Findings Of Fact Petitioner, Park Central Industrial, which is referenced in this record as Park Central DRI, was originally called the "Andrews Avenue Business Park." This project is referred to as "Park" for convenience sake. The Park application for development approval (ADA) was filed in 1982 with Broward County, Florida since the property was, at that time, within an unincorporated area of the county. The Broward County Commission adopted Ordinance 82-43, effective August 26, 1982, which approved the project and made specific findings in connection with the development. At the time of the passage of Ordinance 82-43, Section 380.06, Florida Statutes, did not require the inclusion of a buildout date in a development order. At the time of the passage of Ordinance 82-43, Section 380.06, Florida Statutes, did not preclude the inclusion of a buildout date in a development order. Ordinance 82-43, recorded in the public record for Broward County, Florida, which is also known as the original development order (Joint Ex. 2), provided, in pertinent part: Section 3. Phasing of Development 3.01 The development and construction of each of the five (5) phases within the Andrews Avenue Business Park shall proceed in accordance with the Master Development and Phasing Plan attached hereto as Exhibit "2." * * * Section 4. General Provisions. 4.01 The ADA submitted to the SFRPC, is incorporated herein by reference and relied upon by the parties in discharging the statutory duties under Chapter 380, Florida Statutes. Substantial compliance with the representations contained in the ADA is a condition for approval unless waived or modified by agreement among the parties. * * * 4.08 . . . The Applicant shall obtain County approval of any proposed change in the state Phasing Plan, as prescribed in Section 3.02 of this Development Order. The Phasing Plan identified as Exhibit "2" in Section 3.01 above specified that the final date for construction to end for all five phases was 1991. Such date has been interpreted by the City and Intervenor to mean not later than December 31, 1991. The ADA incorporated by reference to Ordinance 82-43 provided for a buildout date of 1991. Additionally, the title to the original development order specified that the ordinance was "ESTABLISHING A PROCESS FOR CONTROLLED BUILDOUT OF THE ANDREWS AVENUE BUSINESS PARK DEVELOPMENT OF REGIONAL IMPACT." In September 1983, the Park was annexed into the City. Consequently, the City became the local governmental agency responsible for assuring compliance with the development order. On March 22, 1988, the City adopted two ordinances which amended the original development order. These ordinances, numbered 88-39 and 88-40, allowed the inclusion of an additional 9.5 acres and made pertinent findings related to this case. Ordinance 88-39 provided, in part: WHEREAS, the development phasing of this project is being extended by four years beyond the original Development Order schedule such that full development will not be completed until 1995; and * * * 7. The proposed extension of the date of buildout for the development does not exceed the threshold limitations established in Section 380.06(19)(c), Florida Statutes. Ordinance 88-40 provided, in part: Section 3: This Development Order shall terminate at midnight on December 31, 1995. Park did not challenge the findings nor the conclusions reached in Ordinances 88-39 and 88-40. Subsequently, however, Park filed an application with the City to again amend the development order to extend the buildout and termination dates from December 31, 1995 to December 30, 2002. With input from the South Florida Regional Planning Council and the Department of Community Affairs, the City enacted Ordinance 95-23 which provided, in part: WHEREAS, The Applicant also requested on September 30, 1994 that the buildout date be extended to December 30, 2002; and WHEREAS, at the Public Hearing held on Ocober (sic) 4, 1994, the Applicant requested that the City Commission consider an alternative buildout date extension to December 30, 1998; and * * * Section 1. The foregoing "WHEREAS" clauses are true and correct and are hereby ratified and confirmed by the City Commission. Section 2. The City, pursuant to Section 380.06(19), Florida Statutes, makes the following findings of fact: * * * Broward County Ordinance 82-43 and subsequent City ordinances established December 31, 1991 as the buildout date for this project by incorporation of the Phasing Schedule and by incorporating the Application for Development Approval. City of Pompano Beach Ordinance 88-40 created a termination date of December 31, 1995. The requested buildout date extension to December 30, 2002, represents a cumulative extension of approximately eleven (11) years. An extension of the buildout date to December 30, 1998 represents a cumulative extension of not more than seven (7) years. * * * SECTION 3. Conclusions of Law. Pursuant to Section 380.06(19), Florida Statutes, the City makes the following conclusions of law: * * * The Applicant's proposal to extend the buildout date to December 30, 2002 is presumed to constitute a substantial deviation and the Applicant has not submitted sufficient evidence to rebut this presumption. An extension of the buildout date to December 30, 1998 does not constitute a substantial deviation. SECTION 4. Modification of Development. The Development Order is hereby amended as follows: The buildout date of the Park Central Development of Regional Impact is hereby extended and the new buildout date is December 30, 1998. The termination date of the Park Central Development of Regional Impact is hereby extended and the new termination date is December 30, 1998. Section 380.06(19)(c), Florida Statutes, provides that an extension of a buildout date of less that seven years is presumed not to create a substantial deviation. The extension of a buildout date beyond seven years creates a presumption of a substantial deviation which a developer must refute with clear and convincing evidence.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Land and Water Adjudicatory Commission enter a final order finding that the original development order contained a buildout date of 1991 which was extended to December 31, 1995 by the subsequent ordinance and which cannot under the circumstances of this case be extended beyond December 31, 1998. DONE AND RECOMMENDED this 6th day of December, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1452DRI The parties did not submit proposed findings of fact. COPIES FURNISHED: Gordon B. Linn, Esquire City of Pompano Beach Post Office Box 2083 Pompano Beach, FL 33061 Richard G. Coker, Jr., Esquire Brady & Coker 1318 SE 2nd Avenue Ft. Lauderdale, FL 33316 Robert B. Bradley Secretary Land & Water Adjudicatory Comm. 2105 The Capitol Tallahassee, FL 32399-0001 Carolyn Dekle Director South Fla. Regional Planning Council 3440 Hollywood Blvd., Ste 140 Hollywood, FL 33021 Dan Stengle, Esquire Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Gregory Smith, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, FL 32399-0001 Suzanne H. Schmith Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 James F. Murley Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue The issue in this case is whether the Gilchrist County comprehensive plan and subsequent remedial amendments are "in compliance" pursuant to Chapter 163, Part II, Florida Statutes.
Findings Of Fact PARTIES Intervenors Craig Hennis, Jim Moore, and Jean Wonser own property in Gilchrist County, Florida, which is located in or near the area known as the Waccasassa Flats. Hennis, Moore, and Wonser submitted oral and written comments during the review and adoption proceedings. Hennis, Moore, and Wonser are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes. Gilchrist County Gilchrist County is a local government required to adopt a comprehensive plan pursuant to Chapter 163, Part II, Florida Statutes The County is situated in North Central Florida. The County is bordered on the east by Alachua County; on the south by Levy County; on the west by Dixie and Lafayette Counties; and on the north by Suwannee and Columbia Counties. The County seat is the incorporated City of Trenton. The County contains many areas of natural resources including the Santa Fe River in the north, the Suwannee River in the west, numerous fresh water springs, and the Waccasassa Flats. Department The Department is the state land planning agency charged with the responsibility of reviewing local government comprehensive plans pursuant to Chapter 163, Part II, Florida Statutes. Waccasassa Flats The Intervenors' challenge concerns the level of protection afforded the Waccasassa Flats (Flats). The Flats are approximately 56,000 acres in size in Gilchrist County and act as the source of the Waccasassa River, whose headwaters are located in Levy County. The Flats extend from northern Gilchrist County through Levy County to the Gulf of Mexico. The Flats are situated on a high limestone formation between two sand ridges. The Flats are a mosaic of uplands, wetlands, and sandhills composed primarily of commercial pine plantations, hardwood swamps, isolated strands of cypress domes, and shrubs and brush. Approximately 31,000 acres are forested uplands and forested flatwoods; 24,000 acres, forested wetlands and non-forested wetlands; and 1,000 acres, non- forested uplands. The water table in the Flats is generally near or above the surface, and is linked to a surficial aquifer, not the Floridan Aquifer, which is much deeper. The Flats act as a low to moderate water recharge area by collecting water, then slowly releasing it to surrounding areas. The Flats are not unlike many parts of North Central Florida, including northern Columbia County, eastern Alachua County, parts of Baker and Levy Counties, Nassau County, Lafayette County, eastern Hamilton County, western Madison County, Taylor County, and Dixie County. Within Gilchrist County, the Flats are privately owned and historically have been logged in large part by commercial silviculture companies. This activity continues today. A network of logging roads and fire lines have been cut through the Flats. Silviculture activities such as the clearcutting of large tracts of timber, replanting with non-native species of pine, and creating a monoculture pine forest, have degraded the ecosystem, fragmented wildlife habitat, and negatively impacted some species of wildlife and native vegetative communities in the Flats. For example, throughout most of the Flats native longleaf pine communities no longer exist. Many of the native hardwood hammocks have been cut to increase the land available for pine planting and harvesting. In addition, native cypress trees have been cut. While the Flats still function as a natural system, they are not a pristine system because of these past and current silviculture activities. The Division of Forestry in the Florida Department of Agriculture and Consumer Services recommended that 56,050 acres of the Flats be acquired by the State of Florida through the Conservation and Recreation Lands (CARL) program. The Flats have been on the CARL acquisition list since 1988: they were ranked ninth on the list in 1988 and thirty-third in 1993. WACCASASSA FLATS/DENSITY Intervenors assert that the Plan fails to adequately preserve and restore the natural resources associated with the Flats. Specifically, Intervenors claim that a density of one dwelling unit per 160 acres in the area designated Silviculture/Agriculture (S/A) on the County's FLUM does not preserve wildlife, wildlife habitat, native vegetative communities, and groundwater quality, nor restore wetlands in the Flats. Policy I.2.2 of the Plan establishes the densities in the S/A land use category at no more than one dwelling unit per 160 acres and no more than one development unit per 80 acres. The policy defines development units as: [] structures commonly associated with row crops, pasture, hunting or silviculture activities such as barns, outbuildings and sheds, vehicle storage, small mill operations, and small office structures. . . The density established under Policy I.2.2 is a low density. By requiring at least 160 acres before one residence can be built, development in the S/A category is discouraged and directed to other areas of the County where higher densities are permitted. The following uses and activities are established by Policy I.2.2 for lands classified as S/A: Lands classified in Silviculture/Agriculture shall be lands which are predominantly used for silviculture activities conducted in accordance with Policy V.2.16, limited agricultural uses as described below, dwelling units, development units, archery ranges, rifle, shotgun and pistol ranges, and hunting and fishing camps and uses customarily accessory and clearly incidental and subordinate to such uses. Policy I.2.2 describes the limited agricultural activities permitted in the S/A land use classification: Within the Silviculture/Agriculture land use classification, intensive agriculture uses shall be prohibited. Grazing of livestock on pasture lands shall be allowed and row crops planted on a rotational basis between the harvesting of timber and planting of trees as part of silviculture activities shall also be allowed. Row crop activity shall be limited to areas containing soils within hydrological Groups A and B as identified in Soil Survey of the County (U.S. Soil Conservation Service, September 1992) and shall maintain a 50-foot natural buffer around all wetlands. The Plan conserves and protects wetlands. In addition to restricting row crops to drier soils and requiring buffers between row crops and all wetlands (as described above), Policy I.2.2 provides: [] ditching or any other activity which would modify the natural hydrology and environmental character of Silviculture/Agriculture areas shall be prohibited, provided however, that trench irrigation shall be allowed in areas containing soils within hydrological Groups A and B as identified in Soil Survey of the County (U.S. Soil Conservation Service, September 1992) for row crops within Silviculture/Agriculture areas so long as such trench irrigation practices do not result in the conversion of wetlands to uplands. To further protect wetlands, Policy V.2.4 requires a 35-foot natural buffer around all wetlands, within which agricultural and residential uses are prohibited. Additionally, Policy V.2.8 prohibits development which alters the natural functions of wetlands where all structures can be clustered on the non- wetland portion of the site. Where that option does not exist, Policy V.2.8 permits only minimal residential development activity and establishes other limitations on development, including the requirement that walking paths and driveways to residences use permeable fill and allow the uninterrupted flow of water. Wetlands are also protected by Policy V.2.16, which requires silviculture activities to follow the best management practices established in the 1993 Florida Department of Agriculture's "Silviculture Best Management Practices." These identified policies in the Plan conserve and protect wetlands in the Flats. Intervenors assert that development at the rate of one dwelling unit per 160 acres will "fragment" wildlife habitat in the Flats and thereby negatively affect wildlife associated with the Flats. The Flats is not a particularly significant habitat for threatened or endangered species, species of special concern, or rare species. The best available existing data shows that the habitat in the Flats is not used by many, if any, of these types of species. Development at the low density allowed in the S/A land use classification will not adversely impact either the habitat or the wildlife which might use that habitat. Some species may be positively impacted by the limited development activities allowed in the Flats under the Plan. While wading birds at times forage for food in the Flats, development at the low density allowed in the S/A land use category, with the various wetlands protection policies in the Plan, will not adversely affect utilization of the Flats by these bird populations. An individual animal may be negatively impacted by limited development of one dwelling unit per 160 acres, but the wildlife population as a whole will suffer no adverse impacts. Moreover, development at this density could cause less severe fragmentation and fewer negative impacts than are caused by current silviculture practices which have been utilized in the Flats for decades. Policy V.2.8, relating to residential development in wetlands, limits clearing or removal of native vegetation and provides some protection to the Flats. Such clearing or removal may not exceed more than one-half acre per five acres. Requirements of Policy V.3.4 that the County cooperate with other governmental entities, research and interest groups to conserve and protect unique vegetative communities within the County, affords protection to wildlife, wildlife habitat, and native vegetative communities. Also, Policies V.3.4, V.4.1, and V.4.2 require the County to cooperate with the Florida Game and Freshwater Fish Commission in monitoring and inventorying wildlife and wildlife habitats, including cooperating in the application, and compliance with, all federal and state regulations pertaining to endangered and rare species. Policy V.4.3 also requires consultation with the Florida Game and Fresh Water Fish Commission prior to the issuance of a development order where there is an indication that such issuance would result in an adverse impact to any endangered or rare species. The low density permitted in the Flats, in conjunction with wetlands protection and other identified policies in the Plan, will conserve and protect wildlife, wildlife habitat, and existing native vegetative communities, and maintain the overall integrity of the natural resources in the Flats. Intervenors assert that placement of septic tanks within the Flats have the potential to contaminate the underlying groundwater. Contamination from a septic tank from a residential development at a rate of one dwelling unit per 160 acres will have no significant impact on groundwater quality. Scientific studies show that any adverse impact of effluent from a septic tank system, or even a malfunctioning septic tank, is dissipated within 50 feet. As a result, the placement of septic tanks in the Flats at the designated density required by the Plan will not adversely impact the groundwater quality. In addition to the Plan's protection of groundwater quality as a result of the maximum density in the S/A land use classification of one dwelling unit per 160 acres and one development unit per 80 acres, protection also results from the previously-identified policies relating to wetlands protection. A comprehensive approach to conserving and protecting the natural resources associated with the Flats has been established by the County through all the above-referenced policies. The Plan relies on the low density established for the S/A land use classification, as well as various planning controls. These controls limit the type and extent of uses allowed in the S/A land use classification and protect wetlands, and require cooperation with other governmental entities to ensure the conservation and protection of wildlife, wildlife habitat, native vegetative communities, and groundwater quality in the Flats. BOUNDARY DESIGNATIONS FOR SILVICULTURE/AGRICULTURE AND AGRICULTURE-5 LAND USE CLASSIFICATIONS Intervenors assert that the County's designation of the S/A and Agriculture-5 (Ag-5) land use classifications are inappropriate and do not follow the boundaries of the Flats. Although the Flats are approximately 56,000 acres in Gilchrist County, there is no definitive boundary for the Flats. Prior to the 1991 adoption of the County's comprehensive plan, the Flats were zoned Preservation-1 (P-1). The lands zoned P-1 prior to 1991 now are classified by the Plan as S/A. The size of the S/A category is slightly larger than the P-1 zone. The subject of boundaries of the Flats was addressed in Gilchrist Timber Company v. Gilchrist County, Florida, Case No. 88-156-CA (Eighth Judicial Circuit, August 21, 1989). In that case, the circuit court determined that the County did a "commendable and legally defensible task in following section lines, quarter section lines and existing uses in setting the boundaries [of the P-1 zoning category]. These lines must be somewhere and those made in this case are quite reasonable." Much of the land surrounding the Flats was zoned General Flood Plain-1 (GFP-1) or General Flood Plain-2 (GFP-2) prior to the 1991 Plan adoption; the vast majority of that land now is classified by the Plan as Ag-5. In determining the boundaries of the S/A and Ag-5 land use classifications for the FLUM in the adopted Plan, the County reviewed its zoning map, conducted site visits, and utilized updated maps and information prepared by state, federal, and regional agencies. These maps included the Federal Emergency Management Agency's Flood Insurance Rate Map (1988); the U.S. Fish and Wildlife Service's National Wetlands Reconnaissance Survey (1981); the U.S. Department of Agriculture Soil Conservation Service's Soil Associations map (1991); and the Florida Sinkhole Research Institute's Potential for Groundwater Pollution of the Floridan Aquifer (1988). This information was the best available data and analysis which existed at the time the Plan and remedial amendments were adopted. These maps depict the boundary of the resources within the Flats, but cannot be used to definitely establish the boundaries of the Flats. Policy I.2.2 establishes the density for the Ag-5 land use classification as one dwelling unit per 40 acres. This is a low density which discourages development in the Ag-5 category, and directs development to other areas of the County which have higher densities. The density in this land use classification thereby serves to limit negative impacts from development to surrounding areas, including the Flats. As a buffer between the Flats and surrounding agriculture lands, the Ag-5 areas protect natural resources in the Flats from the potential adverse impacts of agricultural activities and higher densities and intensities of development permitted outside the Flats. Buffering in this way is a professionally-accepted planning tool for protecting natural resources. The natural resources associated with the Flats will receive adequate protection through the Plan policies referenced earlier, regardless of whether they fall within the S/A or Ag-5 land use classification. The data and analysis used by the County to delineate the boundaries of the S/A and Ag-5 land use classifications was the best available existing data, was relevant and appropriate. The Plan's classification of certain lands as S/A and Ag-5 was reasonable and based on sound planning principles. NEEDS ASSESSMENT Intervenors allege that the future population projections in the Plan do not demonstrate a need for additional density in the Flats in order to meet the future residential needs of Gilchrist County. Pursuant to Plan Policy I.2.2, a density of one dwelling unit per 160 acres in the S/A land use category would allow a maximum of 232 dwelling units to be built in the Flats. Under Plan Policy I.2.2, the current density allowed in Ag-5 is one dwelling unit per 40 acres. A comparison of the adopted FLUM with the prior zoning map reveals that over 5,000 acres are designated Ag-5 which were formerly zoned GFP-2 prior to the Plan's adoption. Under the old GFP-2 zoning category, a maximum of 5,000 dwelling units could have been built. Under the current Ag-5 land use classification, no more than 160 dwelling units could be built. Through the Plan's adoption, the densities established for the combined S/A and Ag-5 land use classifications result in an overall reduction in density allowed in the Flats and surrounding areas. Moreover, the densities permitted in these areas do not result in adverse impacts to natural resources in the Flats. The County's designation of densities in the S/A and Ag-5 land use classifications is reasonable and appropriate and based on data and analysis in the Plan.
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 finding the Gilchrist County Comprehensive Plan as subsequently amended to be "in compliance." DONE AND ENTERED this 23rd day of May, 1995, in Tallahassee, Leon County, Florida. DON W. DAVIS, 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 23rd day of May, 1995.
The Issue The main issue in this case is whether the Town of Marineland's Comprehensive Plan Amendments adopted by Ordinance 2005-1 on August 18, 2005,1 are "in compliance," as defined by Section 163.3194(1)(b), Florida Statutes (2005).2 Another issue is whether Petitioners have standing.3
Findings Of Fact Background The Town of Marineland is unique. Its history is not only interesting but helpful to an understanding of why the Plan Amendments may or may not be "in compliance," and also why Petitioners may or may not have standing. Marineland originated as the Marine Studios, which was created so that oceanic life would exhibit natural behavior that could be filmed for feature Hollywood films. The Marineland Attraction (Attraction) followed, and the new word "Oceanarium" was coined. The Attraction was the first marine theme park and served as the model for those that followed. The Town of Marineland was created in 1940 essentially to provide support services for the Attraction. Eventually, the Attraction's founding members died, and the property was sold to a group of St. Augustine investors, with the new entity being called Marineland, Inc. The investors looked at the property as a real estate investment, and the 1992/2005 Plan reflects this vision, calling for a community of 1500 persons and 600 dwelling units. The Town and the Attraction remained interdependent, with the Attraction being the entity that generated revenue and provided for most of the financial needs of the Town. As the face of Florida tourism changed during the 1970's and 1980's, fewer and fewer people came to Marineland, opting instead for the high profile attractions in the Orlando area. Rather than being a profit center for the investors that allowed them leisure to develop the rest of the land at their convenience, the Attraction became a money sink and required the investors to put money in each year to keep the facility going. This was an untenable situation in the long run and ultimately Marineland, Inc., sold its holdings to Marineland Ocean Resort (MOR), which split off another entity, the Marineland Foundation, to manage the Attraction. The Marineland Foundation operated under the umbrella of the Town of Marineland and not specifically as part of MOR. As this was happening, the Town of Marineland found itself having to be self-sufficient for the first time in 55 years. It needed to assume all the trappings of a municipal government and deal with matters that had previously been handled in whole or part by Marineland, Inc. During all these changes various attorneys examined different aspects of the Town's operation and found certain deficiencies. The most serious for land use planning was that the Town had not followed through after adoption of the 1992/2005 Plan and adopted any sort of land development regulations (LDRs). Simultaneously, MOR was considering how to develop the land it had bought. Its model was timeshares, and it considered turning the two oceanfront hotels into timeshare units, building an additional oceanfront timeshare hotel, selling timeshare campground slots, selling timeshare marine slips, and building timeshare units along the riverfront in the maritime hammock. Since the town had no LDRs, MOR would have had a free hand to build anything it pleased. To remedy this deficiency as quickly as possible the Town passed: Ordinance 97-1, which adopted the Flagler County development code provisions for signage, storm water and drainage, wetlands, tree protection, road construction and coastal construction; Ordinance 97-2 to adopt various standard codes relating to amusement devices, buildings, fire prevention, gas, grading, housing, mechanical, plumbing and swimming pools; and Ordinance 97-3 establishing zoning districts and providing for zoning regulations. Ordinance 97- 3 allowed for medium-density housing at four units per acre in the disturbed and cleared areas and at two units per acre in the the partially-disturbed maritime hammock. The intention was to prevent the rest of the maritime hammock, a rapidly disappearing environment throughout Florida and an environment of special concern, from being cleared for river-view timeshare units along the Intracoastal Waterway (ICW). The Town wished to balance the need to preserve important lands with the need to rebuild the town and regain lost population. It was not clear from the evidence how many units of residential development would be allowed under Ordinance 97-3, but it would be less that under the 1992/2005 Plan or under the Plan Amendments. Shortly after these ordinances were passed, MOR, which had been struggling financially and unable to realize any of its development plans, filed for bankruptcy and sale of their holdings. Its attorneys expressed great concern about the effect of the town ordinances on the pending bankruptcy and sale, and pointed out that when MOR filed, the court froze the status quo, preventing the Town from amending the 1992/2005 Plan's future land use map (FLUM) to reflect Ordinance 97-3. The Trust for Public Land (TPL) was successful in purchasing the MOR holdings from the bankruptcy proceedings. The result was a substantial reshaping of the land ownership within the Town. Approximately 90 acres of the most vulnerable lands were purchased from TPL with grant money from Florida Communities Trust (FCT)and set aside for conservation. The University of Florida's Whitney Marine Lab purchased additional land to double its holdings, and Jacoby Development, Inc. purchased about 40 acres of the disturbed lands for development. Concurrent with these activities, DCA awarded two planning grants to the Town under the Remarkable Coastal Place Program. The purpose of the grants was to enable the Town to take advantage of state experts in various aspects of community planning who could help the Town reorganize itself, recover its lost population, and rebuild itself from the ground up. It became apparent during this work that the Town would need a new comprehensive plan, not simply an update to the existing plan, in order to reflect the different structure of land ownership and to support the vision that the stakeholders had created during the planning process of a sustainable community that would be a center of science, education, recreation, and ecotourism. This was begun while state expertise was still available to the town, and once again incorporation of Ordinances 97-1, 97-2, and 97-3 into the existing comprehensive plan and FLUM was put on the back burner, since a new set of LDRs would have to be written to support the new comprehensive plan work in progress. Existing Uses The Town's existing land uses are distributed into two major categories: those found within and those found outside the River-to-Sea Preserve. The Preserve Approximately 89 acres of the total 151+ acres of the Town is off-limits to development through protection in the River-to-Sea Preserve. The River-to-Sea Preserve is undeveloped and vegetated with maritime hammock, coastal strand, beaches, dunes, and approximately eight acres of salt marsh within the Town's boundaries. The land has experienced significant disturbance in some areas. However, the majority of the site consists of native forested and non-forested vegetative communities. Lands covered with coastal scrub growth dominated by saw palmetto are located along the barrier dunes and to some extent to the west along the southern border of the Town but mostly seaward of the Coastal Construction Control Line regulated by Florida Department of Environmental Protection. This is a rapidly-disappearing community, and some sites harbor numerous endangered species. For that reason, it is one of three which has been designated by the Florida Fish and Wildlife Conservation Commission (FFWCC) as a "Rare and Unique Upland Community" within Florida. Development to the south of the Town has left these scrublands as an isolated remnant of the former community. The Preserve protects approximately seven acres of the coastal scrub community located in the Town. The Preserve protects three-fourths (32.6 acres) of the coastal hammock community located in the Town. The coastal hammock community also has been designated as a "Rare and Unique Upland Community" by the FFWCC. This community provides valuable cover and feeding areas for migratory songbirds in fall and spring as they migrate down the Atlantic Coast. Running the length of the Town along the Atlantic Ocean are 8.9 acres of beach area, an area of unconsolidated material that extends landward from the mean low water line to the primary dune system. The north and south ends of the beach are in the Preserve. Outside the Preserve Development in the Town, outside the Preserve, includes the existing Oceanarium facilities, the Whitney Lab, and the presently closed marina facility. Approximately 2.2 acres in the northeastern portion of the Town between A1A and the Atlantic Ocean contain the two original Oceanarium tanks of Marineland and has been included in The National Register of Historic Places. The Marine Park of Flagler has purchased the MOR property and intends to revitalize these areas. The Whitney Lab consists of the Whitney Laboratory for Marine Bioscience and the Marine Education Building, all operated by the University of Florida. These facilities occupy approximately 10 acres and are used for educational and research purposes. The Whitney Lab has broken ground on a new Center for Marine Studies and has plans for a Center for Marine Animal Health. The marina facility is located in the northwestern part of the Town adjacent to the ICW. It is 3.4 acres in size. The marina has been closed due to the deteriorating facilities. There is a plan to redevelop the Marina as a "Clean Marina." A smaller (0.74 acre) parcel is located adjacent to the Preserve on the west side of A1A and is the location of the Guana Tolomato Matanzas National Estuarine Research Reserve (GTMNERR) Administrative Offices, classroom, lab, and research facilities. Besides the beach, undeveloped urban lands outside the Preserve consist primarily of an approximately 47-acre, privately-owned parcel located in the center of the Town west of A1A. It is surrounded on three sides by already-developed areas within the Town. It includes approximately 10.3 acres of the Temperate Hardwood Hammock. Adjacent Lands The Flagler County/St. Johns County line passes through the northern tip of the Town so that the Town is primarily located in Flagler County. Flagler County is a fast-growing county having five incorporated municipalities. Land to the north of the Town, located in St. Johns County, consists of undeveloped coastal scrub and dune, saltwater marshes, and single-family houses along the barrier dune and in the vicinity of Summer Haven, a small unincorporated community located on the south side of the Matanzas Inlet. To the south, in Flagler County, there are large areas of coastal scrub and temperate hammock. A residential development called Matanzas Shores is being constructed. This development was permitted by Flagler County after Development of Regional Impact (DRI) review by the RPC. Immediately to the south of this development is the Washington Oaks Gardens State Park. To the west of the Town are saltwater marshes associated with Pellicer Creek, which is designated an Outstanding Florida Water (OFW), and the Matanzas River, which is part of the ICW. Pine flatwoods and temperate hammock are on the mainland shore. The Princes Place Preserve, Faver Dykes State Park, and St. Johns River Water Management District lands along Pellicer Creek serve as a 19,000-acre buffer between the ICW and the U.S. 1/I-95 corridor to the west. Two islands located in the Matanzas River estuary have been purchased through the FCT program and are owned by the Town. The southern island is located directly across from the Marineland marina on the west bank of the ICW and on the Flagler/St. Johns County boundary. The north island is on the west side of the ICW just south of the Matanzas Inlet in St. Johns County. The Florida Park Service will manage the islands. Although owned by the Town, these islands have not been annexed into the Town boundaries. It is the intent of the Town to annex these islands and incorporate them into long-term research, education and protection. Density8 On several fronts, Petitioners take issue with the density of development allowed by the Plan Amendments. They point to the designation of the Coastal High Hazard Area (CHHA), as well as data and analysis concerning erosion, topography (ground elevations), hurricane frequency and severity (or intensity), hurricane evacuation and shelter concerns, and effects on the sensitive environment of the Town and vicinity. CHHA In accordance with the law at the time, the Town's 1992/2005 Plan designated the CHHA to be seaward of the Town's coastal dune. In compliance with Rule 9J-5.012(3)(b)6., which required (and still requires) coastal management elements of plans to contain one or more specific objectives which "[d]irect population concentrations away from known or predicted coastal high-hazard areas," the Town's 1992/2005 Plan included Coastal/Conservation Element (C/CE) Objective E.1.6, which provided: Marineland shall direct population concentrations away from known or predicted high-hazard areas and shall ensure that building and development activities outside high-hazard areas are carried out in a manner which minimizes the danger to life and property from hurricanes. Development within Coastal High-Hazard Areas shall be restricted and public funding for facilities with[in] Coastal High-Hazard Areas shall be curtailed. Marineland shall provide a timely review of the hazard mitigation and evacuation implications of applications for rezoning, zoning variances or subdivision approvals for all new development in areas subject to coastal flooding. In addition, the Town's 1992/2005 Plan did not allow residential (or any other) development in the designated CHHA. In 1993 the Florida Legislature amended the definition of the CHHA mean the Category 1 hurricane evacuation zone. See Section 163.3178(2)(h), Fla. Stat. See also Rule 9J-5.003(17) (defining the CHHA to mean the evacuation zone for a Category 1 hurricane as established in the applicable regional hurricane study). Rule 9J-5.002(8) requires a local government to "address" rule changes in the next cycle of amendments. Since the entire Town is in the evacuation zone for a Category 1 hurricane as established in the applicable regional hurricane study, the Plan Amendments designate the entire Town as the CHHA. The Plan Amendments allow residential development west of the ocean dune in what is now the CHHA. The Plan Amendments also replace Objective E.1.6 with a new C/CE Objective E.1.6, Hazard Mitigation, which requires the Town to "ensure that building and development activities areas [sic] are carried out in a manner which minimizes the danger to life and property" and "provide a timely review of the hazard mitigation and evacuation implications of applications for rezoning, zoning variances or subdivision approvals for all new development in areas subject to coastal flooding." A series of policies follow the new objective. The question under these circumstances is whether the Plan Amendments adequately address the change in CHHA definition and comply with Rule 9J-5.012(3)(b)6. As the following findings explain, it is found that they do. Petitioners contend that they do not and that the Town was required to keep the 1992/2005 C/CE Objective E.1.6, which arguably would prohibit any residential development in the Town. This also would be the result if Rule 9J- 5.012(3)(b)6. were construed to require the Town to direct all population away from the CHHA. At least some Petitioners candidly would prefer that result, and Petitioners make a seemingly half-hearted initial argument that allowing any residential development in the Town (i.e., in the CHHA) would be inappropriate and not "in compliance." But it is clear that such a result is not mandated by the statute or rules. To the contrary, DCA interprets the statutes and rules as not even requiring a re-evaluation or "down-planning" of land uses (in particular, a reduction in residential densities) allowed under an existing comprehensive plan when a local government "addresses" the change in definition of the CHHA by increasing its size. DCA has not required such a re- evaluation anywhere in the State. Rather, DCA interprets the statutes and rules to prohibit the local government from increasing density in the CHHA above the density authorized by its existing comprehensive plan. In this case, the Town not only has designated the new CHHA but also has conducted a re-evaluation and revised its comprehensive plan. Under the rather unusual circumstances here, where the CHHA covers the entire Town, changing residential densities in various parts of the Town is not significant in determining whether population concentrations are directed away from the CHHA. Rather, what is important is the total residential development allowed in the Town as a whole. The Town contends, along with DCA and Centex, that the Plan Amendments reduce residential density in the Town. Petitioners, on the other hand, contend first of all that the density allowed by the Plan Amendments cannot be compared to the 1992/2005 Plan because the existing plan did not establish residential density standards, as required by Section 163.3177(6)(a), Florida Statutes ("[e]ach future land use category must be defined in terms of uses included, and must include standards to be followed in the control and distribution of population densities"). Instead, Petitioners contend that the 1992/2005 Plan was written in terms of "vague and standardless" design criteria and a policy direction for the Town to adopt LDRs consistent with the design criteria. Primarily for that reason, Petitioners contended that the density allowed by the Plan Amendments had to be compared to the residential density established by Ordinance 97-3 to determine whether the Plan Amendments increased residential density. Regardless of the way it was written, the 1992/2005 Plan was found to be "in compliance." In addition, while the policies in the Future Land Use Element (FLUE) of the 1992/2005 Plan were written in terms of average gross acre lot sizes, maximum lot coverage, and maximum floor area ratios characteristic of design criteria, it is nonetheless possible to calculate (albeit not without difficulty and with room for minor differences in results depending on the approach taken and assumptions made) the residential density allowed under the 1992/2005 Plan. The adopted FLUM depicted the various residential land use categories, as required by Section 163.3177(6)(a)("[t]he proposed distribution, location, and extent of the various categories of land use shall be shown on a land use map or map series"), and a summary of the total allowable residential land uses was included in data and analysis that accompanied the 1992/2005 Plan,9 making it possible to calculate residential density. Contrary to Petitioners' argument, it is not necessary to use Ordinance 97-3 to determine the residential density allowed under the 1992/2005 Plan, and there is no other plausible reason, or any precedent, for using land development regulations in that manner. As represented in the data and analysis summary for purposes of calculating the land requirements for housing, the 1992/2005 Plan allowed a maximum of 427 residential dwelling units on 37.7 acres, including apartments above retail uses, which are not depicted on the FLUM but are allowed under Housing Element (HE) Policy C.1.1.2 to provide affordable housing. This maximum of 427 assumed 98 apartments above retail uses although more arguably would be allowed under the 1992/2005 Plan. In addition, the 1992/2005 Plan's HE Policy C.1.1.1 allowed "out-buildings" as "ancillary structures to the rear of lots containing single family dwellings." Like the apartments over retail, these dwelling units are not depicted on the FLUM but are allowed as of right and theoretically could result in 176 additional dwelling units on a total of 37.6 acres. To arrive at the residential density allowed under the 1992/2005 Plan, DCA's expert added 12 of the approximately 12-20 dwelling units not shown in the summary but mentioned in the data and analysis of the 1992/2005 Plan as being either existing or allowed on the Whitney Lab's 5.4 acres, bringing the total theoretical maximum under the 1992/2005 Plan to 615 residential units on 43 of the Town's 151 acres, at various densities ranging from 2.2 units per acre at the Whitney Lab to 28.8 units per acre for apartments above retail uses, for an average residential density of 14.3 units per acre.10 Centex's expert took a different tack. First, for the apartments over retail uses, he assumed two units per retail use, for a total of 198 units (while also pointing out that there was no cap on these units in the 1992/2005 Plan). Second, he did not include any units for the Whitney Lab because they were not grounded in Plan policies. Using this approach, he arrived at a total of 704 residential units allowed under the 1992/2005 Plan. While he maintained the validity of that calculation, he pointed out that eliminating the units (both residential units and associated "out- buildings") allowed on land now included in the River-to-Sea Preserve would lower the total to 611 units. The Town's expert did not count apartments above retail uses or the units at the Whitney Lab and arrived at a total of approximately 421-425 dwelling units allowed under the 1992/2005 Plan. When he eliminated the units (residential units with associated "out-buildings") allowed on land now included in the River-to-Sea Preserve, he decreased his total to 275 units. The reason for the differences in his calculation was not clear from the record. Turning to the Plan Amendments, although more typical residential density standards are used, the experts still disagree on exactly what residential density the Plan Amendments allow and achieve. Most development under the Plan Amendments will occur in the Sustainable Mixed Use (SMU) future land use category, which allows a maximum of 241 residential units, a maximum of 50,000 square feet of commercial uses, and accessory residential units for affordable housing. Centex's expert determined that, under the Plan Amendments, the maximum theoretical number of dwelling units that could be developed in the Town, including the SMU category, is 565 units. It is not reasonable to conclude that 565 dwelling units would actually be developed, because this number includes 241 affordable accessory units, one for each residential unit. However, the Town concluded there is only a need for 39 such units. Centex's expert found that 13 of the 39 affordable housing units needed in the Town will be provided in FLUM categories other than SMU--namely, Institution Research (the Whitney Lab) and Conservation. It is more reasonable to expect that only the remaining 26 accessory units needed to address affordable housing will be developed in the SMU category to meet the 39-unit affordable housing need, instead of 241, and that 350 units actually will be built under the Plan Amendments. In his analysis, DCA's expert did not count any affordable housing units in the SMU category in reaching the conclusion that a 315 residential units are allowed under the Plan Amendments. Adding the theoretical maximum of 241, his total maximum theoretical number of residential units would be 553. The record is not clear as to why his numbers differ somewhat from the Centex expert's. The Town's expert somehow arrived at the conclusion that the Plan Amendments allow a total of 279 residential units. Like the DCA expert, he apparently did not count affordable housing units in the SMU category. The reason for other differences in his calculation are not clear from the record. It may be that he did not count residential units in the Tourist/Commercial category, while the others counted 35 units because there is a possibility that 35 condominium units could be developed there instead of 70 hotel rooms. Differences may also involve how he assessed and counted the possibility for residential units in the Institutional Research and Conservation categories. Despite these computational differences, it is clear that the Plan Amendments allow fewer residential units in the Town than the 1992/2005 Plan did, even assuming no residential development under the 1992/2005 Plan in what became the River- to-Sea Preserve. The density allowed under the Plan Amendments is comparable to densities authorized by comprehensive plans north and south of the Town, as well as the actual development that has occurred and is occurring in those areas. Since the entire Town is within the new CHHA, the Plan Amendments can be said to result in a reduction in population concentration within the CHHA by comparison to the 1992/2005 Plan. This also is reflected in the population projections on which the two plans were based. The 1992/2005 Plan was based on a projected total 2005 population of 1,551 people, including 900 permanent and 651 seasonal. The Plan Amendments are based on a projected 2015 population of 630, including 386 permanent residents and 244 seasonal residents and university students living in dormitories at the Whitney Lab. While reluctantly conceding that some residential growth in the Town (i.e., in the CHHA) is appropriate, Petitioners contend that growth must be limited to what is allowed under Ordinance 97-3 because any more growth than that would increase residential density in the CHHA. They argue that Ordinance 97-3 should be the benchmark because the 1992/2005 Plan did not establish residential density but instead relied on Ordinance 97-3 to do so. However, as reflected above, this argument was not supported by the evidence. Under the unusual circumstances of this case, while the Plan Amendments do not include an objective that parrots the words in Rule 9J-5.012(3)(b)6.--"[d]irect population concentrations away from known or predicted coastal high- hazard areas"--they do have goals, objectives, and policies which do so, as well adequately address the new CHHA definition. Data and Analysis Under the proposed findings in the section of their PRO entitled "Data and Analysis," Petitioners argue that there was a: "Failure to prove need for proposed density." The basis for the argument appears to be that: "[n]o professional methodology was utilized"; that the Town's population estimate was based on the "desires of the stakeholders," i.e., the "property owner investors"; and that the "desire of the stakeholders was for 'approximately 241 dwelling units,' not the at least 565 dwelling units authorized by the Amendments." Petitioners' PRO, at ¶61. But Petitioners did not prove that no professional methodology was used or that the population estimate was based solely on the "desires of the stakeholders." In addition, while the Plan Amendments state that the visioning effort undertaken by the Town for developing the Town's Master Plan under Florida's Remarkable Coastal Place program identified "approximately 241 dwelling units . . . as a target for meeting the permanent residential population of the Town," it also stated that "approximately 315 dwelling units were identified as a target for meeting the sustainability goal of the Town." Joint Exhibit 2, pp. A-14, C-11. Finally, there is no requirement that data and analysis "prove need for proposed density," but only that they support allocations of land for various uses. See § 163.3177(6)(a), Fla. Stat. ("future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth"). Accommodating need for affordable housing on the same land allocated for other residential and commercial development does not run afoul of this data and analysis requirement. See Fla. Admin. Code R. 9J-5.006(2)(c). No witness for Petitioners opined that the population projection for the Plan Amendments was not supported by data and analysis. To the contrary, several witnesses for the other parties opined that the data and analyses supporting the Plan Amendments were surprisingly comprehensive for a local government the size of the Town and were more than adequate. Land Use Suitability Petitioners' PRO contends: "The data and analysis concerning Town erosion, the low elevation of the Town, increased hurricane frequency and severity, inadequacy of hurricane evacuation time and shelter capacity, the adverse impacts of the land use designations on shellfish beds, estuarine nursery areas, the Tropical Hardwood Hammock, the designation of domestic waste water treatment and discharge facilities in the River to Sea Preserve, and water pollution resulting from foreseeable flooding establishes that the density of the Amendments is unsuitable for the Town land." Petitioners' PRO, ¶63. Erosion and Elevation It is clear that the Town of Marineland, due to its location and low elevation (generally 5-6 feet NGVD west of A1A), has been, is, and will continue to be vulnerable to beach erosion and flood damage from a major hurricane. Several hundred years ago, there was a navigable tidal pass north of the Town. The pass closed naturally through sand and sediment accretion but in recent years the area has been suffering significant erosion, resulting in State Road A1A having to be rerouted and access to homes along the old A1A being severely limited. In 1999, when Hurricane Floyd was 100-150 miles east of the Town in the Atlantic Ocean, significant erosion occurred within the Town, including the waters and sand of the Atlantic Ocean overtopping A1A in the north end of the Town, along with flooding the Town. As a result, the Town was a declared a disaster zone, and FEMA awarded two separate redevelopment grants. The Town's shoreline has been critically eroded, but is stable at this time. Notwithstanding these characteristics of the Town, which contribute to its designation as a CHHA, and as previously discussed, the evidence is clear that the Town is not considered unsuitable for development. To the contrary, the development allowed by the Plan Amendments is considered acceptable. Petitioners also cite evidence that sea level is expected by some to rise approximately 20 inches in the next 100 years. But no qualified witness opined that, for planning purposes, the Town should be considered unsuitable for development for that reason. Hurricane Frequency and Intensity Petitioners also contend that the Town is unsuitable for development in light of data and analysis concerning hurricane frequency and intensity. Indeed, there is persuasive evidence that hurricane frequency and intensity is cyclical and that in about 1995 a period of heightened hurricane frequency and intensity that usually lasts 10-20 years probably began. The evidence was clear that DCA does not consider the frequency and intensity of hurricanes to be relevant data and analysis in evaluating whether comprehensive plan development density and intensity are "in compliance." Rather, this is considered to be a matter to be addressed by the Legislature. So far, there has been no legislation to either further enlarge the CHHA or further restrict development in the CHHA.11 Hurricane Evacuation and Shelter Study Petitioners allege that the Town did not undertake adequate hurricane evacuation planning in connection with the Plan Amendments. Specifically, their PRO cites Section 163.3178(2)(d), Florida Statutes, which requires a comprehensive plan's coastal management element to include: "A component which outlines principles for hazard mitigation and protection of human life against the effects of natural disaster, including population evacuation, which take into consideration the capability to safely evacuate the density of coastal population proposed in the future land use plan element in the event of an impending natural disaster." They also cite Rule 9J-5.012(2), which addresses the requirement that the coastal element be based on the following data and analysis, among others: (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. They point out that Rule 9J-5.003(57) defines Hurricane Vulnerability Zone (HVZ) as "the areas delineated by the regional or local hurricane evacuation plan as requiring evacuation" and that it also requires the HVZ to "include areas requiring evacuation in the event of a 100-year storm or Category 3 storm event." Finally, they cite Rule 9J- 5.012(3)(b)7., which requires one or more specific Coastal Element objectives which: “Maintain or reduce hurricane evacuation times.” The evidence was that these planning requirements were met. There are no mandatory state, regional, or local evacuation clearance times. The 1992/2005 Plan included C/CE Objective E.1.5., which provided: "The time period required to complete the evacuation of people from flooding of vulnerable coastal areas prior to the arrival of sustained gale force winds shall be maintained at less than 12 hours." The Plan Amendments replaced that objective with C/CE E.1.5., which now provides: "Evacuation clearance time should be maintained or reduced to less than 12 hours." This complies with Rule 9J-5.012(3)(b)7. The Plan Amendments were based on appropriate data and analysis. Because the entire Town is in the CHHA, the Town population must evacuate in a Category 1 and all higher storm categories. Evacuation routes for the Town are S.R. A1A north to S.R. 206 in St. Johns County, and S.R. A1A south to Palm Coast Parkway in Flagler County. The best and most current evidence, based on a 2005 update to the RPC's 1998 Regional Hurricane Evacuation Study, indicates that evacuation clearance times for St. Johns County are estimated to be 11 hours for Category 1 hurricanes, 14 for Category 2 hurricanes, 16 hours for Category 3 hurricanes, and 16.75 hours for Category 4 through 5 hurricanes; evacuation clearance times for Flagler County are estimated to be 7.75 hours for Category 1 and 2 hurricanes and 12 hours for Category 3 through 5 hurricanes. The Flagler clearance times are lower than those estimated in a 1998 version of the study, even though based on a higher population, primarily because the widening of the Palm Coast Parkway to four-lanes has been completed. The evidence does not demonstrate that the evacuation clearance times in St. Johns County increased under the 2005 Study. Clearance times are based on the worst bottleneck in a county, where traffic is metered to derive the actual clearance times. Evacuation of Town residents under the Plan Amendments will not impact the bottlenecks in either St. Johns County or Flagler County. For that reason, evacuation of Town population would be expected to be take less time than the clearance times calculated for those counties in the RPC's 2005 study; conversely, evacuation of Town residents under the Plan Amendments will have no effect on the overall clearance times in either St. Johns County or Flagler County. Assuming a maximum additional population (resulting from the addition of 829 dwelling units) under the Plan Amendments, 652 cars would be added to an evacuation during high tourist occupancy season (which includes the summer tourist season, which generally corresponds to hurricane season). This would increase traffic during the worst theoretical hour of the Town's evacuation (i.e., during which 30 percent of the Town's traffic would try to enter the evacuation road network) by 8.7 percent heading north from the Town on A1A and by 13 percent heading south of the Town on A1A. Based on a comparison of maximum theoretical densities under the 1992/2005 Plan and under the Plan Amendments, the number of evacuating vehicles added to the road network is reduced under the Plan Amendments. By comparison, assuming a maximum additional population (resulting from the addition of 565 dwelling units) under the 1992/2005 Plan, 922 cars would be added to an evacuation during high tourist occupancy season. This would increase traffic during the worst theoretical hour of the Town's evacuation by 12.3 percent heading north from the Town on A1A and by 18.4 percent heading south of the Town on A1A. Likewise, based on a comparison of maximum densities under the 1992/2005 Plan and the Plan Amendments, the Plan Amendments result in a reduced demand for shelter space. Obviously, since the entire Town is in the CHHA and must evacuate in a Category 1 and all higher storm categories, there is no requirement for the Town itself to provide hurricane shelter. Similar to most Florida counties, St. Johns and Flagler Counties have deficits in shelter space that are expected to increase as the population increases. According to DCA's Division of Emergency Management (DEM), in 2004 Flagler County had hurricane shelter spaces for 4,267 persons and a deficiency of 2,401 shelter spaces. This deficiency is expected to almost double (be 4,020) by 2008. According to DCA's DEM, in 2004 St. Johns County had hurricane shelter capacity for 7,320 persons, and a hurricane shelter demand of 9,829 people, resulting in a deficiency of 2,509 spaces. In 2009, the St. Johns County shelter demand is projected to be 11,564, “leaving an anticipated shelter deficit of 4,244.” However, the evidence was not clear that the shelters to which Town residents would be assigned are either over capacity or under capacity. In addition, it was not clear that future development would not include the construction of facilities that may serve as shelters. Finally, there was no clear evidence why these anticipated shelter deficits should restrict development in either county, or in the Town, so as to make the Plan Amendments not "in compliance." Natural Resources Petitioners contend that the Plan Amendments are not "in compliance" because of effects on various natural resources in the Town and vicinity, including shellfish harvesting areas, important estuarine nursery for juvenile fish and invertebrates, and the Town's high-quality oak hammock area (also referred to as a maritime hammock, a coastal temperate hammock, or a tropical hardwood hammock.) Petitioners' main argument regarding adverse effects on shellfish harvesting and nursery areas was that flooding during hurricane events will cause household chemicals and other pollutants stored inappropriately at ground level to be released into the environment, probably at a time when juvenile fish are present in the estuarine nursery areas. But there also was persuasive evidence that chemicals released during these kinds of flood events would be substantially diluted by the massive volume of water associated with them, which would greatly reduces any deleterious effects on nursery and shellfish areas. Through C/CE Policies E.1.3.4 and E.1.3.5 in the Plan Amendments, the Town has chosen to impose OFW standards that substantially exceed those that would otherwise be imposed by the St. Johns River Water Management District. OFW standards prohibit degradation of water below ambient conditions and typically require the design of stormwater systems that provide 1.5 times the level of treatment that otherwise would be provided for stormwater. There was evidence that shellfish harvesting has declined in the waters of the GTMNEER to the north of the Town over the recent past as the land near these waters has been developed. The evidence was not comprehensive as to the reason(s) for the decline, but poorer water quality generally is thought to be the primary cause. Some shellfish harvesting areas still are productive, including some near the Town where Mr. Cubbedge has an oyster and clam lease. Petitioners presented no testimony related to the temperate hardwood hammock. Centex's expert in environmental analysis observed that portions of the hammock areas have been altered or disturbed and that the higher-quality areas have been placed in the River-to-Sea Preserve where they are protected from development. Much of the natural vegetative communities in the Town are within the Conservation future land use category and not subject to development. To protect 10.3 acres of oak hammock located on land that is subject to development, the Plan Amendments impose a Maritime Hammock Overlay. In addition to otherwise applicable density and intensity standards, development within the Overlay is subject to numerous restrictions on adverse impacts on natural vegetation. Amendment FLUE Policies A.1.8.3. and A.1.8.4. allow only 50 percent of single-family and multi- family parcels to be cleared of trees, understory, and groundcover, and only 25 percent of the tree canopy to be removed. Petitioners also argue that the designation of the "Public Facilities" future land use category in the River-to- Sea Preserve in Amendment Policy A.1.4.2 is unsupported by data and analysis and "fairs [sic] to show the extend [sic] of the category as required by Section 163.3177(6)(a), Fla. Stat., and it does not estimate the gross acreage of the category as required by Rule 9J-5.006(2)(c)." Actually, the statute cited requires the FLUE to designate the "extent of the uses of land," and the rule requires an "analysis of the amount of land needed to accommodate the projected population, including: . . . 2. The estimated gross acreage needed by category . . . ." There was no testimony or other adequate evidence to support these arguments, and it was not proven that the Plan Amendments are not "in compliance" for any of these reasons. Conclusion It was not proven that data and analysis concerning the above matters establish that the density of the Plan Amendments is unsuitable for the Town land. Meaningful and Predictable Standards Similar to the Amended Petition and Petitioners' Statement of Position in the Prehearing Stipulation, Petitioners' PRO lists numerous objectives and policies in the Plan Amendments and contends that they are not "in compliance" because they do not provide meaningful and predictable standards. One expert called by Petitioners (Ms. Owen) testified in general that the Plan Amendments contain objectives and policies "which do not contain meaningful and predictable standards" or "that are not measurable or provide any standards or specificity." (T. 359). She also initially testified that the Plan Amendments (at her request) incorporated into data and analysis OFW water quality standards for discharges into the ICW but that "their goals, objectives and policies, as drafted, do not provide specific enough standards to be able to measure that"; later, she conceded that C/CE Policy E.3.5 incorporated OFW water quality standards. Another expert for Petitioners (Mr. Johnson) testified, "I think there's not enough detail in these policies and standards by which somebody could measurably allow growth to occur and measurably predict that it's not going to have an effect, a negative effect, on the environment." Otherwise, Petitioners put on no expert testimony to explain why the objectives and policies in the Plan Amendments do not provide meaningful or predictable standards, and they put on no expert testimony that the Plan Amendments were not "in compliance" for that reason. Meanwhile, experts for the Town (Mr. Brown), Centex (Dr. Pennock), and DCA (Dr. Addai-Mensa) testified in general terms that the Plan Amendments were "in compliance." Another expert for Centex (Dr. Dennis) testified specifically that incorporation of the OFW standards in the C/CE and other goals, objectives, and policies were adequate to protect the waters of the ICW and its natural resources and the River-to- Sea Preserve even with the development allowed by the Plan Amendments. Rule 9J-5.005(6) provides in pertinent part: "Goals, objectives and policies shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations. This chapter does not mandate the creation, limitation, or elimination of regulatory authority for other agencies nor does it authorize the adoption or require the repeal of any rules, criteria, or standards of any local, regional, or state agency." Rule 9J-5.003 sets out definitions, including: (52) "Goal" means the long-term end toward which programs or activities are ultimately directed. (82) "Objective" means a specific, measurable, intermediate end that is achievable and marks progress toward a goal. (90) "Policy" means the way in which programs and activities are conducted to achieve an identified goal. Properly understood, these Rules require that an objective's "intermediate end" be specific and measurable in the sense that it can be determined when the "intermediate end" is reached. They do not mean that objectives must eliminate all possibility ambiguity or be amenable to quantitative measurement. They only require that objectives provide "meaningful guidance" and be enforceable in that sense. All of the objectives and policies listed by Petitioners have been reviewed. The evidence does not prove beyond fair debate that any of the listed objectives and policies are inconsistent with the cited Rule provisions, properly understood. Petitioners complain that several of the listed objectives and policies require the adoption of LDRs without including meaningful and predictable standards. In some cases, the objectives and policies themselves provide meaningful and predictable standards. But it is not necessary for comprehensive standards to be included in each such objective or policy. Rather, when required, meaningful and predictable standards to guide the LDR adoption process can be placed elsewhere in the comprehensive plan, as is often the case with the Plan Amendments. (In addition, not all plan directions to adopt LDRs are required by statutory and rule mandatory criteria, and it is possible that all of them may not be required to include meaningful and predictable standards if superfluous.) As they did elsewhere in their PRO, Petitioners contend that FLUE Policy A.1.4.2 does not "state what is the areal extent of the 'Public Facilities' land use category as required by Section 163.3177(6)(a), Fla. Stat. or estimate the gross acreage of the 'Public Facilities' land use category as required by Rule 9J-5.006(2)(c)." They also characterize the alleged failing as a lack of meaningful and predictable standards. But as previously mentioned, the Plan Amendments are not inconsistent with that statute and rule. See Finding 73, supra. Petitioners also argue that a listed objective and several listed policies fail to provide meaningful and predictable standards because they do not contain a percentage distribution of mixed uses.12 Actually, these are two different issues. As already indicated, it was not proven beyond fair debate that the objectives and policies fail to provide meaningful and predictable standards. As for the separate issue of percentage distribution of mixed uses, Rule 9J-5.006(4)(c) provides: Mixed use categories of land use are encouraged. If used, policies for the implementation of such mixed uses shall be included in the comprehensive plan, including the types of land uses allowed, the percentage distribution among the mix of uses, or other objective measurement, and the density or intensity of each use. (Emphasis added.) Petitioners put on no expert testimony to explain why the objective and policies in the Plan Amendments do not meet the requirements of this Rule, and they put on no expert testimony that the Plan Amendments were not "in compliance" for that reason. Meanwhile, as already mentioned, experts for the Town (Mr. Brown), Centex (Dr. Pennock), and DCA (Dr. Addai-Mensa) testified in general terms that the Plan Amendments were "in compliance." On the evidence presented, it was not proven beyond fair debate that the Plan Amendments do not contain policies with "[an]other objective measurement" of the distribution among the mix of uses in the SMU, General Commercial, and Tourist Commercial land use categories established in FLUE Policy A.1.4.2. H. Petitioners' Other Issues The Amended Petition and Prehearing Stipulation raised other issues that were not included in Petitioners' PRO. Some of these were addressed in the parts of Centex's PRO, which the Town and DCA joined, including financial feasibility, planning timeframes, and deletion of a policy requiring habitats of listed species to be designated Conservation. To the extent that these other issues have not been abandoned by Petitioners, it is found that they were not proven. Petitioners' Standing All of the Petitioners submitted oral or written comments, recommendations, or objections to the Town during the period of time beginning with the transmittal hearing for the Plan Amendments on March 31, 2005, and ending with their adoption on August 18, 2006. None of the Petitioners own property or reside in the Town or own real property abutting real property in the Town. The Hamilton Brothers Brothers George William (Bill) Hamilton, III, and Patrick S. Hamilton live in Crescent Beach, which is four to five miles north of the Town in St. Johns County. Together (along with their wives), they own and operate Homecomers, Inc., which does business as Southern Realty of St. Augustine and Crescent Beach (Southern Realty), and as Southern Horticulture, which is located in Crescent Beach or St. Augustine (the evidence was not clear which). Patrick operates the real estate brokerage, which has offices in St. Augustine and in Crescent Beach, and Bill operates the retail garden and landscaping business. The brothers also own part of Coastal Outdoor Center, which is located in Crescent Beach at S.R. 206 and features kayak tours of the Matanzas River, mostly south to Pellicer Creek. The Hamilton family also has oyster and clam leases in St. Johns County. It appears that the vast majority of the brothers' business activities are conducted in St. Johns County north of the Town. However, over the years, some limited business has been conducted in the Town. In 1993 Patrick Hamilton twice brokered the sale of land from Marineland, Inc., one parcel to an private individual and the other to the Whitney Lab. In 1995 he procured a contract for the sale of Marineland, Inc. (and, with it, essentially the entire Town) for a fish farm operation for approximately $10 million; when the contract was breached, Southern Realty got part of the forfeited $100,000 binder. In 1998 Hamilton was authorized by MOR to sell its holdings in the Town for a ten percent commission. Hamilton was successful in efforts to arrange for it to be purchased by FCT and the Trust for Public Lands (TPL) through the bankruptcy court in Jacksonville, and some of the land was immediately resold at a profit to Mr. Jacoby. When Hamilton pursued payment of Southern Realty's brokerage commission through the bankruptcy court, he learned that TPL had indemnified MOR for the brokerage commission. At that point, Southern agreed to accept an $18,000 fee from TPL and drop its bankruptcy claim for ten percent on the overall purchase. In 2002, Hamilton paid for and prepared grant applications for the Town's purchase of two islands that were outside the Town's municipal boundaries but which the Town intends to annex. In September 2004 he wrote an offer on behalf of a trustee of the Whitney Lab to purchase a small parcel of land TPL still owned in the Town and donate it to the Lab. However, no contract was reached, and Southern Realty received no commission. In 2005 Phil Cubbedge asked Hamilton to represent him in the sale of his oyster and clam lease to Centex but then backed out when Centex proposed to deal directly with Cubbedge without Southern Realty's involvement. Southern Horticulture used to do business with the Marineland Attraction but has not done any business in the Town in nine years, since the Attraction went into receivership and did not pay a Southern Horticulture bill in full. The Town never has required the Hamiltons or their businesses to obtain and maintain an occupational license, and none was obtained prior to 2004. In 2004 and 2005 Southern Realty applied and paid for and obtained an occupational license to "engage in the business of real estate." This was done in response to a finding in the Recommended Order in a previous administrative challenge to St. Johns County plan amendments by FWF and FOM that neither had an occupational license in the County. On several occasions over the years, the Hamilton brothers have engaged in various civic activities pertaining to the Town. Most of these activities have been Patrick's. These have included: participation on the management advisory group for the GTMNERR and efforts in the early to mid-1990s to have its Administrative Office established in the Town; efforts in 2000 or 2001 related to the designation of A1A as a scenic highway in St. Johns County, with a segment being in the Town; subsequent work to persuade the Florida Department of Transportation to construct a bike path along A1A in St. Johns County; advocacy related to the St. Johns County Comprehensive Plan; service on the Board of Trustees of the Whitney Lab; and financial contributions to and fund-raising for the Whitney Lab. The brothers do these things out of a sense of civic duty and for the good of the community and their vision for it. However, they also believe these activities provide a benefit for their business, particularly the real estate and outfitting businesses. It is found, based primarily on the activities of Southern Realty, that the Hamilton brothers own or operate a business within the Town. Florida Wildlife Federation FWF is a not-for-profit Florida corporation with approximately 50,000 members and supporters. No FWF members reside or own property in the Town, and FWF does not have an office in the Town. One member (Mr. Cubbedge) has an oyster and clam lease in the Town. Cubbedge, the Hamilton brothers, and Dr. Michael Greenberg, who works and has his office at the Whitney Lab in the Town, are the only members who have a connection to the Town, according to the evidence. In April 2004, FWF established a regional office in St. Johns County outside the Town for the primary purpose of reviewing comprehensive plan amendments, focusing on natural resource protection. FWF monitors growth management and habitat protection during the development stages of the Town, focusing on the draft of the goals, objectives and policies for the comprehensive plan. In furtherance of this effort, FWF’s planning advocate (Ms. Owen) has attended and participated in meetings of the Remarkable Coastal Place work group stakeholder meetings, where they reviewed drafts of comprehensive plan amendments; has talked with elected officials to educate them on FWF (and FOM) concerns; and has attended meetings of and made presentations to the South Anastasia Community Association, a civic organization that holds its meetings in the Town. Through the Post Office and its website, FWF publishes a newsletter with information about FWF’s activities in the state, including fundraising. No evidence was presented that the newsletter is distributed in the Town. FWF’s regional office held a fundraiser in St. Augustine in February 2006 to raise money to pay attorney’s fees and expert witness fees for this proceeding. The Town never has required FWF to obtain and maintain an occupational license, and none was obtained prior to 2004. In 2004 and 2005 FWF applied and paid for and obtained an occupational license "to engage in the business of monitoring growth management and habitat protection." As with Southern Realty, this was done in response to a finding in the Recommended Order in a previous administrative challenge to St. Johns County plan amendments by FWF and FOM that neither had an occupational license in the County. Based on the evidence, it is found that FWF owns or operates a business within the Town. Friends of Matanzas FOM is a not-for-profit Florida corporation established in 2001 to preserve and protect the estuary and its watershed, and to maintain the rural beach community, particularly on South Anastasia Island and in southern St. Johns County to Marineland. FOM has 34-44 members. No FOM members reside in the Town, but at least two of them--its current president, Dr. Greenberg, and Maureen Welsh--work at the Whitney Lab. The Hamilton brothers also are members. FOM itself does not have an office in the Town. However, Dr. Greenberg is its president, and he may keep some FOM records and documents in his office at the Whitney Lab. There was no evidence that FOM ever has had a Town occupational license, or that the Town ever has required it to have one. In part (if not primarily) through the activities of the Hamilton brothers, FOM has been involved in: efforts in the mid-1990s to have the Administrative Office of GTMNERR established in the Town; efforts, including production of a video in 2000 or 2001, related to the designation of A1A in St. Johns County, including within the Town, as a scenic highway; and work to persuade the Florida Department of Transportation to construct a bike path along A1A in St. Johns County, including within the Town. There also was evidence that FOM holds annual meetings in the Town. Based on the evidence, it is found that FOM does not own or operate a business within the Town.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that DCA enter a final order determining that the Plan Amendments are "in compliance." DONE AND ENTERED this 28th day of April, 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 28th day of April, 2006.
Findings Of Fact Parties City of Cocoa Beach The City of Cocoa Beach (City) is a municipality located in Brevard County. The City has previously submitted a comprehensive plan pursuant to the requirements of the Local Government Comprehensive Planning and Land Development Regulation Act of 1985. The Department of Community Affairs determined the original plan to be in compliance, and the determination has become final. Department of Community Affairs The Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing comprehensive plans under Chapter 163, Part II, Florida Statutes. Carole C. Pope Carole C. Pope (Petitioner) resides in the City of Rockledge Brevard County, Florida. She submitted oral or written objections during the review and adoption proceedings concerning the subject plan amendment. Petitioner does not own property or own or operate a business in the City of Cocoa Beach. She and her husband own Lot 11 (less the west 15 feet reserved for road right-of-way), Block 101, of the platted subdivision known as Avon-by-the Sea. The parcel, which Petitioner occupies annually during the summer, is located in unincorporated Brevard County, about 200 feet north of the existing north boundary of the City. Petitioner's property, which contains a duplex dwelling unit, measures about 475 feet east-west by 50 feet north-south. The lot is bound on the north by Wilson Avenue, the west by Azure Lane, the east by the Atlantic Ocean, and the south by Lot 12 of Block 101. Immediately south of Petitioner's lot are four other oceanfront lots measuring about 490 feet east-west by 50 feet north-south and constituting over two acres of the 2.3-acre Subject Parcel. These four lots and one and one-half smaller lots directly across Azure Lane from Petitioner's lot constitute the land that is the subject of the present plan amendment (Subject Parcel). The five and one-half lots forming the Subject Parcel total about 2.3 acres. The Subject Parcel is located in what is generally a residential area. Many of the nearby lots have been developed with single- and multi-family residential units. Just to the south of the Subject Parcel, across Harding Avenue, is an eight-story condominium project known as Discovery Beach. Immediately north of Petitioner's lot is a two-story condominium. One block west of Azure Lane is Ridgewood Avenue, which is classified as a collector. Two blocks, or about one-quarter mile, west of Azure Lane is State Route A1A, which is classified as a major arterial. Annexation of Subject Parcel The Subject Parcel comprises properties not under common ownership. For instance, the owners of the small one and one-half lots west of Azure Lane do not own the four large oceanfront lots immediately south of Petitioner's property. In response to the desires of a prospective purchaser, the owners of the Subject Parcel caused or allowed the commencement of an annexation proceeding with respect to their properties. The northern boundary of the City presently extends to Harding Avenue, which runs along the south boundary of the southernmost of the four oceanfront lots described above. On March 15, 1990, the City Commission adopted on second reading Ordinance No. 928. The ordinance describes the Subject Parcel and states that it is "hereby annexed and incorporated into the City of Cocoa Beach." Somewhat contradictorily, Ordinance No. 928 also states: This Ordinance shall become effective following compliance with Section 163.3187(15)(c) Florida Statutes (1987) and immediately after the changes herein provided for have been duly entered upon [the Future Land Use Map]. The ordinance adds in the following section: "This Ordinance will become effective upon completion of publication requirements for annexation and compliance review by the State Department of Community Affairs." The intent of the City Commission in adopting Ordinance No. 928 was to postpone the effective date of the annexation until DCA's determination of compliance, as to the plan amendment, became final. The ordinance is interpreted consistent with this intent. The language of Ordinance No. 928 is unclear as to whether the annexation takes effect in the event of a final determination of noncompliance. It appears that the intent of the City Commission in adopting Ordinance No. 928 was to condition the annexation upon a favorable final determination. Absent a final determination of compliance, the annexation would never become effective and the Subject Parcel would remain in the unincorporated County. The ordinance is interpreted consistent with this intent. The language of Ordinance No. 928 is unclear as to whether the annexation takes effect regardless of the objections of current owners during the plan amendment review process. As to this issue, the intent of the City Commission in adopting Ordinance No. 928 is not evident. It appears that no one anticipated this possibility. In fact, the owners of the one and one-half lots west of Azure Lane no longer desire annexation into the City. The record does not allow a determination whether annexation may proceed over the owners' objection. Plan Amendment and Additional Data and Analysis Ordinance No. 928 makes only one amendment to the operative provisions of the City's plan. The ordinance designates the Subject Parcel as High Density Multi-Family on the Future Land Use Map. The City's High Density Multi-Family designation allows a residential density of 15 dwelling units per gross acre, a transient (hotel/motel) density of 40 rooms per gross acre, and limited professional and commercial uses. The City transmitted to DCA two sets of data and analysis in support of the designation proposed for the Subject Parcel. The first set accompanied the plan amendment, and the second set consisted of responses to DCA's Objections, Recommendations, and Comments on the proposed plan amendment (collectively, Data and Analysis). The Data and Analysis explain that the City's proposed designation would yield 35 dwelling units or 92 hotel/motel rooms on the Subject Parcel. However, the Data and Analysis note that the "applicant" (i.e., the prospective purchaser) will agree to allow the City to restrict the hotel/motel density to 30 rooms per gross acre, which generates 69 hotel/motel rooms. 5/ The two sets of Data and Analysis are inconsistent as to the critical question of the present designation and permitted land uses under the County's plan. The first set erroneously states that the County's plan designates the Subject Parcel as "Mixed Use" and allows 30 hotel/motel rooms per gross acre for a total of 69 rooms. The second set correctly states that the County's plan designates the Subject Parcel as "High Density Residential" and omits mention of any hotel/motel uses. Since April 9, 1990, if not before, the County's plan has designated the Subject Parcel as "Residential." 6/ Addressing the impact of the proposed designation upon public facilities, the Data and Analysis calculate an increase in daily vehicular trips from 455 to 703, if the 69 residential units under the County's plan were changed to 69 hotel/motel rooms under the City's plan. However, the additional trips would not, according to the Data and Analysis, reduce the level of service standards of affected roads below the adopted level of service standards for those roads. A similar conclusion follows if the City allowed 92 hotel/motel rooms to be built on the Subject Property. The Data and Analysis disclose ample capacity in central sewer and water facilities and disclose no problems with respect to other facilities and services, regardless whether the City allowed 69 or 92 hotel/motel rooms on the Subject Parcel. According to the Data and Analysis, the Subject Parcel is, on average, 9.5 feet above mean sea level, although it is not in the 100-year floodplain. The soil series found on the site has only very slight limitations for dwellings. The dune area, which has suffered little erosion, is well vegetated with dune grass, sea oats, sea grapes, and railroad vines. Otherwise, the Data and Analysis report that the site is clear, except for a building located seaward of the Coastal Construction Control Line set by the Florida Department of Natural Resources. 7/ The Data and Analysis state that the Subject Parcel contains no known habitat for endangered or threatened species or species of special concern, although the Atlantic Loggerhead Turtle and Atlantic Green Turtle use the coastline for nesting. However, the Data and Analysis mention that the City's lighting ordinance helps eliminate a lighting hazard to the fledgling sea turtles from May 1 through October 31. With respect to coastal hazards, the Data and Analysis state that the landward boundary of the Coastal High Hazard Area, through the Subject Parcel, is about 365 feet west of the mean high water line. The Data and Analysis represent that the City permits no building in this area and allows no disturbance seaward of the Coastal Construction Control Line in the absence of a hermit from the Florida Department of Natural Resources. Noting that the each of the two plans allows a total population of 152 persons on the Subject Parcel, the Data and Analysis reason that the proposed amendment will not impact actual hurricane evacuation times or designated maximum hurricane evacuation times, which in each plan approximate 12 hours, exclusive of behavioral response times. It is evident from the Data and Analysis that the construction of even 92 hotel/motel rooms on the Subject Parcel would not measurably affect hurricane evacuation times. City's Plan: Data and Analysis As described in Paragraphs 15-22 above, the City provided DCA new Data and Analysis in support of the subject plan. However, the plan already contained data and analysis that bear on the proposed designation of the Subject Parcel. The data and analysis accompanying the original plan state that the City is located on an "intensely developed" barrier island. Of the 1772 acres within the City, exclusive of road right-of-way, finger canals and the Thousand Islands located in the Banana River, only 180 acres of vacant land remain. Based on land use designations, the supply of land available for multi-family development may be exhausted by 1998. The data and analysis note that the sandy beaches and dunes provide essential nesting areas for a variety of endangered or threatened sea turtles. In the Summary of Ecological Communities, the data and analysis list three endangered or threatened wildlife species and two vegetative species as occupying the beach and dune habitat, which constitutes the part of the Subject Parcel seaward of the Coastal Construction Control Line. The data and analysis list no such species occupying the barrier island interior habitat, which constitutes the part of the Subject Parcel landward of the Coastal Construction Control Line. The data and analysis report that a foredune runs the length of Cocoa Beach. However, most of the extant dunes have reportedly been adversely impacted by roads, fences, structures, and parking lots. The data and analysis acknowledge that the entire City is subject to coastal flooding and included in the Hurricane Vulnerability Zone, as well as the "coastal zone." It is less clear what extent of the City is located in the Coastal High Hazard Area. Future Land Use Element (FLUE) Policy 6.3 and Coastal Management/Conservation Element (Conservation) Policy 14.1, which are identical, state that the Coastal High Hazard Area shall be the area located within the "velocity zone or seaward of the Coastal Construction Control Line ...." No map in the plan depicts the location of the Coastal High Hazard Area, and the locations of the velocity zone and Coastal Construction Control Line are not depicted either. The data and analysis state that little infrastructure is located in the Coastal High Hazard Area. The primary strategies of the City to address coastal hazards are to enforce the building elevations shown on Flood Insurance Rate Maps and rely on the Florida Department of Natural Resources to enforce the Coastal Construction Control Line. The data and analysis concede that the City can do little to reduce evacuation times except to exhort the State of Florida to raise the elevation of State Routes A1A and 520, which are critical hurricane evacuation routes and are subject to early flooding. City's Plan: Objectives and Policies Several plan provisions coordinate future land uses with available facilities and services. For instance, FLUE Policy 4.1 precludes the issuance of a development order until the applicable levels of service are met. The future land use designations themselves are also coordinated with available facilities and services. The data and analysis disclose no general deficiencies in relevant facilities and services when evaluated against the designations contained in the future land use maps. As to the coordination of future land uses with topography and soil conditions, FLUE Objective 3 limits development on Tidal Swamp soils to one unit per five acres; FLUE Objective 9 prohibits construction activity from damaging the dunes; Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Groundwater Aquifer Recharge Element (Public Facilities) Objective 4 requires the City to complete a study by the end of 1992 to identify its most pressing drainage problems and initiate solutions; Public Facilities Policy 5.1 imposes a drainage level of service standard with respect to stormwater runoff; FLUE and Conservation Objectives 1 require the use of flood control and shoreline erosion control techniques to improve estuarine quality; Conservation Objectives 4 and 5 and the ensuing policy clusters provide protection to the dunes; and Conservation Objective 6 and the ensuing policy cluster provide protection to the beaches. Several plan provisions ensure the protection of natural resources. The plan states that the City contains no waterwells, cones of influences, or minerals. Plan provisions protecting beaches and soils have been discussed in connection with the coordination of future land uses with soils and topography. Plan provisions concerning wetlands are irrelevant to the present case because the Subject Parcel contains no wetlands. Although drainage from the Subject Parcel may reach the estuarine waters of the Indian River Lagoon, the connection is too remote to interpret the amended petition as raising the issue of protection of rivers and bays. As to floodplains, a Future Land Use Map shows the entire oceanside of the City to be outside of the 100-year floodplain. Conservation Objective 15 is to achieve an evacuation time of less than 12 hours for a category three or stronger hurricane. FLUE Policy 4.1g conditions the issuance of a development order on a determination that a project will not increase the hurricane evacuation time to over 12 hours. FLUE Policies 1.1-1.3 and 6.1-6.4 address implementation activities for the regulation of land use categories. With respect to policies addressing implementation activities for the regulation of floodprone areas, FLUE Objective requires construction in the floodplain or the Coastal High Hazard Area to satisfy the building elevations identified in the Flood Insurance Rate Maps. Several plan provisions address implementation activities for the provision of drainage and stormwater management. FLUE Objectives 2 and 3 deal with drainage and stormwater management, and FLUE Policies 2.1 and 3.1 establish implementation activities reasonably calculated to achieve the objectives. FLUE Policy 4.1a conditions the issuance of a development order on a determination that a project will retain the first inch of runoff (for a project less than 100 acres) or the first half-inch of runoff (for a larger project), apparently in a 10-year/24-hour storm event. The policy also limits, for such a storm event, post-development runoff to predevelopment runoff. Public Facilities Policy 4.1 provides that the City will promptly fund the most critical drainage improvements identified in a drainage study to completed by the end of 1992. FLUE Policy 7.1 requires the City to require the preservation of environmentally sensitive coastal and wetland areas or that damage be mitigated. Several objectives protect beaches and dunes. FLUE Objective 8, which is identical to Conservation Objective 4, provides that vehicular and pedestrian traffic shall not damage the dune system. FLUE Objective 9 provides that construction activities shall not damage the dunes. Conservation Objective 5 is identical, but adds that altered dunes shall be restored. Conservation Objective 6 states that the City shall promote beach nourishment projects. Policy 3.4 requires the City to set aside at least two islands in the Thousand Islands to be used exclusively as rookeries and wildlife habitat, and Conservation Objective 7, as well as the ensuing policy cluster, protect and increase native vegetation and wildlife habitat. Conservation Objective 10 and its policy cluster protect soils and groundwater from hazardous waste contamination. Conservation Objective 14 is to "direct population and development landward of the coastal high-hazard area." The two policies under Objective 14 provide for the relocation of public infrastructure in the Coastal High Hazard Area (unless related to certain excepted uses) and for the rebuilding of certain structures in the Coastal High Hazard Area in accordance with all current land development regulations. FLUE Policy 2.1b conditions the issuance of a development order within the Coastal High Hazard Area upon the determination that the Florida Department of Natural Resources has approved the construction and the proposed project complies with any "reasonable" conditions imposed by the Florida Department of Natural Resources. Conservation Policy 13.2 states: "[The City] will rely upon the Florida Department of Natural Resources to enforce the building limitations seaward of the Coastal Construction Control Line." Many plan provisions identifying techniques for limiting impacts of development on water quality, wildlife habitat, living marine resources, and beach and dune systems have been discussed in the preceding paragraphs. Additional provisions include Public Facilities Policy 1.1, which is to expand the effluent reuse program until at least half the effluent is reused by 1995; Conservation Policy 3.1, which protects sea turtles and their nests by enforcing the light ordinance and monitoring; Conservation Policy 3.2, which protects manatee habitat; Conservation Policy 3.5, which requires the preparation of a management plan for the minimization of adverse effects of development on endangered or threatened species found on the site; Conservation Policy 7.4, which prohibits the use and, in the event of redevelopment or construction, requires the removal of noxious, exotic species such as Brazilian Pepper; and Conservation Objective 9, which is to reduce discharge from the City sewage treatment plant into the Banana River Lagoon by 50%. Plan provisions identifying techniques for mitigating general hazards, including the regulation of floodplains, beaches and dunes, stormwater management, and land use to reduce the exposure of human life and property to natural hazards, have been discussed in the preceding paragraphs. As to sanitary sewer, Public Facilities Objective 1 assures that the City residents will have access to sanitary sewer facilities and the City will protect the Banana River by expanding the effluent reuse program. Public Facilities Policy conditions the issuance of a development order on a determination of sanitary sewer capacity of 100 gallons per day per person. Plan provisions conserving and protecting soils, fisheries, wildlife, wildlife habitat, native vegetation, endangered or threatened species, and protection from coastal natural hazards have been discussed in the preceding paragraphs. In addition, FLUE Policy 9.2 states that the City will "require development in the dune area to use naturally vegetated dune to meet open space requirements, and to preserve the full range of existing interconnected dune vegetational zones." County's Plan: Objectives and Policies Future Land Use Element Policy 1.1C. of the County's plan limits the land designated as Residential to a density of 30 dwelling units per acre. It is unclear whether the County's plan permits the construction of hotel/motel rooms on the Subject Parcel. 8/ Even if so, the County's plan limits density to 15 rooms per acre. 9/ Future Land Use Element Policy 1.8 precludes any increase in densities for the Coastal High Hazard Area and High Risk Vulnerability Zones until the County completes Strategic Area Plans for the areas in question. Coastal Management Element Policy 4.1 contemplates that the County will permit construction seaward of its Coastal Construction Control Line, which is typically the same as the line established by the Florida Department of Natural Resources. Conditions imposed on construction in the area seaward of the Coastal Construction Control Line include the preservation of half of the existing vegetation, limitation of impervious surface to 45%, and construction to standards designed to withstand wind and water forces from the 100-year storm. Relevant Provisions of the Regional Plan Policy 40.6 of the East Central Florida Comprehensive Regional Policy Plan, June, 1987 (Regional Plan) provides: Structural development along sand beaches fronting the Atlantic Ocean shall not adversely affect the coastal beach and dune system. The following criteria shall apply in the implementation of this policy: Beach setbacks shall be established to protect and preserve the coastal beach and dune systems fronting the Atlantic Ocean. Structures shall be prohibited within the established setback except where overriding public interest is apparent, or the structures are necessary for reasonable access and are elevated above the existing dune vegetation. MEASURE: The number of ordinances which establish beach setbacks. Regional Plan Policy 64.12 provides: Land development in the coastal zone shall be manned [sic] so that public facility and service needs required to maintain existing hurricane evacuation times do not exceed the ability of local government to provide them. MEASURE: The clearance time required to evacuate the population-at-risk within the region's coastal zone. Relevant Provisions of the State Comprehensive Plan Section 187.201(9)(a) is a goal of the state comprehensive plan. The goal is: Florida shall ensure that development and marine resource use and beach access improvements in coastal areas do not endanger public safety or important natural resources. Florida shall, through acquisition and access improvements, make available to the stage's population additional beaches and marine environment, consistent with sound environmental planning. Section 187.201(9)(b) contains the following policies: 4. Protect coastal resources, marine resources, and dune systems from the adverse effects of development. 9. Prohibit development and other activities which disturb coastal dune systems, and ensure and promote restoration of coastal dune systems that are damaged. Section 187.201(10)(b)3. is to "[p]rohibit the destruction of endangered species and protect their habitats. Section 187.201(16)(b)1. is a policy to: Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new populations and commerce. Ultimate Findings of Fact Jurisdiction As to Issue 1, 10/ the City has exercised planning authority over land that is neither within its jurisdiction nor the subject of a joint agreement with Brevard County. All of the conditions precedent to the annexation have not been met and might not even be satisfied by a final determination of compliance in this case. It is unclear whether annexation will necessarily proceed over the objections of the present owners of part of the Subject Parcel, especially when various unsatisfied contingencies may prevent the prospective purchaser from acquiring title to the land. Consistency of Data and Analysis with Criteria As to Issues 2-6, it is fairly debatable that the plan, as amended, is consistent with the criteria set forth in the statement of these issues. Consistency of Objectives and Policies with Criteria As to Issues 7-24, it is fairly debatable that the plan, as amended, is consistent with the criteria set forth in the statement of these issues. Internal Consistency As to Issue 25, it is fairly debatable that the designation of the Subject Parcel contained in the present plan amendment is consistent with the provisions of FLUE Policy 7.1, FLUE Objective 9, and FLUE Policy 9.2. These plan provisions require the protection of environmentally sensitive coastal areas, including the dunes. The designation of the Subject Parcel does not, to the exclusion of fair debate, conflict with these three provisions. To the exclusion of fair debate, the designation of the Subject Parcel as High Density Multi-Family is not consistent with Conservation Objective 14, which is to direct population and development landward of the Coastal High Hazard Area. A finding whether a plan amendment is consistent with a provision to direct population and development landward of the Coastal High Hazard Area may be facilitated by comparing densities allowed under the plan amendment with densities in effect prior to the amendment. With respect to the part of the Subject Parcel within the Coastal High Hazard Area, the County's plan imposes more demanding restrictions upon development than those that would be imposed under the City's plan. In both plans, the local governments cede to the Florida Department of Natural Resources the threshold decision whether to allow construction seaward of the Coastal Construction Control Line, which generally operates as the landward boundary of the Coastal High Hazard Area. However, the City's plan requires compliance only with "reasonable" conditions imposed by the Florida Department of Natural Resources in granting the permit. In contrast, the County's plan requires that construction seaward of the Coastal Construction Control Line (or in the Coastal High Hazard Area) meet certain minimum requirements. 11/ It is impossible to assume that all development of the Subject Parcel will necessarily take place outside the Coastal High Hazard Area. Neither plan itself prohibits development in the Coastal High Hazard Area, which encompasses nearly 75% of the four oceanfront lots forming most of the Subject Parcel. Thus, the additional protection in the County's plan for the Coastal High Hazard Area contributes to a finding of internal inconsistency. The County's plan permits a density of 30 dwelling units per acre and, most likely, no more than 15 hotel/motel rooms per acre. The City's plan permits the same density for dwelling units, but 45 hotel/motel rooms per acre. 12/ Thus, even if the County's plan permitted 30 boardinghouse or bed and breakfast rooms per acre, the effect of the plan amendment is to increase the density on the Subject Parcel by at least 15 rooms per acre. As noted above, because neither plan itself prohibits development in the Coastal High Hazard Area, which consumes much of the Subject Parcel, it is impossible to assume that all development of the Subject Parcel necessarily will take place outside the Coastal High Hazard Area. Thus, the lower densities permitted in the County's plan for development in the Coastal High Hazard Area contributes to a finding of internal inconsistency. Consistency with Regional Plan As to Issue 26, it is fairly debatable that the plan, as amended, is consistent with Policies 40.6 and 64.12 of the Regional Plan. Regardless of the effectiveness of any coastal setback provisions in the City's plan, other provisions specifically protect the coastal beach and dune system addressed by Policy 40.6. Consistency with State Comprehensive Plan As to Issue 27, it is fairly debatable that the plan, as amended, is consistent with Section 187.201(9)(a) and (b), (10)(b)3., and (16)(b)1. Consistency with Section 187.201(9)(a) is based upon consideration of the state comprehensive plan as a whole.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs submit the Recommended Order to the Administration Commission for entry of a final order determining that the subject plan amendment is not in compliance for lack of planning jurisdiction and internal inconsistency between the plan amendment and Conservation Objective 14. ENTERED this 4th day of March, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1991.
The Issue The issue is whether the Petition to Amend the Boundaries of the Crossings at Fleming Island Community Development District (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2007)1, and Florida Administrative Code Rule Chapter 42-1. The purpose of the local public hearing was to gather information in anticipation of quasi-legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
Findings Of Fact Based upon the evidence and testimony adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Proposed District will be located in an unincorporated area of central Palm Beach County within the boundaries set forth in the Amended Petition. It will encompass approximately 9,450 acres of land, including the 2,300 acre impoundment area that the State of Florida has an option to purchase. Irving Cowan, individually and as Trustee, Adrian R. Chapman, as Trustee of the A.R. Chapman Palm Beach Groves Trust, Marvin S. Savin and Elaine S. Savin, as general partners of Savin Groves, a Florida general partnership, and Petitioner, a Florida limited partnership, presently own 100 percent of the land to be included within the Proposed District. The property within the District is designated in the Palm Beach County Comprehensive Plan Land Use Element as either Agricultural Production or Rural Residential The land within the Proposed District is located entirely within the boundaries of an inactive unit of development of the ITWCD. Consequently, the owners of the land neither pay taxes to, nor receive benefits from, the ITWCD. Most of the land is currently used for growing citrus fruit. Those areas which do not have citrus groves are used to support grove operations. It is the present intent of the landowners to continue to use the land for such agricultural purposes. The purposes and functions of the ITWCD and the Proposed District will be significantly different. The ITWCD is primarily concerned with providing drainage to an urbanizing, residential area with a "one By contrast, the Proposed District will operate a "two-way" drainage and irrigation system designed for the benefit of active agricultural production. The ITWCD and the Proposed District will be able to operate independently within their respective areas of responsibility. The creation of the Proposed District will have no adverse impact upon the ITWCD. On July 27, 1992, the Board of Supervisors of the ITWCD unanimously adopted a Resolution in support of the establishment of the Proposed District. The existing infrastructure within the Proposed District consists of roadways, drainage and irrigation facilities, pumping stations, and culverts connecting with the L District. There are no existing water mains or existing sewer facilities. Among the potential improvements to the existing infrastructure which could be undertaken by the Proposed District are the construction of central pumping stations to replace the many individual pumps operated by the several property owners within the Proposed District, and the replacement of the outfall structures into the L-8 canal. In addition, the Proposed District could engage in roadway construction and surfacing of the main fruit hauling routes within the District. 4/ The Proposed District provides the best possible mechanism for financing and implementing these improvements. Of the various alternatives in providing infrastructure services for the community, a community development district is superior to any other alternative, including a municipal service taxing unit, the County or a homeowners' association. This is because neither the County nor a municipal service taxing unit would be as responsive to the Proposed District's landowners as would be the Proposed District and because a homeowners' association would be hindered by reason of its inability to issue bonds or effectively collect property assessments. Centralized ownership, management and control of the Proposed District's infrastructure is more efficient and less costly than the current arrangement. Consequently, the establishment of the Proposed District will increase the likelihood that the land within its boundaries will continue to be used for agricultural purposes. The District will be empowered to issue bonds, levy ad valorem taxes and special assessments, and impose user fees and charges. To defray the costs of operation and maintenance of the infrastructure, the District will utilize a variety of taxes, assessments and user charges tailored to the service involved so as to minimize costs while insuring that only those who receive the benefits from a facility pay the costs involved. Ultimate Findings All statements contained in the Amended Petition, including those contained in the economic impact statement, are true and correct. The creation of the District is not inconsistent with any applicable element or portion of the State Comprehensive Plan or of the Palm Beach County Comprehensive Plan. The land within the Proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as a functional interrelated community. The Proposed District is the best alternative for delivering community development services and facilities to the area that will be served by the District. The community development services and facilities of the Proposed District will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The area that will be served by the Proposed District is amenable to separate special-district government.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that FLWAC enter a final order granting Petitioner's Amended Petition to establish the Cypress Grove Community Development District by rulemaking pursuant to Chapter 190, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of June, 1993. STUART M. LERNER 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 16th day of June, 1993.
Findings Of Fact Taken together, the evidence is clear that, if the Respondent did what he is accused of doing, his conduct: (1) would have been inconsistent with the standards of public conscience and good morals; (2) would have been sufficiently notorious to bring the Respondent and the education profession into public disgrace or disrespect; (3) would impair the Respondent's service in the community; and (4) would have been so serious as to impair the Respondent's effectiveness in the school system. But it is found that the School Board's evidence did not prove the allegations. The ultimate finding of fact is based primarily on an evaluation of the testimony and demeanor of the Respondent and the arresting police officer. However, the testimony of the Respondent's character witnesses also weighed heavily; they were credible, and many of them knew the Respondent very well and for a long period of time, some under circumstances that would be expected to have given them an opportunity to learn whether the Respondent engaged in, or had a reputation for engaging in, the kind of conduct he was accused of doing. In this case, although the testimony of the arresting police officer is not accepted, it is not found that his testimony was pure fabrication. Rather, it is found that, due to his mindset and expectations, the arresting police officer misinterpreted much of the conduct he observed involving the Respondent on January 24, 1995. On that day, the police officer was patrolling Lake Seminole Park in Pinellas County, undercover, as part of a law enforcement effort to rid the park of illegal lewd and lascivious conduct and the solicitation of sex (primarily homosexual), activities for which the park had become notorious to the police department and to many others who frequented the park. The police officer on duty at the park that day expected users of the park to know its reputation, and he expected to find homosexual men using the park for these notorious purposes. As a result, knowing nothing about the Respondent, he misinterpretated innocent or ambiguous behavior of the Respondent as evidence of criminal conduct. He also attributed little or no importance to behavior of the Respondent that was evidence of his innocence of criminal charges. In addition, as a result of the manner in which he conducted his operation, he initiated the situations from which the misinterpreted behaviors flowed. After the officer announced that he was placing the Respondent under arrest, the Respondent may have made statements in an effort to avoid any further adverse repercussions; the officer interpreted them as admissions of guilt. Finally, the officer may have exaggerated or embellished some of his testimony to support the validity of the arrest he ultimately made. When the officer first saw the Respondent, the Respondent was driving his car on roads in the park in excess of the speed limit. The officer decided to follow in his vehicle because the Respondent was speeding but overlooked the possibility that driving at a high speed generally was inconsistent with "cruising" the park, a more normal behavior for one looking for opportunities to engage in the criminal conduct the officer was investigating. When the Respondent pulled into the parking lot of a rest room pavillion in the park, the officer continued to suspect that the Respondent's purpose was criminal. The officer attributed no significance to the Respondent's turning into the first available driveway into the parking lot and driving the wrong way on a one-way drive to enter the parking area. What the officer did not know was that the Respondent is on diuretic medication for high blood pressure and that, partly as a result, he has to urinate frequently and has difficulty controlling his need to urinate. As he was driving down the street, the Respondent began to feel the urge to urinate and decided to enter the park as a likely place to find a convenient rest room. The officer followed the Respondent into the parking lot and parked in a space to the left of the Respondent's space, between the Respondent's space and the rest room pavillion. When the Respondent did not immediately get out of his car, the officer suspected that the Respondent was waiting for him. What he did not know was that the Respondent was driving shoeless and was putting his shoes on. When the Respondent got out of his car, he had an unlit cigarette in his hand. He did not think he had any matches on him and, as he was walking past the officer's parked car, he tapped the cigarette he was holding with his other hand in a gesture to ask the officer for a light and approached the driver side of the officer's car. When the Respondent got to the driver side of the car, the officer rolled down the window, and the Respondent asked for a light. He could see through the officer's open driver side window that the officer did not have matches or a portable lighter but had pushed in his car cigarette lighter. As a result, the Respondent had to wait for the lighter to heat up. No words were spoken while the Respondent waited. However, by the time the Respondent got his light and was ready to leave, he felt the need to touch and hold his crotch area to delay urination. (The officer inaccurately called this "massaging" the groin area.) The Respondent apparently also made some noises as a result of his distress, which the officer interpreted as "low moaning." The officer saw a "bulge" in the Respondent's pants in the area of the crotch and misinterpreted it as being an erection. As soon as the Respondent got his light, he said thanks and walked directly to the rest room pavillion. The officer testified that, when the Respondent got far enough away so that the officer could see the Respondent's face and head, the Respondent nodded to him. If so, it may have been in thanks or acknowledgement for lighting the cigarette. But the officer, still interpreting the Respondent's behavior as the prelude to criminal activity, misinterpretated the nod as an invitation to follow the Respondent into the rest room. Unbeknownst to the Respondent, the officer followed him to the men's room. The officer acknowledges that, as he approached the men's room, he could hear the Respondent urinating. As the officer entered the men's room (unobserved by the Respondent), he saw the Respondent leaving the urinal next to the toilet stall at the far end of the rest room and entering the toilet stall. There was no one else in the men's room. The Respondent intended to use the toilet stall, but it was soiled so he flushed it and, with his pants still down and his penis exposed, switched back to one of the urinals, where he finished urinating. The officer again failed to be impressed with the possible consistency of the Respondent's behavior with that of a man who needed to find a toilet and urinate in a hurry. Instead, the officer focused on the Respondent's moving from the toilet stall to the urinal with his penis exposed and misinterpreted it as being part of a course of criminal conduct. While the Respondent was in the toilet stall, a car could be heard driving through the parking lot. As the Respondent left the toilet stall and switched to the urinal, the officer asked him if he knew where the car had gone, and the Respondent answered that he thought it left. The officer interpreted the Respondent's answer as incriminating; meanwhile, the Respondent was beginning to get suspicious about the officer's intentions. Nothing else happened for the officer to misinterpret while the Respondent finished urinating. No words were exchanged. Then, while standing behind and to the right of the Respondent as he finished urinating, the officer initiated conversation by asking the Respondent, "well, what do you want to do?" (The Respondent also recalls the officer commenting that the Respondent was "hard" earlier but couldn't "get it up" any more; the officer does not recall those comments.) By this time suspicious of the officer's intentions, the Respondent half turned in the direction of the officer while continuing to shake his penis to stop it from dripping urine, and testily asked back, "what do you want to do?" (The Respondent may also have been exaggerating the motion of shaking urine off his penis as a way of establishing the intruder's intentions, as in "is this what you want?") The officer did not see the Respondent's penis long enough to be able to say whether the Respondent had been circumcised; he only could say that it was not erect and generally describe its size and color. Yet, misinterpreted and erroneously described the gesture as "masturbating." Intending to shake up the intruder, the Respondent also asked him, "do you live around here?" In the officer's exaggerated and embellished retelling to buttress the validity of the arrest, this question became a conversation in which the officer expressed discomfort "doing it" in the men's room and the two discussed where they could go to have sex in private. The very next thing that happened was the officer's announcement that he was a police officer and that the Respondent was under arrest. The Respondent asked incredulously, "arrested for what?" Then, afraid of the obvious repercussions of an arrest for lewd conduct on his teaching position and certification, the Respondent said things for the purpose of trying to avoid those repercussions that served instead to confirm the officer's view that the Respondent was guilty. At one point, the Respondent told the officer that, if the officer let him go, the Respondent would promise never to return to Lake Seminole Park. The officer took the promise as an admission that the Respondent frequented the park when in fact the Respondent was telling the truth when he earlier denied ever having been to the park before. When the Respondent told the officer that he was coming from work, the officer asked where he worked, and the Respondent identified his job at ETC Molex but at first omitted to say that he also worked at Osceola Middle School, which he just had left. The officer never had heard of ETC Molex and somehow understood the Respondent to be saying that he worked at Bay Pines Hospital. After the Respondent retrieved identification from the glove compartment of his car, he lit another cigarette with matches he found in the glove compartment. The officer thought the Respondent got the cigarette (along with his driver's license) from his coat pocket. This misunderstanding served to confirm the officer's misconception that the Respondent's initial request for a light for his cigarette was just an excuse to make contact with the officer for purposes of planned criminal activity. The officer also thought the Respondent was lying when the Respondent told the officer earlier that his identification was in his car. When the officer saw on the Respondent's driver license that he lived in south St. Petersburg, he asked the Respondent why he drove to Lake Seminole Park if he was on his way home from "work" (i.e., from Bay Pines Hospital, which also is south of Lake Seminole Park). At that point, the Respondent corrected the officer's misunderstanding as to his place of employment and told the officer that he also was a PE teacher at Osceola Middle School. He also corrected the officer's misunderstanding as to his destination--he told the officer that he was going to a meeting at the Pinellas County Classroom Teachers Association, which is north of Lake Seminole Park, not directly home. In the officer's mind, the Respondent had been dissembling, and he interpreted the dissembling as evidence of guilt. After the Respondent's arrest, and during the pendency of criminal proceedings, the School Board did not interview the Respondent in deference to his constitutional right not to say anything that might incriminate him; nonetheless, the School Board went forward with its proceeding to dismiss the Respondent. After the criminal proceedings were dismissed, and this case was scheduled for final hearing, the School Board did not seek to interview the Respondent due to the Respondent's representation by counsel; nonetheless, the School Board continue to prosecute the dismissal proceeding. At no time before the taking of the Respondent's deposition in this proceeding did the School Board ask to interview the Respondent to hear his side of the story of what happened on January 24, 1995; on the other hand, there is no evidence that either the Respondent or his attorney requested such an interview.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the charges against the Respondent and reinstating him with full back pay. RECOMMENDED this 30th day of October, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0898 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Rejected as not supported by any evidence. Also, the position taken by the School Board has been that the Respondent was not on continuing contract. See also proposed finding 33. 3.-4. Accepted but subordinate and unnecessary. 5.-6. Accepted and incorporated to the extent not subordinate or unnecessary. 7. Accepted but unnecessary without proof that the Respondent knew he was passing rest rooms on his way to the rest room he used. 8.-10. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the gesture was to roll down the window. Accepted and incorporated. The officer's misinterpretation of what he saw and heard is rejected as not proven. Accepted and incorporated. Rejected as not proven that the Respondent gestured for the officer to follow. 16.-18. Accepted and incorporated to the extent not subordinate or unnecessary. 19.-20. Rejected as not proven that the Respondent urinated into the toilet. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the Respondent turned towards the officer until after the officer started talking to him. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Rejected as not proven that the Respondent was masturbating. Otherwise, accepted and incorporated. Rejected as not proven. 25.-26. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as not proven. Rejected as not proven that the wallet was in his coat pocket the whole time. Accepted; in part incorporated and in part subordinate to facts contrary to those found. Rejected as not proven that the matches were in his coat pocket the whole time. First sentence, rejected as not proven that he said "to read." (That was either a misunderstanding or part of the officer's embellishment of his story.) Otherwise, accepted and incorporated. 32.-34. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. (The Respondent's proposed findings of fact appear to be in the "Argument" section of the Respondent's Proposed Recommended Order. For purposes of these rulings, the unnumbered paragraphs of the "Argument" section are assigned consecutive numbers.) Accepted and incorporated. The Respondent initiated conversation at the officer's car outside the rest room pavillion; the officer initiated conversation inside the rest room. Also, there were conflicts in the testimony at earlier points in time, too. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as argument. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. The rest is rejected as argument, as subordinate and as unnecessary. COPIES FURNISHED: Keith B. Martin, Esquire School Board of Pinellas County 301-4th Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640 Howard Hinesley Superintendent of Schools School Board of Pinellas County Post Office Box 2942 Largo, Florida 34649-2942 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
