Findings Of Fact The Department as the State Land Planning Agency is charged with the responsibility of reviewing the Comprehensive Plans submitted by local governments. Following such review conducted pursuant to Chapter 163, Part II, Florida Statutes, the Department is to determine whether the plan submitted is "in compliance" or "not in compliance" with applicable statutes and rules employed in the review process. McIntosh is a local government which adopted its Comprehensive Plan pursuant to Chapter 163, Part II, Florida Statutes. The McIntosh Comprehensive Plan was adopted was received by the Department on July 24, 1992. On September 4, 1992, the Department published Notice of Intent to find the Comprehensive Plan "in compliance" with applicable statutes and rules. McIntosh is a town of approximately 450 acres in size, which had a residential population in 1990 of 411 and was projected to increase population by the year 2000 to 418 people. Single family residential and agricultural land uses are the predominant land uses in the community. Petitioner Harris owns property within the incorporated limits of McIntosh. He owns and operates Sportsman Cove, a business located on Orange Lake. Portions of Orange Lake are found within the corporate limits of McIntosh where Harris conducts his business. Harris owns blocks 35 and 36 and portions of blocks 37, 53 and 54 within the corporate limits. His business involves 49 licensed mobile home sites and a number of "RV" sites located on approximately 4.648 acres along the shore of Orange Lake. He also operates a fish camp there. When the Comprehensive Plan was being prepared Harris submitted written and oral comments, objections and recommendations pertaining to the plan. He is a person affected by the adopted Comprehensive Plan. Colwell owns property in the incorporated limits of McIntosh. She owns and operates the McIntosh Fish Camp which has 8 mobile home sites and 5 "RV" sites along the shore line of Orange Lake within the town limits. Colwell submitted written and oral comments, objections and recommendations during the process of review and adoption of the Comprehensive Plan. Colwell is a person affected by the adopted Comprehensive Plan. The fish camp operations and "RV" sites of Harris and Colwell are classified in the Comprehensive Plan as lakefront commercial. The Stott's own property in the incorporated limits of McIntosh. That ownership includes blocks 1, 2, 13, 14 and 15 constituted of 13.6 acres, a portion of which is located on the shore of Orange Lake. In 1986 part of their property was used as a restaurant for about a year. The Stott's engaged in a bait business for approximately a year beyond that point. In the past prior to the plan adoption, there had been a fish camp located at blocks 1 and 15 with cabins and camper sites. These blocks are located adjacent to Orange Lake and are classified lake front residential in the Comprehensive Plan. At the time of hearing the property was not being operated as a fish camp. In the past lots 2, 13 and 14 had been used by the Stott's for unspecified light industry. The Stotts submitted written and oral comments, objections and recommendations during the plan review and adoption process. The Stotts are persons affected by the adoption of the Comprehensive Plan. The notice that was provided on September 4, 1992 concerning the intent to find the Comprehensive Plan "in compliance" made mention that the adopted plan would be available for public inspection Monday through Friday, with the exception of legal holidays. The location contemplated for inspection was the McIntosh Town Hall, Clerk's Office, at 5975 Avenue G, McIntosh, Florida. A problem arose concerning the opportunity to inspect the adopted Comprehensive Plan. The problem was occasioned by an illness to the Town Clerk. This influenced petitioners' ability to review the adopted plan and to timely submit their challenges to the decision to find the Plan in compliance. Under the circumstances a slight delay in conforming to the 21 day requirement for filing the petitions in challenge to the Comprehensive Plan is acceptable. With some inconvenience to Petitioners, persons other than the Town Clerk offered assistance in making the adopted plan available for inspection. Nonetheless, petitioners were afforded sufficient opportunity to apprise themselves concerning the contents of the adopted plan when considered in the context of their participation in the overall process for adopting the McIntosh Comprehensive Plan. The complications experienced in reviewing the adopted Comprehensive Plan did not compromise the ability of these petitioners to advance their claims in a setting in which other procedural requirements for plan adoption, review and approval have been met. The inconvenience experienced by the petitioners in reviewing the adopted plan do not evidence a quality of prejudice that should form the basis for deciding that the plan is not in compliance with applicable statutes and rules. When the Town Council adopted the plan and established Policy 2.1.4.5 it intended to use the word "abandonment" where the written text found within the adopted plan at Page 2-23 uses the word "suspension." This mistake is evidenced by the minutes of the meeting for adoption where a motion was made to change the word "suspension" to "abandonment." In the course of the hearing the attorney for McIntosh stipulated that this was an error and that the written text would be changed to reflect the proper wording. With that change Policy 2.1.4.5 would read: Provisions in the Land Development Regulations shall discourage the continuance of existing inconsistent land uses within designated land uses. These provisions shall limit the expansion of inconsistent land usage and, upon a 90 days abandonment of the incompatible land use, require reversion to designated land uses. Petitioner Harris is not satisfied that the Figure 2-6, Page 2-11, which is a map of the wetlands within the incorporated town limits, in the Comprehensive Plan, is accurate. He claims that a lobe, which is an RV site on his property known as site 9C is not within the wetlands as shown on that map. He also takes issue with the designation in Figure 2-9, page 2-17, of the future land map which shows this lobe of property as conservation/open space. He perceives this property at site 9C to be uplands. By virtue of his own activities in May 1991 in which he arranged to have a survey performed on his property in the incorporated limits of McIntosh, Harris asserts that site 9C was not found to be wetlands then and is not wetlands now. When McIntosh designated the wetlands in the community through the use of the wetlands map and identified conservation/open space in the future land use map it was acting in accordance with legal requirements incumbent upon it in adopting the Comprehensive Plan. The specific designations of wetlands and conservation/open space areas are based upon appropriate data and analysis. The data was taken from a professionally accepted existing source and was the best available data. The work that was done in preparing the wetland mapping requirements was done by the same consulting firm which Harris had employed in May 1991, that is to say Environmental Service and Permitting, Inc. In preparing the wetlands survey for McIntosh the private consulting firm used ground-truthing, as well as a review of wetland mapping data sources to delineate the wetlands. The data consulted included the U.S.D.A. Soil Conservation Service Soil Survey of Marion County, U.S.G.S. Quadrangle maps for the Town of McIntosh, as well as a review of the McIntosh Land Planning Agency Drainage Map. Although Harris takes issue with the clarity of some of the maps depicting the lobe of property for his site 9C, the adopted plan is acceptable as it describes wetlands and conservation/open space to include his site 9C. Objective 7.1.1 at Page 7.4 establishes wetland setbacks within the town where it states: The Town of McIntosh shall protect the natural drainage features within and adjacent to the Town limits, by the establishment of the wetland setbacks, and compliance with State Water Quality standards, to be a part of the Land Development Regulation. In furtherance of this Objective, Policy 7.1.1.1 is set out at page 7- 4 where it states: Setbacks shall be established from the limit of wetlands landward to buildings, septic tanks and land coverage. The following setbacks shall be a part of the Land Development Regulations. Buildings shall be set back at a minimum of 75 feet. Septic tanks and drain fields shall be set back at a minimum of 200 feet. Impervious areas shall be set back at a minimum of 50 feet. Drainage Retention Areas shall be set back 25 feet. These set backs were arrived at by the Town Council having heard from the petitioners. In the face of remarks by the petitioners made in the adoption process the council reduced the set backs. While no specific data and analysis was offered to support the set backs, they are within limits which would be recommended by the Department to protect the wetlands resources. According to the Department, from a planning viewpoint, the mere existence of wetlands is sufficient to promote protections through the use of set backs. The set backs found within this Comprehensive Plan are appropriate. Moreover, the set backs associated with the protections of wetlands have the additional benefit of protecting Orange Lake, a Class III Outstanding Florida Water Body, entitled to special water quality protection. Protection of that water body is the responsibility of McIntosh in its comprehensive planning, together with other local governments and environmental regulators. Future land use classifications in the Comprehensive Plan are set out at Page 2-14. Property which abuts Lake Orange is classified as lake front residential and lake front commercial. Lake front residential is defined as: [T]his category allows a maximum of 2 units per acre. Dwelling units includes: single family houses and mobile homes. Maximum coverage of 35% and maximum building height of 35 feet. Lake front commercial is defined as: this category allows fish camps, marinas, and recreational vehicle parks. Maximum coverage of 50% and a maximum building height of 35 feet." These classifications and densities protect natural resources to include the wetlands and Orange Lake and are appropriate. Petitioners Harris and Colwell may take advantage of the lake front commercial for their fish camp operations and "RV" sites. Stott is not entitled to take advantage of the lake front commercial classification in that her property did not include a fish camp and recreational vehicle operations at the time the plan was adopted. Petitioners have failed to show to the exclusion of fair debate that the adopted Comprehensive Plan is not "in compliance" with applicable statutes and rules concerning the issues raised in the challenges to the determination to find the Comprehensive Plan "in compliance."
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which finds the Town of McIntosh Comprehensive Plan to be "in compliance" and dismisses the petitions. DONE and ENTERED this 30th day of March, 1993, in Tallahassee, Florida. CHARLES C. ADAMS 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 March, 1993. APPENDIX The following discussion is given concerning the proposed facts of the parties: Harris' Facts: This paragraph is not relevant in that it was not alleged in the petition. This paragraph in its various parts concerning available low and moderate income housing and the densities is rejected in its suggestion that the Comprehensive Plan is not acceptable. This paragraph is rejected in its suggestion that the seasonal population for dwelling units affiliated with fish camp operations should cause a reconsideration of the classifications and densities for land use. This paragraph is ejected in its legal conclusion. 5-8 These paragraphs are not relevant in that these issues were not set out in the petition. 9, 10 To the extent that paragraphs 9 and 10 describe concerns about the treatment in the Comprehensive Plan of wetlands and comment critically on wetlands protections, the proposed findings of facts are rejected. Colwell's Facts: The unnumbered facts proposed are subordinate to facts found, with the exception that the changes in Orange Lake described even if true do not persuade that the wetlands protection of Orange Lake contemplated by the Comprehensive Plan is inappropriate. Stott's Facts: 1-2 Paragraphs 1 and 2 are subordinate to facts found. 3-5 Constitute legal argument. 6 It is acknowledged that the Orange Lake is used for fishing. 7-11 To the extent that paragraphs 7 through 11 suggest inappropriate identification and protection of the wetlands through the adopted Comprehensive Plan, the proposed facts are rejected. McIntosh's Facts: A-E, A-C, A-E Are subordinate to facts found with exception that the word "increase" in fact should be "decrease" when describing residential density. Department's Facts: 1, 2 Subordinate to facts found. Subordinate to facts found with exception that the reference to the property being within "unincorporated" limits should read "incorporated" limits. - 6 Subordinate to facts found. Subordinate to facts found with exception to the suggestion that the petitioners had to contact city council members to obtain a copy of the adopted plan in the absence of the clerk. - 20 Subordinate to facts found. Not necessary to the resolution of the dispute. - 26 Subordinate to facts found. COPIES FURNISHED: R. Jerry Harris P. O. Box 107 McIntosh, FL 32664 Anna Colwell P. O. Box 135 McIntosh, FL 32664 Thomas C. Stott Marie Stott P. O. Box 551 McIntosh, FL 32664 David Wilcox, Esquire 425 Pleasant Grove Road Inverness, FL 32652 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Michael P. Donaldson, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue The issues to be determined in this case are whether a development order approved by Lake County is consistent with the Lake County Comprehensive Plan, the Lake County land development regulations, and the Principles for Guiding Development in the Green Swamp Area of Critical State Concern.
Findings Of Fact The Parties Petitioner DEO is the state land planning agency with the authority and responsibility to review development orders issued in Areas of Critical State Concern. Respondent Lake County is a political subdivision of the State with jurisdiction over the affected property. Respondent Rubin Groves is a Florida limited liability company doing business in Lake County. Rubin Groves is the owner of the approximate 131 acres in Lake County (“the Property”) on which development was approved by the Ordinance. Background The Property is located within the Green Swamp Area of Critical State Concern and more particularly within the Lake Wales Ridge. The Property’s future land use designation under the Lake County Comprehensive Plan is Green Swamp Ridge. The topography of the Property is generally a hill, bounded by U.S Highway 27 to the east, a wetland to the west, and properties approved for mixed-use residential uses to the north. Existing elevations are approximately 130 feet NGVD at the wetland on the western boundary of the Property, 140 feet NGVD on eastern boundary at U.S. 27, with the top of the hill in the center portion of the property at an elevation of about 180 feet NGVD. In June 2010, Rubin Groves filed a pre-submittal application with Lake County that proposed a borrow pit (mining) operation for the Property. The County informed Rubin Groves that mining was prohibited in the Green Swamp Ridge and Rubin Groves took no further action on the pre-submittal application. In February 2013, Lake County approved Rubin Groves’ application to rezone the Property. Ordinance No. 2013-8 rezoned the Property from Agricultural to Planned Unit Development (“PUD”), allowing a mixed-use development of 490 single-family residential units and 24.54 acres of commercial uses. Less than a year later, Rubin Groves applied to amend the PUD to allow “mass grading” of the Property to make it relatively level to accommodate a residential development for the elderly and disabled (mobility-impaired). The Mass Grading Plan calls for removing 2.4 to 3.0 million cubic yards of sand from the Property. The average cut or change in elevation would be 11 to 12 feet. The deepest cut, near the center of the Property, would be about 30 feet. The contractor that Rubin Groves would hire to extract and remove the sand from the Property would sell the sand and the income would be applied to offset the costs charged to Rubin Groves for the work. The Lake County Community Design staff recommended denial of the application based upon the following: (1) the activities proposed in the Mass Grading Plan constitute mining; (2) mining is prohibited in the Green Swamp Ridge future land use category in the Lake County Comprehensive Plan (“Comp Plan”); (3) the Mass Grading would result in the property's elevation being lowered more than the 10-foot limit in the Lake County Code; (4) the applicant failed to demonstrate that the Mass Grading Plan was necessary to develop the site; and (5) the Mass Grading Plan did not comply with the Green Swamp Principles for Guiding Development, sections (1), (2) (7) and (10). On January 28, 2014, the Board of County Commissioners of Lake County approved the rezoning application, including the Mass Grading Plan, through the adoption of Ordinance No. 2014-7. Whether Sand Mining is Allowed in the Green Swamp Ridge In the previous version of the Comp Plan, mining was expressly prohibited in the Green Swamp Ridge future land use category. In the current Comp Plan, there are four future land use categories established within the Green Swamp: Green Swamp Ridge, Green Swamp Rural, Green Swamp Rural/Conservation, and Green Swamp Core/Conservation. For each category, the Comp Plan lists “Typical Uses” and “Typical Uses Requiring a Conditional Use Permit.” Mining is not listed as a typical use in any category, and it is not similar to any listed typical use. In all categories except Green Swamp Ridge, sand mining is listed as a typical use requiring a conditional use permit. The format of these Comp Plan provisions, together with the fact that sand mining was expressly prohibited in the previous version of the Comp Plan, plainly indicates that sand mining is not an allowed use in the Green Swamp Ridge future land use category. Whether the Proposed Mass Grading is Mining The Comp Plan defines “Mining Activities” as: The mining of materials, ore or other naturally occurring materials from the earth by whatever method, including the removal of overburden for the purpose of extracting and removing from the site such underlying deposits and all associated clearing, grading, construction, processing, transportation and reclamation on the property, and includes the term pre-mining activities and lake creation but shall not be deemed to include activities associated with site surveying, environmental monitoring, mineral exploration or the sinking or operation of test wells and similar activities. Section 6.06.01(F) of the Lake County Code creates eight exemptions to the requirement to obtain a mining conditional use permit and they are activities not commonly considered to be mining. For example, excavating and removing dirt to install a swimming pool does not require a mining conditional use permit. Excavating and removing dirt to install a swimming pool is not commonly considered to be a mining activity. The broad definition in the Comp Plan could allow for absurd applications, contrary to its ordinary meaning, if the term was interpreted to mean the removal of any amount of material from the ground for any purpose. The definition of “mining activities” must be read in conjunction with section 6.06.01(F) of the Lake County Code and the latter, along with common sense, provide guidance for what is mining. It is not mining to excavate soil to install a swimming pool because mining is commonly understood to involve more than the excavation of a small amount of material in a small amount of time. Mining is commonly understood to be an ongoing business of extracting and selling a large volume of material. One of the exemptions from the requirement to obtain a mining conditional use permit is excavation associated with construction activities: Excavation in conjunction with bona fide commercial, industrial or Subdivision Construction provided a Construction approval or Building Permit has been obtained from the County and Excavation is completed and Construction initiated within a reasonable period of time from the date that Excavation is initiated. Said time period shall be determined by the County based upon the type of Construction and shall be indicated on the written exemption document. Excess Overburden generated as a result of the bona fide Construction may be Removed offsite only as follows: Excess overburden generated as a result of the bona fide Construction may be removed offsite so long as the County Manager or designee is provided written notice during Construction approval or Building Permit application process and so long as the total amount of material removed offsite is not greater than two hundred (200) percent of the minimum stormwater retention/detention volume required. If the [200 percent limit] is exceeded or excavation is not storm water related, the County Manager or designee may give approval for removal of such excess Overburden if the applicant shows that removal of such excess Overburden is necessary for development of the Site due to physical factors of the Land or Permitting requirements from a governmental agency. In making this decision, the County Manager or designee shall consider the following factors: Unique physical characteristics and topography of the Land involved; Engineering and environmental factors requiring overburden removal; Whether excavation and removal of Overburden is necessary for access to the property; Permitting requirements of state, local and federal governmental agencies; or Such other matters that may be deemed appropriate by the County Manager or designee. Rubin Groves proposes to remove much more than 200 percent of the volume needed for stormwater retention/detention. Rubin Grove says it intends to seek the approval of the County Manager for exemption from the requirement to obtain a mining conditional use permit. However, as noted above, Ordinance 2014-7 approves the Mass Grading Plan and, therefore, already authorizes Rubin Groves to exceed the 200 percent criterion. Rubin Groves believes it qualifies for the exemption for excavation associated with construction because of its need to level the Property to make the subdivision suitable for mobility-impaired residents. However, that explanation falls short of demonstrating necessity because it does not explain why the Property could not be leveled by moving sand from higher areas of the Property to lower areas. Rubin Groves did not explain why so much sand has to be removed from the Property, but there is some evidence indicating the reason is to allow the residential development to be constructed upon the deeper soils that are denser and more stable. The exemption for bona fide construction activities, like the other activities exempted in Section 6.06.01(F) is not intended to allow mining. The Mass Grading Plan is sand mining because it involves activities that are indistinguishable from the business of sand mining. The estimated volume of sand to be removed, 2.4 to 3.0 million cubic yards, equates to 133,333 to 166,666 truckloads of sand. One of Rubin Groves’ experts stated that, if there was a road construction project which needed the sand, Rubin Groves might be able to extract and haul away the sand in nine or ten months. However, even at the lower figure of 133,333 truckloads, removal in 10 months would amount to about 444 truckloads per day with no days off; an ambitious pace. It is more reasonable to believe removal of the sand would take over a year to complete, perhaps much longer if there are no suitable road projects. A year-long or longer operation of extracting and hauling away sand in 133,333 to 166,666 truckloads, and selling it for roadbuilding and other construction projects, is indistinguishable from the business of sand mining. It conforms with the common meaning of “mining.” Rubin Groves argues that it does not matter how much sand it wants to remove (even “a zillion” cubic yards) because Rubin Groves’ purpose is not sand mining. According to that view, even if sand removal at the Rubin Groves site would (otherwise) amount to the largest sand mine in Florida, it could not be regulated as mining because Rubin Groves’ purpose is to build a residential subdivision afterward. However, the Mass Grading Plan is indistinguishable from sand mining by a landowner who has no plans to develop a residential subdivision afterward. The reason there are special regulations in the Comp Plan and Lake County Code (and elsewhere) for mining activities is to address the impacts associated with mining. The regulations are not concerned with the land use ambitions of landowners or with the profitability of their enterprises. Rubin Groves’ interpretation of the Lake County Code is inconsistent with the plain intent of the Comp Plan and Lake County Code because its interpretation would allow mining impacts, but not make them subject to the mining prohibitions and regulations that were adopted to address mining impacts. Rubin Groves’ argument about purpose is unpersuasive. Rubin Groves’ purpose is to mine sand and then build a subdivision. Rubin Groves’ argument that the Mass Grading Plan would not be regulated as mining by the Department of Environmental Protection (“DEP”) under Florida Administrative Code Rule 62C-39 is also unpersuasive. First, whether the Mass Grading Plan is subject to state regulation has not been determined by DEP. The term “extraction” is defined in rule 62C-39.002(7) to exclude excavation “solely” in aid of on-site construction, but that begs the question whether DEP would view the Mass Grading Plan as solely for on-site construction. Second, rule 62C-39 contains state reclamation standards and implements chapter 378, Florida Statutes, entitled “Land Reclamation.” Under DEP’s reclamation regulatory program, there is no obvious state reclamation issue associated with sand mining on lands approved for construction activities. That does not foreclose a local interest in regulating the land use impacts of mining activities. The Exemption Procedure Pursuant to section 6.06.01(F) of the Lake County Code, approval to remove overburden that exceeds 200 percent of the volume required for stormwater retention must be obtained from the County Manager. However, the County Manager did not approve Rubin Groves’ Mass Grading Plan. It was approved by the Board of County Commissioners in Ordinance 2014-7. Rubin Groves argues that it qualifies for an exemption under Section 6.06.01(F), but the Board of County Commissioners approved the Mass grading Plan without making any finding that the Mass Grading Plan was not mining or that it qualified for exemption from the requirement to obtain a mining conditional use permit. Lake County’s approval of the Mass Grading Plan is inconsistent with Section 6.06.01 of the Lake County Code. Ten Percent Lot Grading Limitation The Mass Grading Plan would change the elevation of the Property more than 10 feet. Section 9.07.00 of the Lake County Code addresses lot grading and prohibits elevation changes that exceed 10 feet. The parties disputed whether this section applies to the Property. DEO contends it applies; Rubin Groves disagrees. Section 9.07.00 states that it applies to “development that is wholly within or partially within any flood hazard area.” The Mass Grading Plan is not within a flood hazard area. The Lake County Engineer testified that the County does not interpret Section 9.07.14 as applicable to subdivision grading, but only to the grading of individual residential lots. The preponderance of the evidence shows Section 9.07.00 is not applicable to the Mass Grading Plan. Principles for Guiding Development The Green Swamp is one of the most significant sources for water recharge to the Floridan Aquifer. It is centered along the potentiometric high for the aquifer as well. The potentiometric high is the level to which water would rise in an open well and affects ground water flow because water flows from high-pressure areas to low-pressure areas. The Principles for Guiding Development in the Green Swamp Area of Critical State Concern adopted by the Administration Commission are set forth in Florida Administrative Code Rule 28-26.003. The Principles have also been adopted into the Lake County Comp Plan. Rule 28-26.003(1) sets forth the objectives to be achieved for the Green Swamp: Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands, and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the water available for aquifer recharge. Protect the functions of the Green Swamp Potentiometric High of the Floridan Aquifer. Protect the normal supply of ground and surface water. Prevent further salt-water intrusion into the Floridan Aquifer. Protect or improve existing ground and surface-water quality. Protect the water-retention capabilities of wetlands. Protect the biological-filtering capabilities of wetlands. Protect the natural flow regime of drainage basins. Protect the design capacity of flood- detention areas and the water-management objectives of these areas through the maintenance of hydrologic characteristics of drainage basins. DEO contends the Mass Grading Plan would violate the Principles for Guiding Development for the Green Swamp Area of Critical State Concern in rule 28-26.003(1)(a),(b), (c), (e), (g), (j), and (k). DEO objects to so much of the vadose zone being removed from the Property. The vadose zone is the layer of material between the land surface and the top of the water table. The vadose zone acts as a filter to remove contaminants as water moves through it. It stores water, creating a buffer for water recharge into the aquifer below it and regulates the rate at which water recharges. It also affects evapotranspiration and runoff. DEO contends the Mass Grading Plan would reduce storage capacity and filtration, cause “surges” of groundwater which would adversely affect the surrounding wetlands, reduce recharge and change the potentiometric high, adversely affect the water retention capabilities of wetlands, and alter the natural flow regime of drainage basins. The evidence presented by DEO was insufficient to prove that the storage capacity of the Property would be reduced by the Mass Grading Plan. In a scenario where the water table is near the ground surface, removal of soil can substantially reduce water storage, but DEO’s theory for loss of storage was not persuasively demonstrated in this situation where the vadose zone would still be about 24 feet deep after the Mass grading Plan. DEO’s evidence regarding the possibility of karst features on the Property was not compelling because it was not shown that the Mass Grading Plan would affect current water movement associated with any karst features. The proper placement of stormwater facilities to avoid karst features is a matter for stormwater permitting. The preponderance of the record evidence supports DEO’s claim that the filtration capacity of the Property would be reduced by the Mass Grading Plan. However, DEO did not rebut Rubin Groves’ evidence that nutrient loading to groundwater from the Property would decrease. DEO did not show that the reduction of filtration capacity would result in a measurable adverse impact to groundwater. The evidence presented by DEO was insufficient to prove that the Mass Grading Plan would cause “pulse” flow to the nearby wetlands. The Mass Grading Plan does not involve soil removal within four or five hundred feet of the wetlands. In a scenario where the water table is near the ground surface, removal of soil can affect water storage and the slow release of water to wetlands, but DEO’s theory for pulse flow was not persuasively demonstrated in this situation where the vadose zone would still be about 24 feet deep after the Mass Grading Plan. The evidence presented by DEO was insufficient to prove that the Mass Grading Plan would reduce recharge to the Floridan Aquifer. In summary, DEO did not prove that the Mass Grading Plan would have a measurable or more than de minimis adverse impact on the Floridan Aquifer and associated water resources which the Principles for Guiding Development are intended to protect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission issue a final order determining that Ordinance 2014-7 is invalid because it is inconsistent with the Lake County Comprehensive Plan and land development regulations. DONE AND ENTERED this 21st day of August, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2015. COPIES FURNISHED: Jimmy D. Crawford, Esquire Merideth Nagel, P.A. 1201 West Highway 50 Clermont, Florida 34711 (eServed) Sanford A. Minkoff, Esquire Lake County Attorney`s Office 315 West Main Street, Suite 335 Post Office Box 7800 Tavares, Florida 32778-7800 Keith Austin, Esquire Rubin Groves of Clermont, LLC 223 Peruvian Avenue Palm Beach, Florida 33480 Barbara R. Leighty, Agency Clerk Transportation and Economic Development Policy Unit Room 1801, The Capitol Tallahassee, Florida 32399-0001 (eServed) Aaron Charles Dunlap, Esquire Department of Economic Opportunity Caldwell Building, MSC110 107 East Madison Street Tallahassee, Florida 32399 (eServed) Erin Hartigan, Esquire Office of the Lake County Attorney 315 West Main Street Tavares, Florida 32778 (eServed) Harry Thomas Hackney, Esquire Campione & Hackney, P.A. 2750 Dora Avenue Tavares, Florida 32778 (eServed) Cynthia Kelly, Secretary Florida Land and Water Adjudicatory Commission Room 1801, The Capitol Tallahassee, Florida 32399-0001 John P. “Jack” Heekin, General Counsel Office of the Governor Room 209, The Capitol Tallahassee, Florida 32399-0001 (eServed) James W. Poppell, General Counsel Department of Economic Opportunity 107 East Madison Street Caldwell Building, MSC110 Tallahassee, Florida 32399 (eServed)
The Issue The issue in these cases is whether the Collier County (County) Comprehensive Plan amendments adopted through Collier County Ordinance Number 02-32 ("the Rural Fringe Amendments" or "the Amendments") on June 19, 2002, are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Background The Amendments at issue in these cases arose from a specific historical background which is relevant to help put them in context. In 1997, the County adopted Evaluation and Appraisal Report-based plan amendments ("EAR-based amendments"). DCA found the EAR-based amendments not to be "in compliance." Following an administrative hearing in which FWF and Audubon intervened, the Administration Commission entered a final order agreeing with DCA's determination. Joint Exhibit J.3. The Administration Commission’s final order, entered on June 22, 1999, directed the County to take the following steps in order to bring its comprehensive plan amendments into compliance: (1) rescind those EAR-based amendments found not in compliance; (2) adopt certain specific "remedial" amendments; (3) initiate an assessment of the area of the County designated on the Future Land Use Map ("FLUM") as Agricultural/Rural; (4) adopt interim amendments to remain in force during the course of the assessment; and (5) no later than June 22, 2002, adopt those plan amendments needed to implement the findings and results of the assessment. Summary of Rural Fringe Amendments In response to the Administration Commission's final order on the EAR-based amendments, the County elected to divide its Agricultural/Rural-designated area into two subdistricts-- Rural Fringe and Eastern Lands--for purposes of the assessment and implementing plan amendments. The Rural Fringe subdistrict was designated as "the Rural Fringe Mixed Used District" (or "the Rural Fringe"). The Rural Fringe is described in the amendments as follows: The Rural Fringe Mixed Use District is identified on the Future Land Use Map. This District consists of approximately 93,600 acres, or 7% of Collier County's total land area. Significant portions of this District are adjacent to the Urban area or to the semi-rural, rapidly developing, large-lot North Golden Gate Estates platted lands. * * * The Rural Fringe Mixed Used District provides a transition between the Urban and Estates Designated lands and between the Urban and Agricultural/Rural and Conservation designated lands farther to the east. The Rural Fringe Mixed Use District employs a balanced approach, including both regulations and incentives, to protect natural resources and private property rights, providing for large areas of open space, and allowing, in designated areas, appropriate types, density and intensity of development. The Rural Fringe Mixed Use District allows for a mixture of urban and rural levels of service, including limited extension of central water and sewer, schools, recreational facilities, commercial uses and essential services deemed necessary to serve the residents of the District. In order to preserve existing natural resources, including habitat for listed species, to retain a rural, pastoral, or park-like appearance from the major public rights-of-way within this area, and to protect private property rights, the following innovative planning and development techniques are required and/or encouraged within the District. J.4 at 50. Under the Amendments, the Rural Fringe was divided into areas designated as Sending, Receiving, or Neutral on the FLUM.18 J.5. Some Sending Areas are also designated Natural Resource Protection Areas (NRPAs). Receiving Lands "are those lands within the Rural Fringe Mixed Use District that have been identified as most appropriate for development . . . ." J.4. at 51. These lands have been chosen because they "have a lesser degree of environmental or listed species habitat value than areas designated as Sending and generally have been disturbed through development, or previous or existing agricultural operations." Id. Approximately 25,000 acres are designated Receiving Lands. Receiving Lands "are also located to allow for the provision of central water and sewer and have excellent access to the County's arterial road network." J.11. at 2. The base density within Receiving Lands is one dwelling unit per five acres. However, through the purchase of development rights from Sending Lands through the Transfer of Development Rights (TDR) program established by the Amendments (discussed in Findings 72-91, infra), Receiving Lands may increase density up to one dwelling unit per acre. Additional density may be obtained if a development preserves more than the minimum required amount of native vegetation. Limited commercial, industrial, and earth-mining uses are also allowed in Receiving Lands. Receiving Lands may also be developed as "Rural Villages." The Amendments provide for the possibility of one rural village within each of the four distinct Receiving Areas in the Rural Fringe. The purpose of rural villages is described as follows: Rural Villages may be approved within the boundaries of the Rural Fringe Mixed Use District in order to: maximize the preservation of natural areas and wildlife habitat within the Rural Fringe Mixed Use District; to reduce the need for residents of the District and surrounding lands to travel to the County's Urban area for work, recreation, shopping, and education; and, to enhance the provision of limited urban and rural levels of service through economies of scale. J.4 at 62. The rural villages permitted in the Rural Fringe must consist of compact neighborhoods with nearby neighborhood or village centers. The neighborhood or village centers are to include retail and office uses; public parks, squares, or greens; civic and government uses; and service facilities. J.4 at 63. Specific provision also is made for open space in and surrounding the rural village. J.4 at 63-64. In addition to the one-village-per-district limitation, the amendments impose the following additional locational criteria on a rural village: (1) it must be at least three miles from any other rural village; (2) it must have direct access to an arterial or collector road, or the developer must bear the cost of a new collector road directly accessing the village; and (3) it must be near already- existing or planned public infrastructure, such as water and sewer facilities. J.4 at 63. In addition, a rural village may only be approved if shown to be fiscally neutral to taxpayers outside the village. J.4 at 65. Neutral Lands "have been identified for limited semi-rural residential development" at a maximum density of one dwelling unit per five acres. J.4. at 55. Limited commercial, industrial, and earth-mining uses are also allowed in Neutral Lands. Approximately 7,000 acres have been designated as Neutral Lands. Sending Lands are those lands "that have the highest degree of environmental value" and "are the principal target for preservation and conservation." J.4. at 58. The residential use of this land is restricted to one dwelling unit per parcel which existed before June 22, 1999, or one unit per 40 acres, whichever yields the greatest density. Nonresidential uses of Sending Land, other than agriculture, are quite limited. There also are specific criteria for the protection of site-specific native vegetation, wildlife habitat, and wetlands. J.4 at 58-62; J.6 at 24, 27, and 29-30. Some of the land designated Sending is also subject to regulation as NRPA. The purpose of a NRPA designation "is to protect endangered or potentially endangered species and to identify large connected intact and relatively unfragmented habitat, which may be important for these listed species." J.4 at 79. Designation as a NRPA also limits the intensity and density of development in an area (J.4 at 58-61) and imposes specific restrictions for the preservation of native vegetation, wildlife habitat, and wetlands (J.6 at 24, 27, and 29). The principal additional effect of NRPA designation is to increase the requirement for the retention of native vegetation. In addition to the changes to the Future Land Use Element (FLUE), the Amendments also affected the Coastal and Conservation Element (CCE), Potable Water Sub-Element, and Sanitary Sewer Sub-Element. Standing of Petitioners and Intervenors The evidence was that the Husseys and Brown own property in Collier County and submitted comments regarding the Rural Fringe Amendments between the transmittal hearing and the adoption hearing. The parties stipulated to the standing of FWF, Audubon, Vision & Faith, and Section 20 Investments. There also was evidence that FWF and Audubon submitted comments regarding the Rural Fringe Amendments at both the transmittal hearing and the adoption hearing and that, at least as of June 14, 2000, they owned property or operated a business in Collier County and had members who reside in Collier County. Century is a for-profit corporation that has its principal place of business in Collier County. Century owns 12.5 acres of land in Collier County. According to the testimony of Donald Lester, President of both Century and Waterford Management, Inc., Century is a wholly-owned subsidiary of Century Holdings, a limited partnership. Waterford is Century Holdings' general partner. Waterford, Century, and approximately 300 other entities are limited partners of Century Holdings. All of these entities and the land they own are managed by Waterford. According to Lester, the various Waterford-managed entities are involved in real estate development and have spent $42 million (over $30 million in "land basis" and $7-8 million on professional fees and expenses) acquiring land for development in Collier County, including approximately $36 million for approximately 3,500 acres in North Belle Meade (NBM) in the Rural Fringe and approximately $6 million for another approximately 2,000 acres farther east in Collier County. There was no evidence that these lands have obtained any master development approval or are otherwise vested for development. Coalition is a not-for-profit corporation having its principal place of business in Collier County. Lester is its Executive Director. There was no evidence that Coalition itself owns property or conducts any type of business activity in Collier County, other than commenting on the Rural Fringe Amendments and participating in these administrative proceedings. Coalition is comprised of approximately 2,000 members. Of these members, approximately 300 are the various entities making up the Century Holdings partnership and managed by Waterford. A total of approximately 320-350 Coalition members own property approximately 3,500 acres in NBM; there was no evidence that the other approximately 1,650 members own property or conduct business in Collier County. An unspecified number of members own approximately 2,000 acres to the east of NBM in Collier County. According to Lester, some members voluntarily donate money to the Coalition; others have "been supporting the proceedings" in some unspecified manner. Lester testified at final hearing that he commented on the Rural Fringe Amendments on behalf of both Century and Coalition during the adoption hearing. He indicated that he filled out and submitted a "speaker card" in order to give his comments and that the card indicated that he was speaking on behalf of both Coalition and Century; but the card was not placed in evidence. The only other evidence on the subject consisted of the transcript of that hearing, which records Lester's introductory statement as follows: "I represent a director of 15,000 coalition. I represent landowners that own property within the TDR area." The transcript also reflects that Robert Diffenderfer commented and stated: "I represent the 15,000 coalition and literally thousands of individuals. . . . On behalf of coalition and the individuals, I have the list here. There are 4,000 plus of them." While the list was not placed in evidence, it can be inferred from Lester's testimony that it would have included Century and the other Coalition members owning land in Collier County. Petitioners' Challenges Petitioners' challenges to the Rural Fringe Amendments were narrowed during the course of this proceeding and now are essentially: (1) whether the County's delineation of Sending and Receiving Lands, especially within the NBM portion of the Rural Fringe, is based upon and reacts appropriately to the best available data19; and (2) whether the TDR Program is based upon and reacts appropriately to the best available data, in particular as to the feasibility of its operation.20 Delineation of Sending and Receiving Lands A. Data and Analysis The process of delineating Sending and Receiving Lands in the Rural Fringe was involved and complex. The County accumulated and considered a wide range of data in the process. Among the data sources used were: (1) the South Florida Water Management District's (SFWMD's) 1994/1995 Land Use/Land Cover map; (2) Natural Resources Conservation Service ("NRCS") soils survey data; (3) soils tables prepared by Florida soils scientist, Howard Yamataki; (4) the National Wetlands Inventory; (5) true-color aerial photographs provided by the County property appraiser's office; (6) the updated FWCC's "Closing the Gaps" Report; (7) FWCC's updated wildlife and wildlife habitat data, including its Florida panther and Florida black bear telemetry data and red-cockaded woodpecker colony data, as well as its updated strategic habitat data and Strategic Habitat Conservation Area (SHCA) maps; and (8) the 1999 U.S. Fish and Wildlife Service (USFWS) Multi- Species/Ecosystem Recovery Implementation Team (MERIT) data for South Florida, in particular pertaining to the Florida panther. The County also actively solicited updated data from property owners and other members of the public. These opportunities for public input included numerous publicly- noticed meetings and hearings before the Rural Fringe Advisory Committee (52 to 53 meetings), the Environmental Advisory Committee, the Planning Commission, and the Board of County Commissioners. At all of these meetings, the public was invited to submit information to the County. On two occasions, notification was mailed to each property owner in the Rural Fringe, alerting them of the County's consideration of the amendments and inviting their input. The County posted signs on the two main roads entering the Rural Fringe, notifying the public of the on-going evaluation of the Rural Fringe and providing a contact name and telephone number for those wanting further information. The County also solicited information from the public via the County web page. Members of the public did submit information, some of which resulted in adjustments to the designations ultimately adopted. For example, the County received data from both Audubon and the Collier County School Board regarding red-cockaded woodpecker (RCW) habitat in the northeast corner of NBM. Similarly, Brown submitted information regarding some of his land holdings in NBM that was used in the ultimate delineation of boundaries between Receiving and Sending. The Husseys also submitted data that was considered. While all information submitted by the public was considered, not all resulted in a change in designation. For example, the County received information regarding jurisdictional wetland determinations on four separate properties and reviewed that information in order to determine whether there was a consistent correlation between jurisdictional determinations and the wetlands land cover information obtained from SFWMD. No consistent correlation was found. In two instances, the jurisdictional wetlands were larger than the area shown as wetlands land cover; in the other two, they were smaller. Despite ample opportunity, the only information submitted to the County by the Husseys was a limerock mining exploration contract on some of their property; Coalition and Century did not make any information available to the County between the transmittal and adoption hearings.21 In its analysis of the data, the County recognized that they were collected during different time periods, ranging from the 1980s through 2001. The soils data from NRCS, for example, was developed in the early 1990's from Landsat satellite imagery from 1985-1989, while the panther telemetry data reflected field data through the end of 2001. SFWMD's data was generated based upon false color infrared aerial photography and reflected changes in land cover through 1995.22 At the time of adoption of the Amendments on June 19, 2002, SFWMD's land use/land cover data was the most recent publicly-available depiction of land uses and land cover in the Rural Fringe.23 Petitioners take the position that the NRCS Soils Survey data was the most accurate data available because it was "ground-truthed." But the NRCS data did not depict land use cover; and it was not proven that the NRCS data accurately and reliably depicted vegetative cover.24 Petitioners also criticized the County for not "ground-truthing" the SFWMD data despite having knowledge of inaccuracies in its depiction of jurisdictional wetlands. But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands, "ground-truthing" would have required the collection of additional data, as Petitioners' own expert conceded. See Conclusion 105, infra. The Husseys also argued in their PRO that the NRCS soils survey data should have been used instead of the SFWMD land use and cover data to delineate wetlands because it was "ground-truthed." But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands, the NRCS data does not purport to identify jurisdictional wetlands and should not be used as a proxy for the presence of jurisdictional wetlands due to drainage activities, particularly in NBM. The Husseys had a Lower Tamiami (Aquifer) Recharge/ Discharge map and a map of the County's Wellfield Protection Zones admitted in evidence and argued in their PRO that the County failed to consider these data in delineating Sending Lands and Receiving Lands. To the contrary, the only evidence was that these maps were considered by the County's environmental specialists. Moreover, there was no evidence that these data were in any way inconsistent with the delineation of Sending and Receiving Lands in the Rural Fringe. Having accepted the SFWMD land cover data as the most accurate indicator of land cover and land uses, the County "updated" Gaps Report maps of biodiversity hotspot areas (which were based upon 1980 satellite imaging) by removing areas shown on the more current SFWMD maps to have been cleared for agriculture by 1995 or 1996. Petitioners contended that "updating" the data in this manner made resulting data and analysis inaccurate and misleading by "masking" natural resource information. But those maps were intended to depict features on parts of the Rural Fringe not mapped as agricultural land use cover on SFWMD's land use cover maps. As such, these "updates" reflected the County’s reasonable determination that, while lands cleared for agricultural use can retain natural resource value, they generally have lower environmental and habitat value than uncleared wetland and forest. No evidence suggested that this judgment was unreasonable. The County's analysis resulted in sensible planning decisions that generally afforded undeveloped wetland or forested areas a higher level of protection than land that has been disturbed through agricultural clearing. Petitioners initially seemed to contend that the County failed to take into account changes in hydrology and wetland vegetative cover in NBM as a result of drainage canals and similar alterations. As the hearing progressed, however, it became clear that from the evidence that the County was aware of the changes in hydrology and vegetative cover in NBM and took those changes into account in its planning decisions. The best data and analysis available as of June 19, 2002, showed that NBM is utilized by both the Florida black bear and the Florida panther. The data and analysis indicate that both of these species make more use of areas to the east (the Florida Panther National Wildlife Refuge and largely undeveloped portions of Northern Golden Gates Estates) and south (the (South) Belle Meade NRPA and largely undeveloped portions of Southern Golden Gates Estates). However, both panther and black bear access NBM from those areas by crossing Everglades Boulevard to the east and Interstate 75 to the south. A significant population of black bear uses NBM. FWCC lists the Florida black bear as a threatened species. Areas mapped by FWCC as strategic habitat statewide would support approximately five populations of approximately 200 individual black bears. (By comparison, FWCC ideally would like to maintain enough strategic habitat to support ten populations of 200 individuals, in part to reduce adverse impacts from natural disasters and genetic problems from inbreeding.) FWCC lists the Florida panther as an endangered species. It is one of the most endangered large mammals in the United States. Only approximately 80 to perhaps 100 panthers are thought to exist in the wild, all in south Florida. The Florida panther faces extinction unless "aggressive action" is taken for its protection. Panthers require large areas of habitat to survive in the wild. Depending on habitat quality, individual males require a home range of 100-150, 200-250, or even as much as 400 square miles; females have a smaller home range of approximately 50-70 square miles. Notwithstanding its general goal of maintaining ten populations of 200 individuals, FWCC's realistic goal for the Florida panther is to maintain current panther habitat and population. The (South) Belle Meade NRPA is considered Priority 1 Panther Habitat by FWCC. Other Priority 1 and Priority 2 Panther Habitat exists farther to the southeast and east. While NBM is not as good for panther habitat, radio telemetry data show that panthers also use NBM. Telemetry data show that panther use of NBM has increased in the last ten years. This could be due in part to the introduction of a female Texas cougar as part of FWCC's breeding program. NBM is currently within the home range of at least one male Florida panther and the introduced female Texas cougar. (Other use is possible, as only about a third of the animals in the population are collared for telemetry.) The female denned and gave birth to three kittens in NBM in 1998. It is possible that panthers frequented NBM in the late 1990's in part because a ranch lessee on Brown property in Section 21 was operating a deer-feeding station there. Panther telemetry data seem to have decreased after Brown required his lessee to cease those operations. However, while panther may have returned to those feeding stations because of the deer being attracted, they first had to have been in the area to become aware of the deer being attracted. This indicates some panther use of NBM prior to establishment of the feeding station. FWCC and United States Fish and Wildlife Service data also indicated to the County that red-cockaded woodpecker (RCW) colonies existed in the old-growth forest areas that remain in the western part of NBM, nesting in cavities in these trees. There also were data that FWCC considered these lands to be RCW strategic habitat. To nest, RCWs need old-growth cavity trees in an area not overgrown with new growth. While there were data that drainage of land in NBM in the RCW strategic habitat area has resulted in invasion of melaleuca (a nuisance exotic species), RCW can continue to use the habitat and forage in and around the melaleuca unless the melaleuca blocks off the cavity tree. There were no data that RCW no longer use NBM due to melaleuca infestation. Much of the now-urbanized areas of Collier County once provided RCW habitat, but development has impaired the value of that land for RCW nesting and foraging. As with panther habitat, traditional RCW habitat has diminished under the current regulatory scheme, and additional protection is needed. The non-NRPA Sending Land in the western part of NBM is the last remaining viable RCW habitat that is not already in conservation status. In gathering and using data in the development of the Rural Fringe Amendments, the County was supported by various state agencies that informally reviewed and commented on the amendments. These agencies supported Collier's approach to the designation of Sending and Receiving Lands. It is found that the County used the best available data and reacted to it appropriately for planning purposes by applying professionally acceptable analysis in review and application of that data. Sending and Receiving Delineations in General Petitioners were most critical of the County's alleged exclusive use of the SFWMD vegetative and land use cover maps to delineate Sending Lands based on the presence of jurisdictional wetlands. But the evidence was clear that the County had no intention of designating Sending Lands solely on the basis of the presence of wetlands. See J.15 at 4 (identifying percentages of wetlands in each category, and showing that the County recognized there were wetlands in Receiving Lands and non-wetlands in Sending Lands). Petitioners' characterization of the County's effort was a gross oversimplification. It also was clear from the evidence that the County did not restrict its data and analysis to the SFWMD maps. Petitioners contended that the County ignored the actual boundary of natural features, such as wetlands, in delineating the boundaries of Sending and Receiving Lands. Instead, for planning purposes, the County attempted to delineate reasonably large, contiguous areas as Sending and Receiving Lands, rather than creating a "Swiss cheese pattern" of intermixed Sending and Receiving Lands, designating isolated pockets of Sending within a large Receiving Area, and vice versa. This made sense from a planning perspective, for a number of reasons, including: (1) it permitted concentration of infrastructure, reducing infrastructure costs; (2) it allowed greater opportunity for the protection of environmentally sensitive lands; (3) large, contiguous areas of habitat are necessary to support a viable population for some of the endangered species present in Collier County-- Florida panther, in particular; and (4) it prevented urban sprawl (in part because sufficient acreage must be available in order for higher density development feasible.) In some instances, the County chose to delineate the boundary between Sending and Receiving Lands with a straight, easily-defined line, rather than using the edge of some feature such as vegetative cover. This also made sense from a planning perspective. A straight boundary, such as a section line, is easier to administer and more easily communicated to the public than a natural feature like vegetation, which would require a survey and is often characterized by a gradual change, rather than the sharp demarcation necessary for a boundary. The County recognized that, as a result of the combined effect of its planning approach, Sending Lands would include some areas neither particularly environmentally sensitive nor--apart from the land surrounding it--valuable habitat. Conversely, some relatively environmentally- sensitive lands would fall within a Receiving Land designation; however, it also recognized that these lands would remain subject to site-specific criteria imposed both by the County's Comprehensive Plan (e.g., amended CCE Policy 6.1.2 criteria for preservation of native vegetation and amended CCE Policy 6.2.3 criteria for protection of wetlands25) and by state and federal regulatory programs. It was not shown that these planning decisions lacked merit; at the very least, their merit is fairly debatable. NBM Delineations Distilled to its essence, the testimony of the natural resource experts called by Petitioners argued that the natural resource data and analysis available at the time of adoption did not justify distinguishing Sending, Receiving, and Neutral Lands in NBM. In other words, their position was that measures for protection of practically the entire NBM would be an appropriate response to the data and analysis on wetland and forest cover and habitat value for Florida panther, Florida black bear habitat, and RCW. But it also is at least fairly debatable that the County's inclusion of Receiving and Neutral Lands in NBM was an appropriate response to the totality of the data and analysis. The Rural Fringe Amendments themselves include the County's rationale for the North Belle Meade (NBM) Receiving designations. The Receiving Areas are generally located in the northern portion of NBM [North Belle Meade] Overlay and are generally contiguous to Golden Gate Estates. Two sections are directly to the south of the APAC Earth Mining Operation. The Receiving Area exhibits areas of less environmental sensitivity than other portions of the NBM Overlay, because of their proximity to Golden Gate Estates and prior clearing and disturbance to the land. Within the Receiving Area of the NBM Overlay, are located Sections 21, 28 and the west 1/4 of Sections 22 and 27, which have been largely assembled under one property ownership. These lands are located south of the existing APAC earth mining operation and have been largely impacted by agricultural operations. The location of Sections 21 and 28 is just to the south and west of Wilson Boulevard located in the southern portion of north Golden Gate Estates. Because an earth mining operation and asphalt plant uses have existed for many years in the area, and the surrounding lands in Sections 21, 28 and the western halves of Sections 22 and 27 are reported to contain Florida Department of Transportation grade rock for road construction, these uses are encouraged to remain and expand. J.4 at 76-77. Section 20 (just west of Section 21) also was designated as Receiving. The southwestern corner of NBM, consisting of Sections 26 (Range 2626), 29, 30, 31, and 32, and the eastern half of Section 36 (Range 26) was designated as non-NRPA Sending, along with the southern halves of Sections 13 and 14 in the northeast corner. The southeastern corner (consisting of the eastern 3/4 of Sections 22 and 27, along with Sections 23, 24, 25, 26, 34, 35, and 36) was designated as NRPA Sending. The northwest corner (Section 24, Range 26) was designated Neutral, as was the northern halves of Sections 13 and 14 in the northeast corner. The 15,552 acres in NBM are surrounded on the south by the South Belle Meade (SBM) NRPA across Interstate 75; on the east by largely undeveloped portions of Northern Golden Gate Estates (NGGE); on the north by a more developed portion of NGGE; and on the west by Urban Fringe future land use, which is sandwiched between NBM and more densely developed urban land use to the west. NGGE is the fastest-growing area of the County. It is part of a proposed sprawling, essentially single-use residential development. To date most actual development in NGGE has occurred in the western part of it, closer to more urban uses, and along Golden Gate Boulevard, which is the main east-west road in NGGE. Because the western part of NBM does not extend as far north as the eastern part, it is farther away from Golden Gate Boulevard and its development than the eastern part of NBM. In NBM, the SFWMD data showed practically all wetland cover with some upland forest interspersed in the six sections making up the southeast corner of NBM, as well as the next section to the southwest (Section 34). The section of land immediately to the north of Section 34 (Section 27) showed up as wetland cover over approximately the eastern half and agricultural use over approximately the western half of the section. The section north of 27 (Section 22) showed up as mostly wetland cover with some agricultural use in the northwest corner and some forested upland in the northeast corner. To the north of Section 22 was a section (number 15) with a mix of urban use, agriculture, wetland, and forested upland cover. Proceeding to the east, Section 14 showed up as mostly forested upland, and Section 13 in the northeast corner with mostly wetland cover with some agriculture. The opposite (far western) side of NBM was shown to have approximately eight sections of land with predominately forest land use cover, interspersed with some wetland and agricultural use. Down the center of NBM are four sections shown by the SFWMD data to have, from north to south: (1) predominately, earth mines and mine pit lakes (Section 16); (2) predominately agriculture (Section 21); (3) a mix of agricultural, forested upland, and wetland cover (Section 28); and (4) approximately half forested (the southwest half) and half wetland cover (the northeast half) (Section 33). Of importance for planning purpose, Wilson Boulevard intersects Golden Gate Boulevard and extends south to the edge of NBM at a point approximately 500 feet west of the northeast corner of Section 16. There are plans to extend Wilson Boulevard south into NBM 500 feet west of the eastern boundaries of Sections 16, 21, 28, and 33. Co-location of infrastructure within the right-of-way of the Wilson Boulevard extension would make sense from a planning standpoint. Allowing development to proceed elsewhere in NBM would exacerbate urban sprawl. It also would be possible to locate rural village North Belle Meade near the proposed Wilson Boulevard extension so that public infrastructure could be provided to both the rural village and the existing residents of NGGE. While Section 20 includes both cleared and uncleared areas, it abuts NGGE on the north and west and other Receiving Land on the east. For that reason, the County considered it to be appropriate for future development. Section 28 also includes a "mixed bag" of habitat features and agriculture. However, the remaining forested areas are less valuable as habitat because they are surrounded by agriculture. In addition, prior to the date of adoption, an application had been filed to allow mining in Sections 20 and 28, as well as in Sections 21 and 27. The permit authorizing this mining was issued in December 2002. Once land is disturbed by mining, it loses its value as panther habitat. Taking all of these factors into consideration, the County judged Section 28 to be more appropriately designated as Receiving. The designation of the western quarters of Sections 22 and 27 as Receiving resulted both from the mixture of disturbed and undisturbed property in those areas and from their location in relation to the planned extension of Wilson Boulevard. This proximity to a planned, future transportation corridor was an important factor in identifying areas appropriate for development. Initially, all of the western part of NBM was to be designated as non-NRPA Sending Lands because of the RCW data. But the County School Board and Audubon furnished additional data pertaining to the extreme northwest section (Section 24, Range 26), which resulted in the ultimate designation of the land as Neutral. Even apart from any environmental or habitat distinctions, there are other valid land use planning reasons for the County's Receiving designations. The proximity of the NBM Receiving Lands to the most populous portion of NGGE makes them appropriate for future, mixed-use development. (In contrast, the part of NGGE near the NBM NRPA is not as densely developed and is not growing as fast as the part immediately north of the NBM Receiving Area.) Since NGGE is a large, single-use residential development, residents are currently required to travel great distances for commercial and other services. By encouraging more compact, mixed-use development in the part of NBM immediately adjacent to the most populous part of NGGE, the County hopes to address this dearth of ancillary, commercial, and institutional uses for the present residents of NGGE, as well as the future residents of NBM. In addition, the NBM Receiving Area is located so as to facilitate an extension of sewer and water service along Golden Gate Boulevard and, from there, into NBM. Recognizing that, with updated data, some of these delineations may need adjustment, the County made specific provision in the amendments for owners of Sending and Neutral Lands to submit additional data in support of a change in designation. J.4 at 61. In summary, it is found that the County's delineations of Sending and Receiving Lands in the Rural Fringe, and in NBM in particular, were based on data and analysis--i.e., they reacted appropriately to the extensive data available to the County on the date of adoption--and accomplish the County's objectives, including protection of environmentally sensitive land and habitat, control of urban sprawl, and successful implementation of the TDR program, which required maintenance of an adequate ratio between Sending and Receiving Lands. See Findings 72-91, infra. At the very least, the delineations are fairly debatable; and the contentions of Coalition, Century, and the Husseys to the contrary are rejected. TDR Program The County recognized that the additional restrictions on much of the property within areas designated as Sending may have an effect on property values. As a consequence, the County included a transfer of development rights ("TDR") program in the Rural Fringe Amendments. The Amendments describe the purpose of the TDR program as follows: The primary purpose of the TDR process within the Rural Fringe Mixed Use District is to establish an equitable method of protecting and conserving the most valuable environmental lands, including large connected wetlands systems and significant areas of habitat for listed species, while allowing property owners of such lands to recoup lost value and development potential through an economically viable process of transferring such rights to other more suitable lands. Within the Rural Fringe Mixed Use District and within designated areas of the Agricultural/Rural Mixed Use District, residential density may be transferred from lands designated as Sending Lands to lands designated as Receiving on the Future Land Use Map, subject to [certain expressly delineated criteria] . . . . J.4 at 50-51. The County's TDR program is an innovative land planning technique that is intended to enhance the protection of environmentally sensitive areas, provide for cost-efficient delivery of public facilities and services, and prevent urban sprawl. J.4 at 50. It is designed to give property owners an incentive to protect their property from development while receiving a return in value through the sale of development rights. In so doing, it also serves as a land management technique to direct development from areas where it is not desired, while preserving the value of that area. TDR programs balance the protection of areas incompatible with development with the preservation of private property rights. They are also recognized as a development tool for overcoming urban sprawl. Through the TDR Program, the owners of Receiving- designated property may increase the allowable residential density on their property by purchasing or otherwise obtaining development credits transferred from property designated as Sending. Forty acres of property in Sending--while assigned an allowable density of only one residential unit--is worth eight development credits (one credit for each five acres). J.4 at 58. The specifics of the TDR program, including the process for the "sale" of development rights and the tracking of these transactions, are to be established by the County in its Land Development Regulations (LDRs) within one year. The specific dollar value of a TDR credit will ultimately be decided by the marketplace. Based on a study of land sales in Collier County, the County's expert, Dr. James Nicholas, concluded that a single credit would probably be worth approximately $18,500. Dr. Henry Fishkind, the expert called by Coalition and Century, agreed that this figure is supported by sales data in the area. For example, a property owner with 40 acres in a Sending area could build one residence on that property, or he could sell eight TDR credits to someone who plans to develop a more compact development in a Receiving Area. J.4 at 58-59. If the Sending Land owner elects the latter, he retains ownership of his property and may still utilize it for certain specifically identified purposes, including agriculture, passive parks, passive recreational uses, certain essential services, and oil extraction. J.4 at 60-61. A property owner with 40 acres in a Receiving area could build eight residences on that property without purchasing any development credits, or he could purchase 32 TDR credits and build 40 residences. Once he has obtained enough TDR credits to achieve this one-to-one density, he could further increase his residential density slightly by preserving more than the minimum required native vegetation on site. J.4 at 51. Dr. Nicholas warned that an excess supply of TDR credits, relative to the amount of Receiving Land available to receive those credits, would undermine the success of the TDR program. The ratio of Receiving Land to Sending Land is critical. Dr. Nicholas prefers a ratio of at least two acres of Receiving Land to each acre of Sending. This ratio is not achieved within the Rural Fringe. Rather, the ratio is approximately 1:1 (25,729 acres of Receiving to 23,720 acres of Sending). See J.15 at 4 (which lists the acreages within each category). Taking into consideration Sending Lands that are already developed, Dr. Nicholas testified that approximately 4,100 TDR credits would be generated from the Sending Lands. Approximately 6,100 credits could be absorbed in the Receiving areas, where densities of up to one unit per acre--an increase of four additional units--can be achieved through a purchase of TDR credits. J.4 at 51. In order to bolster the demand for TDR credits, the Rural Fringe Amendments include a number of other additional markets for credits. First, the amendments provide for a limited transfer of TDR credits outside of the Rural Fringe for two purposes: (1) in-fill in the Urban Area on parcels of 20 acres or less; and (2) transfer from areas within one mile of the Urban boundary into lands designated Urban Residential Fringe. J.4 at 34-35. These two options will create a market for approximately 1,000 additional TDR credits (250 as urban in-fill and 750 in the urban fringe.) In addition, the Amendments provide a market for TDR credits for the development of rural villages. See Findings 11-13, supra, for description of rural villages. Rural villages must be at least 300 acres in size, up to a maximum of 1,500 acres, with the exception that a rural village located south of the (South) Belle Meade NRPA, which is south of Interstate 75, may be as large as 2,500 acres. The minimum and maximum gross densities for a rural village outside NBM are two units per acre and three units per acre, respectively. J.4 at 63. Thus, a rural village outside NBM must include at least 600 residential units, but could have as many as 4,500 or 7,500, depending upon its location. For each TDR credit purchased for the development of a rural village, the purchaser receives one bonus, up to the minimum required density, and the minimum density can only be achieved through the combination of base density, TDR credits, and TDR bonuses. J.4 at 64. Additional density--up to the maximum of three units per acre--can be achieved through the purchase of more TDR credits, through the preservation of more native vegetation on site than the minimum required, and/or through the inclusion of affordable housing. J.4 at 64. Consequently, for a rural village of 1,500 acres outside NBM, the developer would need to build at least 3,000 dwellings (2 units per acre). Assuming that the rural village is surrounded by a 800-acre greenbelt,27 it would start with a base density of 460 units28 and would need to purchase 1,270 TDR credits in order to achieve his minimum density of two units per acre. The provisions applicable to the one rural village permitted in NBM differ slightly. There, the minimum gross density is 1.5 units per acre, of which at least 0.5 units per acre must be obtained through the purchase of TDRs. J.4 at Assuming the same 1,500-acre development with an 800-acre greenbelt as described above, the developer would need to acquire 1,790 units more than would be available through the combined base densities of the village itself and the greenbelt in order to achieve minimum density.29 Of these additional units, 750 would have to be obtained through the purchase of TDR credits. Recognizing that there will probably be no more than two or three rural villages developed, Dr. Nicholas estimated that rural villages will absorb between 4,000 and 7,500 TDR credits, with the greater probability that the absorption rate will be closer to the lower number. Thus, in combination with the other markets for TDR credits created by the amendments, Dr. Nicholas estimated that there will be a demand for approximately 11,100 credits, resulting in a more acceptable ratio of just under three units of demand to one unit of supply. In their PRO, the Husseys attempted to raise the specter that the Amendments create too large a market for TDR credits so as to trigger Dr. Nicholas' concerns that, in that situation, potential transfers would be frustrated because TDR prices would rise to levels making their use infeasible for potential users, including developers of rural villages. But the Husseys based their concerns on maximum potential absorption of TDR credits, raising the supposed ratio of TDR buyers to sellers to 7-to-1 (or even 8-to-1 by disregarding the Urban Fringe one-mile limitation described in Finding 82, supra). The greater weight of the evidence was that the realistic market for TDR credits will be much smaller than the maximum potential absorption rates. Taking the realistic market into account, the probable actual absorption ratio is not much more than 2-to-1, which is ideal according to Dr. Nicholas. It also should be noted that the Husseys' arguments run counter to the testimony of their own expert on the subject. Dr. Fishkind agreed with Dr. Nicholas that there will be a functioning market for TDR credits generated from the Sending Areas, that the County’s TDR program is economically feasible, and that the County has the capacity to administer it. In addition, the Amendments include specific provisions requiring the County to establish a process for evaluating the TDR program. J.4 at 62. The purpose of such monitoring will be to assess whether revisions, such as the addition of either more Sending or Receiving Land or a change in the value of TDR credits, are necessary to ensure the success of the program. In concept, the success of the TDR program in achieving the objectives of directing development away from some areas and toward others, while preserving value in the former, is at least fairly debatable. The program's actual success in achieving these objectives initially hinges upon whether the County has appropriately designated Receiving and Sending Lands. If necessary, changes can be made to improve the program and increase its chances of success.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the Collier County's Rural Fringe Amendments to be "in compliance." DONE AND ENTERED this 29th day of April, 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2003.
The Issue May this appeal be dismissed as moot due to the impossibility of the development order being granted?
Findings Of Fact This case involves Florida Rock's May 20, 1992, application for a development order to the Citrus County Department of Development Services (LDDS or Department) for a mining operation. Sometime after 1980, the real property at issue had been designated "extractive" on the Future Land Use Map (FLUM). Citrus County's 1986 Comprehensive Plan designated Florida Rock's real property as "extractive." In 1990, after the State of Florida, Department of Community Affairs challenged the "extractive" designation in the County's 1989 plan amendments, the site continued to be designated "extractive." Citrus County simultaneously enacted its Citrus County Land Development Code (LDC or Code). At all such times, zoning and all maps also embraced the same "extractive" designation. Citrus County maintains two sets of land use maps. The Comprehensive Land Use Plan (CLUP or Comprehensive Plan) has a FLUM (a generalized land use map) and the LDC has attached to it atlas maps on a smaller scale. The LDC maps are identical to the county tax assessor tax maps and show individual parcels/lots of record. Such parcels defined by the Comprehensive Plan and LDC text have a land use designation as associated with each. Mining operations are permitted on real property designated "extractive." Under the LDC, when an application is submitted, it must be reviewed for completeness and the applicant notified within three days of whether the application is deemed complete or incomplete. If the application is deemed incomplete, the applicant must be advised of how the application should be amended or supplemented in order to be deemed complete for technical review. The applicant then may amend or supplement the application. Once a determination of completeness has been made, a technical review must be completed by each member of the technical review team within ten days, and thereafter, a series of committee meetings and public hearings may follow. During this portion of the procedure, amendments to the application may be required before the development order is ultimately granted or denied. Citrus County's land use amendment process began on April 10, 1992, before Florida Rock's application was submitted to the LDDS. Florida Rock had actual notice on April 10, 1992, that a change in its property designation from "extractive" to "rural residential" was pending, but no moratorium on development orders was imposed. Thus, the "rush to the Commission" began.1 On May 20, 1992, Florida Rock's application for a development order to permit mining on its real property was submitted to the Citrus County LDDS. The Department made four sequential determinations of incompleteness. At no time did Florida Rock ever amend its application or submit any supplemental material. On December 22, 1992, Citrus County's Board of County Commissioners adopted Ordinance 92-A73, to change the designation of the subject real property on the Comprehensive Plan from "extractive" to "rural residential." The ordinance does not recite any retroactive effect. No moratorium on development orders was imposed. Mining operations are prohibited on real property designated as "rural residential." On December 28, 1992, the Department made the determination of incompleteness which gave rise to this instant proceeding. Florida Rock has not affirmatively plead and has not proven that the Department made any of its incompleteness determinations arbitrarily, capriciously, discriminatorily, in bad faith or solely for purposes of delaying the process of a technical review on the merits of the project. In the absence of any formal allegation and affirmative proof, no improper motive or improper purpose by the Department can be found.2 The December 28, 1992, determination of incompleteness noted, in the following terms, the refusal of the applicant to supply certain assurances: The applicant is exempt from Section 4344 of the LDC only in regards to the bonafide [sic] agricultural or forestry purposes. Commercial forestry involves the harvesting or marketable timber not the wholesale clearing of all vegetation. Therefore, the impact on protected trees as defined by Section 4342.A and 4344.B needs to be addressed as it regards compliance with Section 4344 of the LDC. The application needs to reflect how this will be accomplished. Contrary to your statement, this item was previously referenced as Item 11 in my letter of May 29, 1992. While vegetative removal of unprotected trees as defined in Section 4343.A.6. of the LDC is acceptable, the issue of protected trees as defined in Section 4344.B of the LDC is still unaddressed in your application submittal. The submitted site plan indicates a setback of less than the 3000 feet from residentially committed areas as required by Section 4525.A.8.1 and 4531.E.1. of the LDC regarding expansion of existing mines. Interpretation of the LDC is addressed in Section 1410 of the LDC and so the attached interpretation is not applicable. Please revise your site plan to reflect this set back or resubmit your application after vesting pursuant to Section 3160 through 3163 of the LDC has been determined. Pursuant to Section 380.06(4)(b)F.S., Citrus County believes that Florida Rock Industries operations within Hernando/Citrus Counties may exceed DRI threshold. Therefore, please provide a letter from DCA resolving this matter. In regard to your position that DCA has not formally requested a binding letter, please note that the above referenced citation specifies the state land planning agency or local government with jurisdiction over the land on which a development is proposed may require a developer to obtain a binding letter. Based on information made available to this Department, we believe a determination is called for. In regards to the requested items 23 through 34 of my letter of May 29, 1992, please be advised that Section 4659.F. of the LDC requires proof of compliance with all applicable Citrus County regulations and policies. This includes the Comprehensive Plan (C.O. 89-04) and its amendments. The information requested is to assure that the proposed development will be in compliance with the Comprehensive Plan. None of the reasons listed in the December 28, 1992, determination of incompleteness specifically stated that Florida Rock could not qualify for a development order for mining because its real property had just become designated by the December 22, 1992, ordinance as "rural residential," instead of "extractive." Indeed, the December 28, 1992, determination of incompleteness did not mention the ordinance change at all. However, its fourth paragraph concerns the requirement that an applicant establish its real property's consistency with the Comprehensive Plan. The County has taken the position that, without using the terms "extractive use" or "rural residential," paragraph four encompasses the change of ordinance as well as all matters pertaining to the Comprehensive Plan. Under the statutes in effect on December 22, 1992, Ordinance 92-A73 was not effective until filed with the Secretary of State. (See the face of the ordinance). The exact date of its filing was not stipulated, but it was agreed that filing occurred sometime in December 1992. Under Florida's growth management process, the newly adopted ordinance also was transmitted to the State of Florida, Department of Community Affairs, which would then issue a report before the new ordinance became part of the Citrus County Comprehensive Plan.3 On January 3, 1993, Florida Rock challenged, pursuant to Section 163.3184(9), Florida Statutes, the new ordinance as it progressed through the Florida Department of Community Affairs' review process. On January 19, 1993, Citrus County's LDDS sent a letter to Florida Rock, further interpreting its December 28, 1992, determination of incompleteness. That letter also made no specific mention of the ordinance amendment and did not amend the fourth paragraph of the incompleteness determination. It provided, in pertinent part: For the record, my letter of December 28, 1992, was not a "Denial" but rather a determination of incompleteness pursuant to Section 2222.B.1 of the Land Development Code. In response to your question of January 12, 1993, I was not persuaded by your argument in regards to access by way of Parcel 22100 lying in Section 36, Township 20 South, Range 19 East, but did recognize the driveway onto County Road 581. Florida Rock declined to amend its application or supply the information requested. On January 26, 1993, Florida Rock initiated the instant administrative appeal of the December 28, 1992, determination of incompleteness. However, by agreement of Florida Rock and Citrus County, the appeal was abated until January 13, 1999 (see the Preliminary Statement), when it was transferred from a local hearing officer to the Division of Administrative Hearings. Florida Rock's challenge of the ordinance before the Florida Department of Community Affairs also did not progress in a timely manner. On February 6, 1998, Florida Rock's challenge to the new ordinance was dismissed. The effect thereof is that the Florida Department of Community Affairs has found, and entered a Final Order pronouncing, Citrus County Ordinance 92-A73 to be in compliance with Chapter 163, Florida Statutes, pertaining to Florida's Local Government Comprehensive Planning and Land Development Act. That Final Order, as final agency action, was not appealed. By any interpretation, Citrus County's Comprehensive Plan, embracing the new ordinance's land use designation of Florida Rock's property as "rural residential" has been in effect since February 1998, as have been coordinated zoning, FLUM, and LDC atlas maps. Since December 22, 1992, the ordinance has designated Florida Rock's proposed site as "rural residential," which precludes the proposed mining operation. Since February 1998, the Comprehensive Plan, FLUM, and LDC atlas maps have all embraced, and currently all of them now embrace, the ordinance, and all of them prohibit mining or "extractive use" of the real property in issue.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Citrus County Department of Land Development Services enter a final order dismissing the appeal for mootness. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1999.
The Issue In an order dated July 24, 1991, the Florida Commission on Ethics found probable cause that Respondent violated sections 112.3143(2)(b) and 112.3143(3), by twice participating in, and voting on measures (land use changes) which inured to his special private gain or to the special gain of a principal by whom he was retained. The issue is whether those violations occurred, and if so, what penalty is appropriate.
Findings Of Fact The Respondent The Respondent, Hugh W. Harling, Jr. (Harling, or Respondent) is a Florida registered professional engineer and majority owner of Harling, Locklin and Associates, a firm which he established in 1979. The firm's office is located in Orlando and most of its work is done in the east central area of the state. Harling has a long history of public service. He was director of utilities for the City of Titusville from approximately 1968 until 1972, and during that time was chairperson of the Brevard County Utility Steering Committee. At various times he served as mayor of the City of Altamonte Springs (1980); and on myriad local boards and committees, including the Orange County Underground Utilities Examining Board, City of Altamonte Springs Utility Rate Review Committee, Seminole County Transportation Planning Committee, City of Altamonte Springs Citizen Advisory Committee and Land Use Update Committee. Since 1984, he has served on the Code Enforcement Board for Seminole County. The South Central Citizens Advisory Committee Pursuant to legislative mandate, counties in Florida are required to maintain a comprehensive plan which includes, among other elements, the land uses throughout the county. In 1987 Seminole County began its 10-year update process for the 1977 comprehensive plan. Desiring effective citizen participation, the Seminole County Board of County Commissioners created citizen advisory committees corresponding to five geographical regions of the county. Guidelines for the comprehensive plan update process established by Seminole County describes the citizen advisory committees (CAC) as follows: Citizen Advisory Committees (CAC) - are comprised of individuals representing various interests within a specific geographic area of the County. The role of the CAC is to review, evaluate County-wide policies and assumptions, identify special issues within the sub-planning area, and make recommendations on preliminary Plan policies, land use maps and programs. (Respondent's #10, p.9) Individuals were selected to serve on the committees based on their interests or discipline in the following areas: homeowners, environment, development, technical resource, agriculture, business/industry and property owners (undeveloped). Harling was appointed to the South Central CAC as a "technical resource" member, and served as the committee chairperson. Weekly meetings began in December 1986 and continued until June 1987. The process was considered by county staff to be "fast track", with a lot of material to be covered in an abbreviated time. Thus, a mass of information was presented by county staff to the committee: maps, handouts and staff recommendations as to proposed land use changes in the geographical area covered by the committee. Concurrently with the citizen advisory committee review, the county conducted an "open amendment" process, allowing citizens to request amendments to the future land use maps without having to pay the normal application fee. The applications for these amendments were processed during the course of the entire adoption process for the comprehensive plan update. These citizens' requests were presented to the advisory committees by county staff in summary form, with the staff recommendation. The applications were not presented to the committee, nor were committee members provided with advance notice of items coming before them each week. At the direction of county staff, action by the committee was taken by motion and vote of the members, duly recorded and made available to the county commission. This procedure differed from Harling's previous experience on the comprehensive plan review committee for the City of Altamonte Springs where the members discussed their views and sought a consensus without a formal vote. The Seminole County committee members were told that a record of votes would enable the county commissioners to determine how the various represented interests took sides on the issues. In contrast to his participation on the Seminole County Code Enforcement Board, Harling understood that voting in this committee would not require disclosure of conflicts. Other members of the committee had the same understanding based on statements by county staff. Since the committee itself was comprised of competing, conflicting interests, including property owners who voted on items affecting their property, conflict was inherent to the work of the committee. The Policy Steering Committee Under the Seminole County citizen involvement guidelines, recommendations of the five CACs were referred to a single policy steering committee (PSC) comprised of representatives from the CACs and the Local Planning Agency (the Seminole County Planning and Zoning Board). The purpose of the PSC was to ". . . receive and evaluate the recommendations of the various committees, ensure consistency between plan elements, and make final recommendations to adopting boards." (Respondent Ex. #10, p.9) Respondent Harling was selected from the South Central CAC to be one of the committee's two representatives on the PSC. The PSC meetings involved not only conflicting policy recommendations from the CAC's but a review of land uses for all of Seminole County. As in the CAC's, votes were taken and recorded, and the members were not informed of any need to disclose interests. Nor were the members provided information on ownership of specific parcels presented for review. There were hundreds of requests for land use amendments identified by alphabetical letters, but there was no attempt even by county staff to keep track of who owned what. The Arborio/Clayton Parcel One such request for change of land use involved a parcel located in south central Seminole County comprised of a 40-acre tract on the south side of State Road 426 (Aloma Avenue), and a 100-acre tract along the north side of State Road 426. The two tracts belonged to the Arborio family in New York. In the mid-80's, one family member sold a 25 percent interest to Malcolm and Charles Clayton, cousins with almost fifty years' experience in real estate and development in central Florida. On February 17, 1987, the Claytons, representing themselves and the Arborios, filed a request to change the land use designation from "general rural" to "commercial/multi family". The reason for the request was to avoid a lengthy "red tape" delay in the future when the land was ready to develop. A change in land use designation at this stage of the county plan update would save time for the owner/developer later when the zoning needed to be changed. Although the route had not been finally determined at that point, there was reasonable anticipation that the parcels would be transected by an expressway extension. Land use designation is one of many factors used to determine the value of a particular piece of property. The owners stood to gain or lose by the change in the land use designation. Votes on the Parcel The Clayton's request for land use change was presented to the South Central CAC on June 3, 1987, along with several other requests for changes. The county staff recommended commercial use east of the expressway and medium density residential use north and west of the expressway as depicted on map #19, presented to the committee. The committee, including Respondent Harling, voted unanimously to recommend medium density residential west of the expressway and office use east of the expressway. Map #19 does not reflect the location of the expressway. Map #19 does not identify owners of any of the parcels depicted and Respondent Harling was not aware of the Clayton's ownership interest at the time of the vote. He did not file a conflict disclosure memorandum. The South Central CAC's recommendation was considered by the PSC at its final meeting on July 30, 1987, along with other land use change requests from this and the other four regional CAC's. The Clayton request was considered in the process of reviewing "Map 0" (formerly "Map 19"). Map 0 shows the expressway extension as a heavy black line running north to northeast through the Clayton/Arborio parcel. References to "Maps O, E, and D" in the PSC minutes correspond to the intersection of the expressway and Aloma Avenue on Map 0. Respondent Harling made the motion to recommend all three parcels to be higher intensity planned unit development. The motion carried 10-2. Higher intensity planned unit development (HIP) was a new land use category developed during the 1987 comprehensive plan update. It is a mixed use category that allows for a mix of uses (residential, commercial, office, industrial), but requires planned unit development zoning or planned commercial development zoning in order to develop. Any of the permitted uses are potentially conditional uses which would have to go through a planned unit development process. Unlike conventional planned unit development use which required a master plan at the time the comprehensive plan was amended, the HIP designation allowed a mixed use land use category to be placed on the map without a master plan. The HIP use was designed for use at expressway interchanges where higher intensity development was anticipated or wanted. There was no discussion at the July 30, 1987 meeting of who owned parcels O, E and D, and Respondent Harling was not aware of the Clayton's ownership interest at the time that he participated in and voted on the measure before the PSC. He did not disclose any interest in the property and did not file a disclosure memorandum. Harling's Relationship with the Claytons For over ten years, Harling, Locklin and Associates has provided professional services to Charles and Malcolm Clayton. The Harling firm is not on retainer; separate contracts for services are entered for particular engagements on particular projects. The Claytons also utilize numerous other engineering firms. Harling's firm routinely collects information of a general nature unrelated to a specific project or particular engagement. This information includes flood plain elevations for the entire state, traffic count information, plans for road expansion, zoning and other information of interest to the real estate and development community. Frequently, the firm is contacted for that and other technical information, and as long as the system is not abused, the information is provided gratis. In some instances the firm responds to an inquiry, and gathers and shares the information in the hopes that an engagement will result from its effort. The Claytons utilized this retrieval system with Harling's and other firms. Experienced and careful businessmen, the Claytons most often sought information without disclosing their interest in a parcel or their intended use of the information. Although an employee of Harling, Locklin & Associates may "pull a job number" for work performed for a potential client that was not attributable to a current contract, the time is billed to the client later only when and if a contract is entered into for professional services. Through this method, promotional work done by the firm is in some circumstances recovered by those projects which eventually go to contract. In late May, early June, 1987, Charlie and Malcolm Clayton met with Harling and asked questions relating to a limited access map prepared for the Orlando/Orange County Expressway Authority. The map showed the location of limited access fencing in the area of the intersection of the proposed expressway and State Road 426 (Aloma Avenue). The Claytons did not identify for Harling their interest in the property, or the purpose for which they sought the information. The map shown to Harling did not identify the Claytons as having any interest in the property, nor did Harling have any specific knowledge of the exact location of the particular piece of property, other than along Aloma Avenue. The Claytons also asked similar questions of at least one other engineering firm. In follow up to the meeting with the Claytons, Harling also met with a representative of the Expressway Authority to confirm his interpretation of the limited access map, and to verify the information he had given to the Claytons. Through the office system utilized by Harling, Locklin & Associates, the time spent by Mr. Harling was attributed to the job number established for the dealings with the Claytons concerning property on Aloma Avenue, but no contract then existed and there was no reasonable expectation that Harling, Locklin & Associates would be compensated for the time in the future. During this same time period, Charles and Malcolm Clayton met with Joan Cerretti-Randolph, a Harling, Locklin & Associates employee, concerning property along Aloma Avenue. The amount of work requested of Ms. Ceretti- Randolph by the Claytons was consistent with promotional work done in the past by Harling, Locklin & Associates, and was done initially on a gratis basis. Ms. Cerretti-Randolph was not advised what, if any, the Claytons' interest was in the property in question, or whether there would be a contract executed on any particular job involving the Claytons and concerning the property now referred to as the Clayton/Arborio parcel. A contract was entered into by Harling, Locklin & Associates, the Arborio family, and the Claytons in October, 1987. The contract was not initiated by the Claytons, but was initiated by David Foerster, a condemnation attorney from Jacksonville who represented various landowners, including the Claytons and Arborios, in condemnation actions brought by the Expressway Authority at the time the various parcels were condemned for the construction of the expressway. At the time of the meetings of the South Central CAC in June, 1987, and of the PSC in July, 1987, Harling, Locklin & Associates was not under contract with the Claytons or the Arborios (or Mr. Foerster) to render services concerning the parcels of property in question. At the conclusion of the condemnation action concerning the taking of a portion of the parcels for construction of the expressway, Harling, Locklin & Associates submitted an invoice for services rendered which included time expended, originally as promotional work, for the Claytons in spring and summer, 1987. Some work reflected on the bill was done in May through July of 1987, at a time when Harling was unaware of the interest of the Claytons in the property, or the specific location of the property about which the Claytons were inquiring. Summary of Findings Harling's participation and votes as a member of the South Central CAC and later, PSC, are uncontroverted. These committees, or citizens groups were integral to the public participation component of the ten-year plan update. As a seasoned member of similar, as well as more formal bodies, Harling was well aware of his responsibilities to disclose conflicts. He and other members of the CAC and PSC were misled, however, by county staff or commission members, as to the nature of the committee and the need to disclose. It is also uncontroverted that specific votes, on June 3, 1987 and July 30, 1987, were on property owned, in part, by the Claytons. Although Harling and his staff had been consulted by the Claytons with regard to the parcel, at the time of the votes, the Claytons had not disclosed their ownership interest in the property; their contacts were in the nature of information- gathering and the professional relationship was not formalized until October 1987. The land use changes voted by the CAC and PSC as recommendations for the Arborio/Clayton parcel were not those sought by the applicant, but still positively benefited the owners. The change from "general rural" during the plan update process substantially abbreviated the local approval process required before the property is actually developed. The HIP designation, while still requiring approval of a master plan later, would provide flexibility for the owners/developers to plan for the uses being sought by the Claytons in their February application. A land use designation, though not a controlling or even substantial influence on valuation of a parcel, is still considered by a property appraiser in fixing that valuation.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission on Ethics enter its final order and public report finding that Hugh Harling did not violate sections 112.3143(2)(b) and (3), F.S. (1985 and 1986 Supp.), and dismissing the complaint at issue. DONE AND RECOMMENDED this 24th day of September, 1993, in Tallahassee, Florida. MARY CLARK 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 24th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4941EC The following constitute specific rulings on the findings of fact proposed by the parties: The Advocate's Findings Adopted in paragraph 1. Adopted in paragraphs 5 and 11. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 14. 10.-11. Adopted in substance in paragraph 13. 12. Rejected as unnecessary. 13.-14. Adopted in paragraph 14. 15. Adopted in substance in paragraph 14. 16.17. Adopted in substance in paragraph 17. 18.25. Rejected as unnecessary. To the extent that those facts are proposed to establish a motive by Respondent to benefit his "principal", that proposal is expressly rejected as contrary to the greater weight of evidence. 26.-27. Adopted in substance in paragraph 16. 28. Rejected as unnecessary. Moreover, the Pardue testimony was confused, as he said on one hand that he was not concerned with the north side (p.52, 11. 19-21), and it is not clear at p.53, ll. 22-24 whether he was addressing the north or south parcel. 29.-30. Rejected as unnecessary. Adopted in paragraph 16. Adopted in paragraph 17. Rejected as unnecessary. Adopted in paragraphs 17 and 18. Adopted in paragraph 19. Adopted in paragraphs 10 and 11. Rejected as unnecessary. Adopted in paragraph 19. Adopted in substance in paragraph 19. Rejected as unnecessary. The evidence cited is confusing, as the recommendation by staff and vote by the CAC is a little different on another document. Adopted in paragraph 20. Rejected as unnecessary. Moreover, the evidence supporting this proposed finding is too confused to be reliable. 43.-44. Adopted in paragraph 21. 45.-46. Rejected as cumulative or unnecessary. Advocate in paragraph 16. Adopted in paragraphs 20 and 22. Rejected as unnecessary. Rejected as contrary to clearer, more credible evidence. Charles Clayton's testimony was rambling and disjointed. Malcolm Clayton more plainly testified that the property was discussed in 1987 and the ownership interest was not disclosed to Harling. (transcript, pages 238-239.) Rejected as unnecessary. Moreover the dates and time sequence provided by Charles Clayton were not reliable and conflicted with other competent evidence. 52.-55. Rejected as unnecessary. Rejected. Although an accurate statement of Pardue's testimony, the underlying fact is rejected as contrary to the weight of evidence. Adopted in paragraph 29. Rejected as argument and substantially unsupported by the weight of evidence. Rejected as argument. Respondent's Proposed Findings 1.-2. Rejected as unnecessary. Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraphs 3 and 4. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraphs 4 and 5. 9.-10. Adopted in substance in paragraph 2. 11.-13. Rejected as unnecessary. Adopted in substance in paragraph 9. Rejected as unnecessary. Adopted in paragraph 6. Adopted in substance in paragraph 33. Adopted in substance in paragraph 7. Rejected as unnecessary. Adopted in paragraph 8. 21.-22. Rejected as cumulative and unnecessary. Adopted in substance in paragraph 13. Adopted in substance in paragraph 17. 25.-26. Rejected as cumulative and unnecessary. Adopted in paragraph 17. Rejected as cumulative and unnecessary. Adopted in paragraph 17. Adopted in paragraph 34. 31.-32. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 12. 35.-36. Rejected as unnecessary. 37. Adopted in substance in paragraph 12. 38.-39. Adopted in substance in paragraph 19. Adopted in substance in paragraph 20. Adopted in substance in paragraph 34. Adopted in substance in paragraph 21. 43.-46. Rejected as unnecessary. 47.-48. Rejected as unnecessary and contrary to the weight of evidence (as to the change not benefiting the landowners). 49.-51. Adopted in paragraph 23. 52.-53. Adopted in paragraph 24. 54. Adopted in paragraph 26. 55. Adopted in paragraph 27. 56. Adopted in paragraph 28. 57.-58. Adopted in paragraph 29. 59. Adopted in paragraph 30. 60. Adopted in paragraph 31. 61. Adopted in paragraph 32. COPIES FURNISHED: Bonnie Williams, Executive Director Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Michael L. Gore, Esquire Ken Wright, Esquire Shutts & Bowen 20 North Orange Avenue, Suite 1000 Orlando, Florida 34801 Bruce Minnick, Esquire Mang, Rett and Collette, P.A. Post Office Box 11127 Tallahassee, Florida 32302-3127
The Issue Whether or not Respondent has violated Sections 472.033(1)(a), and (h), and 455.227(1)(b), Florida Statutes, and Rules 21HH-2.001(3) and 21HH-6.003, Florida Administrative Code, by failure to comply with a valid Final Order of the Board of Professional Land Surveyors.
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Board of Professional Land Surveyors, with the responsibility to prosecute administrative complaints pursuant to Chapters 455 and 472, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Amended Administrative Complaint, Respondent Bertin C. Tash was licensed as a professional land surveyor in the State of Florida, holding license number LS 0002292. By Final Order entered December 31, 1985, the Board of Professional Land Surveyors issued a Final Order in case number 0049353 (previously DOAH Case No. 85-0285), a prior disciplinary action against Respondent. Among other terms of that Final Order, Respondent was placed on probation for twenty-seven months and further was required during the course of that twenty-seven month probation to: ... submit 25 surveys representative of his land surveying practice which shall be accompanied by field notes and record plats to the board for its review. Additional information regarding the surveys may be requested. Five surveys shall be submitted within three months from the filing of this final order; thereafter, five surveys shall be submitted at six month intervals during the period of probation. Respondent shall attend the first available continuing education seminar in his area on the minimum technical standards within 12 months from the filing of this order or as soon after as possible. Evidence of Respondent's attendance and successful completion of the course shall be furnished to the board through the proctor or instructor of the continuing education course... (Emphasis supplied.) It is noted that although the "certificate of service" for the copy of the Final Order admitted in evidence as part of Petitioner's Exhibit 3 is unsigned, Respondent admitted receipt thereof, that no appeal was taken therefrom, and that he understood the terms of the Final Order. Twenty-seven months from December 31, 1985 would fall on April 1, 1987. Twelve months from December 31, 1985 would fall on January 2, 1986. Respondent initially complied with the Final Order by submitting two sets of five surveys, the second in December, 1986. However, some type of dispute arose between Respondent and the Board's monitor of Respondent's probation about whether the monitor could require corrections to be done by Respondent to those surveys already submitted and about whether or not Respondent could be required to submit his field notes for the surveys. Respondent seems to have resisted the clear language of the Final Order (see emphasized language in Finding of Fact No. 4, supra) upon a personal belief that these requirements were unconstitutional, invaded his privacy, or exposed him to ethical charges by his clients. There is nothing in the record, to support this ideation of Respondent, and eventually, Respondent altered his position. Respondent did not submit any further surveys until November, 1988 after the instant case was already in progress, at which time he had modified some of his views with regard to field notes. He then attempted to comply with the Final Order by submitting corrected surveys. However, in error, he sent these surveys not to the Board, but to the attorney for the Department of Professional Regulation where they were retained. This submittal was considerably beyond the April 1, 1987 probationary period and whether considered corrections of the second five surveys or an additional five surveys would not constitute the twenty-five surveys required by the prior Final Order. The Respondent failed to complete a seminar on minimum technical standards between the entry of the Final Order on December 31, 1985 and the date of formal hearing on December 14, 1988. Petitioner submitted proof that such courses were available in West Palm Beach, Respondent's hometown, on May 20, 1987, and in adjoining Broward County on May 21, 1988. Clearly, neither of these courses was available to Respondent during the probationary time frames set out in the Final Order and Findings of Fact Nos. 4 and 5 supra. Petitioner submitted no proof of the availability of other such courses during the appropriate time frames, but it appears undisputed that these were the only qualifying courses "in his area" and that the Board would have accepted Respondent's late completion of either course as his compliance with the continuing education requirement in the Final Order. The Board even went so far as to reserve space for Respondent at the May 21, 1988 course in Broward County. Respondent's testimony that he was too ill to attend the May 30, 1987 course is unrefuted. Respondent's testimony that he had, no private means of transportation to the May 21, 1988 course is also unrefuted but he did not show unavailability of public transportation. Moreover, Respondent testified that until the date of formal hearing, he had resisted, upon grounds of his personal ethical ideation, the concept of learning from, or submitting himself to critiques by, any local professionals who conducted continuing education seminars in land surveying.
Recommendation That the Board of Professional Land Surveyors enter a Final Order finding Respondent guilty of two counts of violating Section 472.003(1)(h) Florida Statutes, and imposing a three-month suspension of Respondent's license, subject to an extension of such suspension to a maximum of one year or until Respondent completes the continuing education course required by the prior Final Order, whichever comes first, and imposing thereafter three years' probation to follow immediately upon the lifting of the suspension, during which three years' probation Respondent shall be required to submit an appropriate number of surveys to be determined by the Board for review by the Board. DONE and ENTERED this 13th day of February, 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3108 The following constitute specific rulings upon the parties' respective Proposed Findings of Fact (PFOF) pursuant to Section 120.59(2), Florida Statutes. Petitioner's PFOF: 1-5 are all accepted. Respondent's PFOF: PFOF 1 discusses the nature of several exhibits and objections ruled upon in the course of formal hearing, does not constitute a relevant or material proposed fact and is not dispositive of any issue at bar. The same subjects are addressed within the RO at FOF 3-4 and 8 to the degree they impinge on this proceeding. PFOF 2 is rejected in part and accepted in part in FOF 8 to the degree it comports with the greater weight of the credible record evidence as a whole. PFOF 3 is accepted in part in FOF 6. The remainder of the proposal is rejected as irrelevant, immaterial, and not comporting with the greater weight of the credible record evidence as a whole. PFOF 4,5,7 and 8 are rejected as mere argument of position or legal argument. PFOF 6 is accepted in part in FOF 7. The remainder of the proposal is rejected as immaterial or mere argument of position or legal argument. COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bertin C. Tash 5100 Spruce Avenue West Palm Beach, Florida 33407-2846 Allen Smith, Jr. Executive Director Board of Professional Land Surveyors 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32299-0750 =================================================================
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Respondent, Jefferson County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. At issue in this case is a land development regulation adopted by the County. Petitioner, Jack Hamilton, is a resident of Jefferson County. He owns and operates a nursery, orchard and cattle operation on his property on the east side of Highway 19, approximately two miles north of Monticello, Florida. The land, which is approximately 135 acres in size, is presently designated in a land use category known as Agriculture 2. For almost thirty years, the Jefferson Nursing Center (JNC), a nursing home, has been situated on a seven acre parcel of land surrounded on three sides by petitioner's property. Here, petitioner challenges a land development regulation which allows nursing homes, including JNC, in the Agriculture 2 category. The parties have stipulated that petitioner is a substantially affected person within the meaning of the law and thus he has standing to bring this action. The County adopted its comprehensive plan (plan) on July 19, 1990. The plan was later determined by the DCA to be in compliance. The County has also adopted a Land Development Code (Code) containing various land development regulations which implement the plan. Prior to the adoption of the challenged ordinance, Section 2.02.03(B)3. of the Code included a provision allowing, among other things, the following uses in the Agriculture 2 land use district: Institutional, excluding residential care facilities and nursing homes. On September 1, 1994, the County adopted Ordinance No. 94-15, which amended Section 2.02.03(B)3. by removing the exclusion, thereby allowing nursing homes and residential care facilities in the Agriculture 2 land use district. Thus, the ordinance made nursing homes a permitted use in the Agriculture 2 district, like all other institutional uses which were allowed in agriculture districts. This was also consistent with other Code provisions which allowed nursing homes in almost every other district. On August 15, 1995, petitioner filed a petition with the DCA contending that the land development regulation was not consistent with the plan. An amended petition was later filed on September 12, 1995, alleging generally that nursing homes did not conform to, and were incompatible with, agriculture uses. On November 13, 1995, the DCA entered its Determination of Consistency of Jefferson County Ordinance 94-15. Among other things, the DCA based its finding of consistency on the following provisions in the Housing Element of the plan: GOAL: Assure the availability of housing to meet the existing and future needs of all residents of Jefferson County for all income levels. Objective 5: The useful life of the existing housing stock will be conserved and extended, and neighborhood quality will be improved. Policy 5-3: The County shall establish non-discriminatory standards and criteria addressing the location of group homes and foster care facilities as well as other types of special need housing. The specific uses to be allowed in the agricultural land use categories were largely deferred to the land development regulations contained in the Code. Those regulations define residential care facilities and nursing homes (group homes) as institutional uses. Policy 5-3 requires that the County establish "non-discriminatory standards and criteria" in addressing the location of group homes. Before the adoption of Ordinance 94-15, all institutional uses, except nursing homes and residential care facilities, were allowed in agricultural districts. The new land development regulation removes this discriminatory feature. The plan recogizes that the character of development in the rural areas of the County is of mixed uses which are of a scale to intermix without creating incompatibilities. The area in which petitioner's property and JNC are located contains a mix of uses. Ordinance No. 94-15 is consistent with the character of rural development in the County. The Future Land Use Element of the plan provides in relevant part as follows: GOAL: Efficiently manage and regulate land use types, locations, and densities in compatibility with natural and man-made resources so as to provide the residents of Jefferson County with an aesthetically pleasing, economically beneficial, and socially adequate environment. * * * Policy 1-3: The categories on the Future Land Use Map are defined as follows: * * * Agriculture 2: This includes areas appropriate for a variety of agricultural uses, including but not limited to crop land, pasture land, orchards and groves, or forestry. Dwellings and associated accessory farm buildings are allowable. Density for residential use shall not exceed 1 unit per 5 acres, except that transfer of property to members of the principal owner's immediate family is allowable, provided that all other applicable requirements are met. However, as provided in other policies of the Future Land Use Element, density is calculated on a gross basis (area-based allocation); actual units should be clustered, subject to the requirements set forth in the objectives and policies of the comprehensive plan so long as the gross density is not exceeded. Under the plan, dwellings are allowed uses in the agriculture 2 land use district. A disputed issue is whether the uses allowed by Ordinance No. 94- 15 are residential uses. Petitioner's expert conceded that it is within the discretion of a local government to define nursing homes as a residential use, and that the County's plan tends to do so. The evidence establishes that residential care facilities, such as adult congregate living facilities, are a residential land use. Since dwellings (residences) are an allowed use in the agriculture 2 land use district, it is at least fairly debatable that residential care facilities are also allowed in that district. In addition, in the Housing Element of the plan, nursing homes are included in the discussion and inventory of group homes in the County. They are considered to be special needs housing for the elderly. The plan recognizes that housing needs for the elderly often form a distinct sub-market of the total housing market, and projects that the elderly population (65 and older) will be the second fastest growing age group in the County by the year 2000. When reading the Housing Element provision in pari materia with the Future Land Use Element, it is at least fairly debatable that nursing homes are residential or dwelling uses in the plan and are therefore allowed in the agriculture 2 district. Given the foregoing, it is found that the challenged land development regulation is consistent with the plan.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, John William Renner (Respondent) was licensed as a land surveyor in the State of Florida, having been issued license number LS 0004739. Respondent has been a licensed land surveyor since July 13, 1989. The minimum technical standards for surveys are set forth in Rule 21HH- 6, Florida Administrative Code, (Rule) of the Board of Professional Surveyors and Mappers (Petitioner). The Rule sets forth minimum standards which are expected and required of all surveyors. No deviation from the required minimum standards are permitted. A surveyor must first satisfy the minimum technical standards before applying community standards of local custom to a survey. On or about March 30, 1992, Respondent performed a survey of a lot described as: Lot 13, Block 1, Plat I of Sky Lake, according to the plat recorded in Plat Book 39, Pages 133-134, as recorded in the public records of Palm Beach County, Florida. Different surveyors, examining Respondent's survey, would have differing opinions regarding his survey. However, no deviation from the required minimum technical standards is permitted. As part of Petitioner's investigation of Respondent's alleged violations of the Rule, Petitioner requested a copy of the original survey. Respondent had misplaced the original and never complied with Petitioner's request. Petitioner obtained the original survey from the title company. The survey was certified by Respondent with his signature and seal. It is undisputed that Respondent's product is a boundary survey. However, he failed to state on the survey the type of survey that the certified drawing represents. The subdivision in which the Lot is located is platted. The boundary survey plats the Lot. Since the filing of the administrative complaint against him, Respondent has become aware that his surveys must identify the type of survey that his certified drawings represent. Respondent made field notes during the preparation of the survey. Field notes are records of observations and measurements made in the field and support the survey. Also, as part of its investigation, Petitioner requested a copy of Respondent's field notes which contained the measurements that he had made in the field. Respondent could not locate his field notes and was, therefore, unable to produce them; but agreed to produce the field notes when he located them. Respondent failed to maintain his field notes. Prior to hearing, through discovery, Respondent informed Petitioner that he had located his field notes but again failed to produce them to Petitioner. Finally, at hearing, approximately two years after Petitioner's investigative request, Respondent produced his field notes. Respondent's boundary survey provides, among other things, that the "Bearings Are Based On Plat." The plat is not a line; it is a document. Respondent failed to provide the well-established line upon which the bearings are based. Groups of lots within a platted subdivision are controlled by permanent control points (PCP) and permanent reference markers (PRM). The PRMs define the boundaries of a subdivision. The distance between the PCPs is referred to as a record distance which is shown on the subdivision plat of record. After a surveyor locates the PCPs and the PRMs, the surveyor measures the distance from PCP to PCP and from PRM to PRM. The measured distance in the field is compared with the recorded distance. Rarely are the recorded distance and the measured distance the same. In a discrepancy, with the acceptable margin of error, each lot between the PCPs receives its proportionate share of the measurement. Respondent's field notes indicate that he measured from PCP to PCP. However, there is no indication on the survey that he made the measurement. Respondent failed to show on the survey drawing the discrepancy between the recorded distance and the measured distance in the field. The discrepancy is four-hundreths of a foot, which is not significant in and of itself, but is important because the discrepancy adds more that 600 feet to the PCP. The plat of the subdivision indicates a 180 foot wide canal right of way along the west property line of the Lot. It is undisputed that Respondent failed to show the canal right of way on his survey drawing. Respondent's survey drawing indicates a fence along the north property line of the Lot. Nevertheless, it is undisputed that Respondent's dimensions are inadequate and insufficient to show the distance from the fence to the property line, i.e., the proximity of the fence to the property line. Also, Respondent's survey drawing shows three squares drawn along the south side of the residence on the Lot, showing concrete improvements. Even though Respondent's field notes indicate measurements for the squares, his survey drawing fails to identify the squares, as to what they represent, and fails to show their dimensions. As a result, no determination can be made as to whether the concrete improvements may affect property value. A surveyor is given some latitude as to whether a concrete improvement is fixed and pertinent to the survey, and, therefore, deference is given to the surveyor's judgment. Respondent's survey drawing indicates that the concrete improvements are not fixed and not pertinent to the survey. Appearing on Respondent's survey drawing are the three abbreviations BM, C. B. S., and CL, with the C and L intersecting. These abbreviations are not generally used by the public. BM and C. B. S. are not shown in the legend. Even though the abbreviation CL is in the legend, the C and L are not intersecting. A finding is made that the abbreviation CL, with the C and L intersecting, is not included in the survey's legend. Respondent's survey indicates the basis for elevations, referencing that "Elevations Based on County BM CL Old Boynton", with the C and L intersecting. BM is the abbreviation for benchmark. The survey did not describe the benchmark, identify the county or provide the published elevation. Referenced elevations must be based on an established benchmark. If a benchmark is referenced, its description should be sufficient to locate the benchmark and use it. Respondent's benchmark description fails to provide a basis for locating the benchmark or determining its elevation. In June 1992, after attending a minimum technical standards seminar, Respondent responded to allegations made by a Mr. Dennis Painter regarding the survey. 1/ In his response, Respondent agreed with some of the allegations, and, as a result, Respondent indicated that he made the appropriate revisions to the survey. No evidence was presented at hearing regarding the nature of Mr. Painter's allegations, so there was no opportunity to examine Respondent's responses as they relate to the allegations made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Surveyors and Mappers enter a final order: Reprimanding Respondent; Imposing a $500 administrative fine; and Placing Respondent on probation for one (1) year under terms and conditions deemed appropriate by the Board. DONE AND ENTERED this 7th day of February, 1997, in Tallahassee, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1997.
The Issue The issues are (1) whether Respondents, Frank H. and Linda M. Molica, dredged and filled wetlands on their property in Merritt Island, Brevard County (County), Florida, without a permit and should take certain corrective actions, and (2) whether Respondents' activities are exempt from permitting under Section 373.406(2), Florida Statutes.1
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In 1990, Respondents purchased a 3.47-acre, rectangular- shaped parcel at 2050 North Tropical Trail, Merritt Island, Florida, which is located within the regulatory jurisdiction of the District. See § 373.069, Fla. Stat. The parcel identification number is 24-36-15-00-00764-00000.00. The property is less than a mile south of State Road 528 (A1A), approximately one-half mile west of State Road 3 (North Courtney Parkway), and around one-half mile east of the Indian River. The property is bounded on its western side by a roadway known as North Tropical Trail, on the south side by a drainage ditch, and on the east side by another drainage ditch. Further to the east of the drainage ditch on the eastern side of the property are a holding pond and a subdivision known as Copperfield Subdivision developed in 1993, while a nursery is located just south of the drainage ditch on the southern side. The northern boundary of the parcel is five hundred twenty feet long and is adjoined by a vacant parcel of land similar in size to the Molica parcel and which is owned by the Lacanos. The Lacano property is largely a wetland. To the north of the Lacano property is a parcel owned by the Stricklands. Historically, the natural flow of water in the area was north to south, that is, from the Stricklands to the Lacanos to the Molica's property, and then to the drainage ditch on the south side of the Molica's property. When Respondents purchased the property in 1990, citrus trees were located "mostly in the front half," or western side of the property, "but they were also located in the rear scattered throughout." There was also "weed grass" or "mini grass" throughout the entire parcel. In 2002 or 2003, the citrus industry was economically hurt by a drop in prices due to various problems, and it became difficult to find fruit pickers or purchasers for the fruit. Because of these conditions, and pursuant to a recommendation by another citrus grower, Respondents state that they began to "transform their property to palm tree production." In late 2003, Respondents began removing orange trees and clearing the land; this continued throughout 2004. At the same time, they began to remove vegetation from the eastern half of the property, which included the excavation of the vegetation, soil, and roots. This was accomplished by the use of heavy equipment, including a tracked cab with hoe, a bobcat with front end loader bucket and root rake, and a wheeled tractor with front end root rake. This is confirmed by photographs taken of the property in April and December 2004. See District Exhibits 8 through 10. Also, a few cabbage palms were removed that were damaged during the clearing process, as well as trees damaged by hurricanes that struck the east coast of Florida in 2004. The vegetation and soil were trucked off-site for disposal, and new soil or fill was placed throughout the eastern half of the property in which vegetation and soil had been excavated. In some cases, the fill measured as high as thirty-three inches but averaged around one foot in height. There is no dispute that dredging (or excavation) and filling on the property occurred. Respondents did not obtain an Environmental Resource Permit (ERP) before performing this work. On December 13, 2004, the County received a complaint (generated by Mrs. Strickland, the neighbor to the north) about "heavy machinery operating in a wetland" on the Molica property. Mr. Pinnick, who was charged with enforcement of County environmental ordinances, visited the subject property to determine whether a violation of an ordinance had occurred. He observed heavy machinery operating on the central and eastern sides of the property and took several photographs of the site. See District Exhibit 12. He also observed vegetation and muck soil in the disturbed area and standing water in the ditch to the south and concluded that wetlands were being impacted. It is fair to infer that he then notified the DEP about the incident. On December 15, 2004, Mr. Pinnick, accompanied by two DEP employees, Mr. West and his supervisor, Ms. Booker, visited the site and met Mr. Molica and his consultant. At that time, "clearing and [dredging and filling] of wetland at rear [or east end] of Molica's property [was observed]." See District Exhibit 49. The DEP requested that Respondents' consultant "flag a [wetland] line and then Molica have all fill within wetland area removed." The DEP also advised Mr. Molica that "[a]rea then needs to be restored to natural grade." Id. Notes taken by Mr. Pinnick confirm that Mr. Molica agreed to remove the fill "to restore the natural grade and the wetland boundary would be delineated [by Mr. Molica's consultant.]" See District Exhibit The conclusion of both the County and DEP was that wetlands were present in the central part of the property. No formal delineation of wetlands was performed by them since the parties reached an understanding that Mr. Molica's consultant would perform this task. Because Mr. Molica thereafter denied access to the property, this would be the last time regulatory personnel were able to make an on-site inspection of the property until October 2008, when the District obtained an Order authorizing them to inspect the property. The County later charged Respondents with violating the County Code ("prohibitions in functional wetlands"), and the matter was considered by a Special Magistrate. An Order of Dismissal was entered by the Special Magistrate on February 1, 2006, on the grounds the property was zoned agriculture and enjoyed an agricultural exemption, and Respondents agreed to use Best Management Practices, as prescribed by the Department of Agriculture and Consumer Affairs. See Respondents' Exhibit 4. However, neither the DEP nor the District was involved in that action, and the matter concerned an alleged violation of a local ordinance, and not a provision in Chapters 373 or 403, Florida Statutes. At some point in time, but presumably after the site visit in December 2004, Mr. Molica asserted to the DEP that he was conducting an agricultural operation. In early 2005, the DEP referred the matter to the District since the two agencies have an operating agreement concerning which agency will handle certain types of permitting and enforcement matters. By letter dated August 15, 2005, Mr. Molica advised the local District office in Palm Bay, Florida, that the owners of the property were engaging in agricultural activities and denied that any unauthorized fill and excavation activities had occurred. He also requested copies of any statutes, rules, or case law that supported the District's position. See Respondents' Exhibit 2A. On August 3, 2007, the District advised Mr. Molica by letter that it had received a complaint from DEP, that the matter had not yet been resolved, and that it wished to inspect his property to determine if unauthorized fill and excavation activities had occurred. See Respondents' Exhibit 2B. According to a District witness, the delay in responding to Mr. Molica's letter was caused by the building boom occurring in 2005 and 2006, which required action on numerous pending permits, and in-house confusion over whether the DEP or District had jurisdiction to handle the complaint. There is no evidence to suggest that at any time the District agreed that the activities were lawful, or that the delay in responding to Mr. Molica's letter prejudiced Respondents in any manner. After conducting a preliminary investigation, which included a review of aerial photographs of the area, wetland maps, and soil maps, a visual inspection taken from the Copperfield Subdivision to the east and North Tropical Trail from the west, and a flyover of the property, the District issued its Complaint on August 8, 2008. Are there wetlands on the property? To determine whether wetlands were present on the Molica property, the District made a site inspection on October 22, 28, 29, and 30, 2008. Besides making a visual inspection of the property, the staff took photographs, performed twenty-nine soil borings on both the Molica and Lacano properties, reviewed soil surveys for the area, completed one west-to-east transect and five north-to-south transects to determine locations of hydric soils and any fill materials, and observed lichen and water stain lines on trees. The locations of the various soil borings are depicted on District Exhibit 22. Finally, the staff examined a series of aerial photographs of the property. Under the wetland delineation rule, three different indicators are used to make that determination: vegetation; soils; and signs of hydrology. See Fla. Admin. Code R. 62- 340.300(2)(a)-(d). In addition, where the vegetation and soil have been altered by man-induced factors so that the boundary between the uplands and wetlands cannot be delineated by use of Rule 62-340.300(2), such a determination shall be made by using the most reliable information and "reasonable scientific judgment." See Fla. Admin. Code R. 62-340.300(3)(a). The parties presented conflicting evidence on the wetland issue; the District's evidence has been accepted as being the more persuasive and credible and supports a finding that the areas where dredging and filling occurred in the eastern and central parts of the property meet the test for a wetland. Wetland Soils Muck presence is a hydric soil indicator and also a wetland indicator. The District's expert, Mr. Richardson, established that the soil on the property where the dredging and filling occurred was hydric in nature, and therefore indicative of a wetland. Although Respondent's soil expert disagreed with this conclusion, he generally agreed with Mr. Richardson's methodology, and he agreed that muck was present below the fill material. Wetland Vegetation The presence or absence of wetland vegetation is another factor to consider in deciding whether an area is or was a wetland. Wetland hardwood trees, and not grass planted on top of the fill, are more appropriate for evaluating whether the area in which the trees are located was a wetland. Large trees, estimated to be fifty to sixty years old, remain on the property in the vicinity of certain District soil borings. They include boring 20 (swamp tupelo); borings 3, 4, and 5 (red maple, American elm, and holly); and borings 9 and 10 (maple and American elm). These are all wetland canopy species and provide further support for the District's position. Hydrologic Indicators Algal matting is found on the surface of the property in the vicinity of borings 3, 4, 5, 8, and 9. Algal matting occurs because water has inundated the surface of the ground sufficiently long for algae to grow in the water and then remains on the ground surface after the water no longer covers the ground. Rainfall alone does not produce algal mats. Trees on the property provided evidence of being in saturated or inundated soil conditions through the morphological adaptation of buttressing and adventitious roots, particularly in the vicinity of District borings 20, 8, 9, and 10. Also, the trees had lichen lines on them, which are indicators of seasonal high water inundation elevations in wetlands. The presence of muck soils is a hydrologic indicator. As noted above, the District determined through soil borings that muck was under the fill that had been placed on the property. Reasonable Scientific Judgment The evidence established that there was significant alteration to the soils and vegetation across the central and eastern parts of the subject property due to man-induced factors of vegetation removal, dredging, and filling. Through consideration of the most reliable information available, including aerial photographs, the remaining trees on the site, hydrologic indicators, the presence of hydric soils, coupled with reasonable scientific judgment, the evidence established that the areas where the recent dredging and filling occurred met the wetland delineation test in Florida Administrative Code Rule 62- 340.300(3). Agricultural Exemption Mr. Molica is a full-time practicing attorney. His wife is his legal secretary. Respondents contend that since they purchased the property in 1990, they have been continuously engaged first in the occupation of citrus farming, and then beginning sometime in 2004 in the production of palm trees. Therefore, they assert they are entitled to the exemption provided under Section 373.406(2), Florida Statutes. That provision states in relevant part that "[n]othing herein . . . shall be construed to affect the right of any person engaged in the occupation of . . . horticulture . . . to alter the topography of any tract of land consistent with the practice of such occupation. However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters." The parties agree that the burden of proving entitlement to this exemption rests on Respondents. When the property was purchased in 1990, there were citrus trees on the land, mainly in the western half. A few navel oranges were later added, and some citrus trees were removed at that time. Beginning at the end of 2003, and continuing in 2004, the citrus trees were removed. At the time of the DEP inspection in December 2004, no potted palm trees were observed on the property. The precise date when they were first placed on the property is not clear. Photographs taken in January 2006, more than a year after the dredging and filling and just before the County code violation charge was resolved, reflect around fifty or so small trees in pots located in a small, cleared section of the property. See Respondents' Exhibit Photographs taken three years later (January 2009), long after the dredging and filling occurred, show a comparable number of small palm trees in pots placed on what appears to be the same part of the property. See Respondents' Exhibit 21. Mr. Molica also submitted numerous documents (dated 2005 and later) downloaded from the internet by his wife which pertain to palm trees, see Respondents' Exhibit 20; and he stated that a marketing plan for the sale of palm trees has been developed, which was simply a goal of selling the trees after they were ten years old. He further stated that he intends to work the "farm" as a business full-time after retiring from his law practice. Finally, he presented the testimony of an agronomist who stated that clearing property, filling holes, smoothing land, and building an access road are normal agriculture activities. It is fair to infer from the record that Respondents' activities can be characterized as an avocation, not an occupation. Notably, there is no evidence that since they purchased the property in 1990, Respondents have sold any citrus fruit or a single palm tree. There is no evidence that dredging and filling in wetlands is a normal agriculture practice, or that it is consistent with the practice of horticulture, including the growing of exotic palm trees. Mr. Molica's agronomist acknowledged that he has never been associated with an application to conduct agricultural or horticultural activities that involve the filling of wetlands. Moreover, extensive dredging, filling, and removal of vegetation were not necessary to accommodate the small area on which the potted plants sit. The more persuasive evidence supports a finding that the topographic alterations on the property are not consistent with the practice of agriculture. The evidence shows that the filling on the property has obstructed the natural flow of surface water. More than likely, the filling of the wetlands was for the predominant purpose of obstructing and diverting surface water that flowed south from the Lacano property, and not for the purpose of enhancing horticultural productivity. Corrective Actions At hearing, the District submitted certain revisions to the proposed corrective action, which are described in District Exhibit 73. The revisions provide greater specificity regarding the formulation of a restoration plan and who must be involved in formulating that plan. In general terms, the corrective action offers Respondents the option of seeking an after-the-fact permit or restoring the wetlands. Respondents offered no proof at hearing that the original or revised corrective action is unreasonable. The revised corrective action is found to be reasonable and designed to address the restoration needs of the property and is hereby approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining the charges in the Complaint, requiring Respondents to take the corrective actions described in District Exhibit 73, and determining that Respondents are not entitled to an agricultural exemption under Section 373.406(2), Florida Statutes. DONE AND RECOMMENDED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2009.
