assessed available data collected from 1979 through 1989 and determined that, during this period, surface waters may have experienced an increase in nutrients. Inland-water data indicate that nutrient levels (nitrogen, phosphorus, or both) increased from 1979 through 1989 in the Gordon River Extension, Henderson Creek, Main Golden Gate Canal, and Faka Union Canal. Although there are less estuarine nutrient data, the data for Clam Bay reveal a steep increase in nitrogen and a slower increase in phosphorus. The sediments of numerous inland waterways contain organochlorine pesticides. Although polycyclic aromatic hydrocarbons are not widespread in estuarine sediments, they were detected among 80 percent of samples taken in Naples Bay in 1992. Among inland sediments, they are very high in the Gordon River Extension. Heavy metals are at very slightly elevated levels in urbanized estuaries, which include Naples Bay. The Golden Gate data and analysis predict "substantial population increases" for Golden Gate Estates. However, the Golden Gate data and analysis indicate that only a 4 square-mile area is served by central sewer; the same area is the only area served by central water. The Golden Gate data and analysis of the relevant drainage facilities report that the drainage basin for Golden Gate Estates is the 107 square-mile Golden Gate Basin and the 185.3 square-mile Faka Union Canal System Basin. The Faka Union Canal System Basin discharges into the Faka Union Bay, and the Golden Gate Basin appears to discharge into Naples Bay. Given the role of drainage in preserving or restoring the health of bays and estuaries, maintaining or improving natural recharge of the aquifer on which the County depends for its drinking water, and maintaining or restoring viable wetlands habitat for a variety of terrestrial and marine wildlife and plant life, and the historic exacerbation of flooding and fire by poorly planned artificial drainage facilities, DCA has proved by a preponderance of the evidence that the data and analysis do not support the Plan amendments that repealed Golden Gate Policy 2.2.3 and replaced it with Golden Gate Policy 2.1.4, so as to restrict the coverage of pre-existing restrictions on site alterations that substantially impact the drainage of South Golden Gate Estates. Issue 6 Conservation Objective 1.1 provides: By August 1, 1994, the County will complete continue with the development and implementation of a comprehensive environmental management and conservation program that will ensure that the natural resources, including species of special status, of Collier County are properly, appropriately, and effectively identified, managed, and protected. Species of special status are defined as species listed in the current "Official Lists of Endangered and Potentially Endangered Fauna and Flora in Florida," published by the Florida Game and Fresh Water Fish Commission. Conservation Policies 1.1.1 and 1.1.2 respectively provide: By August 1, 1989, appoint and establish operational procedures for Continue with using a Technical Advisory Committee to advise and assist the County in the activities involved in the development and implementation of the County Environmental Resources Management Program. By the time mandated for the adoption of land development regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto[,] incorporate the Goals, Objectives, and Policies contained within this Element into the County's land development regulations as interim environmental resources protection and management standards. Conservation Objective 1.3 provides: By August 1, 1994, complete Continue with the phased delineation, data gathering, management guidelines and implementation of the County Natural Resources Protection Areas (NRPA) program by implementing the Board- approved process for nominating potential areas for review. The purpose of Natural Resources Protection Areas will be to protect endangered or potentially endangered species (as listed in current "Official Lists of Endangered and Potentially Endangered Fauna and Flora in Florida," published by the Florida Game and Fresh Water Fish Commission) and their habitats. Conservation Policy 1.3.1 specifies the components of the NRPA program. Specific requirements include identifying NRPAs on the Future Land Use Map (FLUM), establishing development standards applicable within NRPAs to maintain functioning natural resources and restore or mitigate natural resources within NRPAs that are already degraded, identifying an NRPA review process, and deferring development within NRPAs through purchase, tax incentives, and transfer of development rights. Conservation Appendix D, which is part of the data and analysis, is devoted to Natural Resource Protection Areas (NRPAs). The issue is not what the County did or did not provide DCA during the review and adoption process. This historical fact is superseded by the opportunity presented to both sides to present data and analysis at the de novo hearing. Conservation Appendix D states that the Board of County Commissioners approved on March 1, 1994, a process for identifying NRPAs and establishing management plans for NRPAs. The process requires initial Board approval before the process commences. Appendix D identifies 33 criteria to be considered in designating NRPAs. Nearly all of the criteria involve environmental factors. The criteria represent a comprehensive range of environmental factors. Appendix D notes that, on February 28, 1995, the Board of County Commissioners approved Clam Bay as a NRPA and directed staff to begin the preparation of a management plan for Clam Bay. Clam Bay is a wetland area within an approved development of regional impact. Clam Bay was the site of a considerable mangrove die- off in 1992 and 1995. County staff appear to believe that there is a problem with flushing and possibly high water levels, as well, so the County is seeking a permit to dredge the pass. Historically, Clam Pass was connected to Vanderbilt Pond to the north, but land development severed this connection. Clam Bay is the only NRPA that the Board of County Commissioners has designated. DCA contends that the data show that the NRPA process does not adequately protect wetlands, wildlife, and wildlife habitat. Intervenors likewise argue that the NRPA is ineffective, and the County's ineffectual implementation of the NRPA program deprives Conservation Objective 1.3 of support from the data and analysis. The issue of whether these two objectives and three policies are supported by data and analysis requires consideration of their purpose and the efficacy of the programs to be established to help attain these objectives and realize their purpose. Conservation Objective 1.1, with its policies, establishes the Environmental Resources Management Program, whose purpose is to identify, manage, and protect "properly, appropriately, and effectively" natural resources, including species of special status. Conservation Objective 1.3, with its policy, establishes the NRPA program, whose purpose is to protect endangered or potentially endangered wildlife and plant life. The broader scope of the Environmental Resources Management Program is offset by its offer of only conditional protection, as disclosed by the three quoted adverbs. The highly conditional promise of Conservation Objective 1.1 means that this objective and its policies do not require much in the way of supporting data and analysis. For this reason, DCA and Intervenors have failed to prove that Conservation Objective 1.1 and Policies 1.1.1 and 1.1.2 are not supported by data and analysis. The focus of Conservation Objective 1.3 and Policy 1.3.1 is narrower--limited to endangered species and potentially endangered species--and its promise of protection is unconditional. A fair definition of potentially endangered species is threatened species and species of special concern, so this recommended order shall use the phrase, "listed species," to describe the species covered by Conservation Objective 1.3 and Policy 1.3.1. In determining the extent to which Conservation Objective 1.3 and Policy 1.3.1 are supported by data and analysis, it is necessary to consider the County's role in providing habitat to listed species, any trends in wildlife habitat and listed species, the treatment of listed species by other Plan provisions, and the County's use of NRPAs. In 1994, the Florida Game and Fresh Water Fish Commission published Closing the Gaps in Florida's Wildlife Habitat Conservation System (Closing the Gaps). This report divides Florida into geographic regions; Southwest Florida comprises Sarasota, Charlotte, Lee, Collier, Glades, and Hendry counties. Closing the Gaps cites this region as "the most important region in Florida" in terms of "maintaining several wide-ranging species that make up an important component of wildlife diversity in Florida . . .." Closing the Gaps, page 173. Most prominent in Southwest Florida are the only stable panther population east of the Mississippi River; the only stable black bear population south of Interstate 4; the greatest populations of Audubon's crested caracara in the United States; core populations of sandhill cranes, swallow-tail kites, and burrowing owls; important foraging and nesting habitats for colonies of many species of wading birds; and favorable conditions for several species of tropical plants that are rare elsewhere in Florida. Closing the Gaps states that most of the County hosts at least seven "focal species." "Focal species" are 40 species-- many of which are listed--selected for their role as indicators of natural communities or requirement of large areas for habitat. Closing the Gaps, page 8. Although most of this area is within Big Cypress and other publicly owned lands, it extends through Golden Gate Estates and into extreme west Collier County. A land-cover map in Closing the Gaps shows that the largest contiguous area of cypress swamp occupies Golden Gate Estates. Another map depicts this area as a large area of "strategic habitat" that runs to the north and northeast to link with strategic habitat running through central Hendry County and eventually to the western half of Glades County. Closing the Gaps, page 172. "Strategic habitat" is intended to provide habitat to species "lacking adequate representation in current conservation areas." Closing the Gaps, page 7. Closing the Gaps divides Collier County into two geographic areas for more detailed analysis. One area is north of Golden Gate Estates, reaching the Lee County line. The other area is west of Fakahatchee Strand and occupies South Golden Gate Estates and the remainder of Golden Gate Estates to the north. The more northerly area consists of cypress swamp, hardwood swamp, dry prairie, and pineland and "represents one of the most important wildlife areas remaining in Florida." Closing the Gaps, page 174. This area includes Lake Trafford, which is the highest part of the County and the only area supplying relatively high, natural aquifer recharge, and provides strategic habitat for the Florida panther, Florida black bear, wood stork, and American swallow-tailed kite. The more southerly area provides strategic habitat for the Florida panther, Florida black bear, red-cockaded woodpecker, and several rare wading birds that nest elsewhere. South Golden Gate Estates provides strategic habitat for the American swallow- tailed kite, southern bald eagle, eastern indigo snake, and several plant species. Central Golden Gate Estates provides strategic habitat for the American swallow-tail kite, red- cockaded woodpecker, gopher tortoise, eastern indigo snake, and several plant species. Both the northerly and southerly areas provide the "largest contiguous blocks of high-quality habitat . . . outside of conservation areas" for Florida bears. Closing the Gaps, page The County hosts the largest black bears in Florida and one of the largest groups of bears. Closing the Gaps asserts that bear habitat in the County "appears to be of the potentially greatest importance to black bears and many other rare species." Closing the Gaps, page 62. Coastal Collier County also provides strategic habitat for numerous species, including the southern bald eagle, gopher tortoise, loggerhead turtle, least tern, snowy plover, Florida black bear (Rookery Bay), peregrine falcon (Rookery Bay and Cape Romano), yellow-crowned night heron, brown pelican, Florida burrowing owl, American oystercatcher, and Florida scrub lizard. An aquatic mammal of prominence is the West Indian manatee, which frequents the waters of the County. The greatest number of citings throughout the year are in the Faka Union Canal and around Marco Island. During the winter months, the animals congregate in the Faka Union Canal. Manatees are under considerable stress. According to Conservation data and analysis, the number of manatee deaths in the County was 71 in 1996, the last year for which data were available. This was 25 percent of the total manatee deaths recorded for the preceding 22 years and was five less than the total for the preceding five years. The other large mammal under stress is the Florida panther. In 1993, the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, Department of Environmental Protection, and National Park Service published Florida Panther Habitat Preservation Plan: South Florida Population (Panther Plan). The purpose of the Panther Plan is to identify actions to assure the long-term preservation of habitats that are essential for maintaining a self-sustaining population of panthers in South Florida. Data indicate that a minimum self- sustaining population in this area is 50 adult panthers. The reproducing South Florida panther population occupies only Collier, Dade, Hendry, and Lee Counties. Although estimates vary, approximately 30-50 adult panthers probably remain in the South Florida area. In 1990, an estimated 46 panthers (of all ages) roamed the Big Cypress basin. During the study period of 1979 through 1991, 46.9 percent of panther deaths were due to highway collisions, mostly along State Road 29 and Old Alligator Alley (State Road 84), which are both in Collier County. Range demands of the panther are substantial. Males panthers require 180-200 square miles with minimal overlap with other males. Females require 75-150 square miles and tolerate overlapping territories with other females. The vast area in public ownership represented by Big Cypress Preserve and Everglades National Park offer lower-quality habitat for the panther, which prefers drier land, as does the bear, although it is less demanding than the panther in terms of habitat type. The northern 53 percent of the South Florida panther range is in private ownership, but the higher soil fertility and forested habitat characteristic of this land allow it to accommodate over half of the adult panthers, who are healthier and more productive than their counterparts in the southern portion of the South Florida range. Partly for these reasons, the vast publicly owned lands can support only 9-22 of the adult panthers in South Florida. Publicly owned lands in the South Florida range are probably at their limit in supporting panthers. The first two recommendations of the Panther Plan are to develop "site-specific habitat preservation plans" for land south of the Caloosahatchee River, which comprises 75 percent of known panther range and contains 39 of the 41 panthers studied between 1981 and 1991, and for land north of the Caloosahatchee River, which offers superior habitat that may in the future become more available for settlement by panthers. Other Plan provisions address wildlife and wildlife habitat. Conservation Policy 1.3.2 is to continue management guidelines for wildlife and wildlife habitat, but the guidelines are deferred and relegated to the land development regulations. Moreover, a County witness conceded at the hearing that staff was having difficult preparing these management guidelines. Conservation Objective 6.1 is to prepare development standards for all important native habitats, but the Plan Amendments extended the deadline for doing so another six years, until June 1, 1998, and largely deferred and relegated to the land development regulations. However, Conservation Objective 6.1 incorporates Policies 6.4.6 and 6.4.7 until the County prepares the development standards. For new residential developments greater than 2.5 acres in the Coastal Area or 20 acres in the coastal urban area, Policy 6.4.6 requires the retention of a minimum percentage of viable, naturally functioning native habitat. However, this policy is undermined by vagueness concerning "Coastal Area," "coastal urban area," and "viable, naturally functioning native habitat"; the emphasis on the preservation of sample habitats, rather than contiguous wildlife habitat; and the County's practice of allowing compliance with this requirement through total landclearing following by replanting. For all new development, Policy 6.4.7 addresses contiguous habitat, but only by encouraging, not requiring, preservation, and without specifying a minimum area to be preserved. Conservation Policy 7.2 is to maintain the average annual number of deaths of manatees from boat collisions at 3.2, although this is a small fraction of the total annual manatee deaths. Conservation Policy 7.3.3 is to prepare management guidelines in the land development regulations to inform landowners of the proper ways to reduce disturbances to red- cockaded woodpeckers, Florida panthers, other listed species, eagle nests, and wood stork habitat. Pending the preparation of these land development regulations, Conservation Policy 7.3.4 is for the County to "evaluate and apply applicable recommendations" of two governmental agencies regarding the protection of listed species. Lastly, the County will designate unspecified portions of known panther habitat as Areas of Environmental Concern on the FLUM. There is no explanation in the record why the County has designated only Clam Pass as an NRPA. However, the record does not support an inference that the NRPA program has had any effect whatsoever in addressing the needs of wildlife and habitat. In 1993 and 1994, County staff recommended 10-12 areas as NRPAs, including Belle Meade, Cap Key Strand (which runs from Immokalee and Lake Trafford south to the Florida Panther National Wildlife Refuge), and South Golden Gate Estates. These areas, which the County declined to designate as NRPAs, provide considerably more wildlife habitat and more wildlife habitat of higher quality than does Clam Pass, whose designation seems to reflect a reaction to mangrove dieoffs and possibly water quantity, but not habitat or even water quality. Considering the County's role in providing crucial wildlife habitat to listed species, weak Plan provisions concerning wildlife and wildlife habitat, and ineffective utilization of the NRPA program (at least for the purpose of protecting wildlife habitat), DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 1.3 and Policy 1.3.1 are not support by data and analysis. Issue 7 Conservation Objective 12.1 is: Continue to Eencourage the undertaking of activities necessary to attain maintain by 1994, hurricane evacuation clearance time for a Category 3 storm at a maximum of 28 hours as defined by the 1987 1996 Southwest Florida Regional Planning Council Hurricane Plan Evacuation Study Update, and by 1999, 27.2 hours. Activities will include on-site sheltering for mobile home developments, increased shelter space, and maintenance of equal or lower densities of the Category 1 hurricane vulnerability zone Coastal high hazard area in the land use plan. Conservation Policy 12.1.1 states: Land use plan amendments in the Category 1 hurricane vulnerability zone Coastal high hazard area shall only be considered if such increases in densities provide appropriate mitigation to reduce the impacts of hurricane evacuation times. shall be re-evaluated within three years and may change to a density level consistent with the Future Land Use Element. Conservation Objective 12.1 is not to maintain or reduce evacuation times; it is not even to encourage the maintenance of evacuation times. Objective 12.1 merely encourages activities that are necessary to maintain evacuation times. Additionally, Conservation Objective 12.1 refers to the misdefined Coastal High Hazard Area, as discussed in Issue 8. These two flaws in Conservation Objective 12.1 mean that this objective has not responded to the Conservation data and analysis, including Conservation Appendix E, which discusses hurricane evacuation times. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 12.1 and Policy 12.1.1 are not supported by data and analysis and Objective 12.1 is inconsistent with a criterion to maintain or reduce hurricane evacuation times. Issues 8 and 15 Following amendment, Conservation Policy 12.2.5 defines the Coastal High Hazard Area as the area "lying within the Category 1 Evacuation Zone as determined by the Emergency Management Director." The County amended the FLUM to depict the coastal high hazard area, as defined in Conservation Policy 12.2.5. The "Category 1 Evacuation Zone as determined by the Emergency Management Director" omits areas within the category 1 hurricane zone, as established in the 1996 Southwest Florida Regional Planning Council Hurricane Evacuation Study Update, which is the regional hurricane evacuation study applicable to the County. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Policy 12.2.5 and the conforming FLUM amendment reflect a Coastal High Hazard Area that is not the category 1 hurricane zone, as established by the regional hurricane evacuation study applicable to the County. Issue 9 Conservation Objective 6.3 states: A portion of the viable, naturally functioning transitional zone wetlands defined by State and Federal permitting requirements shall be preserved in any new non-agricultural development unless otherwise mitigated through the DER State and the ACOE permitting process and approved by the County. Conservation Objective 6.3 does not state what portion of the transitional zone wetlands shall be preserved, nor does it define "viable, naturally functioning transitional zone wetlands." Each of these concepts--viable, naturally functioning, and transitional zone--requires definition. There is thus no way to evaluate the success of the policies under the objective or that attainment of this objective marks progress toward a stated goal. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 6.3 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. Issue 10 Conservation Objective 7.3 states: By January 1, 1992, The County shall continue to develop and implement programs for protecting fisheries and other animal wildlife by including measures for protection and/or relocation of endangered, threatened, or species of special concern of status. The effect of the amendment of Conservation Objective 7.3 is to remove the deadline by which the County was to develop and implement programs to protect wildlife, including listed species. There is thus no way to evaluate the success of the policies under this objective or that attainment of this objective marks progress toward a stated goal. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 7.3 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. Issues 11, 12, 13, and 14 Conservation Objective 9.4 is: By September 30, 1989, the County shall establish The County shall implement the existing a local storage tank compliance program to protect ground and surface water quality including site inspections and information transfer. Conservation Objective 9.5 is: By August 31, 1989, the The County shall adopt implement construction, pretreatment, monitoring, and effluent limit requirements of the Collier County Ground Water Protection an Ordinance regulating the use of septic tanks serving industrial and manufacturing activities. Conservation Objective 10.6 is: By August 1, 1990, tThe County shall continue to implement the Coastal Barrier and Beach System Management Program by conserving the habitats, species, natural shoreline and dune systems contained within the County coastal zone. FLUE Policy 3.1.d is: Protect potable water wellfields and aquifer recharge areas. This shall be accomplished through the creation and implementation of a wellfield protection ordinance. The ordinance shall establish cones of influence based on groundwater travel times, restrict land uses and activities within the cones of influence and establish development standards for those activities beyond the cones of influence which may endanger the wellfields and aquifer recharge areas based on their potential for pollution. The Groundwater Protection Ordinance shall be implemented to protect existing and future wellfields, natural aquifer recharge areas and groundwater resources through standards for development involving the use, storage, generation and disposal of hazardous waste products, disposal of sewage and effluent, stormwater management, earthmining, petroleum exploration, solid waste and other related aspects of land use and development within the mapped wellfield protection zones. Groundwater Policies 1.2.1 and 1.2.2 are: The [Groundwater Protection] Ordinance [to be adopted by August 1, 1989, under Groundwater Objective 1.2] will address both existing and projected future land use and surface activities. Apply action criteria specified in the Collier County Ground Water Protection Ordinance to both existing and future regulated development according to procedures specified in the Ordinance to protect the County's ground water resources. The [Groundwater Protection] Ordinance will continue Apply criteria for ground water protection specified in enforcement procedures specified in the Ordinance to provide an appropriate level of protection to sensitive recharge areas. Conservation Objective 9.4 promises the implementation of a storage tank program that is contained in the land development regulations, which are not incorporated by reference into the Plan. Because these land development regulations are not themselves subject to the compliance determinations that are the subject of this case, Conservation Objective 9.4 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. This deferral and relegation to the land development regulations leaves no way of evaluating the success of the policies under this objective or that attainment of this objective marks progress toward a stated goal. The same deficiencies characterize Conservation Objectives 9.5 and 10.6, FLUE Policy 3.1.3, and Groundwater Policies 1.2.1 and 1.2.2, except that, for the policies, this deferral and relegation to the land development regulations leaves no way of identifying the way in which the County will conduct programs and activities to achieve identified goals. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objectives 9.4, 9.5, and 10.6, are not specific, measurable, intermediate ends that are achievable and mark progress toward a goal. DCA and Intervenors have proved by a preponderance of the evidence that FLUE Policy 3.1.d and Groundwater Policies 1.2.1 and 1.2.2 do not identify the way in which the County will conduct programs and activities to achieve identified goals. Issue 15 Section 187.201, Florida Statutes, sets out the State comprehensive plan. Section 187.201(8)(b)2 is to "[I]dentify and protect the functions of water recharge areas and provide incentives for their conservation." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Groundwater Objective 1.2 and Policies 1.2.1-1.2.4 and FLUE Policy 3.1.d. Section 187.201(8)(b)9 is to "[p]rotect aquifers from depletion and contamination through appropriate regulatory programs and through incentives." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 9.5, Groundwater Objective 1.2 and Policies 1.2.1-1.2.4, and FLUE Policy 3.1.d. Section 187.201(8)(b)10 is to "[p]rotect surface and groundwater quality and quantity in the state." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 6.3, FLUE Policy 3.1.d, Groundwater Objective 1.2 and Policies 1.2.1-1.2.4, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(8)(b)12 is to "[e]liminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 9.5, FLUE Policy 3.1.d, Groundwater Policies 1.2.1 and 1.2.2, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(9)(b)4 is to "[p]rotect coastal resources, marine resources, and dune systems from the adverse effects of development." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 6.3, 7.3, 9.4, 9.5, and 10.6 and Policy 12.2.5; FLUE Policy 3.1.d; Drainage Policy 1.1.2; and Golden Gate Policy 2.1.4. Section 187.201(9)(b)9 is to prohibit development that disturbs coastal dune systems. In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 10.6 and Policy 12.2.5. Section 187.201(10)(b)1 to "[c]onserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3, and 9.5 and Policy 1.3.1; Drainage Policy 1.1.2; and Golden Gate Policy 2.1.4. Section 187.201(10)(b)3 is to "[p]rohibit the destruction of endangered species and protect their habitats." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3, 9.5, and 10.6 and Policy 1.3.1; and Golden Gate Policy 2.1.4. Section 187.201(10)(b)7 is to "[p]rotect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 6.3 and 9.5, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(26)(b)7 is to ensure the development of local government comprehensive plans that implement and reflect state goals and policies and that address issues of particular concern to a region. In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3 10.6, and 12.1 and Policies 1.3.1, 12.1.1, and 12.2.5; Golden Gate Policy 2.1.4; and ICE Policy 1.2.6.
Recommendation It is RECOMMENDED that the Administration Commission enter a final order determining that the Plan Amendments are not in compliance. DONE AND ENTERED this 19th day of March, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 19th day of March, 1999. COPIES FURNISHED: Shaw P. Stiller Colin M. Roopnarine Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Thomas W. Reese 2951 61st Avenue South Saint Petersburg, Florida 33712 Marjorie M. Student Rodney C. Wade Assistant County Attorneys 3301 East Tamiami Trail Naples, Florida 34112 Richard D. Yovanovich Roetzel & Andress 850 Park Shore Drive Naples, Florida 34103 Donna Arduin, Secretary Executive Office of the Governor 1601 Capitol Tallahassee, Florida 32399-0001 David Schwartz, Esquire Executive Office of the Governor 209 Capitol Tallahassee, Florida 32399-0001
The Issue Whether a permit should be issued to Petitioner Theodore B. Meadow to construct a dwelling on the Gulf Coast of Florida as requested in his application filed with Respondent Department of Natural Resources.
Findings Of Fact Having considered the evidence and argument of counsel, the Hearing Officer finds: In July of 1979 Petitioner filed an application for a permit to build a duplex dwelling seaward of the coastal construction setback line on a parcel of land bounded by the theoretical extension seaward of the north/south boundary line of Ponce de Leon Street in Yon's Addition to Beacon Hill on St. Joe Beach, Florida. The parcel of land is 70 feet in width and approximately 175 feet in depth to the high-water line of the Gulf of Mexico and lies between State Road 30 (US Highway 98) and the Gulf of Mexico at St. Joe Beach in Gulf County, Florida. The application, Department of Natural Resources File #79-P-283, was filed pursuant to Rule 16B-25.05, Procedure to obtain variance; application, Florida Administrative Code, which had been promulgated under the authority of Sections 161.052, 161.053 and 370.021(1), Florida Statutes. Attached to the application was a copy of a deed to subject property to Albert H. Hinman dated December 12, 1977; an undated authorization from the owner of the property to Petitioner Meadow to apply for a variance and if granted to construct a building on the property; a survey of the property; a floor plan of the building with a typical wall section; and a topographical plat of the lot involved. In response to Rule 16B--25.05(1)(d): "Statements describing the proposed work or activity and specific reasons why the applicant feels the variance should be granted." Petitioner stated, in part, "...the reason that the permit should be granted is because applicant does not have sufficient space on property he is purchasing from A. H. Hinman to construct said building outside of the DNR Coastal Construction Control Line." The survey shows that 14 to 15 feet of the property lies landward of the Department of Natural Resources' setback line. At the time of the hearing no purchase had been made, but there is no dispute regarding the authorization of the owner to allow Petitioner to build if a variance is granted. After filing the application Petitioner consulted with the staff of the Department concerning the construction seaward of the setback line. The Chief Engineer of the permitting section of the Bureau of Beaches and Shores, who is responsible for accepting, evaluating and making recommendations for permits for construction, inspected the site of the proposed structure on October 11, 1979. He took a copy of the plans and specifications for the structure, a plot plan, and the engineering statement which accompanied the plans to review on the site. After the inspection he made a determination that the structure was appropriately designed for the hazard environment and located in such a position as to offer the least potential adverse impact to the beach in the area. Recent topographic changes, topographic data including that submitted by Petitioner, and other historical information was used to assess and evaluate the project. Thereafter, the engineer consulted with the Executive Director of the Respondent Department and gave a favorable recommendation in terms of minimal impact. The Executive Director determined that the structure was designed and located to have the minimum adverse impact on the beach, and that the structure was adequately designed to resist natural forces associated with a hundred-year storm surge (Transcript, pages 52-56). At the formal hearing the Executive Director stated that he based his recommendation for approval by the Executive Board on the precedence of previous action of the Executive Board and because he found that the Petitioner had his application in order. Petitioner Meadow has followed the guidelines of the administrative rules and submitted all required information. He has provided his reason for requesting a variance and believes the information furnished compels the Respondent Department to grant the waiver inasmuch as no modification was requested and he cannot build the structure he desires on the 14 to 15 feet of land he is authorized to use which lies landward of the 1975 setback line. The immediate area involved in this proceeding is relatively undeveloped beach property approximately one (1) mile in length at St. Joe Beach, Gulf County, Florida some twenty-nine (29) miles to Panama City and six (6) miles to Port St. Joe. The real property has been divided into fourteen (14) lots more or less similar to the lot on which Petitioner seeks to construct a duplex (Petitioner's Exhibit 2; Transcript, page 137). No structures except one multifamily dwelling have been constructed on any of the fourteen (14) lots. Most the construction along the nearby coastline was completed prior to March 21, 1975, the date the Respondent Department established a coastal setback line under the then applicable statutes and rules. Beacon Hill is a subdivision about a mile and a half from the subject area on the coastal western edge of Gulf County. The structures are close together, the majority of which were constructed prior to 1975 without a permit from the Respondent Department. Historically, the area would have had a similar topography and beach conditions to the subject area, but because of structures built on the beach vicinity the primary dune system has been eradicated, the beach is narrow in that vicinity, and there is virtually no vegetation (Transcript, pages 135-136). It has been found that any construction, particularly of a building, generally has an adverse impact on a beach dune system (Transcript, pages 149, 161). The "setback line" defined in the 1975 statutes and rules was established March 21, 1975 (Transcript, page 169). Thereafter, in 1978 the legislature amended Section 161.053, Florida Statutes, and ordered the Respondent Department to establish a "coastal construction control line" to replace the setback line, but said line has not yet been established, although at the hearing a member of Respondent's engineering staff stated that a study was in progress. Neither Petitioner Meadow nor Mr. Hinman, the owner of subject property, requested the Respondent Department to review the setback line or establish a coastal construction control line prior to filing of the application in 1979 for a variance of the 1975 setback line (transcript, page 93). "Setback line" and "coastal construction control line" are not synonymous. The setback line set a seaward line for construction, and the coastal construction control line defines the impact of a 100-year storm surge or other predictable weather condition (Transcript, page 179). An engineer on the Respondent Department's staff who qualified as an expert was of the opinion that the coastal construction control line, when established, would be landward of the setback line established in 1975 (Transcript, page 198). There have been two (2) hurricanes which have impacted the Gulf Coast since the setback line was established, one in September of 1975 and one in September of 1979. These storms had relatively little visual impact on the subject beach area except for erosion of the fore dune, but the storms substantially impacted the accretion of the coastline (Transcript, pages 189- 195). At the final hearing Ms. Sally Malone, a resident living one block from the proposed structure of Petitioner Meadow, protested the proposed construction on the beach and in general the removal of trees. The evidence shows she has a legitimate concern for the effect through erosion the construction might have on the beach near her home. Petitioner Meadow and the Respondent Department submitted proposed findings of fact and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is recommended by the Hearing Officer that the application of Theodore B. Meadow for a waiver or variance be denied without prejudice to his refiling an application after the coastal construction control line is established as required by Section 161.053, Florida Statutes, supra. DONE and ORDERED this 5th day of November, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 5th day of November, 1980. COPIES FURNISHED: Mark J. Proctor, Esquire Office of the General Counsel Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303 Cecil G. Costin, Jr., Esquire 413 Williams Street Post Office Drawer 98 Port St. Joe, Florida 32456
The Issue The issue for determination is whether Petitioner is liable for the costs and expenses incurred by Respondent in responding to a pollutant discharge, occurring on November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and for damages to natural resources resulting from the pollutant discharge.
Findings Of Fact On November 6, 1992, a DC-7 airplane crashed off the Atlantic Coast of Florida, more particularly, 100 yards from John Lloyd State Park, and one quarter of a mile north of Dania Pier in Dania, Florida. The DC-7 was a chartered cargo airplane and had departed from Miami International Airport. The DC-7 was chartered from Claudio Castillo by Miguel Delpino, United States General Manager of Aerochago Airlines, to carry cargo for Aerochago Airlines. Even though Aerochago Airlines owned aircraft, its aircraft was unavailable due to maintenance work being performed. During the flight from Miami International Airport, the DC-7 developed engine trouble, i.e., two of its engines failed. The aircraft began to lose altitude. In an attempt to regain altitude, the captain of the aircraft dumped 3,000 gallons of aviation fuel. However, the DC-7 failed to regain altitude and crashed. Remaining on the crashed aircraft were 3,000 gallons of aviation fuel and 150 gallons of motor oil. When the DC-7 crashed, only the crew and two passengers were on board. One of the passengers was Mr. Castillo. On the same day of the crash, the Florida Marine Patrol (FMP) of the Department of Natural Resources, now the Department of Environmental Protection (DEP), arrived at the crash scene at 3:20 a.m. and investigated the crash. The DEP had four employees investigating the crash: three FMP officers and one employee from the Office of Coastal Protection. The remaining aviation fuel and motor oil in the crashed DC-7 was discharging into the coastal waters. The DEP employees attempted to abate the discharge. The equipment necessary for the employees' investigation of the crash and abatement of the discharge and the cost for the equipment were the following: (a) a DEP vehicle at a cost of $7.00; (b) a twin engine vessel at a cost of $120.00; (c) an underwater sealant kit at a cost of $16.66; (d) scuba tanks at a cost of $9.00; and (e) photographs at a cost of $24.00. The total hours expended by DEP's four employees were 36 hours, at a cost of $685.84. Due to the DC-7 leaking aviation fuel and motor oil into Florida's coastal waters, removal of the aircraft from the Atlantic Ocean was necessary. DEP contracted with Resolve Towing and Salvage (RTS) to remove the DC-7. RTS is a discharge cleanup organization approved by DEP. RTS' contractual responsibilities included removal of the entire DC-7 aircraft and all debris within 100 yards of the center of the aircraft; disposal of the aircraft; plugging the engines to help stop the leakage; and removal and delivery of the engines which failed to the National Transportation Safety Board (NTSB) and the Federal Aviation Authority (FAA). Because the submerged DC-7 was located in an environmentally sensitive coral and sea-plant area, RTS was required to use extreme care in removing the aircraft. The contractual cost was fixed at $34,000.00 A DEP employee, Kent Reetz, was at the scene of the crash during RTS' cleanup. His responsibility was to monitor the removal of the DC-7 by RTS and to ensure that the aircraft's removal was in compliance with DEP's standards. During the removal of the DC-7 from the water, the fuselage ruptured, scattering debris which was dangerous to the public and to the coral and sea-plants. DEP determined that RTS was not responsible for the fuselage rupturing, but that the rupture was caused by several storms, prior to the aircraft's removal, and by the aircraft being submerged for an extended period in salt water. DEP contracted with RTS to remove the dangerous debris emitted when the fuselage ruptured. The contractual cost was fixed at $9,050.00 The total contractual cost between DEP and RTS was $43,050.00. DEP paid RTS from the Coastal Protection Trust Fund. In responding to the pollutant discharge, DEP incurred a total cost of $43,912.50. DEP assessed damages to the natural resources based upon the amount of pollutants discharged which were 3,000 gallons of aviation fuel and 150 gallons of motor oil. Using the statutory formula, DEP assessed damages to the natural resources in the amount of $57,898.72. Based upon the costs incurred by DEP in responding to the pollutant discharge in the amount of $43,912.50 and the damages to the natural resources in the amount of $57,898.72, DEP sought reimbursement and compensation from Mr. Castillo in the total amount of $101,811.22. DEP invoiced Mr. Castillo for reimbursement of the costs and for compensation for the damages. DEP provided Mr. Castillo with detailed and itemized expense documents for the costs that it had incurred in responding to the pollutant discharge. The documents showed the expenses incurred, what each expense represented, and the formula for computing each expense. Further, DEP provided Mr. Castillo with a document showing the amount of the damages to the natural resources, the formula for computing the damages, and how the damages were computed. The charter of November 6, 1992, was not the first time that Mr. Delpino had chartered the same DC-7 from Mr. Castillo. Prior to and, again, at the previous charter, Mr. Castillo represented to Mr. Delpino that he, Mr. Castillo, was the owner of the DC-7. The owner of a chartered aircraft is responsible for obtaining the aircraft's crew and insurance and for maintaining the aircraft. For the previous charter, Mr. Castillo was responsible for obtaining the DC-7's crew and the insurance and for maintaining the aircraft. Mr. Delpino had no reason to expect the charter for November 6, 1992, to be any different. Furthermore, Mr. Castillo did not inform Mr. Delpino that the responsibilities would be different. For the present charter, as before, Mr. Castillo handled all matters relating to the crew, insurance, and maintenance. Regarding the insurance, Mr. Castillo presented to Mr. Delpino an insurance certificate which, after the crash, was discovered to be false. Also, regarding maintenance, prior to the crash, the two engines which failed were to be removed and repaired, but, although they were removed, they were returned without being repaired. Mr. Castillo was the owner of the DC-7. Also, the crash of the DC-7 was investigated by several federal governmental agencies, including the FAA, the U.S. Coast Guard, and the NTSB. Both the Coast Guard and the NTSB issued reports on the crash, which identified Mr. Castillo as the owner of the DC-7. Mr. Castillo was responsible for the discharge of the 3,000 gallons of aviation fuel and 150 gallons of motor oil from the DC-7 into Florida's coastal waters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection (DEP) enter a final order assessing Claudio Castillo $43,912.50 for costs related to DEP responding to the pollutant discharge on November 6, 1992, at Florida's coastal waters off John Lloyd State Park, Dania, Florida, and $57,898.72 for damages to natural resources resulting from the pollutant discharge--all totaling $101,811.22. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997.
Findings Of Fact Charlotte County lies on the eastern shore of the Gulf of Mexico. The mainland is protected by a series of low lying barrier islands running more or less north and south. Manasota Key, Don Pedro Island and Gasparilla Island are the consolidated remnant of seven or more smaller islands. In all, Charlotte County has about 14 miles of sandy beach on the Gulf. The location of the shoreline is not static. Along the stretch of beach between Stump Pass and the Sarasota County line, for example, the shoreline moved gulfward between 1883 and 1975, while the shoreline south of the pass moved landward between 1883 and 1939, then gulfward between 1939 and 1975. In very broad geological terms, the tendency of barrier islands is to migrate toward the mainland, but accretion is also ongoing. In general, the Charlotte County islands have moved further into the Gulf during the last century. Annual variation is typical: accretion in summer and fall follows erosion in winter and early spring. Respondent DNR has placed reference monuments along the Charlotte County beaches every 1,000 feet or so, 68 in all. In May of 1974, DNR surveyed a profile of the beach at each station and also made a record of the bottom profile. Offshore profiles were done at every third range to a depth of 30 feet, and, at the other ranges, out to a wading depth (four feet below mean sea level). Using this information, DNR promulgated Rule 16B-26.06, Florida Administrative Code, which established the existing coastal construction control line (the 1977 line). STANDING By law, DNR's Division of Beaches and Shores has permitting authority over certain activities, notably building construction, in the area between the mean high water line and the coastal construction control line. The proposed rule amendment under challenge here would establish a new coastal construction control line (the proposed line) for Charlotte County that would lie landward of the 1977 line along most, but not all, of its length. Except for Lisa Noden, the petitioners and intervenors in these consolidated cases own property in Charlotte County on the Gulf of Mexico, including property lying between the 1977 line and the proposed line. Intervenor Boca Grande Club, Inc. owns Gulf frontage on Gasparilla Island including land lying between the 1977 line and the proposed line. On November 30, 1984, Boca Grande Club, Inc. had "the present intention to apply within the next six months for the necessary construction permits for a structure to be located on its real property," Intervenors' Exhibit No. 9, landward of the 1977 line and seaward of the proposed line. Respondent stipulated to the intervenors' standing. Dean L. Beckstead, president of Charlotte Harbor Land Company, has overseen the construction of 70 to 75 houses on that parcel of Don Pedro Island extending from Stump Pass 8000 feet south and from the Gulf of Mexico to Lemon Bay. With respect to some of these houses, construction is ongoing. The plan is to build additional housing, but no more than 50 residential units in all. In keeping with past practice, new construction would be well landward of the 1977 line, because of Mr. Beckstead's great respect for the ocean, but might be seaward of the proposed line. William McCrabb of Sarasota is an officer of a corporation, Nabob of Florida, Inc., that owns Gulf-front property on Manasota Key. He is also a general partner in a partnership that owns adjacent Gulf frontage. A 17-unit condominium has been completed on one parcel and plans exist for a 125-room hotel on the other. The only element of the hotel project seaward of the 1977 line is a planned dune overwalk. A larger portion of the hotel project would be seaward of the proposed line. Petitioner Charles Guy Batsel owns a house that sits on Gulf-front property in Charlotte County. Some 5,000 square feet of this parcel lie between the 1977 line and the proposed line. Even when obtaining a coastal construction permit does not result in changes in a project that have an adverse economic effect on a landowner, the costs associated with the permitting process itself may be substantial. The testimony of Randall Craig Norden, a developer, that he spent approximately $100,000, or at least 2.5 percent of the total cost of Phase Three of Colony Don Pedro, on attorney's fees, engineering fees, travel to Tallahassee and other expenses associated with obtaining a coastal construction permit, went unrebutted. REVISITING THE 1977 LINE After it came to the attention of DNR staff that erosion along parts of the Gulf shoreline in Charlotte County had resulted in the 1977 line's approaching the water's edge in several places, staff recommended that the line be reexamined. The Governor and Cabinet, in approving DNR's annual work program in 1983 and in voting to enter into a contract with Florida State University for, e.g., "Studies to Reestablish Control Lines," Petitioners' Exhibit No. 3, on July 1, 1983, ordered a comprehensive review. Even before the Governor and Cabinet took these actions, DNR staff performed a survey in Charlotte County in 1982 to determine beach and bottom profiles at the same points at which they had been measured in 1974, although in two or three instances, the monuments had washed away. On Manasota Key between ranges 1 (the northernmost in Charlotte County) and 5, the mean sea level line receded an average of 15 feet between May of 1974 and December of 1982. The mean sea level moved further toward the Gulf on average between ranges 6 and 11, but receded an average of 20 feet between ranges 12 and 18. Between ranges 16 and 24, no relocation of the coastal construction control line has been proposed. Displacement of sand when Stump Pass was dredged may have affected the shoreline south of the pass, although shorelines in the vicinity of inlets are ordinarily unstable. On Don Pedro Island, just south of Stump Pass, there has been accretion. Between ranges 27 and 39, which lie still further south of Stump Pass, the mean sea level line receded an average of 81 feet between May of 1974 and December of 1982. Between ranges 45 and 49 the line has moved an average of 32 feet landward while there has been accretion, on average, between ranges 50 and 55. At range 60, the northern end of Gasparilla Island, the mean sea line had receded 100 feet between May of 1974 and December of 1982 and another 10 feet by September 14, 1983. At range 61, the mean sea level line had moved seaward by 100 feet between May of 1974 and December of 1982, while at range 62 there was a seaward shift of 75 feet over the same period. At range 63, there was accretion between May of 1974 and December of 1982 but erosion brought the mean sea level line landward of its May 1974 location by September of 1983. Between ranges 6 and 67, the average recession of the mean sea level line was 76 feet. By one calculation, the county as a whole lost about 59,000 cubic yards of beach material between May of 1974 and December of 1982. Measurements made shortly before the "No Name" tropical storm occurred, in the summer of 1982, suggest that the storm did not significantly affect these measurements of long term trends. At no time did riparian landowners or officials of Charlotte County or any affected municipality make any written request that the coastal construction control line be moved, although Franz H. Ross, one of Charlotte County's county commissioners, testified at the hearing that the 1977 line needed replacement. He did not endorse DNR's proposed line. After the 1977 line was drawn, the enabling legislation was twice amended. The first reference to a 100-year storm surge appeared in 1978. Ch.78-257, Section 5, Laws of Florida (1978). More recently, storm waves as well as storm surge became a statutory criterion. Ch. 83-247, Section 2, Laws of Florida (1983). Not only have new laws and a new beach emerged since the 1977 line was established, but there have also been advances in scientific analysis and prediction of the behavior of storm waves, notably with reference to surf beats or "dynamic wave set up." ECONOMIC IMPACT STATEMENT DNR prepared a 27-page economic impact statement in which it estimated the costs of the proposed line to the agency, and costs and benefits to persons directly affected by the proposed rule; and made a detailed statement of the data and method used in making these estimates. With respect to the impact of the proposed rule on competition and the open market for employment, the economic impact statement noted that construction costs would increase under the proposed rule, causing a "market adjustment period" during which "builders would have to absorb the cost increase themselves or delay construction while prices rise sufficiently . . . Postponing of construction would tend to reduce employment . . . temporar[il]y. . . . Petitioners' Exhibit No. 5, p. 13. Although portions of the economic impact statement were originally drafted for Dade and Broward County control lines, they have obvious application to Charlotte County, as well. The thrust of the cost-benefit analysis was that construction costs would increase in the area between the 1977 line and the proposed line, but that enhanced preservation of the beaches, and decreases in flood insurance premiums and storm damage potential would more than offset these increased costs. The increase in construction costs was attributed to the expense and delay of obtaining a coastal construction permit, the additional labor and materials necessary to elevate the structure above the predicted level of storm waves in a 100-year return storm, and the relatively insignificant cost of installing stronger connections (hurricane clips for the roof and bolted- metal straps over joists to secure them to supporting piles) so that the structure could withstand wind loads of 140 miles per hour. Petitioners did not disprove the reasonableness of the permitting cost assumptions in the economic impact statement, the evidence of Colony Don Pedro's experience notwithstanding. Fire escapes and access for handicapped persons were not taken into account, but the evidence did not show that differential costs for those items would affect the conclusions of the economic impact statement. The economic impact statement assumes that buildings would have to be elevated off grade even without the additional coastal construction control requirements, and that foundations would be designed by engineers, in any case. Neither assumption was proven false. The assumption that costs increase in direct proportion with elevation yields only a very rough estimate of differential costs. The differential cost analysis did not take fully into account the criterion that applies in coastal construction permitting that relates to a structure's two-dimensional "footprint." DNR permitting staff may recommend denial of a permit even though a proposed building meets all structural integrity requirements whenever, on a site-specific basis, the area to be covered by the building fails to "minimize any expected adverse impact on the beach system." Rule 16B-33.07(2), Florida Administrative Code. In such circumstances, one resolution may be to place the proposed structure at a more landward site, and the economic impact statement does address the economic consequences of removing structures landward, but other resolutions, such as scaling down the project or decreasing floor size and adding floor(s) are not considered. In this connection, there is no mention of Charlotte County's three-story (35 feet) height limitation nor, in general, does the economic impact statement identify what Charlotte County ordinances now require for coastal construction. On the benefit side, some of the flood insurance rate comparisons are inappropriate because Charlotte County will not allow floor elevations several feet below base flood elevations set by the Federal Emergency Management Agency, as the economic impact statement assumed for comparative purposes. The rate differentials also apparently ignore the fact that the same structure at a higher elevation will be worth more and have a greater insurable value. From Petitioners' Exhibit No. 23, moreover, it appears that federally subsidized flood insurance may no longer be available in certain parts of Charlotte County. But the Sheaffer and Roland study, Respondent's Exhibit No. 14, to which the economic impact statement refers, shows that elevating a structure to the wave crest level instead of to the storm surge level of a 100-year return storm creates additional benefits in the form of lessened storm damage potential (without regard to insurance premiums) that exceed the additional costs. With respect to benefits as well as costs, the economic impact statement suffers from a failure to explicate existing requirements of local law governing building construction. Without this base line, differential costs and benefits were not and cannot be quantified precisely for the specific case of Charlotte County. But see page 12 of Petitioners' Exhibit No. 5. The evidence adduced at hearing failed, however, to discredit the general conclusion of the economic impact statement that requiring sufficient elevation and sufficiently sturdy connections to withstand a 100-year storm event, including the wave crests it would generate, was cost effective, assuming the structure is to have an engineered foundation off grade, in any event. Precise quantification of the economic impact of the site coverage criterion DNR will extend to the area between the 1977 line and the proposed line, if the latter takes effect, may be impossible. The benefits will accrue to the beach and to adjacent landowners as much as to the owner of the structure and both costs and benefits will vary from parcel to parcel with changing topography. THE SANDS OF TIME Under conditions that have recently obtained in Charlotte County, sloping sand beaches climb from the water's edge to the toe of a more or less pronounced primary sand dune, behind which other dunes undulate in succession across the barrier islands to Lemon Bay or Gasparilla Sound, from which they are occasionally insulated by mangrove swamp. Vegetation over much of the islands, which vary from 200 to 2000 feet in width, attests to their present stability. But chances are that a hurricane will in time strike, flattening the dunes, spreading the sand well inland everywhere, all the way across the islands in some places, and leaving a wide beach face without, in many places, any discernible dunes. Such a reconfiguration will ineluctably result from the major hurricane identified as the 100-year return storm. Thereafter, under more favorable weather conditions, dunes will grow and reemerge, comprised of sand the Gulf gives back as well as the sand strewn across the island by the storm, unless surface impediments prevent. The cycle complete, dunes will again stand their erosion-damping vigil against the sea, a buffer protecting the mainland, as well as insular upland. In establishing coastal construction control lines, DNR is charged by statute with the job of "defin[ing] that portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions." Section 161.053(1), Florida Statutes (1983). DNR naturally looks to the beach dune system in the configuration it is predicted to assume after a 100-year return storm in defining "that portion of the beach-dune system which is subject to severe fluctuations based on a 100- year storm . . ." The folly of limiting consideration to the landward toe of a primary dune as it existed in a period of fair weather was well illustrated by the photograph that came in evidence, as Respondent's Exhibit No. 12, of a monument placed behind a dune in St. Johns County only recently that is now well down on the beach. DNR METHODOLOGY In drawing the proposed line, DNR followed the procedure it employed in establishing coastal construction control lines in Nassau, Franklin and perhaps other counties. The line proposed for Martin County was drawn in the same fashion. By statistical inference from historical data, five characteristics of a predicted 100-year return storm are identified: central pressure deficit, radius to maximum winds, speed of hurricane system translation, hurricane direction (track angle), and landfall location or some other geographical reference. In order to assess the likelihood of various combinations of storm attributes actually observed, cumulative probability curves are generated and predictions of storms and their characteristics over several hypothetical 500- year time periods are made. Of each 500-year suite of storms, the fifth most severe is chosen as the 100-year return storm. A date between June 1 and November 30, 1982, is chosen at random and astronomical tides on that day are assumed to coincide with the 100-year return storm. Using the average characteristics of the 100-year return storm, associated wind velocities and storm surge are predicted. Astronomical tides, barometric pressure, wind stress, and the Coriolis effect all contribute to the height of the still water storm surge," the water level that you could measure at a point due to a hurricane's passage if you could turn off the waves." Dean's deposition at 31. The storm surge prediction model also takes storm waves into account: Maximum wave height is 78 percent of water depth. As storm waves approaching a beach reach the break point, their height falls by five percent, but the waves attain and exceed their former height by the time they reach shore. Waves have momentum which, as they break, is transferred, at least in part, "to the water column in the form of a wave setup." Dean's deposition at 32. For many years, "static wave setup" has been observed in wave tanks where waves of the same size have been set in motion to break against a wall of the tank. For six years or so, Drs. Dean and Chiu and others have been convinced that an additional allowance should be made for surf beats or "dynamic wave setup," to reflect the fact that waves in nature do not occur in uniform sizes at regular intervals. Their magnitude oscillates, in the case of breaking storm waves, around the still water surge elevations. To allow for dynamic wave setup, the static wave setup component of the predicted surge elevation is increased by half. The 100-year storm surge height is then used to predict, taking observed beach profiles into account, the landward penetration of waves which will have degenerated to a height of three feet and, with the aid of a mathematical model, the extent to which stormwater transporting sand offshore will cause erosion. At each range, unless a three foot wave is predicted to go further landward, the point to which erosion by offshore transport is predicted to occur is chosen as the endpoint for a segment of the coastal construction control line. Where penetration of a three foot wave farther landward is predicted, the coastal construction control line is drawn on that basis, in light of topography on either side of the range involved. In predicting the landward penetration of a three foot wave, aerial photographs or surveyor's field notes are consulted and, if there is vegetation along the range involved, a coefficient of friction is applied that simulates the existence of trees a foot in diameter with centers five feet apart. At the hearing, the use of a three foot wave horizontal penetration criterion was called into question, and there is an apparent difference of opinion between two of DNR's experts, Dean and Chiu, as to the significance a three foot wave has for the beach dune system. The three foot wave is notorious. This unassuming natural phenomenon has become laden with engineering and legal significance, ever since 1962 studies the Army Corps of Engineers performed in Galveston, Texas, showed that a three foot wave had enough energy to demolish a frame structure built on grade. If it has as much energy as that, Dr. Chiu reasons convincingly, it also has enough energy to transport significant amounts of sand and to damage vegetation. With its sand-holding properties, vegetation plays a critical role in the beach- dune system. Evidence that a three-foot wave does not rearrange substantial quantities of sand, if any was adduced, has not been credited. Even Dr. Dean reported seeing three foot waves moving substantial quantities of sediment. The mathematical erosion model, known for the inventor as the modified Kriebel model, assumes relatively higher sand dunes that are eaten away by waves transporting sand offshore. The erosion model does not take into account lateral movement of sand or the effects of waves overtopping a dune and carrying overwashed sand inland. The model predicts what distance inland an assumed storm surge will move various contours. By comparing the model's predictions to the effects of actual storms, calibration has been possible. After Hurricane Eloise hit Walton County, erosion along 25 miles of shoreline was observed and compared to the model's predictions. In order to draw a line landward of 98 percent of the points to which Eloise eroded the five foot contour, it was necessary to multiply the erosion model's prediction of the landward movement of the five foot contour by 2.5. With the 2.5 factor the model overpredicts for most of the coast affected by a storm, but underpredicts erosion for the point where the storm does its worst. The most severe erosion eats two and a half times further inland than average erosion along the affected coastline. AS APPLIED Underlying both approaches to drawing the proposed line was the prediction of the water height a 100-year return storm would produce. DNR calculated three storm surges, one for the northern, one for the central, and one for the southern Charlotte County coast, and predicted maximum water heights during a 100- year storm ranging from 13.1 to 12.7 feet above NGVD at the mean sea level line. Identifying the 100-year return storm for a particular locale is an elaborate exercise in probability theory that begins with the collection and analysis of historical data. At hearing, various criticisms of this process were advanced. Among them was the way certain data were assigned to categories or "bins." On rebuttal, the data were treated as discrete points and the result was the prediction of a storm surge .8 feet higher than the "bin" prediction method had yielded. Another criticism was the number of hurricanes selected as pertinent over the 80-year period studied. To the same effect was a criticism of the length of the period chosen. Reducing the number of storms from 28 to 20 causes the predicted storm surge to fall half a foot. Respondent's Exhibit No. In their proposed recommended order, intervenors contend Had DNR used . . . correct data in its development of the predicted 100- year storm surge level for Charlotte County, it would have simulated only 137 hurricanes for a 500-year period in Charlotte County. By simulating 182 hurricanes using the storm surge computer model, DNR simulated 45, or 33 percent, more hurricanes than justified. . . . P. 13 (footnotes omitted) The 33 percent is a red herring, since, as intervenors later note, the difference between simulating 182 hurricanes and simulating 125 hurricanes produces a difference of only .7 feet (from 12.9 to 12.2 feet) in the predicted storm surge, a difference of five or six percent. Nor was DNR's approach shown to be "incorrect." A certain amount of time at hearing was devoted to the categorization of hurricanes as alongshore (or bypassing), landfalling, or exiting. Different sources of data may be a source of confusion, if compiled with reference to different points of geographical reference. A hurricane that makes landfall in Miami may exit the peninsula in Charlotte County, while a hurricane that makes landfall in Tampa may bypass Charlotte County en route. Some confusion seems to have attended the integration of data taken from a National Weather Service publication that was used jointly with data from a NOAA source. Respondent's Exhibit No. 18 demonstrates that no significant distortion resulted, however. Among the historical storms omitted by DNR's consultants was the infamous Labor Day Hurricane of 1935, which generated storm tides of 18 feet at Marathon in the Florida Keys. Using only the 1973 NOAA data for Charlotte County yields predictions of storm surges a foot higher than DNR's consultants predicted. On Manasota Key, it was the erosion model that determined placement of the proposed line. Since the probability of the 100-year return storm hitting at any particular point on the Charlotte County coastline is virtually the same as for any other point on the Charlotte County coastline, the 2.5 factor is appropriate. The average amount of erosion over the whole of the affected coastline is of theoretical interest only. Between ranges 1 and 10 on Manasota Key, the dunes are 12 to 14 feet high, as compared to an average elevation for all three islands of slightly above five feet. The high dunes on Manasota Key, where the erosion model was used to set the proposed line, resemble the walls of a wave tank more closely than the lower dunes on Don Pedro and Gasparilla Islands, where stormwater is predicted to cross the islands and keep going. Dr. Chiu also predicted overtopping of Manasota Key. Dr. Dean's testimony was to the effect net overtopping might mean a diminution in wave height attributable to diminished dynamic wave setup of .3 to .4 feet. To this should logically be added a corresponding diminution attributable to diminished static wave set up, viz., .6 to .3 feet, for a total of up to 1.2 feet. The controversial testimony was that the storm surge model ignores altogether a documented phenomenon known variously as "initial rise," "forerunner," and "presurge anomaly," that adds 1 to 3 feet to surge elevations, and that this factor would offset any diminished wave setup almost entirely. Dr. Chiu's opinion that a three foot wave would cause overwash and damage to vegetation on Don Pedro and Gasparilla Islands, severely damaging the beach dune system, has been accepted. The contention that these phenomena are immaterial since they ware characterized as "severe impact on" instead of "severe fluctuations of" the beach dune system must be dismissed as a semantic quibble. Penetration of the three foot wave was the controlling criterion from Range 25 south to the Lee County line, although the average prediction of wave height at points where ranges intersect the proposed line is between 3.3 and 3.4 feet. These wave height predictions ignore, moreover, the erosion of the profile which is bound to occur. Witnesses on all sides agreed that a 100-year return storm would submerge Don Pedro and Gasparilla Islands. Waves three feet high and higher would travel across the barrier islands and Lemon Bay onto the mainland. In Charlotte County, use of the coefficient of friction was very conservative, inasmuch as vegetation on none of the coastal barrier islands approaches the density of trees one foot in diameter, five feet apart on centers. Trees a foot in diameter 15 or 20 feet apart cause only a four percent reduction in wave height every 100 feet as compared to the 20 percent reduction every 100 feet assumed for vegetated ranges in Charlotte County. PROOF IN PUDDING The conservatism of DNR's methodology is shown by damage done landward of the coastal construction control line in Franklin County, where a road upland from the line washed out during a storm of less than 100-year return magnitude and in Martin County, where as the result of a 10-year return storm severe topographical fluctuations were seen landward of the coastal construction control line proposed there. The storm surge model has been calibrated against storms of record, which has demonstrated its reliability, whatever the merits of its theoretical underpinnings. Even assuming some problems with the categorization of storm parameters put into the model for Charlotte County, the evidence adduced in this case does not support the conclusion that stormwaters in Charlotte County will reach an elevation of less than 11 to 12 feet, in the event of a 100-year return storm. The evidence overwhelmingly establishes that waves would reach at least that height. Respondent's Exhibit No. 2 shows what a storm surge of 11 to 12 feet did to a beach not dissimilar too Charlotte County's when Hurricane Frederic hit Gulf Shores, Alabama. Radical changes in topography occurred well landward of the point at which the proposed line for Charlotte County has been placed. This exhibit also shows why Mr. Tackney's opinion to the effect that a modest reduction in storm surge would permit sand dunes of a certain height to block the water's progress landward must be rejected. When a hurricane hits, the dunes are so dramatically eroded that their former height is not determinative. Although DNR ignored this factor in calculating the horizontal penetration of a three foot wave, in order to make the proposed line conservative, erosion of the profiles is inevitable. The Kriebel erosion model is designed to show what amount of sand stormwater will move offshore when a dune takes the full force of stormwater. When dunes are not high enough to do that, some other criterion for a coastal construction control line is necessary to reflect the different types of erosion that hurricane Frederic and other storms have shown will occur. Overwashed sand deposits stretched 800 feet and more from the water's edge after Frederic abated. The parties proposed findings of fact have been considered and have been adopted, in substance, except where unsupported by the weight of the evidence, immaterial, cumulative, or subordinate.
The Issue The issues to be resolved in this proceeding concern whether the Department of Environmental Protection (DEP) has jurisdiction over the activities encompassed by Permit Application BA-475 (Amended) and, if so, whether issuance of the permit complies with the applicable provisions of Section 161.053, Florida Statutes, and Chapter 62B-33, Florida Administrative Code.
Findings Of Fact Undisputed Facts: The following relevant facts are established by stipulation or admission and are not disputed. The proposed project is landward of the seasonal high waterline within thirty (30) years of December 1996; The project will not interfere with public access; The project will not result in the net excavation of in situ sandy soils seaward of the coastal construction control line (CCCL); Any sandy soil or material excavated for the proposed project seaward of the control line will remain seaward of the control line or setback and be placed in the immediate area of construction; The proposed project complies with the structural provisions of Rule 62B-33.007(2), Florida Administrative Code; The proposed project complies with Rules 62B-33.007(3)(a) through (d) and (f) through (h), Florida Administrative Code. Additionally at hearing, the Petitioners and Intervenor announced that they would not present any evidence on the issue of adverse impacts on marine turtles. Accordingly, impacts on marine turtles are not at issue in this proceeding. Project Description: RHE has proposed constructing a restaurant, pool, deck and stormwater basin within the Boardwalk Beach Resort on Panama City Beach, in Bay County, Florida. The Boardwalk Beach Resort consists of four (4) multi-story hotels with six hundred (600) rooms all together, several pools, boardwalks extending the length of the property and approximately seventeen hundred (1,700) to eighteen hundred (1,800) feet of beach front property. The project site is between Thomas Drive to the north and the Gulf of Mexico to the south. On July 23, 1996, RHE applied to the Department for a CCCL permit to construct, seaward of the interim line established by the emergency Order of October 16, 1995, the restaurant, swimming pool and deck. Part of the proposed deck was located seaward of the coastal construction setback line. On December 9, 1996, the Department issued a permit to RHE to construct the restaurant building with an attached deck fifteen (15) feet landward of the location originally proposed by RHE, as well as for construction of the swimming pool. On December 16, 1996, the Department issued to RHE an Amended CCCL permit authorizing construction of a restaurant building located five (5) feet landward of the location originally proposed by RHE, as well as a deck re-designed so that it would be structurally independent of the restaurant, a swimming pool and a dune enhancement plan which would restore the sandy dune seaward of the pool and restaurant location to its pre-hurricane Opal condition and elevation. The Amended permit would require re-vegetation of the dunes at the site with native plants to secure the dunes from erosion. Both the original and the Amended permits authorized the removal of the stormwater drainage pipe that carried stormwater onto the beach that had caused erosion of the beach near the project area. On January 9, 1997, the Petitioners timely filed a Petition challenging the Department’s decision to issue the Amended permit. On February 7, 1997, the Department established a new CCCL line for Bay County that was farther landward than either the old coastal construction setback line or the interim line established in the October 1995 emergency order. The project authorized by the Amended permit would thus be located entirely seaward of the newly established CCCL for Bay County. As of February 7, 1997, the date the new line was established, RHE had not begun working on the foundation or continued construction above the foundation for any of the structures authorized by the Amended permit. The Department determined that the project did not meet the requirements of Section 161.053(9), and Rule 62B-33.004(1), Florida Administrative Code, so as to qualify for an exemption from complying with the newly established CCCL for Bay County, as the project was not “under construction” at the time the new CCCL was established. The beach and dunes system is wide and the dune system is a significant one, with elevations of fourteen (14) to sixteen (16) feet NGVD, with a wide dune crest. The dry sandy beach in front of the site, even after hurricane Opal struck, remained approximately one hundred twenty-five (125) feet wide. From 1855 to 1934 the shoreline of the site was mildly accretional. Thereafter, until 1955 accretion was less significant, but from 1955 to 1976 became significant. From February 1992 through April 1995, the project site experienced a period of mild erosion. Accordingly the long-term data shows, in essence, that the shoreline is relatively stable at the site. Hurricane Opal caused the dune to erode or retreat landward by approximately a distance of fifteen (15) feet. Hurricane Opal was a major magnitude storm with one hundred twenty-five (125) mile per hour sustained winds and one hundred forty-four (144) mile per hour measured gusts when it came ashore in the vicinity of the proposed site. The dune portion of the proposed site now essentially mimics the pre-Opal conditions. Following hurricane Opal the applicants spent approximately Four Hundred Thousand Dollars ($400,000.00) in dune restoration along the entire shoreline of the resort property, some seventeen hundred (1,700) to eighteen hundred (1,800) feet of shoreline. That dune restoration work was permitted by the Department. There is now little native salt-tolerant vegetation on the site in its natural pre-construction condition. An existing stormwater drainage pipe and catch basin extend onto the beach seaward of the location of the proposed restaurant. The existing pipe and basin have caused erosion of the beach and the sand dune system on the project site. Under the amended permit proposal the stormwater pipe and basin would be removed. All of the proposed structures authorized by the Amended permit would be landward of the pre-Opal coastal construction control line. The proposed pool will be located landward of the dune crest and fifty-five (55) feet landward of the toe of the dune. The proposed restaurant would also be located landward of the dune crest and two hundred five (205) feet landward of the mean high waterline. The original design of the project was for a much larger, three story restaurant. The original pool design called for a one hundred twenty foot pool extending from in front of the Comfort Inn to beneath the proposed restaurant, in effect being located on the first floor of the restaurant. At DEP’s request the size of the pool was reduced by fifty percent (50%) and it was relocated into the shadow of the Comfort Inn next door so that it will no longer serve as an integral part of the restaurant. Pool depths were also reduced to three (3) feet at DEP’s request. The pool, at DEP’s request, will now be constructed of Gunnite concrete material and will be frangible, that is, it will be designed to break up in storm-surge or storm-waves. This will serve to decrease the erosion which could be caused by storm-waves flowing over and around the pool structure. The same is true of the restaurant deck, which at DEP’s request has been re-designed to be separate from the restaurant and also designed to fail in storm conditions. The frangibility of the deck, as now proposed, will retard erosion during storm conditions, as the stormwater or waves will demolish the deck and remove it rather than scouring the sand dune around it. The Department also requested that the existing stormwater drain pipe and catch basin be removed and such a removal has been made a condition of the subject permit. This will require that the applicant design and build a new stormwater system. The applicant has agreed to this condition and the others referenced above. Vegetation: Construction of the proposed project will not result in the removal or destruction of native vegetation. There is no such vegetation on the site where the construction will take place. Thus, construction of the project will not result in removal or destruction of native vegetation which will either cause de-stabilization of a "frontal, primary or significant dune" or cause a significant adverse impact to the beach and dune system due to increased erosion by wind or water. A special condition of the proposed amended permit requires that the applicant submit a dune enhancement plan for restoration of the dunes seaward of the pool and restaurant to its pre-hurricane Opal condition, including re-vegetation. Such a plan was submitted by the applicant and it includes the planting of sea oats on one (1) foot centers. The planting of sea oats as part of the dune enhancement plan will constitute a significant improvement to the native vegetation situation at the site. Disturbance of Sandy Soils: The project will not result in the removal or disturbance of in situ sandy soils of the beach and dunes system to such a degree as to have an adverse impact on the system. That is, the existing ability of the system to resist erosion during a storm will not be reduced. The proposed project will not result in the removal or disturbance of in situ sandy soils of the beach and dune system to such a degree as to cause adverse impact to those systems by lowering existing levels of storm protection to upland properties and structures. All the sandy material excavated for the pool and the stormwater basin will be placed seaward of these structures on the dune in the immediate area of the construction and seaward of the CCCL. The additional sand to be placed on the dune as part of the dune enhancement plan will, in fact, enhance the ability of the system to resist erosion during the storm. The ability of the dune to resist storm erosion is primarily a function of the quantity of sand within the dune system. The additional sand to be placed on the dune as part of the dune enhancement plan will enhance the protection of upland properties and structures including those of the Petitioners and Intervenor. Excavation of the stormwater basin will not destabilize the dune on the project site. The applicant is moving the stormwater basin landward by twenty (20) feet which will minimize the potential impacts of the basin on the dune system. The preponderant evidence establishes that the structure of the pool and pool deck will not cause an increase in structure-induced scour of such a magnitude as to measurably affect shoreline change rates. Scour caused by the pool will not significantly interfere with the beach-dune system's ability to recover from a coastal storm. The frangible design of the pool decreases the likelihood that it will cause any scour. It will break up in a storm so that any scour caused by the pool would be minimal. Any scour caused by the pool would not disturb the topography or vegetation such that the coastal system would become unstable or suffer catastrophic failure. Scour would have no measurable effect. The proposed restaurant and deck will not cause an increase in structure-induced scouring during a storm of such a magnitude as to have a significant adverse impact. The restaurant and deck will be constructed on piles. Scouring around piles, in a storm situation, is very localized and insignificant. By constructing the restaurant and deck on piles at the design elevation, storm-surge and storm-waves will pass under the deck and restaurant. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune to permit natural shoreline fluctuations. The structures will be built on pilings and will be elevated above the storm-surge; thus they will not interfere with shoreline fluctuations. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune so as to preserve and protect beach and dune system stability, in terms of the lack of interference with such. Other structures in the area are seaward of the proposed restaurant and deck, including Pineapple Willies Restaurant, located eleven hundred feet to the west. Those structures have not caused instability of the beach during hurricane Opal. Typically, existing structures do not cause instability of the dune systems. The restaurant and deck are located a sufficient distance landward of the beach and frontal dune so as to allow for natural recovery to occur following storm-induced erosion. Natural recovery commonly occurs under pile-supported elevated structures which is not the case with “slab-on-grade” structures which are not elevated. The pool and pool deck will permit natural shoreline fluctuations, will preserve and protect beach and dune stability, and will allow recovery after a storm because they are designed as frangible structures that will fail and disintegrate in a storm situation. Thus they will not appreciably affect the beach-dune system. Line of Construction: Most coastal construction in Bay County extends out to the pre-Opal CCCL while some construction extends beyond it. Throughout Bay County the line of construction is the pre-Opal CCCL. The line of construction is determined by the most seaward extent of similar existing structures in the immediate area of the proposed structure under consideration in a CCCL permit application. The proposed pool is landward of the line of construction determined by existing pools within the boardwalk beach resort. There are a number of existing multi-story structures to the east of the proposed restaurant that are located out to the pre-Opal CCCL. That pattern of construction continues to the east of the proposed restaurant. Approximately one thousand (1,000) feet to the east of the proposed restaurant is an existing multi-story major structure that is built out to the pre-Opal CCCL. The beach in the area of the project is highly developed with commercial and condominium buildings. Within eleven hundred to twelve hundred feet to the west of the proposed restaurant there is another major structure built out to the pre-Opal CCCL. Just beyond that structure are a number of additional major structures, including Pineapple Willie's Restaurant, that are constructed out to the pre-Opal CCCL. The multi-story major structures to the east and west of the proposed structure are within the immediate area of the restaurant. The proposed restaurant is located landward of the line of construction established by these major structures within its immediate area. That line of construction is the pre-Opal CCCL. DEP did not consider major structures more than one thousand (1,000) feet from the proposed restaurant when it determined the line of construction for the restaurant. It is DEP’s policy when reviewing CCCL applications not to consider structures more than one thousand (1,000) feet from a proposed structure when determining the line of construction. The one thousand (1,000) foot limit DEP uses to determine the line of construction is not embodied in a rule. There was no preponderant coastal engineering or other scientific evidence which justifies the one thousand (1,000) foot limit DEP imposes when it determines the line of construction. It was appropriate to consider the existing structures referenced above in assessing the line of construction for this amended permit application and considering those lying just beyond the one thousand (1,000) foot distance, because those existing structures dominate the coastal processees in the region and only lie just beyond one thousand (1,000) feet to the east and twelve hundred (1,200) feet to the west. If the Department had considered the above-referenced existing major structures just beyond one thousand (1,000) feet of the proposed restaurant, it would have been shown that the proposed project was landward of the thus established line of construction. No preponderant evidence was offered to explicate why the one thousand (1,000) foot limit was automatically adhered to in this situation. Moreover, the line of construction is not a prohibition in and of itself but rather is only one of several criteria that must be balanced in determining whether or not to approve a CCCL permit application. Projects have been approved seaward of the line of construction in the past. Minimization The location of the swimming pool at the most practicable landward location, the reduced size of the pool, as well as its frangible design and limited depth, has minimized its impact. The placing of the excavated material in the pool’s immediate area and the restoration of the dune in front of the pool and deck have minimized the impacts of the pool and deck. The construction of the restaurant on pilings with its design elevation above storm-surge and storm-wave elevations, together with locating it behind the dune crest and away from the active beach, has minimized the impact of the restaurant. The deck is on pilings as well, elevated above storm-surge and storm-wave levels. It will be physically separate from the restaurant and its design frangibility (so that it will fail in a storm) results in its impact being minimized. The stormwater basin is located as far landward as practicable. Its location and the placing of the materials excavated for the basin on the dune immediately adjacent to the basin has minimized the impact of the proposed stormwater basin on the beach-dune system. The restaurant, pool, deck, and stormwater system will not have a significant adverse impact to the beach-dune system. The restaurant will not adversely affect exiting shoreline change rates, will not significantly interfere with recovery following a storm, and will not disturb topography or vegetation such that the system will become unstable or suffer catastrophic failure. Cumulative Impacts The proposed project will not have an unacceptable cumulative impact. There are no other proposed similar projects to take into account and a cumulative impact assessment has shown there to be no adverse cumulative impact. No evidence was offered to show that an unacceptable adverse cumulative impact in terms of existing or other proposed projects will result. Positive Benefit The proposed project will have a net positive benefit on the beach-dune system. The removal of the slab-on-grade constructed building will have a beneficial impact because it will reduce the chance of storm erosion to the beach-dune system posed by such structures. The existing stormwater pipe and catch basin which cause erosion would be removed, resolving that erosion problem. Stormwater will now be retained in a new stormwater basin designed to serve 1.7 acres and it will not flow onto the beach for any rainfall event up to a one hundred year design storm. The new stormwater system is designed to recover quickly after a storm event and to treat stormwater. The removal of the stormwater pipe and catch basin, and the installation of the new stormwater basin will have a positive benefit to the beach-dune system. The new stormwater system complies with Special Permit Condition 7. Moreover the applicant will restore the dune seaward of the project to its pre-hurricane Opal condition and will plant sea oats, on one foot centers, throughout the restoration area in accordance with Special Permit Condition 1.8. Such restoration of the dune and vegetation will benefit the beach-dune system. The natural recovery process will take several decades without the placement of sand in the dune restoration project. The dune enhancement plan submitted by the applicant, in order to comply with Special Permit Condition 1.8, exceeds the requirements of that condition since it places more sand on the dunes than necessary to achieve pre-Opal conditions. Testimony of expert witness Michael Walhter, which is accepted, establishes that restored beaches and dunes function much like natural ones in storm events even though they can be somewhat inferior in resistance to storm-surge and waves since the sand is not as compacted at first. This dune enhancement plan, however, exceeds the permit requirements by placing more sand than necessary on the dunes to achieve pre-Opal conditions. The Interim CCCL On October 16, 1995, the DEP issued its emergency Order establishing an interim CCCL for Bay County one hundred feet landward of the pre-Opal CCCL. The Department established that interim line in order to regulate coastal development in the wake of Hurricane Opal. In 1978 the Legislature established criteria to be used by DEP in establishing or re-establishing all CCCL’s. They are thus to be established to define that portion of a beach-dune system subject to severe fluctuations from a one hundred year storm event. At the time of Hurricane Opal, DEP had not re-established the Bay County CCCL using a one hundred year storm event criterion. The interim CCCL for Bay County established by the above-referenced emergency Order did not utilize nor was it based on the statutory one hundred year storm event criterion. All twenty-three (23) other CCCL’s that have been established based on the statutory one hundred year storm event criterion were established by rule. As of January 15, 1997, the applicant had received all governmental approvals necessary to begin construction of the proposed project except for that which is the subject of this proceeding. On January 22, 1997, DEP by letter advised the applicant to cease and desist construction of the project. On February 7, 1997, the Department by rule then taking effect established a new CCCL.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, DETERMINED: That the Department of Environmental Protection has jurisdiction over the proposed project and that it is, therefore, recommended that a Final Order be entered granting the Respondent, Resort Hospitality’s CCCL application consistent with the terms and conditions espoused by the Final Order of December 17, 1997, Respondent’s Exhibit 2 and the project plans depicted in Respondent’s Exhibits 3 and 4. DONE AND ENTERED this 30th day of January, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1998. COPIES FURNISHED: Bram D. Canter, Esquire 103 North Meridian Street Tallahassee, Florida 32301 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Thomas G. Tomasello, Esquire 1315 East Lafayette Street, Suite B Tallahassee, Florida 32301 Neil H. Butler, Esquire Butler and Long, P.A. Post Office Box 839 Tallahassee, Florida 32302-0839 Kathy Carter, Agency Clerk Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue is whether the plan amendment adopted by Manatee County (County) by Ordinance No. 10-02 on October 12, 2010, is in compliance.
Findings Of Fact The Parties The County is a governmental entity and has the responsibility of administering its Comprehensive Plan (Plan). It adopted the amendment being challenged. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The parties have stipulated that Petitioners own real property in the County in close proximity to the property whose land use is being changed and that they submitted oral or written comments to the County during the adoption process. Intervenors own the subject property, which consists of two adjoining parcels located northwest of Bradenton in an unincorporated part of the County between 17th Avenue Northwest and 9th Avenue Northwest, approximately 600 feet east of 99th Street Northwest, and just south of the Manatee River. The site is more commonly known as the Robinson Farms. The parties have stipulated to the facts necessary to establish that Intervenors are affected persons. Background In 1981, the County adopted its first comprehensive plan, which assigned a land use on the subject property allowing 4.5 dwelling units per acre. In 1989, the County updated its original plan and designated the property RES-1, which allows a density of one dwelling unit per acre. The RES-1 land use has remained in effect since that time. In 1997 an application by the prior owners to change the land use to RES-3 was denied. See Joint Ex. 8. The northern part of the property is currently vacant, while the southern part is vacant except for an existing single- family residence and barn. The land is used for agricultural purposes. It lies just west of, and adjacent to, several other residential subdivisions. The property to the west of the site has land uses of Agriculture, RES-1, or Conservation. Compatibility is not an issue in this case. On September 11, 2009, Intervenors filed an application with the County Planning Department seeking a change in the land use of their approximately 49-acre tract of property from RES-1 to RES-3. The proposed change would allow an increase in density on the property from one to three dwelling units per acre. The application was numbered PA-10-02 and was assigned Ordinance No. 10-02. A public hearing on the proposed change was conducted by the County Planning Commission on March 11, 2010. By a 5-2 vote, that entity recommended that the amendment be forwarded to the Board of County Commissioners (Board) for its consideration. See Joint Ex. 10, p. MC 001126. On March 16, 2010, the Board conducted a hearing on the proposed amendment and voted 5-1 to transmit the amendment to the Department, along with other 2010 Cycle 1 amendments. Id. at p. MC 001120. Shortly after the amendment was transmitted to the Department, the TBRPC completed its preliminary work on the preparation of a new Storm Tide Atlas (Atlas). The Atlas is a multi-volume public safety planning tool used to assist with hurricane evacuation planning in a four-county region in the Tampa Bay area, including Manatee County. Among other things, it reflects storm surge data (i.e., water heights) based upon the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) model developed by the National Oceanic and Atmospheric Administration National Weather Service. The information in the Atlas is vital to public safety since it predicts storm surge heights during hurricanes. Based on data from the SLOSH, the TBRPC prepares, and includes in the Atlas, storm tide zone maps for the Tampa Bay area, which depict the landward extent of anticipated storm surge for each of the five categories of storm events. The Atlas does not, however, depict the Coastal High Hazard Area (CHHA) or hurricane evacuation maps prepared by each local government.1 The data underlying the storm tide zone maps are used by local governments to assist them in preparing the CHHA, Coastal Evacuation Area (CEA), and Coastal Planning Area (CPA) maps in their comprehensive plans. The CHHA and CEA maps generally, but not always, encompass the same areas and for all practical purposes are the same. This is because the Plan definition of a CEA refers to the statute that defines the CHHA. See Joint Ex. 1, Vol. 1, p. MC 00053. Also, Future Land Use Element (FLUE) policy 2.2.2.4.1 defines the CEA in relevant part as "the geographic area which lies within the evacuation area for a Category 1 hurricane." Id. at p. 000140. The CPA is defined as "[t]hose portions of Manatee County which lie within the Hurricane Vulnerability Area (evacuation levels A, B, and C), as periodically updated." Id. See also Fla. Admin. Code R. 9J-5.003(57). Based on SLOSH data in the Atlas, hurricane evacuation maps (showing evacuation levels A, B, and C) are prepared by the County's Emergency Management Division (Division) to depict the geographic areas impacted by the five categories of hurricanes, with Evacuation Zone A being the area first evacuated during a category 1 hurricane. Based upon the 2009 SLOSH data, in late 2009, the Division prepared "carefully defined" Evacuation Zone maps, last updated in 2003, and presented them to the Board in April 2010. However, neither the existing CPA map (based on evacuation levels A, B, and C) nor the CEA map (based on the Zone A map) has been updated through the plan amendment process. Even so, the Division's latest Zone A map, given to the County planning staff in April 2010, represents a reasonably accurate depiction of the geographic boundaries of the CEA and evacuation level A of the CPA, based upon the latest and best available data at that time. The Atlas is updated from time to time, in this case because a new SLOSH model was developed in 2009. According to a TBRPC planner, the last SLOSH model for the Tampa Bay Area was developed around 1990. Like the CPA, the Plan requires that the County also update the CHHA and CEA maps "on a periodic basis." However, new information provided by the TBRPC is not automatically incorporated into the County's Plan. Rather, any changes in the maps must go through the large-scale amendment process so that members of the public, and affected landowners, have an opportunity to provide input before adoption. According to the County Planning Director, the new maps should be adopted in 2011 Cycle I or II. See Joint Ex. 10, p. MC 001065. However, in preparation for adoption hearings in June and October 2010 concerning this amendment, the staff prepared "proposed" CHHA and CEA maps based upon the new data provided by the TBRPC and Division, which are a reasonably accurate depiction of the geographic boundaries of those areas. The new Atlas was not adopted by the TBRPC until August 10, 2010; it was formally presented to the public at a meeting on August 26, 2010. However, the underlying data were given to the County and other local governments at a meeting in April 2010. At that time, the staff knew that new evacuation maps were being developed, but did not know the precise impact these changes would have on Petitioners' property. Based upon proposed maps prepared by staff, which in turn are based on information in the new Atlas, except for 4.68 acres in the northeastern portion of the site, the remainder of Petitioners' property would be within the predicted storm surge for a category 1 storm event (the CHHA), while the entire site would be within the Evacuation A and evacuation level A areas of the CEA and the CPA. See Joint Ex. 9; Petitioners' Ex. 10. On May 21, 2010, the Department submitted its Objections, Recommendations, and Comments (ORC) report to the County. See Petitioners' Ex. 4; Joint Ex. 4. The ORC noted that 21.4 acres of the site were within the CHHA and would result in an increase of 43 dwelling units in the CHHA. This observation was made using the current CHHA map in the Plan, rather than a revised CHHA not yet adopted by the County. The ORC noted that this increase in density would be inconsistent with Florida Administrative Code Rule 9J-5.012(3)(b)6., which requires that the Plan "direct population concentrations away from known or predicted [CHHAs]," and internally inconsistent with Coastal Element Objective 4.3.1, which requires that the County "[d]irect population concentrations away from the Coastal Evacuation Area (CEA)." The ORC also stated that the County had failed to demonstrate that the adopted hurricane evacuation time of 16 hours for a category storm 5 could be maintained. It recommended that the amendment not be adopted, or that the change in land use be restricted to that portion of the site outside the CHHA. Id. at p. 5. The TBRPC also reviewed the amendment and found it to be consistent with its Strategic Regional Policy Plan. See Joint Ex. 4. Although the TBRPC staff report was prepared on April 13, 2010, and considered at a meeting on May 10, 2010, it did not make reference to the data being used in the new Atlas but rather relied upon the current CHHA in the Plan. Id. Following the County's receipt of the ORC, Intervenors revised their application by removing the 21 acres within the CHHA and reducing from 49 to 28 the number of acres being changed to RES-3. This would allow a maximum of 105 dwelling units on the 28 acres (as opposed to 147 units if the land use was changed on the entire tract). Notwithstanding this revision, and the fact that new maps had not yet been adopted in the Plan, the County staff report dated June 17, 2010, "took [a] more conservative approach than DCA" and recommended denial of the application on the grounds the new Atlas data showed "the entire proposed site within the [CHHA]," the new mapping information constituted the best available data, and the application should be re-evaluated in light of the new data. See Intervenors' Ex. D. Except for this, the staff concluded that the amendment met all other criteria. On June 17, 2010, the Board conducted a public hearing on the revised application and due to a 3-3 vote, the application was deemed denied. See Joint Ex. 10, p. MC 001104. However, the Board voted to continue its deliberations at another hearing on June 21, 2010, when all seven Commissioners would be present to vote. Id. Because only six Commissioners were present at the June 21, 2010, meeting, the original 3-3 vote was allowed to stand. Id. at p. MC 001095. Pursuant to section 163.3181(4), Intervenors requested a mediation conference in which the County, Intervenors, and two members of neighboring subdivisions participated. That process culminated in an agreement for the applicants to submit additional data and analysis in support of the amendment and for the County to have another public hearing to consider the application. See Joint Ex. 19. Additional information supporting the amendment was submitted by the applicants on September 3, 2010. See Joint Ex. 13. On September 14, 2010, the Board approved the mediation agreement and scheduled a hearing to consider the matter on October 12, 2010, along with the 2010 Cycle 2 amendments which by then were awaiting approval. See Joint Ex. 10, p. MC 001073. At the October 12, 2010, meeting, the staff continued to recommend that the Board deny the amendment based upon the new Atlas data and the staff's proposed CHHA and CEA maps, which show that only 4.68 acres of the site are outside the CHHA, while the entire site is within the CEA (Hurricane Evacuation A). See Petitioners' Ex. 7. By a 4-3 vote, the Board initially denied the application. See Joint Ex. 10, p. MC 001067. Later in the meeting, after one Board member changed her position on the theory that the new Atlas data should not be considered, the Board voted to reconsider its earlier decision, and by a 4-3 vote, approved the map change. Id. at pp. MC 001071-1072. One of the Cycle 2 amendments considered at the October 12, 2010, meeting was CPA 10-18, also known as the McClure amendment, which sought a change in the land use on the McClure property from RES-1 to RES-3. In its ORC dated September 10, 2010, which was directed to that amendment (and other Cycle 2 amendments), the Department noted that a part of the site appeared to be in the CHHA and recommended that the "County should evaluate whether the subject site is within the CHHA based on the latest, best available data and analysis used in the Storm Tide Atlas for Manatee County released by the [TBRPC] on August 26, 2010." Petitioners' Ex. 5, ORC, p. 5. The ORC further recommended that if "a part of the site is within the CHHA, based on the most recent storm tide atlas information, the amendment should not result in any increase in density in that area in order to ensure that population concentrations be directed away from the CHHA." Id. The record is silent as to why the Department opted to use the later data on that amendment, but not amendment 10-02. In any event, following the issuance of the ORC, the County staff evaluated the amendment using the latest TBRPC data, and by a 4-3 vote, the Board adopted the McClure amendment. See Joint Ex. 10, p. MC 001069. However, the final version of the McClure amendment is unknown. The Robinson Farms amendment adoption package was transmitted to the Department for its review. On December 3, 2010, the Department notified the County of its Notice of Intent to find the amendment in compliance. The Notice of Intent was advertised in the Bradenton Herald on December 6, 2010. According to Department counsel, the Department's finding was based on two considerations: the applicants had revised their application as recommended by the ORC; and the County should continue to rely on the existing CHHA map until a new map is adopted in the next major plan amendment cycle. At the adoption hearing, the Board also considered data that show that between now and the year 2015, there will be no hurricane shelter deficit in the County. In addition, if the land use on 28 acres is changed, the plan amendment will only result in an increase of 56 units over what could be built under the existing RES-1 land use. There was no evidence that 56 additional units, occupied by 129 persons (at 2.30 persons per household unit), would adversely impact the hurricane evacuation clearance times for that area of the County or affect public shelter demand. Finally, the area in which the site is located, Subarea 11, is projected to increase by 10,000 persons between 2015 and 2035. The staff report reflects that the amendment will not affect the overall population projections or housing needs for the subarea. The site is located within the Urban Core Area. Policy 2.1.1.3 of the FLUE encourages residential density increases (or infill development) within that area in order to avoid urban sprawl. Finally, the entire area west of 75th Street, West, and north of Manatee Avenue West (in which the subject site is located) consists of 1,927 acres. Since 2006, 580 acres in that area have been changed from RES-1 to Agriculture and Conservation, thus reducing the amount of land available for 580 dwelling units. Petitioners' Objections Petitioners contend generally that the amendment does not react in an appropriate and proper manner to the latest and best available data and analysis because it allows an increase in residential density on land within the CHHA, CEA, and CPA; that there are no data and analysis of need for additional residential development on the property; that the amendment contravenes rule 9J-5.012(2)(e) because there is no inventory and analysis of the projected maximum population density designated on the current FLUM within the Hurricane Vulnerability Zone; that the amendment fails to restrict development in evacuation zone A to protect human life and avoid public expenditures, as intended by section 163.3178(1); and that the amendment is internally inconsistent with FLUE policy 2.2.2.4.5 and Coastal Element policies 4.3.1 and 4.3.1.1, which require that the County prohibit increases in allowable residential density on sites within the CEA and direct population concentrations away from the CEA and CHHA. These allegations generally, but in greater detail, track the objections raised in the ORC and the County's staff report. A plan amendment must be based on relevant and appropriate data. "To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of the adoption of the . . . plan amendment at issue." Fla. Admin. Code R. 9J-5.005(2)(a). As noted above, new and more accurate storm surge data were in existence and available to the County before the amendment was adopted in October 2010. Due to major improvements in technology since the last SLOSH model was prepared, the 2009 model has higher resolution basin data and grid configurations, which means that the predicted storm surge data are far more accurate than data in earlier models. Thus, the new TBRPC data and staff-proposed maps were the best available data on storm surge and coastal flooding at the adoption hearing. While the County and Intervenors are correct that there is no automatic incorporation of TBRPC data into the Plan, when more current and reliable data on the subject are in existence and readily accessible, as they were here, they should be used to evaluate proposed land use changes which would increase density in areas subject to coastal flooding. The Board reacted to the data in an inappropriate manner by assuming that only 21 acres of the property was in the CHHA and that none was located in the CEA. This reaction is not supported by the data. Therefore, the plan amendment is not based upon relevant and appropriate data and analysis as required by rule 9J- 5.005(2). Paradoxically, at the same meeting when the vote on Amendment 10-02 was taken, the Board evaluated the FLUM map change for the McClure property using the latest TBRPC data. All of the Robinson Farms property lies within the predicted CEA. Policy 2.2.2.4.5(a) of the FLUE applies to all development activity within the CEA Overlay District, which is an overlay based upon the CEA boundaries. It "[p]rohibit[s] any amendment in the [FLUM] which would result in an increase in allowable residential density on sites within the [CEA]." It is beyond fair debate that the plan amendment is internally inconsistent with this policy since the amendment would result in allowable residential density on a site within the CEA. Except for 4.68 acres, the entire site lies within the predicted CHHA, while the entire site is within evacuation level A of the CPA. Coastal Element policy 4.3.1 requires in part that the County "[l]imit development type, density and intensity within the [CPA]." It is beyond fair debate that the amendment is internally inconsistent with this policy since it does not limit development type and density within the CPA. Coastal Element policy 4.3.1 requires that the County "direct population and development to areas outside the [CHHA] to mitigate the potential negative impacts of natural hazards in this area." Also, Coastal Element policy 4.3.1.1 requires that the County direct population concentrations away from the CEA. Although not relied upon by Petitioners, but cited in the ORC, these two policies track rule 9J-5.012(3)(b)6., which requires that the local government "[d]irect population concentrations away from known or predicted coastal high-hazard areas." Here, the plan amendment would allow an increase of 56 dwelling units in the CHHA and CEA that would be occupied by 129 additional residents. Whether these increases in population and development trigger rule 9J-5.012(3)(b)6., or bring into play the two policies in the Coastal Element, was not fully addressed by the parties. However, the Department's ORC indicates that if 43 dwelling units are added to the CHHA, these provisions would be applicable. See Petitioners' Ex. 4, ORC, p. 5. Because the CHHA and CEA are designed to minimize development in areas subject to coastal flooding in order to protect lives and property, thus implicating vital safety concerns, the proposed increase in development (56 additional units) and population (129 persons) within the CHHA and CEA is the type of development and population concentration contemplated by the rule and policies. Because the amendment fails to follow the dictates of those provisions, it is beyond fair debate that the amendment is internally inconsistent with these two policies. (Had rule 9J- 5.012(3)(b)6. been relied upon by Petitioners, a finding of inconsistency with the rule would also be appropriate.) The County's policy is to encourage infill development within the Urban Core Area so as to avoid urban sprawl. See FLUE policy 2.1.1.3. The subject property lies within the Urban Core Area. The proponents of the plan amendment contend that when this policy is weighed against the conflicting policies directing population concentrations away from the CHHA and CEA, the County has the flexibility to consider the Plan as a whole and approve an increase in density in the RES-1 and RES-3 areas located in the Urban Core Area, even if that property lies within the CHHA or CEA. See Joint Ex. 1, Vol. I, § C.2.1.2, pp. MC 000018-000019. Given the significant risk to life and property that arises during natural disasters such as hurricanes, however, the infill policy should not trump conflicting Plan provisions that limit development and population in these high-risk areas. Petitioners also contend that the plan amendment is inconsistent with rule 9J-5.012(2)(e), which requires that the County make an inventory and analysis of the projected maximum population density on the current FLUM within the Hurricane Vulnerability Zones of the County. The Atlas contains an inventory and analysis of population in the County by evacuation level for the years 2010 and 2015. See Joint Ex. 3, Exec. Summary, p. 9. No evidence was submitted to show that this information in the Atlas is inaccurate or otherwise fails to satisfy the purpose of the rule, simply because it was prepared by the TBRPC, rather than the County. It is fairly debatable that the plan amendment is consistent with the rule. Petitioners also assert that the plan amendment violates section 163.3178(1) because it increases residential density within the CHHA and Hurricane Vulnerability Zone, a result which does not protect human life and coastal resources, or limit public expenditures in areas subject to destruction by natural disaster. Subsection (1) expresses the legislative intent of the entire statute. It is doubtful that an expression of intent, as opposed to specific requirements in other portions of the statute, would serve as a basis to find an amendment not in compliance. In any event, there is insufficient evidence to support a finding that it is beyond fair debate that the proposed development would "damage or destroy coastal resources." Also, the property is within the Urban Core Area, which is already served by existing infrastructure. If further infrastructure is needed for development purposes, Intervenors' planner represented at hearing that the owners would be responsible for those costs. It is fairly debatable that the plan amendment is consistent with the statute. Finally, Petitioners contend that there are no data and analysis of need for additional increases in residential density, as required by rule 9J-5.006(2)(c)2. and 3. The two subparagraphs require that there be an analysis of the amount of land needed to accommodate the projected population, including "the estimated gross acreage needed by category," and "a description of the methodology used." A revised analysis of impact on population projections to meet housing needs was incorporated into the staff report presented at the adoption hearing in October 2010. See Joint Ex. 9, p. MC 00974. The analysis generally reflected that based on land development approvals and development patterns within Subarea 11 (where the subject property is located), the Subarea can easily accommodate the estimated increase in population between the years 2015 and 2035. Although the analysis is brief, it is sufficient to support a finding that it is fairly debatable that the amendment is consistent with rule 9J-5.006(2)(c)2. and 3.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Determination of Non-Compliance regarding Plan Amendment 10-02 adopted by Ordinance No. 10-02 on October 12, 2010. DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2011.
