The Issue At issue in this proceeding is whether a fence constructed by Charles and Kathleen Moorman (Moormans), as owners, and Your Local Fence, Inc. (Your Local Fence), as contractor, in the Big Pine Key Area of Critical County Concern, Big Pine Key, Monroe County, Florida, was contrary to the provisions of Chapter 380, Florida Statutes.
Findings Of Fact Background Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, including Areas of Critical State Concern, and all rules promulgated thereunder. Monroe County is a local government within the Florida Keys Area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implemen-tation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Most of Monroe County, including the Big Pine Key Are of Critical County Concern discussed infra, is contained within the Florida Keys Area of Critical State Concern. Respondents, Charles and Kathleen Moorman (Moormans) are the owners of Lots 15, 16, and half of Lot 17, Block D, Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property is located within the Big Pine Key Area of Critical County Concern, as well as the Florida Keys Area of Critical State Concern, and consists of native pine lands, which are natural habitat for the Key Deer. Respondent, Your Local Fence, Inc. (Your Local Fence), is a business engaged in constructing fences in Monroe County, and is owned by Mr. Moorman. On March 20, 1991, Monroe County issued to the Moormans, as owners, and Your Local Fence, as contractor, building permit No. 9110002231 to construct a fence on the foregoing property. As permitted, the fence would be constructed of wood to a height of 6 feet and, except for a setback of 25 feet, would completely enclose the Moormans' property. So constructed, the fence would measure 125 feet along the front and rear of the property and 75 feet along the side property lines for a total of 400 linear feet. Pertinent to this case, the Moormans' permit was not effective until 45 days after it was rendered to the Department (the "appeal period"), which period accords the Department an opportunity to review the permit and decide whether to contest its issuance by filing an appeal with the Florida Land and Water Adjudicatory Commission (FLWAC), and , if appealed, its effectiveness is stayed until after the completion of the appeal process. Section 380.07(2), Florida Statutes, and Section 9.5-115(a), Monroe County Land Development Regulations (MCLDR). Here, the Department, pursuant to the provisions of Section 380.07, Florida Statutes, filed a timely appeal with FLWAC to contest the issuance of such permit. Notwithstanding the Moormans' express knowledge that their permit was not effective until expiration of the Department's appeal period and, if appealed, resolution of the appeal process, the Moormans erected the fence on their property. Such action was contrary to the provisions of the Monroe County land development regulations and Chapter 380, Florida Statutes. Sections 9.5- 111(a) and 9.5-115(a), MCLDR, and Section 380.07(2), Florida Statutes. By separate recommended order to FLWAC, bearing Case No. 91-4110DRI, 91-5966DRI, 91-5968DRI, and 91-6603DRI (the "FLWAC Cases"), it was found, for reasons hereinafter discussed, that building permit No. 9110002231, issued by Monroe County for the construction of the Moormans' fence in the Big Pine Key Area of Critical County Concern was not consistent with the Monroe County comprehensive plan and land development regulations. Accordingly, it was recommended that FLWAC enter a final order reversing Monroe County's decision to issue such permit and to deny the Moormans' application for such permit. Consistency of the Moorman permit with the Monroe County comprehensive plan and land development regulations Big Pine Key is the primary habitat of the Key Deer, an endangered species, and Monroe County has designated most of Big Pine Key, including the properties at issue in these proceedings, as an area of critical county concern. 1/ Pertinent to this case, Section 9.5-479, Monroe County Land Development Regulations (MCLDR), provides: Purpose: The purpose of the Big Pine Key Area of Critical County Concern is to establish a focal point planning effort directed at reconciling the conflict between reasonable investment backed expectations and the habitat needs of the Florida Key Deer which is listed as endangered under the Federal Endangered Species Act. Focal Point Planning Program: Monroe County shall initiate a focal point planning program for the Big Pine Key Area of Critical County Concern that considers the following: The reasonable investment backed expec- tations of the owners of land within the Big Pine Key Area of Critical Concern; The habitat needs of the Florida Key Deer; The conflicts between human habitation and the survival of the Florida Key Deer; The role and importance of freshwater wetlands in the survival of the Florida Key Deer; Management approaches to reconciling the conflict between development and the survival of the Florida Key Deer; and Specific implementation programs for the Big Pine Key Area of Critical County Concern. The focal point planning program shall be carried out by the director of planning, in cooperation with the officer in charge of the National Key Deer Refuge. The planning program shall include a public participation element, and shall provide for notice by publication of all public workshops or hearings to the owners of land within the Big Pine Key Area of Critical County Concern. The focal point planning program for the Big Pine Key Area of Critical County Concern shall be completed within twelve (12) months of the adoption of this chapter, and the director of planning shall submit a report together with recommended amendments to the Monroe County Comprehensive Plan and this chapter within thirty (30) days after the completion of the focal point planning program for the Big Pine Key Area of Critical County Concern. Interim Regulations: Notwithstanding any other provisions of this chapter, no development shall be carried out on the Big Pine Key Area of Critical County Concern prior to the completion of the focal point planning program required by subsection C of this section and the adoption of amendments to the Monroe County Comprehensive Plan and this chapter except in accordance with the following: No development shall be carried out in the Big Pine Key Area of Critical County Concern except for single-family detached dwellings on lots in the Improved Subdivision District or on lots having an area of one (1) acre of more. And, Section 9.5-309, MCLDR, provides: It is the purpose of this section to regulate fences and freestanding walls in order to protect the public health, safety and welfare. * * * Big Pine Key Area of Critical County Concern: No fences shall be erected here until such time as this chapter is created to provide for the regulation of fences within this ACCC. The foregoing land development regulations were adopted by Monroe County to further and implement the standards, objectives and policies of the Monroe County comprehensive plan. Here, such regulations further the plan's "Generic Designations and Management Policies," contained within the plan's "Criteria for Designating Areas of Particular Concern," to maintain the functional integrity of habitat and, more particularly, the requirement that: Development within areas identified as Key Deer habitat shall insure that the continuity of habitat is maintained to allow deer to roam freely without impediment from fences or other development. Rule 28-20.020(8), Generic Designations, subparagraph 4, Florida Administrative Code. Over the course of the past five years, Monroe County has discussed design criteria for fences on Big Pine Key but has not yet adopted a regulation that would provide for fences within the Big Pine Key Area of Critical County Concern, as mandated by Section 9.5-309, MCLDR, nor has Monroe County amended Section 9.5-479, MCLDR, to permit, pertinent to this case, any development except single-family detached dwellings on lots in the Big Pine Key Area of Critical County Concern. Under such circumstances, it was concluded in the FLWAC Cases, and is concluded here, that the permit issued by Monroe County for the construction of the Moorman fence in the Big Pine Key Area of Critical County Concern is not consistent with the Monroe County comprehensive plan and land development regulations. Other considerations At hearing, Mr. Moorman offered proof that the Department had failed to appeal every fence permit issued by Monroe County in the Big Pine Key Area of Critical County Concern, and contended, as a consequence of such failure, that the Department should be precluded from contesting the issuance of his permit, or maintaining this enforcement action. Mr. Moorman's contention was not found persuasive in the FLWAC Cases, and is not found persuasive in this case. Here, the proof demonstrates that the Department's Key West Field Office, to which Monroe County renders its permits, was established in 1983, and that from January 1, 1984 to September 15, 1986, the Monroe County land development regulations did not regulate fences on Big Pine Key and the Big Pine Key Area of Critical County Concern (BPKACCC) did not exist. Effective September 15, 1986, the Monroe County land development regulations were adopted in their current form and, among other things, created the BPKACCC and prohibited fencing within such area. Accordingly, prior to September 15, 1986, there was no prohibition against erecting fences in the BPKACCC, and no reason for the Department to question the propriety of such develop-ments. Since the effective date of the current regulations, the Department has, as contended by Mr. Moorman, failed to appeal some permits for fencing in the BPKACCC. Such failure was, however, persuasively shown to have occurred as a consequence of severe understaffing, which inhibited the Department's ability to review all permits issued by Monroe County in a timely fashion (i.e., before the appeal period expired), and the breach of a memorandum of understanding entered into between the Department and Monroe County, and not as a consequence of any position adopted by the Department that fencing in the BPKACCC was permissible. Accordingly, the Department's appeal of the Moorman permit is not inconsistent with any position it has previously taken with regard to the propriety of fencing in such area. 2/ Moreover, neither the Moormans nor Your Local Fence made any inquiry of the Department as to why some permits were appealed and others were not, or requested that the Department waive its appeal period, prior to erecting their fence. Under such circumstances, it was found in the FLWAC cases, and is so found here, that the proof fails to support the conclusion that the Department misled the Moormans or Your Local Fence so as to bar it from contesting the propriety of their permit or, here, from maintaining this enforcement action. 3/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department of Community Affairs enter a final order directing the respondents, Charles Moorman, Kathleen Moorman, and Your Local Fence, Inc., to remove the 400 linear foot fence constructed on the Moorman property, and that the respondents not construct, reconstruct, enlarge or expand a fence on the subject property unless and until such time as the Monroe County Board of County Commissioners adopts, and the Department of Community Affairs approves, a comprehensive plan and land development regulations which specifically authorize such development. Removal of the subject fence shall occur within thirty (30) days after the entry of the final order. RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of April 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April 1992.
The Issue The issue for determination in this case is whether Rules 28-25.004 and 28-25.006(1), Florida Administrative Code, are vague and arbitrary as defined in Sections 120.52(8)(d) and (e), Florida Statutes, and therefore constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner, SEWELL CORKRAN, is a resident of Collier County, Florida, and past President of the Collier County Audubon Society. Petitioner’s standing to bring this action was not contested. Respondent, ADMINISTRATION COMMISSION, is the agency of the State of Florida vested with the statutory authority for the promulgation of Rules 28-25.002, et seq., Florida Administrative Code, pertaining to conservation and development within the Big Cypress Area. The DEPARTMENT OF COMMUNITY AFFAIRS (hereinafter AGENCY) is duly authorized to represent the ADMINISTRATION COMMISSION in these proceedings. Rules 28-25.004 and 28-25-006(1), Florida Administrative Code, set forth below, were adopted on November 28, 1973. Stipulated Facts There have been no examples of development in the Big Cypress Area of Critical State Concern such as that described by Petitioner, wherein lands that have been totally altered, have been one-hundred percent developed subsequent to agriculture. Development of ten (10) percent of a site in the Big Cypress Area of Critical State Concern is a reasonably acceptable amount of development. Agency Administration of Rule Chapter 28-25 As indicated above, Rule Chapter 28-25, Florida Administrative Code, was initially promulgated in 1973 pursuant to Section 380.05, Florida Statutes, for the purpose of protection and conservation of the Big Cypress Area of Critical State Concern (ACSC). The challenged agricultural exemption applicable to the Big Cypress ACSC is set forth in Rule 28-25.004, Florida Administrative Code, which provides: Agricultural Exemption. The use of any land for the purpose of growing plants, crops, trees, and other agricultural or forestry products, raising livestock or for other purposes directly related to all such uses are exempt from these regulations. However, whenever any person carries out any activity defined in Section 380, Florida Statutes, as development or applies for a development permit, as defined in Section 380, Florida Statutes, to develop exempted land, these regulations shall apply to such application and to such land. The challenged site alteration provisions of Rule 28- 25.006(1), Florida Administrative Code, limit such development to ten percent providing: Site Alteration. Site alteration shall be limited to 10% of the total site size, and installation of non permeable surfaces shall not exceed 50% of any such area. However, a minimum of 2,500 square feet may be altered on any permitted site. The AGENCY construes Rules 28-25.004 and 28-25.0061, Florida Administrative Code, as complementary. Pursuant to the agency’s construction and application of these rules, if a parcel of land is exempted for agricultural purposes, and is then altered for development purposes as defined in Section 380.04, Florida Statutes (1995), that development, pursuant to Rule 28- 25.006(1), Florida Administrative Code, would be limited to only ten percent of the total site size. Under the agency’s construction and application, the rules are not mutually exclusive, and regardless of an agricultural exemption, development will only be allowed on a maximum of ten percent of the total parcel. The agency makes no distinction made between whether the site is pristine or has been previously disturbed. The construction and application of the rules by the agency has been consistent. In implementing these rules development has been limited to only ten percent of a total site. There is no evidence of any instances in which a site that had been altered under the agricultural exemption was subsequently altered for development purposes to an amount greater than ten percent. There is no evidence that such a subsequent alteration from agriculture to development has ever been attempted. The agency reviews all development orders that are issued in the Big Cypress ACSC based upon established guidelines and standards. The evidence reflects that currently the AGENCY is in the process of appealing a development order issued by Collier County concerning Rule 28-25.006(1), Florida Administrative Code, which involves a request for development of a site previously disturbed by a spoil bank. In that case, the amount of land to be developed was proposed to be in excess of ten percent. The requested conversion was not from agricultural to development, as that term is defined in Section 380.04, Florida Statutes (1995). Because the spoil bank disturbed more than ten percent of the total site, the agency appealed the development order. The record indicates that this appeal is currently going through settlement negotiations wherein development will be limited to ten percent, regardless of the size of the disturbed area created by the spoil bank. The agency considers a number of factors when amending a rule. One of the factors is whether there has been much controversy associated with the rule, which would be one indication that the rule is so vague as to cause confusion in its understanding and inconsistency in its application. This has not been the case where these Big Cypress ACSC rules have been applied. County land development regulations may be stricter then rules promulgated or approved by the AGENCY, pursuant to Rule 28-25.013, Florida Administrative Code, which provides: In case of a conflict between Big Cypress Critical Area regulations and other regulations which are a proper exercise of authority of a governmental jurisdiction, the more restrictive of the provisions shall apply. Collier County’s Land Development Regulation 3.9.6.5.1(7) is more restrictive than Rule 28-25.004, Florida Administrative Code, which deals with the site alteration exemption for agricultural purposes. The following conditions, as applicable, shall be addressed as part of and attachments to the agriculture land clearing application: * * * (7) The property owner, or authorized agent, has filed an executed agreement with the development services director, stating that within two years from the date on which the agricultural clearing permit is approved by the development services director, the owner/agent will put the property into a bona fide agricultural use and pursue such activity in a manner conducive to the successful harvesting of its expected crops or products. The agency does not have statutory authorization to regulate agriculture, which is explicitly exempted from the definition of development in Chapter 380, Florida Statutes (1995), in the Big Cypress Area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Petition filed in this matter is hereby DISMISSED. DONE and ORDERED this 21st day of April, 1997, in Tallahassee, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings 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 21st day of April, 1997. COPIES FURNISHED: Sewell Corkran 213 9th Avenue South Naples, Florida 33940-6847 Bob Bradley Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Colin M. Roopnarine, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Liz Cloud, Chief Bureau of Administrative Code Department of State The Elliott Building Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
The Issue The issues in this case are: Whether Petitioner, Warren M. Briggs ("Briggs"), should be issued a Wetland Resource Permit (WRP) for the construction of a single-family dwelling on a lot with jurisdictional wetlands in Santa Rosa County, Florida, as proposed in his application submission of 1998; and Whether the Department would permit the construction of a single-family dwelling on the subject lot under conditions and circumstances other than those set forth in Briggs' application.
Findings Of Fact Briggs is the owner of Lot 67, Block H, Paradise Bay Subdivision, located in southern Santa Rosa County ("Briggs lot"). Paradise Bay Subdivision was developed in approximately 1980, prior to the passage in 1984 of the Warren Henderson Wetland Protection Act. (Official Recognition of Section 403.918, Florida Statutes). The subdivision consists of modestly priced single- family homes that are attractive to young families because of the quality of nearby schools. The typical non-waterfront home in the subdivision is single story, approximately 2,000 square feet in area, and built on a concrete slab. The typical setback from the road to the front edge of a home is 75 feet. This fairly consistent setback from the road prevents the view from one home into the adjacent property owner’s back yard and, thereby, adversely affecting the neighbor’s property value. The undeveloped Briggs lot was purchased in 1981 for approximately $15,000 and remains undeveloped. Briggs bought the lot, along with three other lots in the subdivision, as investment property. The other three lots have been sold. One of the lots sold earlier by Briggs was a waterfront lot on East Bay located in jurisdictional wetlands. The entire lot was filled pursuant to a permit issued by the Department. The Briggs lot is 90 feet wide by 200 feet deep. It is located on the south side of Paradise Bay Drive. The lots on the north side of Paradise Bay Drive are waterfront lots on East Bay. To the rear (south) of the Briggs lot and other lots on the south side of Paradise Bay Drive, is a large swamp that eventually discharges into East Bay. The major connection between the Briggs lot and East Bay is through a culvert under Paradise Bay Drive. The Briggs’ lot consists of 2,914 square feet of uplands and 15,086 square feet of state jurisdictional wetland, with all of the uplands located in the northern half of the lot. Converted to acres, the Briggs lot consists of 0.067 acres of uplands and 0.347 acres of state jurisdictional wetland. Lot 66, immediately east of the Briggs lot, has been cleared and is about half tietie swamp with the remainder consisting of uplands and disturbed wetlands. Some fill has been placed on the lot. Lot 68, immediately west of the Briggs lot, is undeveloped and consists of all tietie wetlands. Lots 69, 70 and 71 of Block H of the subdivision are undeveloped and consist primarily of wetlands. The Department issued a permit on October 31, 1996, that allowed the owners of Lot 71 to fill 0.22 acres (9,570 square feet) of wetlands. The fill is allowed to a lot depth of 145 feet on the west side, and to a width of 73 feet of the total lot width of 90 feet. The fill area is bordered on the east and west by wetland areas not to be filled. The Department issued a permit on November 13, 1997, that allowed the owner of Lot 61 to fill 0.26 acres (11,310 square feet) of wetlands. Fill is allowed over the entire northern 125 feet of the 185 foot-deep lot. On April 28, 1998, Briggs applied to the Department for a permit to fill Lot 67. The Department, in its letter of August 7, 1998, and its permit denial of September 2, 1998, erroneously described the project as consisting of 0.47 acres of fill. The entire lot consists of only 0.41 acres, of which 0.067 acres is uplands, leaving a maximum area of fill of 0.343 acres. If Briggs’ residential lot is to be used, some impact to the wetlands on the lot is unavoidable. Alternatives discussed by Briggs and the Department, three of which are still available for Briggs to accept, included the following: One hundred feet of fill with a bulkhead separating the fill from the wetland area, with no off-site mitigation; Fill pad could be placed on property with the remainder of the wetlands on the site to remain in their natural state with no backyard, with no off-site mitigation required; One hundred feet of fill with a bulkhead separating the fill material from the wetland, with a small back yard, with no off-site mitigation required. Briggs did not accept any of the foregoing alternatives or proposed acceptable mitigation measures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the permit application, provided that the parties may reach subsequent agreement regarding proper mitigation in order to make the construction of a single-family dwelling possible on the Petitioner’s property in this case. DONE AND ENTERED this 19th day of November, 2001, in Tallahassee, Leon County, Florida. _ DON W. DAVIS 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 November, 2001. COPIES FURNISHED: Charles T. Collette, Esquire Lucinda R. Roberts, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Jesse W. Rigby, Esquire Clark, Partington, Hart, Larry Bond and Stackhouse 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 205 acres of land located in Clay County, Florida. The subject property is known as "Station Pond (Oak Forest Extension)." Station Pond was subdivided into 40 lots by an unrecorded subdivision plat. The lots range in size from approximately three to fifteen or twenty acres. Roads, which are unpaved, surrounding Station Pond, and drainage for Station Pond, are privately owned. The roads and drainage were completed prior to December of 1978. A boundary survey of Station Pond was prepared and contains a surveyor's certification of January 8, 1980. Pre-1985 Subdivision Regulations of Clay County. Prior to September of 1985 Clay County did not require platting of subdivisions such as Station Pond. In September of 1985, Clay County adopted Ordinance 85-68 creating three types of subdivisions and providing for the regulation thereof. An exception to these requirements, however, was included in Ordinance 85-68: subdivisions shown on a certified survey prior to September of 1985 with lots and roads laid out would continue to not be subject to regulation so long as the lots continue to comport with the survey. Government Action Relied Upon Before the Applicant's Sale of the Property. The Applicant was aware that it could develop Station Pond as an unrecorded subdivision in Clay County. The development of Station Pond comes within the exception to Ordinance 85-58. In a letter dated December 15, 1978 the Clay County Director of Planning and Zoning informed the Applicant that Oak Forest Clay County would "issue building permits in accordance with the uses permitted and lot/building requirements for an Agricultural zoned district, and in accordance with all other local ordinance provisions, state statutes, etc., as enclosed." This representation was based upon the conclusion of Clay County that Oak Forest was not subject to Clay County subdivision ordinances. Similar conclusions were reached by the Clay County Health Department in a letter dated September 8, 1978, and by the Clay County Public Works Director in a letter dated December 18, 1978. The Applicant's Detrimental Reliance. The Applicant's predecessor corporation provided dirt roads around part of Station Pond. The roads were constructed prior to December of 1978. The costs of the roads incurred by the Applicant was approximately $15,000.00. Rights That Will Be Destroyed. If the Applicant must comply with the Clay County comprehensive plan it will be required to pave the roads of the subdivision and provide an approximately 3 mile long paved access road. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
The Issue The issue for determination in this matter is whether Petitioner, Robert A. Mason, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to undertake development of certain real property located in Clay County should be issued by Clay County, notwithstanding that part of such development will not be in accordance with the Clay County Comprehensive Plan.
Findings Of Fact The Property The Applicant, Petitioner Robert A. Mason, is the owner of real property located in Clay County, Florida. The Applicant's property is known as "Cypress Landing," containing 5.977 acres, which consists of a rectangular tract 200 feet by approximately 841 feet in the Hollywood Forest Subdivision, bounded on the east by the west shore of the St. Johns River, and on the west by the right-of-way for Peters Avenue, now known as Harvey Grant Road. The Applicant acquired the property on July 25, 1958, by warranty deed from Victor M. and Ruth C. Covington recorded in Official Records Book 3, page 250, public records of Clay County, Florida. The property was the south 1/2 of Lot 12, Lot 12-A, and Lot 13, and the north 1/2 of Lot 14 of Hollywood Forest, a platted subdivision on Fleming Island in Clay County. At the time Petitioner acquired the property, the applicable zoning district permitted the development of the property for single- family residential at a maximum density of three units per acre. When the Applicant originally acquired the property in 1958, he and his wife had intended at some future time to live on the property and use the property for their own purposes, including recreation, keeping horses, and retirement. At the time the Applicant acquired the property there was an existing dock extending from the property into the river. Due to subsequent changes in his employment circumstances, the Applicant did not build a residence on the property. The Applicant is a registered forester who retired from the Georgia Forestry Commission after 32 years of service. The Applicant and his wife currently reside in Georgia. Cypress Landing contains a multitude and variety of trees, including magnolia, Florida holly, live oak and cypress, many of which are more than 200 years old and have diameters in excess of 36 inches. The Applicant has taken great care and followed specific conservation measures to identify and preserve the historic trees on the property. Development of the Property In 1982-1983, the Applicant prepared a development plan for the Cypress Landing property which comprised a single-family residential development. The planned development consisted of a total of seven single-family lots, two of which faced the river, and the other five which were 122 feet by 200 feet and lay side by side between the road and the waterfront lots. The development plan included an easement (the "Road Easement") for ingress, egress, drainage and utilities along the northern waterfront lot into the southern waterfront lot. From the east end of the Road Easement, an additional pedestrian easement was provided along the northern ten feet of the southern waterfront lot for pedestrian access to the river. The Applicant employed a surveyor, McKee, Eiland & Mullis, Land Surveyors Inc., of Orange Park, Florida. The Applicant instructed the surveyor to plat the property in accordance with the development plan and all existing codes. The property was thereafter subdivided into seven lots, identified as Lots A, B, C, D, E, F, and G. Lots A through E are the inland lots and each measure 122 feet by 200 feet with a 30 feet non- exclusive easement for ingress, egress, drainage and utility purposes. Lots A through E are inland lots. Lots F and G are the waterfront lots which are slightly larger than the other five lots and not as uniform in configuration. Lot F has approximately 116 feet of water frontage and Lot G has approximately 97 feet of water frontage. In 1984, relying on the applicable zoning regulations, the Applicant contracted with Robert Bray to install a roadway which is 30 feet in width and 866 feet in length running along Lots A through E and ending at Lot F. The roadway was constructed with specific concern for the protection and preservation of the trees on the property. A pre-cast concrete curb running the entire length of the roadway was installed to protect the trees from runoff. Porous rock was used as the foundation of the roadway to promote proper drainage. The roadway was also constructed with an ellipsis at Lot C to protect a historic tree. The design of the roadway, as well as the materials used in building the roadway, met all Clay County code requirements at the time of construction. In 1984, the Applicant reconstructed the dock on the property. The dock had previously been damaged due to storms. The dock was reconstructed by Duke Marine Construction in accordance with all appropriate regulations. Covenants have been executed to allow for use of the dock as a community dock for all lot owners. The community dock is 300 feet in length. Also in 1984, the Applicant erected a sign indicating the entrance to Cypress Landing. The sign was later vandalized and removed. In 1988, the Applicant contracted with Jacksonville Electric Authority for the installation of an underground electric distribution system in Cypress Landing. The underground utilities distribution system was designed specifically to protect and preserve the existing trees on the property, and was installed by boring under the trees to place a conduit to protect the established roots. The underground electrical distribution system was installed in accordance with the Clay County code at that time. On May 29, 1987, the Applicant sold Lot A to Robert M. and Mary Wasdin. Clay County issued a building permit for the construction of a residence on Lot A. A house has been constructed on Lot A. On September 1, 1989, the Applicant sold Lot E to Robert G. and Marva Lou Widhalm. Clay County issued a building permit for the construction of a residence on Lot E. A house has been constructed on Lot E. Applicant's Expenses The applicant expended approximately $4,609.45 on topographical surveys, tree location surveys, and engineering plans which were prepared for the mapping and platting of Cypress Landing. The surveying expenses were paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant incurred significant expenses in the design and construction of the roadway. Additional costs were incurred by the Applicant for the construction of the roadway in an environmentally sensitive manner which protected and preserved the historic trees on the property. The total amount expended in 1984 by the Applicant for the construction of the roadway was $6,880, all of which was paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant expended $19,540 for the reconstruction of the community dock in 1984, which was paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant expended $7,101.87 for the installation of the underground electrical distribution system in 1988 and 1989. This amount included an additional cost of $1,209.87 paid to JEA, which was the difference in cost between the underground system and an equivalent overhead electrical distribution system. This amount also included a cost of $5,502 paid to Allstate Electrical Contractors, Inc. of Jacksonville, Florida, for the boring and installation of the PVC conduits to protect the historic trees on the property. The expenses were paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant expended $363.58 for costs associated with the Cypress Landing entrance sign and a security fence. The expenses were paid prior to the adoption of the Clay County 2001 Comprehensive Plan. Rights that will be Destroyed In 1991 Clay County originally adopted the Clay County 2001 Comprehensive Plan pursuant to Chapter 163, Part II, Florida Statutes. The Clay County 2001 Comprehensive Plan is now known as the Clay County 2015 Comprehensive Plan. Under the Comprehensive Plan, Cypress Landing was designated with a land use designation in the plan of "Rural Fringe." Policy 2.10 of the Clay County 2015 Comprehensive Plan provides that if land is divided into three or more lots, any three of which are 9.9 acres or less in size, then such land must be platted in accordance with the County's regulations, and all lots must be provided access to a road improved to meet County paved road standards. The County's Subdivision Regulations were amended after 1990. Section 16(1)(d)1.a.i. thereof now requires a minimum width for subdivision streets of 60 feet. The regulations further require that such streets be paved. The Cypress Landing Road Easement is only 30 feet wide. Moreover, new surface water runoff requirements require retention areas for rainwater. To comply with the post-1991 Clay County land use regulations would require a reconfiguration of the lots in Cypress Landing. Reconfiguration is not possible because two of the lots have been sold to new owners. Policy 2.9 of the Clay County 2015 Comprehensive Plan restricts any easement that provides access to multiple lots to a length of 1,000 feet, and limits to five the number of lots that may utilize the same for access. While the Cypress Landing Road Easement is less than 1,000 feet in length, the number of lots within the Cypress Landing development exceeds the maximum that can access the Road Easement. The Petitioner would be precluded from selling or developing the remaining lots within the Cypress Landing development without reconfiguration and loss of one or more lots. Moreover, because Lots "A" and "E" have already been sold, the Petitioner cannot add additional right-of-way width to the Road Easement in order to comply with the County's Subdivision Regulations regarding minimum right-of-way width. The Applicant would have been entitled to statutory vested rights if 50 percent of the lots had been sold prior to 1992. Procedural Requirements The procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
The Issue The issue is whether Franklin County (County) has given reasonable assurance that it satisfies all requirements for an after-the-fact permit authorizing the construction of a rock revetment seaward of the coastal construction control line (CCCL) on Alligator Drive, also known as County Road 370.
Findings Of Fact The Nature of the Dispute The origins of this dispute date back a number of years. In short, the County currently has two adjoining revetments seaward of the CCCL on County Road 370 (Alligator Drive) located on Alligator Point in the southeastern corner of the County.1 County Road 370, situated immediately adjacent to the Gulf of Mexico, is a vulnerable structure and eligible for armoring. See Fla. Admin. Code R. 62B-33.002(64). The old revetment is permitted; the new revetment is not. Pursuant to a Department enforcement action directed at both revetments, the County applied for an after-the-fact permit to authorize the construction of the new revetment. See Case No. 12-3276EF. The two revetments, totaling around 2,800 feet in length, abut County Road 370 and join near the intersection of Alligator Drive and Tom Roberts Road. The road itself is around 50 or 60 feet from the edge of the revetments. The old revetment extends around 2,000 feet west of the intersection while the new revetment extends 800 feet east of the intersection. There is a curve in the road at the intersection, and at that point the road elevation drops two or three feet for an undisclosed distance. The revetments, however, run in a straight line. There is no beach and dune system in front of the old revetment, while a small amount of exposed sand is located on the far eastern end of the new revetment. Due to storm events over the years, unauthorized debris has been placed on top of the old revetment by the County. Under the terms of the enforcement action, the County is required to remove the debris. This will reduce the height of the old revetment by several feet below its original height of nine feet National Geodetic Vertical Datum (NGVD).2 Where the two revetments join, however, the height differs by only around a foot. The Bank owns property across the street from the old revetment and alleges that, for several reasons, the site and design of the new revetment, coupled with the reduction in height of the old revetment, will cause erosion of the shoreline around the old revetment and expose County Road 370 and the adjacent upland Bank property to erosion. Although the current design and location of the old revetment have been finalized through prior agency action, the Bank has asked that the permit be denied unless the County relocates rock boulders from the new to the old revetment and raises its height back to nine feet NGVD. The County asserts that the Bank's real aim here is to require the County, at taxpayer expense, to reconstruct the old revetment to its original height. Otherwise, the Department will not waive the 30-year erosion control line restriction and allow the Bank to fully develop its property that is seaward of the CCCL. See § 161.053(5)(b), Fla. Stat. The Old Revetment Since the late 1970s, the County has owned and maintained that portion of County Road 370 that is the subject of this dispute. In May 1986, the Department of Natural Resources, which was later merged with the Department, issued to the County CCCL Permit No. FR-204 for the construction of the old revetment, then 1,500 feet long. The revetment was located approximately 350 feet east of Department Reference Monument R-211 to approximately 150 feet west of the Department Reference Monument R-213. In November 1994, the Department issued to the County CCCL Permit No. FR-446 for the re-construction of the old revetment, as well as a 500-foot extension of the eastern limits of the structure with granite boulders. The revetment, as extended, is located approximately 540 feet west of Department Reference Monument R-212 to approximately 140 feet east of Department Reference Monument R-213. The permit did not authorize placement of any construction debris within the revetment. With the extension, the total length of the old revetment is now approximately 2,000 feet. After an application for a joint coastal permit to conduct a beach and dune restoration project was filed by the County in September 2006, a Department site inspection revealed the presence of concrete debris and other debris material stacked on top of the old revetment. A debris removal plan was formulated by the Department, which was intended to be incorporated as a special condition in the joint coastal permit. In May 2011, the joint coastal permit was approved and included a debris removal plan. Because of financial constraints, however, the County did not undertake and complete the work relating to the beach and dune restoration plan or the debris removal plan. In January 2012, another inspection was conducted by the Department to document how much debris was in the old revetment and where it was located. The inspection revealed the presence of a significant amount of concrete debris and other debris material scattered throughout the revetment and continuing eastward. That same month, largely at the urging of the Bank, the Department issued a one-count Notice of Violation (NOV) alleging that after a storm event in July 2005, the County placed unauthorized construction debris and other debris material in the old revetment seaward of the CCCL, and that the debris still remained within the footprint of the revetment. See Case No. 12- 3276EF. (The Bank unsuccessfully attempted to intervene in the enforcement action.) As corrective action, the County was required to remove all debris, seaward of the CCCL, from and adjacent to the footprint of the old revetment no later than 60 days after the end of the hurricane season. That work has not yet been performed, probably because the work on both revetments will take place at the same time. After the debris is removed, the height of the old revetment will vary from between five and eight feet NGVD rather than the original nine-foot height. This was not the relief that the non-party Bank desired in the enforcement action. Instead, the Bank has always wanted the old revetment to be reconstructed to the nine-foot NGVD standard authorized in the original construction permit. Even so, the enforcement action is now final, as no appeal was taken by the County. Except for the unauthorized debris, the old revetment meets all Department standards. The New Revetment Under emergency circumstances, between September 2000 and July 2005 the County placed material, including granite rock boulders and debris material, in a location east of the old revetment, seaward of the CCCL. The construction activity is located approximately 140 feet east of Department Reference Monument R-213 to approximately 80 feet east of Department Reference Monument R-214 and is around 800 feet in length. However, the County did not obtain a permit for the temporary structure within 60 days after its construction, as required by section 161.085(3), Florida Statutes. In July 2005, Hurricane Dennis made landfall in the Florida Panhandle causing damage to the shoreline along Alligator Drive. As an emergency measure after the storm event, the County placed rock boulders that had been displaced back into the new revetment seaward of the CCCL. The County also placed other unauthorized concrete debris and debris material within the footprint of the rock revetment seaward of the CCCL. Again, no timely authorization for this work was obtained by the County. In August 2012, the Department issued an Amended NOV in Case No. 12-3276EF adding a second count, which alleged that the County had failed to obtain a permit for the placement of the rock boulders and unauthorized debris. On April 18, 2013, the Department issued a Final Order in Case No. 12-3276EF. As to Count II, it gave the County two options for corrective action: (a) that the County submit "a complete permit application for a rigid coastal armoring structure located between Department reference monuments R-213 and R-214 that complies with all applicable Department permitting rules and statutes"; or (b) that "the County remove all material placed seaward of the CCCL pursuant to a Department approved debris removal plan[,]" leaving that portion of County Road 370 without a revetment. 2013 Fla. ENV LEXIS 16 at *16. Desiring to protect its infrastructure, the County opted to apply for an after-the-fact permit. The Permit Application In March 2013, the County filed an application for an after-the-fact permit for the construction of the new revetment. As directed by the Department, the County proposes to construct a new revetment located between Department Reference Monuments R- 213 and R-214. The height of the new revetment will be around nine feet NGVD, while its slope will be one vertical to three horizontal. The old revetment is not quite as steep, having a slope of one vertical to two horizontal. The application includes a debris removal plan for the removal of construction debris as well as other debris scattered through the new revetment. Construction debris occupies a large portion of the new revetment and largely appears to be associated with storm damaged concrete sidewalk. All derelict concrete and asphalt material that is located water ward of Alligator Drive and landward of the mean high water line is to be removed. Both the County and its engineering consultant will monitor the work at the project. After reviewing the application, the Department proposed to issue after-the-fact CCCL Permit FR-897. The Bank then filed its Petition, as later amended. Petitioner's Objections As summarized in its PRO, the Bank alleges that the County did not give reasonable assurance that the following statutory and rule provisions have been satisfied: section 161.053(1)(a), which provides that special siting and design considerations shall be necessary seaward of the CCCL "to ensure protection of . . . adjacent properties"; rule 62B-33.005(2), which requires that the applicant provide the Department with sufficient information to show that adverse impacts associated with the construction have been minimized and that construction will not result in a significant adverse impact"; rule 62B-33.005(3)(a), which requires that the Department "[d]eny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects"; rule 62B-33.0051(2), which provides that armoring "shall be sited and designed to minimize adverse impacts to the beach and dune system, marine turtles, native salt-tolerant vegetation, and existing upland and adjacent structures"; and rule 62B-33.0051(2)(a), which requires armoring to "be sited as far landward as practicable to minimize adverse impacts . . . on existing upland and adjacent structures." See PRO, pp. 16-17. A common thread in these regulatory citations is that a revetment should be constructed in a manner that does not cause adverse impacts on "adjacent property." Except for the above cited provisions, no other permit requirements are contested, and the County's prima facie case satisfied those other requirements. The Bank's odd-shaped property, acquired in a foreclosure proceeding, abuts that portion of Alligator Drive immediately adjacent to the old revetment. The eastern boundary of the Bank's property is at least 300 feet west of the new revetment and extends westward along County Road 370 until it intersects with Harbor Circle. The entire tract is separated from the old revetment by County Road 370, a two-lane paved road. The property was once used as a KOA campground; however, the predecessor owner acquired development rights for a Planned Unit Development, which apparently cannot be fully developed unless the old revetment is raised back to its original height by the County or some other acceptable form of erosion protection is provided by the Bank at its own expense. The essence of the Bank's complaint is that the new revetment, as now sited and designed, will expose the old revetment to a higher rate of erosion, and ultimately accelerate the erosion of its property across the street. The Bank asserts that this will occur for three reasons. First, the removal of construction debris from the old revetment will lower its height, weaken the structure, and create a "discontinuity in height and composition between the revetments," resulting in increased exposure to erosion. Second, the toe of the new revetment (at the western end of the structure) will extend ten feet further seaward than the old revetment, creating a discontinuity and placing the old revetment at higher exposure to erosion. Finally, the Bank contends a discontinuity already exists between the two revetments due to the curved shape of the road at the intersection, causing the western end of the new revetment to extend further seaward than the old revetment. The Bank argues that the discontinuity will amplify the wave action on the shoreline during a severe storm event and eventually cause a breach of the old revetment. In sum, the Bank is essentially arguing that unless the two revetments mirror each other in height and slope, and consist of the same construction materials, the after-the-fact permit must be denied. The Bank's expert, Mr. Chou, a coastal engineer, was employed shortly before the final hearing and made one visit to the site. Regarding the removal of unauthorized construction debris from the old revetment, Mr. Chou was concerned that, while not ideal, the debris offers a degree of shoreline protection. He recommended that if removed, the debris be replaced with boulders comparable to the design standard of the new revetment. However, the record shows that when the loose and uneven debris is removed from the old revetment, the existing rocks will be moved to an interlocking or "chinking" configuration that actually enhances the stability and integrity of the structure.3 The Bank is also concerned that the height and slope of the two revetments differ. Mr. Chou testified that there exists the increased potential for erosion as a result of what he described as a discontinuity, or a difference of characteristics, between the two revetments. He opined that the protective function of the old revetment will be compromised by the removal of the granite boulders, which will lower the overall height of the revetment between two and four feet. According to Mr. Chou, if the new revetment suffers a direct hit by a major storm, i.e., one capable of dislodging the armor, he would "expect damage, significant damage, right next to it." Mr. Chou conceded, however, that if a permit is not approved, and the County elects to remove the new revetment, it could result in a significant adverse impact to property located along Alligator Drive. Mr. Chou further acknowledged that there will be no significant adverse effect on the old revetment during "everyday" winds, waves, and currents. Finally, he agreed that if the toes of the new and old revetments are essentially the same, as the certified engineering plans demonstrate they are, it will "minimize" the discontinuity that he describes. Notably, in 2005, Hurricane Dennis actually caused accretion (an increase in sand) on the Bank property, rather than erosion. While there are some differences in height and slope between the two revetments, no meaningful differences from an engineering perspective were shown. Through the County's coastal engineer, Mr. Dombrowski, who over the years has visited the site dozens of times and worked on a number of major projects in the area, it was credibly demonstrated that the old and new revetments will, in effect, form one continuous armoring structure that will provide shoreline protection along Alligator Drive. In terms of toe, slope, height, and construction material, there will be one continuous and straight revetment along the road, with a "fairly consistent elevation and slope going from one end to the other." If a major storm event occurs, the impacts to both revetments will likely be the same. In any event, there is no requirement that the County construct a revetment that is storm proof or prevents severe storm damage. The preponderance of the evidence demonstrates that the new revetment is consistent with the siting and design criteria in rule 62B-33.0051(2). The design of the new revetment is consistent with generally accepted engineering practice. The new revetment is sited and designed so that there will be no significant adverse impacts, individually or cumulatively, to the adjacent shoreline. See Fla. Admin. Code R. 62B-33.005(3). The County has provided the Department with sufficient information to show that adverse and other impacts associated with the construction are minimized, and the new revetment will not result in a significant adverse impact to the Bank's property. See Fla. Admin. Code R. 62B-33.005(2). The new revetment should toll erosion – which now occurs on Alligator Point at the rate of five feet per year -- and provide shoreline protection. Finally, the construction of the new revetment will not cause an adverse impact to the old revetment. For all practical purposes, the two revetments have existed side-by-side since 2005. The Bank failed to offer any credible evidence that the new revetment has had a significant adverse impact on the old revetment over the last nine years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the County's application for after- the-fact permit number FR-897. DONE AND ENTERED this 23rd day of July, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2014.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399 2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. Final Order No. DCA10-GM-110 MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies en furnished in the manner shown below to each of the persons listed below on this day of fii “4 , 2010. aula Ford, Agency Clerk Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 By U.S. Mail and electronic mail: Jerri A. Blair, Esq. City Attorney City of Wildwood Post Office Box 130 Tavares, FL 32778-3809 jblair710@aol.com Cecelia Bonifay, Esq. Akerman Senterfitt 420 S. Orange Avenue, Suite 1200 Orlando, FL 32801 cecelia.bonifay@akerman.com By Hand Delivery and electronic mail: David L. Jordan, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 david.jordan@dca.state.fl.us Linda Loomis Shelley, Esq. Fowler White Boggs Banker Post Office Box 11240 Tallahassee, FL 32302-3240 Ishelley@fowlerwhite.com By Filing with DOAH: The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060
The Issue Whether the amendments to the Franklin County (County) Comprehensive Plan (Plan) adopted by Ordinance No. 2005-20 (Amendments) on April 5, 2005, are “in compliance” as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact Background Franklin County (Franklin) is a coastal county located along the Gulf Coast of Florida's Panhandle. To the west is the Apalachicola River; it empties into a bay defined by barrier islands (St. Vincent, St. George, Dog), creating North America's second largest and most productive estuary. The eastern part of the County is St. James Island (SJI), separated from the mainland by the Crooked and Ochlockonee Rivers. Franklin's primary economic base is historically resource-based, including silviculture/timber, and since the 1930s primarily the fishing (seafood) industry. Tourism/retirement is an emerging industry especially on St. George Island, a noted resort destination. Retirees and vacationers come to enjoy the beautiful, pristine, relatively undeveloped, but still accessible waterfront stretches. Franklin's cities are Carrabelle, a 2.66 square mile fishing community about 50 percent developed and Apalachicola, a historic 4.81 square mile fishing community where about 90 percent of the land is still open for development. About 62- 70 percent of the County is federal or State land including the 1200-inmate State prison, Bald Point and St. George Island State Parks, Tate's Hell State Forest, and Apalachicola National Forest. FSU's Marine Lab is at Turkey Point. St. Joe owns over 55,000 acres in Franklin, mostly on SJI. Franklin has one of Florida's worst poverty rates. SJI's boundaries are the Crooked River and the Ochlockonee River and Bay on the north, Bald Point State Park on the east, Alligator Harbor Aquatic Preserve and the Gulf of Mexico on the south, and the City of Carrabelle on the east. SJI is mostly undeveloped except for: the Alligator Point area, including areas along County Road (CR) 370, areas along U.S. Highway (US) 98 including the unincorporated areas of St. Teresa and Lanark Village and adjacent to Carrabelle; and a few homes on Rio Vista Drive, just south of the Ochlockonee River. The natural systems on SJI are very diverse, and habitats range from xeric, well-drained uplands of pine and oak, to riverine swamps of cypress and hydric hardwoods, freshwater marshes, rivers and ponds, marine inter-tidal wetlands, bays, beaches, mudflats, seagrass meadows and open waters of the Gulf of Mexico. SJI is an ecologically significant and environmentally sensitive area that consistently scored in the 5 to 9 range (out of a high of 10) on the Florida Wildlife Commission's (FWC's) Integrated Wildlife Habitat Ranking System (IWHRS). SJI supports up to 388 species of birds, mammals, amphibians and reptiles, including a number of State-listed species. Of particular note is the presence of the black bear on SJI, which is a State-listed threatened species with substantial strategic habitats identified by FWC on SJI, particularly in the McIntyre, Brandy Creek, Cow Creek and Bear Creek corridors. The Gulf Sturgeon, a federally-listed threatened species, occurs in the Ochlockonee and Crooked Rivers and is subject to an ongoing U.S. Fish and Wildlife Service Study to determine the importance of the habitat to spawning and distribution of this prehistoric fish. SJI is surrounded by relatively clean (pristine) surface waters that have been designated as Outstanding Florida Waters (OFWs), including portions of Alligator Harbor and portions of the Ochlockonee Bay and River. A large part of Alligator Harbor is an Aquatic Preserve. Much of the Alligator Harbor and Ochlockonee Bay are designated as Class 2 Shellfish harvesting waters. SJI is home to Bald Point State Park, which provides a variety of wildlife habitat and recreational opportunities for nature observation and fishing. The eastern boundary of Tates Hell State Forest extends to Highway 319 on SJI and is separated from Bald Point State Park by approximately 7 miles of agricultural land (silviculture) through the center of SJI. Northeast Franklin, including SJI, is part of the Woodville Karst Plain, generally a sensitive karst area where some confining beds (especially in Wakulla County) are usually thin to absent, or breached. In unconfined karst hydrogeology, groundwater moves rapidly, but soil borings on SJI (Turkey Point) corroborate North Florida Water Management District maps which show a confining layer in eastern Franklin County varying in thickness from 15 to 20 feet. With such a confining layer, groundwater moves vertically at approximately 2 to 3 feet per year and laterally at approximately 100 feet per year in eastern Franklin County, including on SJI. Petitioners attempted to contradict evidence presented by St. Joe and prove that SJI has karst hydrogeology primarily on evidence of core samples taken in eastern Franklin County. These core samples were not explained by any expert testimony and did not prove the absence of any clay confining layer in eastern Franklin County. While unlikely, there may be places in eastern Franklin County where the confining layer thins or is absent or breached. In 1991 Franklin adopted a Plan for a long-term planning horizon of the year 2000. The Plan was found “in compliance,” at a time when approximately 27 percent of Franklin was in public ownership and Franklin was designated an Area of Critical State Concern (ASCS) largely due to the importance of the Apalachicola Bay Area and its natural resources. See §§ 380.05 and 380.0555, Fla. Stat. The 1991 Plan designated a critical shoreline district and impervious surface area limitations within 150 feet of shorelines and wetlands, which not only were determined by Franklin and the Governor and Cabinet to effectively protect County wetlands but also won an award from DCA for Outstanding Environmental Protection. The Administration Commission removed Franklin's ACSC designation in 1992, but the Plan was not changed prior to 1995. After 1995, and within the year 2000 planning horizon, there was one policy addition--FLUE Policy 2.2(k)-- and one policy amendment--to FLUE Policy 2.2(d). In approximately 1997, Franklin prepared an EAR on the 1991 Plan. It did not state a need for, or anticipate any, changes to the FLUE or FLUM or much else in the Plan. However, Franklin did not timely adopt EAR-based amendments to the 1991 Plan, and the planning horizon of Franklin's Plan remained the year 2000. Notwithstanding the 2000 planning horizon, there also were some amendments/additions/deletions to goals, objectives, and policies (GOPs) after 2000. Ordinance 2001-20 amended wetlands policies to reflect a change in State jurisdiction, amended FLUEP 1.2(d) and 3.1, deleted FLUEP 3.2 and 3.3, amended Coastal/Conservation Element (C/CE) Policy 1.5, and added FLUEP 1.6-1.9. Ordinance 2003-1 amended C/CEOs 1, 2, 3, and 7 and added Capital Improvements Element (CIE) Policies 4.4-4.6. Franklin also adopted two large-scale Plan amendments for mixed-use residential developments on SJI after 2000 without updating its Plan and planning horizon. In 2000 Franklin approved a FLUM amendment (FLUMA) from "Public Facilities" to "Mixed Use Residential" on 377.4 acres along US 98 at the intersection with Crooked River Road for a development of regional impact known as "St. James Bay." In 2002, Franklin transmitted a proposed FLUMA for 784 acres on Alligator Harbor from "Agriculture" to "Mixed-Use Residential," together with proposed FLUEP 11.11, for a St. Joe development called SummerCamp. During DCA's compliance review of the Summercamp amendments, the issue was raised whether the amendments should be found "in compliance" when Franklin's Plan was out-of-date and still planning for the year 2000. To resolve the situation, in 2003 Franklin adopted FLUEPs 11.12 and 11.13 along with the SummerCamp FLUMA. These amendments were found to be "in compliance." FLUEP 11.12 required Franklin to conduct a county- wide assessment of eight key substantive areas, prepare an overlay map and plan policies for SJI, and update its Plan not later than April 1, 2004, on the basis of the county-wide assessments, and to include requirements that all FLUMA on SJI be "consistent with the overlay map and policies." The eight key substantive areas were: Protection of natural resources including wetlands, floodplains, habitat for listed species, shorelines, sea grass beds, and economically valuable fishery resources, groundwater quality and estuarine water quality; Protection of cultural heritage; Promote economic development; Promotion of emergency management including the delineation of the coastal high hazard area, maintaining or reducing hurricane evacuation clearance times, creating shelter space, directing population concentrations away from known or predicted coastal high hazard areas, and implementing appropriate parts of the Local Mitigation Strategy; Adequate provision of public facilities and services including transportation, water supply, wastewater treatment, and facilities for access to water bodies; Provision of affordable housing, where appropriate; Inclusion of intensity standards; and A list of allowable uses. FLUEP 11.13 applied to any large-scale FLUMAs transmitted to DCA prior to the "effective date" of the Plan update pursuant to FLUEP 11.12, and required the FLUMA to "include an area-wide assessment covering the geographic area of the county where the FLUMA is located that addresses the same eight key substantive areas in FLUEP 11.12. Transmittal and Adoption Process The Plan Amendments at issue are the result of Franklin's endeavors to adopt EAR-based amendments and FLUMAs in accordance with FLUEPs 11.12 and 11.13. Franklin initially contracted the Department of Urban and Regional Planning of the Florida State University (FSU) for: a review and evaluation of the current Plan and EAR to recommend plan changes; to have a consensus building process with at least six community workshops; to evaluate population and employment; to perform technical data assembly and analysis; to recommend updated GOPs; and to facilitate consensus on a planning overlay for SJI. FSU produced updated data and analysis (D&A) in Geographic Information System (GIS) format and GOP revisions. FSU found no need for more residential land through 2020. FSU prepared a GIS-based "suitability analysis and county-wide map." Based upon St. Joe's concerns, FSU was told to delete it, and Franklin did not transmit the suitability analysis/map. In lieu of the FSU's suitability analysis/map, a short narrative was submitted. On June 16, 2004, Franklin filed a "transmittal package" with DCA: a "complete revised plan" with D&A and GOPs; a "supplementary notebook"; and 13 large FLUMs. Franklin proposed 8 FLUMAs: Eastpoint Sprayfield (45 acres); Breakaway Lodge/Marina (17.3 acres); Ft. Gadsden Creek (78.6 acres); Otter Slide Road (46.4 acres); McIntyre Rural Village (RV) (1,740 acres); Conservation Residential (ConRes) (6,532 acres); Carrabelle East Village (CEV) (201 acres); and Marina Village Center (MVC) (1,000 acres). DCA found Franklin's transmittal insufficient per 9J-11.009(1). On July 13, 2004, Franklin transmitted St. Joe's "site suitability for Proposed St. James Island FLUM amendments"; "traffic study"; "historical data on City of McIntyre"; "St. James Island Forestry Type Map"; and "Archaeological Reconnaissance of the St. James Island/Ochlockonee River Tract." On October 15, 2004, DCA issued an ORC per 9J- 11.010. The ORC made numerous (49) objections, including, but not limited to: the SJI overlay/policies, FLUMAs, wetlands, population projections/need, potable water, Coastal High Hazard Area (CHHA), land use categories/density and intensity standards, affordable housing, water supply planning, water dependent uses, no capital improvements schedule (CIS), and internal inconsistency. DCA coordinated with Franklin and St. Joe on the ORC response (ORCR), which was transmitted to DCA along with Ordinance 2005-20, adopted April 5, 2005, consisting of amended GOPs and FLUM series. The Ordinance replaced the 1991 Plan, as previously amended, and repealed all prior ordinances to the extent of conflict. The Ordinance adopted seven elements--FLUE; traffic circulation (TCE); housing (HE); infrastructure (IE); C/CE; recreation and open space (ROSE); and intergovernmental coordination (ICE)--and a FLUM series. FLUEPs 11.12 and 11.13 were deleted. There was no Capital Improvements Elements (CIE). In its new Plan, Franklin adopted five FLUMAs -- the Eastpoint Sprayfield and St. Joe's RV, ConRes, CEV, and MVC. The Eastpoint Sprayfield was dropped during DCA's compliance review, leaving the four St. Joe FLUMAs. During DCA's compliance review, many ORC objections were considered unresolved. Some issues were resolved on further review, but others remained, as reflected in a May 6, 2005, staff memo opining that the Plan Amendments were not "in compliance." This memo was written by DCA planners Susan Poplin and Jeff Bielling, who had extensively reviewed the County's transmittal and adoption packages. It was approved by their immediate supervisor, Charles Gauthier, a certified planner with extensive experience with Franklin, who left DCA not long after approving the memo. The memo was then presented to Valerie Hubbard, DCA's Director of the Division of Community Planning (and Gauthier's immediate supervisor), who considered the issues presented in the memo, along with additional information presented by the County, ultimately disagreed with the planners, and issued an "in compliance" Notice of Intent. No CIE A CIE is a mandatory element. See § 163.3177(3)(a); 9J-5.005(1)(c)2, 9J-5.0055(1)(b) and (2); 9J-5.016. The 1991 Plan had a CIE that was amended by ORD 2003-1 (CIEPs 4.4-4.6 were added). Franklin transmitted a proposed CIE to: change the "initial planning period" in CIEO 3.4 to 2004-2009; delete CIEPs 3.3 and 3.4; make a minor change to CIEP 2.1; and change CIEP 5.4 (LOS for potable water, principal arterial roads, and recreational facilities). DCA objected to the lack of a five- year CIS, which also is mandatory. In the ORCR, Franklin explained the absence of the CIS by maintaining that there were no capital improvements needed for the next five years. The adopted 2020 Plan has no CIS, which DCA found "in compliance" based on Franklin's explanation. However, it also has no CIE, which was not obvious or apparent to DCA in its compliance review because the CIE was not submitted in strike- through/underline format, as required by 9J-11. In addition, several adopted elements cross-reference to the CIE. Franklin contends that it did not adopt a CIE because there were no capital improvements to be shown on a five-year CIS and because of its understanding that many items, including building or paving roads, are not capital improvements. However, it appears Franklin may have inadvertently neglected to adopt the CIE as transmitted. The deletion was not discussed at the adoption hearing. When the deletion of the CIE came to the attention of DCA after the May 6, 2005, staff memo, DCA chose to accept Franklin's explanations as to why the CIE was deleted and why the 2020 Plan was "in compliance" without a CIE. But the evidence does not support these explanations. Notwithstanding Franklin's explanations, Franklin Ordinance 04-45 authorized a referendum on a local tourist development tax, which was approved by the voters on November 2, 2004, to provide for development of a beach park and for other recreational facility infrastructure. Franklin estimated $718,896 in tax receipts for FY 2005-06. The other parties contend that the expenditure of these capital improvement funds need not be addressed in the CIS or CIE in part because they are for the benefit of tourists, not residents. But it is clear from the evidence that both will benefit, and there does not appear to be any exception for capital improvements designed to benefit both. The other parties also point out, correctly, that only capital improvements needed to meet concurrency requirements need to be on the CIS. Besides the possible use of tourist development funds, Franklin's 2005-06 $34,036,313 annual budget includes a number of other items that appear to be capital improvement items: "capital outlay - land $100,000; capital outlay - imp. other than buildings $300,000; walk path Tillie Miller Park $10,000; Carrabelle Rec Park/FRDAP grant $200,000; Rec. Fac. Improvements other than buildings $25,000; Bald Pt. land $50,000; Bald Pt. improvements other than buildings $495,697; road paving-improvements $1,200,000; paving project-CR 30 $1,951,379; boating-improvements other than buildings $94,877; Lanark Village Drainage Improvement $92,059; Airport Fund capital outlay- improvements other than buildings $1,407,069." In addition, Franklin's CR 370 along Alligator Point has repeatedly washed out from storms, and current estimated repair costs are $2.1 million, with $1 million budgeted and FEMA matching funds anticipated. The other parties presented the direct testimony of several witnesses that none of the expenditures Franklin is planning to make in the next few years, even if capital expenditures, need to be on a CIS. Petitioners presented no direct testimony to the contrary. Based on the evidence, it was not proven that beyond fair debate that any of these expenditures were required to be included in a CIS. CIE requirements include GOPs. 9J-5.016(3). Franklin Planner Pierce and St. Joe witness Beck testified that CIE requirements can be found in other elements of the 2020 Plan. However, the 2020 Plan does not contain an explanation of any such combination of elements as required by 9J-5.005(1)(b). In addition, based upon the evidence, while some CIE requirements can be found in other elements, it is beyond fair debate that the other elements of the 2020 Plan do not contain all of the required CIE GOPs. One CIE requirement is to have a policy setting public facilities level of service standards (LOSS), including one for recreational facilities. See § 163.3177(3)(a)3; 9J- 5.016(3)(c)4. See also 9J-5.0055(1)(b) and (2). The 2020 Plan lacks LOSS for recreational facilities. ROSEP 1.2 purports to adopt LOSS "as provided in Exhibit 7-2 of this element," but Franklin did not adopt Exhibit 7-2. See 9J- 5.005(2)(g). Franklin's transmittal D&A proposed updated recreational LOSS using population forecasts for "projected need for 2010." Exhibit 7-2 in Franklin's June 14, 2004, transmittal was based on those 2010 forecasts. There was no projection of need for either five years or to 2020. Franklin's transmittal D&A showed a deficit for bike trails, fresh/saltwater fishing, football/soccer, tennis, and swimming pools through 2010. Franklin Planner Pierce testified Exhibit 7-2 was not adopted because it was inaccurate. He testified that it was based on total population, including incorporated areas, and failed to count some swimming pools and tennis courts. But he did not supply the corrected information, and accurate D&A was not submitted for review. Pierce admitted that no data in evidence showed that Franklin can meet recreational needs through 2020, or that current recreational LOSS are being met. Franklin operates Class 1 and Class 3 landfills located on the east side of CR 65, north of US 98. D&A indicated that there are two-three more years of Class 1 landfill capacity at 2004 collection levels, with household trash being trucked to Bay County under a contract valid until 2007. The Class 3 landfill takes construction debris for a fee. Franklin did not assess Class 1 disposal requirements after the 2007 contract expiration, or Class 3 disposal requirements, and the 2020 Plan is not supported by an assessment of future solid waste disposal requirements through either a five-year or 2020 time frame based upon the projected population. Franklin may need to expand either, or both, of its landfills during the 2010 and 2020 time frames, but there is no discussion of such improvements. DCA, Franklin, and St. Joe concede that Franklin's 2020 Plan without a CIE is deficient, but they characterize the deficiency as merely "technical" and "inconsequential" because: "there are no deficiencies for which to plan, and many Plan provisions ensure capital improvements implementation, monitoring and evaluation, and concurrency management"; and Franklin "has demonstrated that it can adopt a CIS and CIE in the future, if needed." But it is beyond fair debate that Franklin's 2020 Plan, as it stands now without a CIE, is not in compliance because it is inconsistent with Section 163.3177(3)(a), 9J-5.0055(1)(b) and (2), and 9J- 5.016(3)(c)4. Combination Coastal and Conservation Elements Petitioners also contend that the 2020 Plan combines the coastal and conservation elements but does not contain an explanation of such combination, as required by 9J- 5.005(1)(b). In a small jurisdiction like Franklin County, with the vast majority of its land in public ownership, combination of these two elements is appropriate because most of the County’s developable acreage is coastal, and conservation measures must necessarily focus on coastal areas. This combination was previously found in compliance in 1991. No expert witness for Petitioners testified that the combination of these elements is inconsistent with 9J- 5.005(1)(b), or that the 2020 Plan is not "in compliance" as a result. To the contrary, several experts for the other parties testified that the 2020 Plan is "in compliance." Two Planning Periods/Timeframes Petitioners contend that it is beyond fair debate that the 2020 Plan does not include a planning period covering at least the first five-year period after adoption, as required by Section 163.3177(5)(a). But the Plan contains a number of objectives and policies in the HE, IE, and C/CE that establish a five-year planning period for achieving certain objectives. See HEO 4; IEO 2.16; C/CEOs 5.9, 8.3, 9, 14.9, 15, 15.9, 18, and 21. Petitioners seem to contend that the 2020 Plan fails to include the two required time frames--one at least five years and one at least ten years--because Franklin's analyses included disparate time frames and lacked a uniform 2020 analysis. But there does not appear to be a prohibition against analyzing more time frames than just the long-term planning horizon. It was not proven beyond fair debate that the 2020 Plan does not cover at least two planning periods, one for at least the first five years and another for at least ten years after adoption. Affordable Housing Petitioners contend: "To the extent that FLUE Policies 11.12 and 11.13 required an assessment of affordable housing on SJI, there is no data or analysis to support a finding that an affordable housing assessment was prepared." Pam Ashley PRO, ¶ 42. But FLUEPs 11.12 and 11.13 were deleted by the Plan amendments at issue. Besides, the county-wide assessment would include the area of SJI. Adopted HEO 2 provides: "There will be sites available for 473 units of housing for low and moderate families by the year 2020 2000." (Underlining/strikethrough in original.) As stated, the number in the objective clearly is incorrect. Actually, D&A showed a need for 473 units in addition to the 1803 units identified in the 1991 Plan. Adopted HEO 3 makes the same kind of error for mobile homes: "There will be adequate sites for 244 mobile homes in the County by the year 2020 2000." (Underlining/strikethrough in original.) It is beyond fair debate that these objectives, as stated, are not supported by D&A. The plan should be corrected to comport with D&A. CHHA Designation Section 163.3178(2)(h) defines the CHHA to mean the Category (Cat) 1 hurricane evacuation zone. See also Rule 9J- 5.003(17) (defining the CHHA to mean the evacuation zone for a Cat 1 hurricane as established in the applicable regional hurricane study). The Apalachee Regional Transportation Analysis Final Report is the most recent applicable regional hurricane evacuation study (HES) per 9J-5.003(17). According to the HES, Franklin's Cat 1 evacuation zone boundary "would roughly coincide with US 98 throughout the County. The HES map of Franklin's evacuation zone, which is in GIS format, depicts one minor exception south of US 98, east of CR 30A (which is west of Apalachicola), and another southeast of US 98 (and southwest of CR 370) in the middle of SJI. Both exceptions are inland--i.e., they do not extend seaward to the coast (St. Vincent Sound in the case of the first exception, and Alligator Harbor in the case of the second exception). The adopted FLUM series includes a CHHA map that notes: "The Coastal High Hazard Area shall be designated . . . as all areas seaward of Highway 98 or County Road 30A with the exception of areas depicted as 1 and 2 on this map. The Coastal High Hazard Area for unincorporated Franklin County is based on the Apalachee Regional Transportation Analysis Final Report." The Areas 1 and 2 exceptions on Franklin's CHHA map purport to be the same two exceptions in the HES map. But unlike the HES map, the two exceptions depicted on Franklin's CHHA map extend all the way to the coast. In addition, they are larger than the exceptions depicted on the HES map, with Franklin's Area 2 exception on SJI clearly much larger. DCA, Franklin, and St. Joe concede that Franklin's CHHA map does not correspond to the HES Cat 1 evacuation zone for Franklin. However, they characterize the differences as "slight" and attributable to the "representational nature" of the HES map. To the contrary, the HES map, which is in GIS format, fixes precise boundaries that clearly are not matched by Franklin's map in the cases of Areas 1 and 2. Besides, 9J- 5 does not permit Franklin's CHHA to take liberties with the applicable regional study's evacuation zone based on alleged generalized depictions or representations in the regional map. A witness for St. Joe testified that evacuation zones are related to clearly identifiable landmarks and physical features, like US 98, for easier and clearer communication to the public. But that clearly is not always the case, as can be seen from the various HES maps. In any event, there was no evidence that such considerations could justify Franklin's departure from the HES Cat 1 evacuation zone boundaries in this case, and such an argument is not made in the Joint PRO filed by DCA, Franklin, and St. Joe. It is beyond fair debate that the 2020 Plan's CHHA designation in the CHHA map does not correspond to the evacuation zone for a Cat 1 hurricane as established in the applicable regional hurricane study, as required by Section 163.3178(2)(h) and 9J- 5.003(17). Petitioners also point out that HES was based, in part, upon the National Hurricane Center's Sea, Lake, and Overland Surges from Hurricanes (SLOSH) model in the 1994 Florida Hurricane Surge Atlas-Franklin County, and that HES included areas of Wakulla County north of SJI in the SLOSH Cat 1 area in Wakulla's Cat 1 evacuation zones, but excluded such areas south of the Ochlockonee Bay and River from Franklin's Cat 1 evacuation zone. They seem to contend that the HES Cat 1 evacuation zone for Franklin is not as large as it should be. But the evidence implied that the difference in treatment of these areas by HES was the result of lobbying by Wakulla's director of emergency management for their inclusion. In any event, as stated, Section 163.3178(2)(h) and 9J-5.003(17) accept the Cat 1 evacuation zone delineated by the applicable regional study, regardless of possible error. Inventory/Analysis/GOP for Natural Disaster Planning Petitioners question the adequacy of Franklin's inventory/analysis and GOPs for natural disaster planning under 9J-5.012. Besides citing some D&A, Petitioners make several major arguments: first, the CHHA may not plan to mitigate flooding damage; second, Franklin did not plan for projected populations; third, the 2020 Plan makes no provision for capital improvements to build shelters despite adding C/CEPs 14.8 and 14.12 regarding shelters inside and outside of county; fourth, parts of the evacuation routes out of Franklin are subject to storm surge and flooding; fifth, Franklin's planning ends at the county line; and, sixth, special needs persons were not considered. 45. 9J-5.012(2)(e)1. provides: (e) The following natural disaster planning concerns shall be inventoried or analyzed: 1. Hurricane evacuation planning based on the hurricane evacuation plan contained in the local peacetime emergency plan shall be analyzed and shall consider the hurricane vulnerability zone, the number of persons requiring evacuation, the number of persons requiring public hurricane shelter, the number of hurricane shelter spaces available, evacuation routes, transportation and hazard constraints on the evacuation routes, and evacuation times. The projected impact of the anticipated population density proposed in the future land use element and any special needs of the elderly, handicapped, hospitalized, or other special needs of the existing and anticipated populations on the above items shall be estimated. The analysis shall also consider measures that the local government could adopt to maintain or reduce hurricane evacuation times. These inventories and/or analyses are found in the C/CE, the regional hurricane evacuation study, the Comprehensive Emergency Management Plan (CEMP), and the Local Mitigation Strategy (LMS). The Plan incorporates the hazard mitigation appendix of the CEMP through C/CEP 15.7. Additionally, in C/CEPs 14.1, 14.6, the 2020 Plan recognizes appropriate parts of the LMS, such as the need to maintain and improve evacuation routes throughout the County. 9J-5.012(3) sets out requirements for coastal management GOPs, including the requirement in (a) for "one or more goal statements which establish the long term end toward which regulatory and management efforts are directed" to "restrict development activities that would damage or destroy coastal resources, and protect human life and limit public expenditures in areas subject to destruction by natural disasters"; and the requirement in (b) for "one or more specific objectives for each goal statement which . . . 7. [m]aintain or reduce hurricane evacuation times " To support their contention that the CHHA may not plan to mitigate flooding damage, Petitioners cite a statement in the CEMP that flooding is the greatest potential hurricane damage. The also cite D&A in Franklin's 6/2004 transmittal package that evaluated areas subject to coastal flooding and observed: Areas subject to coastal flooding resulting from storm surges are shown in Map 6.4. The map portrays substantial risk from flooding outside the Category 1 storm zone By limiting the CHHA to the Category 1 storm surge zone the county may not be planning to mitigate the substantial flooding risks posed by storm surges and Category 2 and 3 storms . . . . However, there was no evidence that Franklin, DCA, or anyone else ever came to the conclusion that the CHHA was inadequate for that reason. In any event, as stated in the discussion on the CHHA, state law defines the CHHA to coincide with the Cat 1 evacuation zone as drawn by the applicable regional hurricane evacuation study. See Finding 38, supra. Petitioners base their contention that Franklin did not plan for projected populations on a reference in the LMS to Franklin's future land uses as of 2000, instead of its future land uses in 2020. But is clear that Franklin also considered the four SJI FLUMAs with their future land uses for 2020. As to shelters, Petitioners essentially argue that the CIS is inadequate. But C/CEPs 14.8 and 14.12 require assessments of shelter availability inside and outside Franklin, pursuit of agreements with neighboring counties to provide out-of-county shelters, and exploration of the possibility of locating some shelters in Franklin (even though the entire county will be evacuated in the event of a Cat 2-5 storm). There was no D&A as to a need for capital funding within the next five years for inclusion in a CIS. Regarding the impact of storm surge and flooding on evacuation routes out of Franklin, there was evidence that US 319 is subject to flooding at the Ochlocknee River during a storm, that US 98 is subject to storm surge and flooding at the Ochlocknee Bay, and that the four SJI FLUMAs are expected to move the critical link in Franklin's evacuation plan from US 98 near Lanark Village to US 98 at the Ochlocknee Bay. But there was no evidence that Franklin failed to consider the impact of storm surge and flooding on evacuation routes out of Franklin. To the contrary, the evidence was clear that Franklin is planning for the complete evacuation of the county to take place before those routes are impacted by storm surge or flooding. The USACE guidance for HES states in part: Each jurisdiction's existing hurricane evacuation routes are evaluated. In choosing roadways for the hurricane evacuation network care should be taken to designate only those roads that are not expected to flood from rainfall or storm surge while evacuation is in process. There was no evidence that HES did not follow this guidance. Under C/CEO 14 of the 1991 Plan, reasonable hurricane evacuation standards of 16 hours for Cat 1 and 24 hours for Cat 2-5 storm events were adopted. The 2020 Plan amends C/CEO 14 to read: Hurricane Evacuation - The County shall conduct its hurricane evacuation procedures to ensure that Countywide evacuation clearance times do not exceed 16 24 hours for Category 1 & 2 storms and 24 30 hours for Category 2, 3, 4 and 5 storms. 9J5-012(3)(b)(7). (Underlining/strikethrough in original.) Actual hurricane evacuation times are based on models that estimate the amount of time it would actually take to evacuate the County. These models include consideration of behavioral tendencies and tourist occupancies. Without the SJI FLUMAs, actual hurricane evacuation clearance times for the entire County are 4 ½ hours for a Cat 1 evacuation and 8 ¼ hours for Cat 2–5 evacuations, with high tourist occupancy and a slow public response. With the additional populations from the SJI FLUMAs (none of which fall within the CHHA), actual clearance times would increase slightly to five hours for Cat 1 and 10 ½ hours for Cat 2 – 5 evacuations. However, today’s actual evacuation times of 4 ½ hours and 8 ¼ hours can be maintained or reduced with the use of reasonable mitigation measures found in C/CEP 14.1--namely, encouraging the use of SR 65 and SR 67 as alternatives to US 98 and SR 319. Petitioners contend that Franklin's hurricane evacuation standards actually have been lowered as a result of the amendment to C/CEO 14 by the addition of the word "clearance." But there was no evidence that the 1991 Plan's C/CEO 14 actually planned for something other than clearance from Franklin. Regardless whether evacuation plans changed by addition of the word "clearance," Petitioners question whether it is wise to plan only to clear Franklin before the arrival of tropical storm conditions when evacuees still must pass through Cat 1 evacuation zones in other counties, e.g., Wakulla, before reaching a place of safety. As they point out, the HES envisions the need for a regional evacuation in the event of a major hurricane with the majority of evacuees in the region evacuating to Leon County, and states: "For the near term, it may be most appropriate for the coastal counties, especially Franklin and Wakulla, to use the clearance times for Leon County rather than using their own specific figures." Moreover, HES stated: Until the roadway improvements are completed on the Crawfordville Highway and Capital Circle, the evacuation clearance times calculated for Franklin, Wakulla and Leon Counties can exceed one full day of heavy evacuation traffic movement for a worst-case storm if all those who wish to leave the area are to be accommodated. This timeframe easily extends beyond the maximum amount of warning and preparation time provided by the National Hurricane Center under a Hurricane Warning. This D&A in and of itself does not prohibit Franklin from using times to clear the county in its evacuation planning. But use of clearance times would require regional evacuation needs to be coordinated among the various counties and incorporated in the CEMP and LMS. There was no evidence in this case that such coordination has not occurred or that the various counties are not planning for evacuees to pass through all evacuation zones and reach places of safety soon enough to get out of harm's way. Petitioners also argue that special needs persons have not been considered. This argument is based on the supposed testimony of St. Joe's witness, Collins, that there is no provision in the 2020 Plan for the evacuation of persons with special needs. Actually, Collins' testimony was that there is a Plan provision that "definitely affects the evacuation" of persons with special needs, and not just indirectly, in that adult living facilities within the CHHA are prohibited. He also testified that the CEMP deals with those issues. Mr. Gauthier, the former DCA chief of comprehensive planning was subpoenaed by Petitioners and explained why, in his opinion, the 2020 Plan is not "in compliance" because of inconsistency with 9J-5.012. He based his opinion on the incorrect CHHA designation, failure to direct population concentrations away from the CHHA, and C/CEO 14's establishment of a clearance time standard greater than actual clearance times. While the CHHA may not be designated accurately, assuming a correct definition, there was at least fair debate as to whether the 2020 plan directs population concentrations away from the CHHA. As indicated, none of the FLUMAs are in the CHHA, either as designated or as it should have been designated. Elsewhere, both the 1991 and the 2020 Plans limited residential density in the CHHA to a maximum of one DU/acre, which arguably does not constitute a population "concentration." For the reasons described in the preceding findings, the evidence in this record did not prove beyond fair debate that Franklin's 2020 Plan is inconsistent with 9J- 5.012 and not "in compliance." SJI FLUMAs and FLUEPs RV consists of 1,704 acres on the 2020 FLUM and FLUEP 2.2(l). It is presently designated agriculture (with residential development allowed at 1 DU/40 acres), and parts are in silviculture. FLUEP 2.2(l) is designed as a rural village that focuses on the historical heritage and natural surroundings of the Crooked River, with the objective being to create a rural village center in proximity to the river and a supporting rural community of river cottages and single-family (SF) lots. FLUEP 2.2(l) lists seven allowable uses, including residential, some commercial, and recreational uses. Non- residential maximum intensity is expressed in terms of FAR and set at .20; maximum overall gross residential density is 1 DU/5 gross acres. FLUEP 2.25 does not apply. RV can be all residential. Franklin Planner Pierce testified that, at most, 340 acres can be used for non-residential uses. He calculated this by multiplying the total acreage by the FAR. He also testified that, if 340 acres are non-residential, a maximum of 272 residential DUs could be developed on the remaining 1,363 acres. If all 1704 acres of RV are residential, the maximum residential use would be 340 DUs. Clustering is allowed but not required. At least 25 percent (426 acres) must be in "common open space" (including roads and other infrastructure); 50 percent "common open space" is required for cluster developments. Central water and wastewater is mandatory, and SMSs must meet OFW standards. As transmitted, the ConRes FLUMA was 6,531 acres to the east of RV and along the Ochlocknee River and Bay. As adopted, it is 2,500 acres. The parts of the transmitted version adjacent to RV and along the river and Bear Creek were eliminated in the adopted version. The land is presently "Agriculture" (with residential development allowed at 1 DU/40 acres); the land is used for silviculture. As described in FLUEP 2.2(m), ConRes is generally intended for large, private tracts of land that are appropriate for low density residential development and the protection of natural and cultural resources. A stated important objective is to allow for low density residential development that accentuates and celebrates the natural environment and is designed to fit into the natural setting instead of altering the natural setting to fit the design of the development. It allows detached SF residential use, passive and active recreational uses, related infrastructure, silviculture, and accessory use for residents and guests, and other similar or compatible uses. Free- standing nonresidential or commercial uses intended to serve non-residents are not permitted. Neither "active" nor "passive" recreational uses are defined in FLUEP 2.2(m). "Timeshare" or "vacation rentals" may be allowed. Maximum gross density is 1 DU/5 gross acres, and maximum overall impervious surface coverage cannot exceed 15 percent of the land area. No FAR is included or, arguably, required because ConRes is primarily a residential concept. Septic tanks are allowed but may not be located within 500 feet of the Ochlocknee River, Ochlocknee Bay, or Bear Creek. "Aerobic systems" to provide a higher level of treatment apparently are not required, as they are on St. George Island and Alligator Point. IEP 1.2 states: "The County shall adopt a policy that mandates aerobic septic systems on a county-wide basis." Apparently, this has not yet occurred. SMSs must meet OFW standards. MVC is 1,000 acres presently "Agriculture" on the FLUM (with residential development allowed at 1 DU/40 acres); the land is used for silviculture. The land is to the immediate east of ConRes along the Ochlocknee Bay and west of the US 98 bridge over the bay. MVC is described in FLUEP 2.2(n). The intent is to create a southern coastal fishing village focused on a marina, which is a required use. In addition to the marina, the village may contain a mix of related activities including retail, office, hotel, restaurant, entertainment, and residential uses. "Public and private utilities" are allowed but are not defined; they probably contemplate those needed for MVC itself. Clustering is not required. Residential use may not be required, but it certainly is expected of a "southern coastal fishing village." Residential use may be any combination of SF, multi-family (MF), condominiums, private residence clubs, time shares, and other forms of fractional ownership. The maximum FAR for non- residential use is .30. The maximum residential density is "2 DU/gross acres", maximum ISR (impervious surface ratio) is .80, minimum "common open space" is .25, and other applicable Franklin zoning code provisions. FLUEP 2.25 applies, and at least three land uses are required, "none of which may be less than 10 percent of the total land area." Central water and wastewater is required. SMSs must meet OFW standards. CEV in the 2020 Plan FLUM and FLUEP 2.2(o) addresses 200 acres presently designated Agriculture (allowing 1 DU/40 acres residential use); the land is in silviculture. The CEV FLUMA represents the first phase of development. CEV is generally intended to create a self-sustaining community with a mixture of functionally integrated land uses anchored by a village center. It is to complement the existing community of Carrabelle and create places to live, work and shop in the context of promoting moderately priced housing and economic development opportunities. Allowable uses are limited to SF and MF residential, retail commercial, service-oriented commercial, office, business and industrial park, passive and active recreation, schools and other civic facilities, public and private utilities, and houses of worship. There is no definition limiting the type of industrial use allowed, but Franklin Planner Pierce interpreted FLUEP 2.2(o) to mean industry like a truss factory or a cement batching plant, not heavier industry. Performance standards are 1-3 DU per gross acre gross residential density, maximum non-residential intensity of .25 FAR, commercial and business park intensity of .25 FAR, minimum common open space of .25, minimum civic space of .10, and other applicable Franklin zoning code provisions. FLUEP 2.25 applies, and at least three land uses are required, "none of which may be less than 10 percent of the total land area." Density, Intensity, and Mixed-Use Standards Petitioners contend that the 2020 Plan provisions, including the SJI FLUMAs, are not "in compliance" for failure to identify densities and intensities of uses and for creating mixed-use categories without percentage distribution or other objective measures of the mix of land uses in each category, as mandated by 9J-5.006(4)(c) and (3)(c)7 and Section 163.3177(6)(a)("distribution, location and extent"). See also 9J-5.013(3)(b)("type, intensity or density, extent, distribution and location of allowable land uses"). However, it is clear that residential densities are provided for each category, and Petitioners concede in their PROs that the mixed-use residential category in FLUEP 2.2(e) has policies/standards for the percentage distribution among the mix of uses, or other objective measurement (of distribution), and the density or intensity of each use. In the ORC, DCA objected to Franklin's proposed plan for failure to identify non-residential intensities and for creating mixed-use categories without percentage distribution or other objective measures of the mix of land uses in each category. In response, Franklin added FAR standards and FLUEP 2.25. DCA's 5/06/2005 staff memo acknowledged the FARs and accepted them. The staff memo also acknowledged FLUEP 2.25 and accepted it as providing a percentage distribution mix of uses for mixed-use residential, mixed-use commercial, MVC, and CEV. However, the staff memo criticized the mixed-use categories for not requiring some residential use. Petitioners contend that, since FLUEP 2.25 does not apply to RV and ConRes, those categories fail to provide a percentage distribution or other objective measures of the mix of land uses. But it is at least fairly debatable that RV and ConRes are not true mixed-use categories, such that 9J- 5.006(4)(c) does not apply. Petitioners also contend that, since ConRes does not have FAR standards, intensity of non-residential uses is not provided for that category. In that regard, Petitioners argue that FLUEP 2.2(m) allows "free-standing non-residential or commercial uses" in ConRes and that Franklin Planner Pierce was unable to state how much of those uses are allowed in ConRes. Actually, FLUEP 2.2(m) disallows such uses if "intended to serve non-residents." It is not clear from the policy that such uses are allowed at all in ConRes since other allowable uses are described as "similar or compatible uses." If such uses are allowable by negative implication, they would have to serve only residents. Arguably, non-residential intensity standards are not required in ConRes. Petitioners put on no expert testimony to explain why the FLUMAs and related policies in the 2020 Plan do not meet the requirements of 9J-5.006(4)(c) and (3)(c)7 and Section 163.3177(6)(a), and they put on no expert testimony that the 2020 Plan is not "in compliance" for those reasons. Meanwhile, experts for the other parties testified that the 2020 Plan is "in compliance." On the evidence presented, it was not proven beyond fair debate that the FLUMAs and related policies in the 2020 Plan create mixed-use land use categories without the percentage distribution among the mix of uses, or other objective measurement, or without the density or intensity of each use. Predictable Standards for MVC and CEV Petitioners attempted to prove that wildly varied development scenarios could result from application of FLUEP 2.25 to MVC and CEV. The evidence did not disclose any reason to believe that uses will be combined so as to maximize certain types of uses and result in lopsided development scenarios. Assuming that were to occur, the evidence was not clear what the maximum possible density and intensity of particular uses could be under various scenarios. This is partly because Franklin's Planner Pierce seemed to interpret MVC and CEV as establishing a maximum gross residential density on the entire acreage (1000 acres for MVC and 200 acres for CEV), regardless how much land actually was devoted to residential uses. Using that interpretation (which runs counter to Mr. Pierce's interpretation of the RV FLUEP), taken to an extreme 2000 DU of residential could be developed in MVC even if 900 acres were used for non-residential uses (e.g., marina and other commercial or office) and only 100 acres were used for residential, and 600 DU of residential could be developed in CEV even if 180 acres were used for non- residential uses and only 20 acres were used for residential. Given those results, such an interpretation does not seem logical. In addition, the applicable Franklin zoning code provisions were not clear. Also, factors such as FAR and ISR limitations and the necessity for "common open space" were not applied in a clear or consistent manner in the testimony. It can, however, be found that, in the unlikely event that lopsided development were to occur, large amounts of either residential or non-residential uses theoretically could develop in MVC and CEV depending on the development scenario. In calculating some alleged development scenarios for MVC and CEV, Petitioners (and Mr. Pierce) also may have been applying the minimum common open space requirements and FAR intensity standards incorrectly. In some instances, they seemed to treat the minimum common open space requirements as if it were a separate allowable land use within the FLUMA and subtract the common open space minimum from total gross acreage to calculate acreage remaining for allowable land uses in the FLUMA. But it is not clear why minimum common open space requirements could (and should) not be incorporated within acreage devoted to the various allowable uses. In some instances, Petitioners (and Mr. Pierce) seemed to apply minimum FAR to gross acreage in the FLUMA to calculate maximum acreage that can be devoted to non-residential land uses. (This also was done for RV. See Finding 58, supra.) But it is not clear why FAR intensity standards should not be applied instead to the discrete acreage devoted to allowable non- residential uses to determine the maximum allowable floor area coverage within the acreage devoted to allowable non- residential uses. Petitioners put on no expert testimony to explain why the unlikely possibility of lopsided development in MVC or CEV makes those FLUMAs and related policies, or the 2020 Plan, not "in compliance." Meanwhile, experts for the other parties testified that the 2020 Plan is "in compliance." On the evidence presented, it was not proven beyond fair debate that the 2020 Plan is not "in compliance" because of the possibility of lopsided development in MVC or CEV. Failure to Consider/React to Best Available Data FLUEPs 11.12 and 11.13 required consideration of eight key areas. These areas included protection of natural resources and cultural heritage, promotion of economic development and emergency management, provision of adequate public facilities and services and affordable housing, and inclusion of intensity standards and allowable uses. Based on all of the documents in the record, the updated 2020 Plan was supported by consideration of each of the eight key areas listed by FLUEP 11.12 and, for the four SJI FLUMAs, by FLUEP 11.13. Petitioners contend that Franklin's 2020 Plan is not based on the best available data existing as of the date of adoption, April 5, 2005, as required by: Section 163.3177(8)("elements of the comprehensive plan, whether mandatory or optional, shall be based upon data appropriate to the element involved") and (10)(e)("Legislature intends that goals and policies be clearly based on appropriate data"); 9J- 5.005(2)(a)("shall be based upon relevant and appropriate data and the analyses applicable to each element" and "[t]o 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 adoption of the plan or plan amendment at issue"); and 9J-5.006(1)(FLUE data requirements). In support of that contention, they cite to a few of the voluminous data in the record submitted by St. Joe and used by Franklin that are not the best available or have errors or a weakness (an unknown source). But their argument concedes that the best available data are in the record, and no expert witness testified that the 2020 Plan is not based on the best available data. To the contrary, Petitioners' expert questioned the quality of the analysis of the data in the adoption package. Meanwhile, expert witnesses for the other parties testified that the 2020 Plan is based on the best available evidence. Petitioners also contend that inconsistent data was used in violation of 9J-5.005(5)(a)("[w]here data are relevant to several elements, the same data shall be used, including population estimates and projections"). While their PRO does not cite any specifics, during the hearing Petitioners directed Mr. Gauthier to two examples. One was that Florida Land Use Cover Classification System data was used to identify wetlands in the FLUE, while National Wetlands Inventory data (supplemented with hydric soils analysis) was used to identify wetlands for the SJI FLUMAs. But those data were used in the same element, not in different elements. The other was that a traffic study in the 6/2004 transmittal package used a projection of 2,965 residential units in the SJI FLUMA while Franklin Planner testified to a different number--3,400. But the higher number represented a theoretical maximum, which is not necessarily the data on which traffic analyses should be based. No expert testified that this constituted the use of inconsistent data in violation of 9J-5.005(5)(a). To the contrary, witnesses for the other parties testified that the 2020 Plan is based on the best available data and professionally acceptable analyses, that the County appropriately responded to the D&A in preparing the Plan update, and that the 2020 Plan is "in compliance." Suitability of SJI FLUMAs and FLUEPs Petitioners contend that none of the SJI FLUMAs are "inherently suitable for development at the permitted density and intensity." In their PRO, they based their contention in large part on FSU's analysis of various criteria, including proximity of three of the FLUMAs to the relatively pristine Ochlocknee River and Bay and their natural resources, presence of wetlands, soil types, floodplains, vegetative cover, habitat for Florida black bear and other wildlife, and alleged karst hydrogeology. They also cite DCA's 5/6/2005 staff memo, the concerns of Drs. Chanton and Livingston about density and intensity increases, and Mr. Gauthier's testimony that he is "concerned and believe[s] that there are compliance problems . . . based on suitability." The evidence might support the proposition that there are more suitable places in Franklin for development, including in the middle of SJI, where St. Joe also is contemplating possible development in the future, and nearer to Apalachicola and Carrabelle. But the middle of SJI would not be suitable for a marina village, and there may be other aspects of St. Joe's planned developments that could not be accommodated on other land available for development. In addition, Franklin wants to protect the land within the Apalachicola River and Bay basin. In any event, the question presented in this case is not whether there are more suitable lands for development. Rather, the question is whether, based on all the evidence presented, it is beyond fair debate that the locations of the FLUMAs are unsuitable. "Development suitability" is defined as "the degree to which the existing characteristics and limitations of the land and water are compatible with a proposed use or development." FLUEP 1.2 requires review of FLUMAs "to insure [sic] that the proposed uses, in the various categories, do not conflict with the prevailing natural conditions including": (a) soil conditions; (b) topography; (c) drainage; (d) wetlands; and (e) floodplains. In their PRO, Petitioners criticize the soil suitability analysis submitted in support of the FLUMAs as being "based upon a subset of on-site soils termed 'predominate' with no percentage quantification and no analysis of the other on-site soils" and as misrepresenting and selectively quoting from the soil survey. See Pamela Ashley PRO, ¶73. But the soils in the SJI FLUMAs were re- analyzed at length during the final hearing. The evidence was that there are upland soils in each SJI FLUMA. In the ConRes FLUMA, the only SJI FLUMA allowing septic tanks, suitable soils and a 500-foot setback from principal surface waters should provide adequate attenuation to accommodate on-site sewage systems. There are soils in each SJI FLUMA that are not the best for the proposed development. These soils are potentially limiting but arguably can accommodate the proposed development, given appropriate site planning and engineering, together with the 2020 Plan's provisions that operate to protect natural resources and environmentally sensitive areas. It was fairly debatable that the soils in the FLUMAs are suitable for the proposed development. Petitioners in their PRO also criticize the topography of the SJI FLUMAs in that parts are subject to inundation during a Cat 1 storm. But the evidence was that low-density development is not necessarily unsuitable in the CHHA, and it was fairly debatable that the topography of the FLUMAs is suitable for the proposed development. As for drainage, each SJI FLUMA requires an SMS employing OFW design criteria. OFWs have special resource value and need heightened protection. A 1991 Plan provision required County SMSs to collect and treat runoff from the first 1.5 inches of rainfall regardless of the area drained. This provision exceeds OFW criteria and applies to each SJI FLUMA. The SMS design criteria, buffers, setbacks, and the nature of development anticipated in each SJI FLUEMA are intended to work in concert to minimize surface water impacts. Employing these elements is anticipated to allow the development of the FLUMAs without impacting surface waters. If there is no measurable pollutant loading to nearby waters, aquatic flora and fauna should experience no impact. Fewer significant seagrass beds are located in waters north of where MVC is located, and it should be possible to site a marina facility there in deeper water without significant seagrasses. The strict SMS design criteria assure the collection and treatment of stormwater for water quality purposes. The SMSs also will provide important sources of groundwater recharge and help protect water quantity. Runoff collected in SMSs is retained on-site and returned to the groundwater component of the hydrologic cycle (minus losses to evaporation and evapotranspiration). The retention of stormwater on-site offsets the potential loss of runoff resulting from increased impervious surfaces, facilitating aquifer recharge. With proper engineering, runoff from each of the SJI FLUMAs could be collected within the required SMSs resulting in minimal or no adverse effect on aquifer recharge on SJI. Recharge rates on SJI vary from high (15 to 20 inches per year) to moderate (10 to 15 inches per year) to low (less than 5 inches per year), depending on location. As indicated, the confining layer between the surficial aquifer and the underlying Floridan aquifer in eastern Franklin thins from west to east but is not believed to degenerate into karst features. See Findings 4-5, supra. Rather, the confining layer in eastern Franklin County appears to vary in thickness from 15 to 20 feet. Assuming no karst features or other anomalies creating a direct conduit to the Floridan, groundwater moves vertically throughout SJI at approximately 2 to 3 feet per year. This rate would provide sufficient time for the natural breakdown (attenuation) of residual pollutants from on-site sewage and stormwater treatment systems as well as any additional pollutants that may be generated such that development within the SJI FLUMAs should not threaten the Floridan aquifer. Lateral flow of groundwater from beneath the SJI FLUMAs also should not pose a risk to surface waters. In contrast to unconfined karst, where the movement of groundwater to and through the Floridan aquifer may be rapid, groundwater appears to move laterally at approximately 100 feet per year in eastern Franklin, providing adequate time for the attenuation of any added pollutants prior to any such groundwater seepage reaching surface waters. Petitioners in their PRO also criticize the amount of wetlands in the FLUMAs. RV has 1,324 wetland acres (78 percent) with 380 acres (22 percent) of "interspersed" uplands; ConRes has 525 wetland acres (21 percent) with 1,975 acres of uplands (79 percent); MVC has 276 wetland acres (28 percent) and 724 upland acres (72 percent); and CEV has 66 wetland acres (33 percent) and 134 upland acres (67 percent). In response to ORC criticism, Franklin's wetlands policies were amended to address "high quality" and "low quality" wetlands and give a higher level of protection to the former. Petitioners criticize the 2020 Plan for not identifying and mapping the high and low quality wetlands. They also rely on Gauthier's opinion that "the wetland policies are flawed, in that they're vague and not specific and there are significant gaps" as a result of exceptions and waivers. They also contend that the 2020 Plan fails to direct development away from wetlands, which will result in degradation of water quality in the Ochlockonee River/Bay and Apalachicola Bay system primarily from increased urban runoff and nutrification. But it is at least fairly debatable that the amended wetlands policy will increase wetlands protections and that wetlands in the FLUMAs can be protected in the course of development as proposed under the amended wetland policies. Each SJI FLUMA allows “clustering,” which concentrates DUs in a portion of the overall site without increasing the overall number of units. Clustering is mandatory in ConRes and CEV. Clustering is advantageous to the extent that it encourages open space, reduces impervious surface, reduces pollutants generated from more widespread development, and enhances aquifer recharge. However, the advantages could be illusory to the extent that clustering simply allows the wholesale transfer of density from a portion of the site where development is unsuitable and should not be anticipated (e.g., high-quality wetlands) to other portions of the site. Such a result would be of particular concern in RV, which is 78 percent wetlands, if all 340 DUs were to be concentrated on 375 acres of uplands, effectively at a density of almost one DU/acre, interspersed among 1,330 acres of high- quality wetlands. (The concern would be even greater if non- residential uses in RV were surprisingly high, and if the interpretation of "gross density" suggested by Franklin's planner for MVC and CEV were applied to RV, thereby further increasing the effective residential density interspersed among high-quality wetlands.) C/CEP 10.1 requires that the County's site plan review process be amended to take into consideration natural constraints, including wetlands, and restricted depending upon the severity of those constraints. Because no site plan has been proposed for any of the SJI FLUMAs, it is unknown to what extent, if any, the privately-owned wetlands may actually be disturbed. It is at least fairly debatable that, given the relatively low overall densities, the extent of available uplands (at least in ConRes and MVC), the arguably-enhanced wetland protections, and properly-implemented clustering, wetlands in the SJI FLUMAs can be protected in the course of development as proposed and that the FLUMAs are suitable for the proposed development notwithstanding the wetlands in the SJI FLUMAs. Petitioners in their PRO also criticize the suitability analysis submitted in support of the FLUMAs for failure to quantify floodplains (although admittedly depicting them on maps and citing FIRM maps), for "inaccurate and generalized narrative," and for stating "that development is allowed 'but flood considerations must be evaluated'." Pamela Ashely PRO, ¶ 76, citing the ORCR. As to "areas subject to coastal flooding" (the hurricane vulnerability zone), all of the SJI FLUMAs are subject to Cat 3 evacuation and the vast majority are within the Cat 3 SLOSH surge area. But some effort was made to focus development outside of the floodplains. Besides, development within floodplains is not prohibited by state or federal law. Rather, development within a floodplain must be constructed above certain elevations and provide compensating flood storage for any displaced flood plain area. The evidence was that low density development is not necessarily unsuitable in the these areas, and it was at least debatable that the FLUMAs are suitable for the proposed development notwithstanding the presence of floodplains in the FLUMAs. Petitioners in their PRO also criticize the suitability analysis submitted in support of the FLUMAs as to "vegetative cover" and "wildlife habitats" for only addressing bald eagle nests and bear sightings and road kill locations, and for generally stating that St. Joe's silvicultural use has "vastly altered" or otherwise displaced the natural vegetation and wildlife habitat. IWHRS data and best available bear data was not addressed in the suitability analysis. However, all of this D&A was presented and analyzed during the hearing. The SJI FLUMAs comprise a fraction of the 1.2 million acres of habitat supporting the Apalachicola black bear population, of which SJI bears are also a fraction. In response to the ORC, Franklin and St. Joe made some accommodation to the black bear by significantly reducing the size of the ConRes FLUMA and removing the Bear Creek area from the FLUMA. The SJI FLUMAs also preserve the possibility of a bear corridor of appropriate dimensions connecting Bald Point State Park on the east end of SJI with the Crooked River Tract and the larger publicly-owned bear habitat to the west. Along with the availability of public lands, residential clustering will help facilitate bear movement through SJI notwithstanding the development of the SJI FLUMAs. Bears should still frequent the FLUMAs when food supplies are ample, even during construction. Even with the accommodation and a corridor, the proposed development will impact the black bear. Road kills occur where bears and roadways mix. (Generally, the more people there are in and near bear habitat, the more problems will arise from bear encounters with people, and the more likely that the resolution of such problems will not benefit the bears.) But the SJI FLUMAs themselves are not considered critical bear habitat, and their development alone should not result in a significant adverse impact on the bear population. While the gulf sturgeon, a protected species, is known to pass through nearby waters, neither the Ochlocknee River nor Bay has been designated critical habitat for the fish. No surface water impacts that would affect the sturgeon were proven. Based on the evidence, it is at least fairly debatable that the SJI FLUMAs are suitable for the proposed development notwithstanding the presence of the black bear, the Gulf sturgeon, and other wildlife now using SJI. Based on the foregoing, it was not proven beyond fair debate that the SJI FLUMAs are unsuitable for the proposed development, notwithstanding the issues raised by Petitioners as to soils, topography, drainage, wetlands, floodplains, vegetative cover, and wildlife and their habitat. Deletion of FLUEP 11.12 and 11.13 The County deleted FLUEPs 11.12 and 11.13 as part of the Plan update. This decision was appropriate because the substantive aspects of FLUEPs 11.12 and 11.13 were considered and would be incorporated within the various provisions of the updated Plan, once effective. Also, the assessments required under those policies must be made regardless of whether policies are included within the Plan because they are required under 9J-5. All of the expert planners--including Mr. Gauthier--testified that the 2020 Plan is "in compliance” notwithstanding deletion of those policies. Once FLUEPs 11.12 and 11.13 are no longer necessary, it is the County’s prerogative to include them in or remove them from the Plan. FLUEP 11.12 required the preparation and adoption of an overlay plan for SJI, which would result in an overlay map and policies. Although an overlay plan was prepared, it was not adopted as part of the 2020 Plan but rather was included as an appendix to the Technical Data and Analysis Report submitted in support of the 2020 Plan update. Potential adoption of the overlay as part of the Plan was a concern to many of the citizens attending the visioning meetings. There was confusion as to what adoption of an overlay into the Plan actually meant and whether it established development entitlements. The County has the discretion to adopt or remove Plan provisions that duplicate or exceed statutory and regulatory requirements. Utilization of the overlay as D&A is consistent with state planning requirements. It was not proven beyond fair debate that the 2020 Plan would not be "in compliance" without the SJI overlay.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that DCA enter a final order determining that Franklin's 2020 Plan update, with SJI FLUMAs, is not "in compliance" at this time. DONE AND ENTERED this 12th day of June, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2006.
The Issue Whether Respondent engaged in, or benefited from, the unpermitted removal, cutting, or trimming of vegetation.
Findings Of Fact Respondent owns and maintains an off-premise outdoor advertising sign (billboard) located along Interstate 75 in Pasco County at section 14140, milepost 13.392. The sign is maintained under the Department of Transportation's (Department's) sign permit BS-600. During October 2000, Mr. Moriaty, a district roadside vegetation coordinator for the Department, noticed while driving on Interstate 75 that the subject sign, which had previously been screened from sight, could now be seen from the highway. Upon closer inspection he observed that vegetation had been removed from the Department's right-of-way at the location of the sign. The vegetation removal included the removal of many large trees. The Department placed the value of the trees that were removed to be $41,814.74.1 This removal of vegetation was done without the Department's permission. Removal of the vegetation and trees improved the view of the sign from Interstate 75, although it is not clear from the record whether it was the trees or the surrounding vegetation which obscured the sign. No evidence was presented establishing that Respondent removed the vegetation or directed others to perform the removal of vegetation. The president of G and J Management Company, Mr. Jerry Sullivan, first became aware of the vegetation removal when he received the notice of the vegetation cut from the Department. Mr. Sullivan purchased the billboards for the purpose of obtaining billboard permits from the Department. These permits have a value separate and apart from the ability to advertise. That is, such permits can be traded-in for vegetation cuts elsewhere or otherwise used for leverage with other billboard companies. A county permit is also required prior to placing advertising on the billboard. At present, Respondent does not have the necessary county permit for advertising. However, Mr. Sullivan conceded that he believed they could get county permits if they pressed the county hard enough. As of October 23, 2000, the face of the billboard was blank in that no copy was on the face of the billboard. At no time material hereto has third-party advertising copy appeared on the subject billboard. As of August 17, 2001, the face of the billboard contained the words, "This sign for rent" with a telephone number. At the time of the hearing, Mr. Moriaty recalled seeing that copy on the sign for, "probably the last month or so, but I don't know exactly when that went up." Thus, the copy first appeared on the billboard around mid-July 2001.2 As of August 17, 2001, regrowth had begun to occur and the vegetation partially obscured the copy on the subject billboard. Mr. Sullivan did not place this copy on the billboard. He leaves such matters to his business partner, Tom Gunter. The copy was placed on the billboard so that the board would not be deemed abandoned. Mr. Sullivan, however, asserts that this was the wrong copy and furthers asserts that he is not actively marketing the billboard for advertising purposes nor has he ever actively marketed the subject billboard. At the time of the vegetation removal, vegetation had been removed from six other billboards within a few miles of the location of the subject billboard. These six billboards were owned by three other outdoor advertising companies. At least one of these sites had a billboard with third party advertising on it. Originally, the Department issued violation notices for unauthorized vegetation cuts at these other six billboard sites. However, the Department later rescinded these violation notices. The Department based its decision to rescind the other notices of violation on its determination that these six other instances of vegetation cuts involved mowing and removal of non-woody brush rather than tree cutting. The Department conceded that permits are required in either case and there is no distinction between permits that are required for the removal of vegetation or the removal of trees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order rescinding its violation notice sent to Respondent. DONE AND ENTERED this 24th day of October, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 24th day of October, 2001.
Findings Of Fact On or about August 11, 1987 an application for conditional use approval to allow on-premises consumption of alcoholic beverages (4COP) was filed on behalf of Joseph W. McGoldrick for property located at 2848 Gulf to Bay Boulevard in Clearwater, Florida. The property is zoned general commercial (CG) and multiple family residential (RM-12). A public hearing before the Planning and Zoning Board was held on September 1, 1987. The Planning and Zoning Board voted 5-1 to grant conditional use approval for this application. A timely appeal was taken by Petitioners on September 15, 1987. Petitioners are surrounding property owners whose property is located within five hundred feet of the subject property. With this application, McGoldrick seeks approval for on-premises consumption of alcoholic beverages since he intends to convert the use of the property to a nightclub. The parties stipulated that the property in question is within five hundred feet of several residences, including Petitioners'.
