The Issue The issue in this appeal is whether to sustain the decision of the City Planning and Zoning Board (the Board) to deny Thomas Nott a conditional use permit to sell pre-owned motor vehicles at his business at 700 Cleveland Street, Clearwater, Florida.
Findings Of Fact Thomas A. Nott owns Lots 6 and 7, Gould & Ewing's Plat 2nd Addition. The street address is 700 Cleveland Street, Clearwater, Florida. This property is on the northeast corner of Cleveland Street and East Avenue. The property is in the Core-2 (C-2) subdistrict of the Urban Center (UC) zoning district. The Clearwater Downtown Redevelopment Plan states in pertinent part: An extremely important aspect of the way Downtown Clearwater functions and is perceived involves transportation within and into the Downtown. If the traffic flow into Downtown is efficient and the entryways are attractive, Downtown Clearwater is more likely to be frequented by citizens and visitors. If traffic flow is congested and the roadsides are unappealing, the Downtown is less likely to be a place where people visit, live and shop and where entrepreneurs invest money. * * * Cleveland Street is the single most important roadway in Downtown Clearwater. Due to it[s] "Business S.R. 60" designation, it carries a substantial amount of the traffic heading to Clearwater Beach, as well as the bulk of the office and retail traffic headed for Downtown. . . . In the Downtown Core area, Cleveland Street has been attractively landscaped with paving block and planters. This treatment has greatly improved the appearance of the Downtown along Cleveland Street. However, these efforts are, to some extent, undermined by the poorly landscaped sections of Cleveland Street outside the Downtown Core area. Land uses outside of the Downtown Core along Cleveland Street are relatively unattractive and are poorly landscaped. A remedial landscaping program should be considered as a top priority for improving this important entryway. The City also has adopted Design Guidelines for new construction, building additions, facade alterations, and signage for the Urban Center zoning district. A section on "Landscape and Streetscape Guidelines" suggests the use of different kinds of planters and curb "neck-out" street corners to create larger pedestrian areas that incorporate benches, specialized pavers, and lighted bollards. Landscaping, including shade trees, are suggested to provide separation between people and vehicles. A subsection on "Open Spaces" states: "Designers of site improvement areas are encouraged to explore opportunities to incorporate usable open space with the project (development) area." Nott's property is in a transition area between the more attractively landscaped City core to the west and the less attractive portions of Cleveland Street to the east. Immediately to the west across East Avenue is the Pinellas Trail. Immediately to the west of the Trail, fronting on Cleveland Street, is the historic United States Post Office building, which is listed on the National Register of historic buildings. (Since it still functions as a working post office, a large number of mail delivery trucks park and operate out of the back of the post office to the north.) The Trickels Jewelers building to the immediate east of Nott's property also is attractively landscaped, especially along Myrtle Avenue. The other properties to the north, east, and south of Nott's property are less attractive. They include: an automobile and marine repair business; a restaurant with little or no open space; an import car repair service business with little or no open space; and a car rental business. Ideally, the City would like Nott's property to become the start of an eastward expansion of the more attractive urban core along Cleveland Street. Nott's property is 0.26 acre in area; its dimensions are 105 feet in width and 109 feet in depth. Unlike most properties in the downtown urban core, the building on Nott's property is set back quite a distance from the streets. The building has one story and is just 1500 square feet. In the past, the property has been used as an automobile gas and service station and as a car rental business. Before Nott bought the property, the building was in disrepair and in decline. Approximately four years ago, Nott was considering relocating from South Beach in Miami, where he was in the business of selling pre-owned motor vehicles. Initially, he investigated relocating to Dunedin, but an official with Clearwater's redevelopment agency persuaded him to take advantage of Clearwater's commitment to redevelop the downtown urban core, as well as interest-free financing available through the agency to improve the property. Nott bought the property, borrowed approximately $50,000 interest-free, and invested that and an additional $50,000 of his own money to improve the property. His plan was to conduct two businesses at the property: a roller skate and bicycle rental business catering to users of the Pinellas Trail; and a pre-owned motor vehicle sales business. Due to family priorities, Nott had to delay his departure from Miami and only was able, with the help of a nephew, to open the skate and bicycle shop. The 121 square feet of storefront planned for the vehicle sales business was used as storage space for the skate and bicycle shop pending opening of the vehicle sales business. The skate and bicycle shop, called Fritz's Skate Shop, had been operating for approximately three years when Nott became ready to open his pre-owned vehicle sales business. When he went to get an occupational license towards the end of 1998, Nott learned that a conditional use permit would be required. In discussions with staff of the City's Planning and Zoning Board, Nott also was informed that a new zoning code was going into effect which would prohibit vehicles sales at Nott's property and that he would have to expedite his application for it to be considered under the existing zoning regulations. Nott filed an application for a conditional use approval on or about January 12, 1999. At the time, Nott was not familiar with Clearwater's zoning regulations and did not address some zoning requirements. Specifically, while the sketch Nott drew by hand to approximate scale to serve as the required site plan met the minimum requirements as to form, it only showed a three-foot grass buffer along Cleveland Street and a three-foot buffer of shrubs along East Avenue, while the City's development code required at least a ten-foot landscaped buffer along Cleveland Street and at least a five-foot landscaped buffer along East Avenue. The sketch also showed parking that would obstruct vehicle flow in the parking lot and failed to show a large oak tree on the site. Finally, the sketch showed parking for the display of vehicles for sale along Cleveland Street. Nott's application was set for hearing at the Board's last scheduled meeting on March 2, 1999, just six days before the new zoning and development code would take effect. Nott still did not know all of the applicable regulations under the existing code. For some reason, Nott did not obtain a complete set of the City's zoning and development regulations until approximately February 17, 1999. Nott blamed the delay on foot-dragging by the Board's staff, and he questioned whether the staff was being uncooperative to undermine his application. Nott testified that he did not get a complete set of the applicable zoning and development regulations until after he sent a letter of complaint to the staff director on February 13, 1999. The staff denied any intention to delay Nott's application or be uncooperative. The staff blamed some of the delay on the time it took for Nott to prepare and submit an acceptable site plan. It appears that Nott entered into the application process thinking that there would be no problem meeting the City's requirements and expecting the Board's staff to walk him through the process. When Nott's expectations were not met, he perceived that the staff was treating him unfairly. But it is found that Nott's evidence did not prove unfair treatment. In fact, due to Nott's inexperience, the staff was required to give Nott more assistance than usual. For his presentation to the Board, Nott had a consultant use a photograph of the site to create a computer- visualization of the proposed vehicle sales business. The photograph depicted one vehicle parked in front of the building, as well as four vehicles parked along Cleveland Street and one parked along the east property line in two of the areas identified on the site plan as parking for the display of vehicles for sale. The visualization did not add any landscaping. At the time, Nott thought the concern was adequate parking; he did not know at the time that landscaping also would be important to his application. When Nott got and reviewed the applicable zoning and development code provisions and the staff's report, he realized that he had not addressed the landscaping buffer requirements. He had his consultant further modify the computer-visualization to add a landscaping buffer. This visualization was presented at the Board hearing on March 2, 1999. However, the visualization still depicted vehicles parked along Cleveland Street and was not clear as to the width of the landscaping buffer. The site plan was not modified, so the extent of the proposed landscaping buffer could not be ascertained from the site plan. At the Board hearing, Nott stated that he would be willing to do whatever the City said was necessary in order for him to receive a conditional use permit. But Nott made no specific proposals. Essentially, Nott was asking the City to formulate an acceptable application for him. The staff report indicated that an on-site traffic circulation problem could be cured by eliminating two customer parking spaces in front of the building. But it was impossible to determine from the evidence in the record how a wider landscaping buffer would impact either traffic circulation in the parking lot, parking, or the large oak tree. The staff report pointed out that Nott's application proposed to maintain minimal (7%) open space on the site. The neighbor to the immediate east (Trickels Jewelers) has 30-35% open space, including attractive landscaping along Myrtle Avenue. At the Board hearing, Nott claimed "open space" credit for the shade canopy provided by the large oak tree on-site and contended that the credit would increase his "open space" to 30-35% as well. But even if open space credit can be given for shade canopy over a parking lot, Nott's testimony was insufficient to prove the extent of the tree's shade canopy. Besides, it could not be ascertained from the record whether the tree would have to be removed to meet landscaping buffer, traffic circulation, and parking requirements. Nott testified at the appeal hearing that, after he proposed and depicted parking of vehicles for sale along Cleveland Street, the "Division of Motor Vehicles" advised him that it would not allow him to display vehicles in that location. Nott testified that he would simply eliminate the display parking spaces along Cleveland Street and limit the display of vehicles for sale to 12 at any one time in parking spaces adjacent to the building and along the east property line. But it was not clear from the record whether all of the remaining spaces depicted on the site plan for display parking would remain available for that purpose after adding landscaping buffer, and also maintaining adequate traffic circulation and customer parking. In addition to agreeing to meet the perimeter landscape buffer requirements, Nott also agreed to condition approval on: (1) operating his vehicle sales business only 10 a.m. to 5 p.m. on Monday through Saturday; (2) not using windshield advertising, flags, or banners; (3) only selling vehicles with a retail value of $10,000 or more; and (4) not operating a "buy here-pay here" used car lot.
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: The City of Islandia: General Description and Location The City of Islandia is a municipality situated within the jurisdictional boundaries of Dade County, Florida. It was incorporated in 1961. The City is located in an environmentally sensitive area in the southeastern corner of the county several miles east of the mainland. The City is separated from the mainland by Biscayne Bay and is accessible only by boat, seaplane, or helicopter. The City consists of 42,208 acres of submerged and non-submerged land, 41,366 acres of which are owned by the federal government and are part of Biscayne National Park. Biscayne National Park Biscayne National Park was established as a national monument in 1968. Twelve years later it was designated a national park. The park was established because of the unique natural resources within its boundaries. Its designation as a national park promotes the preservation and protection of these valuable resources. The park attracts visitors who engage in passive, marine-oriented recreational activities, such as fishing and snorkeling. Some development has taken place within the park. Among the structures currently standing are the buildings that house the park rangers who work and reside in the park and the docks that are used by those who travel to and from the park by boat. The City's Privately Held Land The remaining 842 acres of land in the City are owned by twelve private landowners, five of whom serve on the Islandia City Council. This land contains no infrastructure and is almost entirely undeveloped. As a result, it is in virtually pristine condition. Because the privately held land in the City is part of the same ecosystem as Biscayne National Park, the development of the privately held land will necessarily have an impact on the activities in the park. Of the 842 acres of privately held land in the City only approximately three acres consist of uplands. These uplands, at their highest elevation, are only four feet above sea level. The other 839 acres of privately held land are submerged bottom lands of Biscayne Bay and the Atlantic Ocean. The privately held land in the City is located in an area of coastal barrier islands known as the Ragged Keys. These islands lie between Biscayne Bay and the Atlantic Ocean. They are separated from one another by surge channels, through which the ocean waters enter the bay. Because of their location and low elevation, these islands are extremely vulnerable to the threat of storm surges and coastal flooding. It therefore is imperative that individuals on the islands evacuate to safety as soon as possible in advance of any storm or hurricane. 2/ The Coast Guard, which assists in the early evacuation of coastal residents, removes its assets from the water when wind speeds reach 35 miles per hour. This heightens the need for those on the islands to leave before the weather takes a turn for the worse. There are five Ragged Keys in private ownership. Ragged Key One, the northernmost of these islands, is surrounded by an old, breached bulkhead. Tidal waters enter where the bulkhead is breached. Coastal wetland vegetation is the only vegetation found on the island. Ragged Key Two is totally submerged and has no uplands. Mangroves are scattered throughout the island. Unlike Ragged Key Two, Ragged Key Three includes some uplands. Its shoreline, however, is fringed with white, red and black mangroves, vegetation associated with wetlands. Mangroves play a vital role in maintaining the health of the Biscayne Bay ecosystem. They contribute a leafy matter, known as detritus, to the nutrient budget of the bay. In addition, mangroves help filter upland runoff and protect against shoreline erosion. Most of Ragged Key Four is covered with mangroves. Red mangroves dominate, but there are also white and black mangroves. A narrow band of uplands, approximately 30 to 50 feet in width, runs through the center of the island. The island's upland vegetation consists of an unusual, and therefore ecologically significant, tropical hardwood hammock species not found on the mainland. Ragged Key Five, the southernmost of the privately owned Ragged Keys, is completely inundated by tidal waters twice a day. The vegetation on the northern one-half to two-thirds of the island consists almost exclusively of mangroves, with white mangroves dominating. Mangroves are also found on the island's southeastern perimeter. Less than an acre of uplands lies toward the center of the island. The dominant vegetation on these uplands is Australian pine. The privately held bottom lands in the City that are on the ocean side of the Ragged Keys consist of a number of species of hard coral as well as soft coral and sponges not found further to the north. Consequently, these hard- bottom communities are very significant ecologically. The privately held bottomlands in the City that are on the bay side of the Ragged Keys are covered almost entirely with seagrass beds. These seagrass beds are an essential component of the bay's ecosystem. They help to maintain water quality by stabilizing and filtering sediment and serve as habitat and food for fish and other marine organisms. This is significant from not only an environmental perspective, but from an economic perspective as well, inasmuch as commercial fishing is an important industry in the area. Seagrasses depend on light for their survival. If they are beneath, or otherwise shaded by, a structure, such as a "stilt home" or dock, or deprived of light as a result of construction-related turbidity, they will die. Water depths in the City on both the ocean and bay side of the Ragged Keys are extremely shallow. In most areas, the depth of the water never exceeds four feet. Consequently, one has to be a competent boater to navigate in these areas without running aground. Boats that travel in these shallow waters, even if piloted by competent navigators, are likely to scrape and scar the ocean and bay bottom and damage the seagrass and hard-bottom communities that exist there. Furthermore, these boats are likely to leave behind in the waters they have traversed bilge waters, oils, greases and metallic-based paints from their undersides. This has the effect of lowering water quality. Fortunately, boating activities in these waters have been limited to date and, consequently, these activities have resulted in only minor environmental damage. Substantial damage will occur, however, if boat traffic on these waters increases significantly. Comprehensive Plan Preparation and Adoption The City's comprehensive plan was drafted by the staff of Robert K. Swarthout, Inc., a consulting firm that specializes in land use planning. Before retaining the services of the Swarthout firm, the City's governing body, the City Council, voted that, in the plan, all of the privately held land in the City would be designated for "residential" use and that the allowable density would be six units per acre. Sound planning dictates that such decisions be made only after the character of the land and its suitability for development are analyzed. A proposed plan for the City was developed by the Swarthout firm. Following a vote of the City Council, the proposed plan was transmitted to DCA. Upon its receipt of the proposed plan, DCA distributed copies to other governmental agencies, including Dade County, and solicited their comments. After receiving these comments and conducting its own review, DCA sent to the City a report containing DCA's objections, recommendations and comments regarding the City's proposed plan. In response to this report, the Swarthout firm drafted certain modifications to the proposed plan. The proposed plan, as so modified, was adopted by the City Council on January 13, 1989, and thereupon transmitted to DCA. The City Council held public hearings before transmitting the proposed plan and the adopted plan to DCA. The twelve private landowners in the City were notified of these hearings by mail. No one else, including any park ranger residing in the City or any other representative of the federal government, was given direct, individual advance notice of these hearings, nor were the hearings advertised in any newspaper or other publication. In failing to provide advance notice of these hearings to any one other than the City's twelve private landowners, the City Council relied upon the opinion of its attorney that no additional notice was necessary to meet the requirements of the law. Format of the City's Adopted Plan The City's adopted plan focuses upon the 842 acres of privately held land in the City. It does not discuss in great detail the future of Biscayne National Park, which comprises more than 98% of the City's land area. The plan consists of nine elements: future land use; transportation; housing; infrastructure; coastal management; conservation; recreation and open space; intergovernmental; and capital improvements. Each element contains goals, policies and objectives. In addition, the future land use element includes a future land use map and the capital improvements element includes both an implementation section and a section prescribing monitoring, updating and evaluation procedures. The document containing the City's adopted plan also describes and discusses the data and analysis upon which the plan is purportedly based. According to the document, however: Only the following segments of this document were adopted by the City Council: Goals, Objectives and Policies Capital Improvements Element Implementation section Future Land Use map Monitoring, Updating and Evaluation Procedures Future Land Use Element The future land use element of the City's adopted plan sets forth the following goals, objectives and policies: Goal 1 To provide for minimal residential development compatible with the natural resources of the National Park and balance of the islands. Objective 1.1 By 1994, achieve first phase new development sited appropriately for the topographic/flood conditions and infrastructure compatible with soil conditions. Policy 1.1.1 As the residential development occurs, require acceptable private paths, drainage, water and sewer systems through the development code; special care is needed due to limited wellfield and soil absorption areas. Policy 1.1.2 Private automobiles shall not be permitted; adequate boat or aircraft access facilities shall be required by the development code. Policy 1.1.3 Development permits shall be issued only if facilities meeting the following levels of service can be made available concurrent with the impacts of development: -Sewage disposal: septic tanks 3/ or package treatment plants providing a treatment capacity of 300 gallons per residential unit per day -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid waste: off-island disposal by individual homeowners or other property owners 4/ -Circulation: pedestrian and golf cart paths -Open space: public and private of 175 acres per permanent resident Objective 1.2 Ensure reasonable protection of historic and natural resources (particularly) mangroves as development occurs. See policy for measurability Policy 1.2.1 Within one year of transmitting this plan, a development code will be prepared to assure adequate protection of the vegetative communities (particularly mangroves) as well as sensitive to hurricane considerations and the bay bottom ecology. Policy 1.2.2 The City shall consult with the National Park Service should any archaeological sites be found on the privately owned islands. Policy 1.3 Facilitate planned unit development projects through the 1989 adoption of a development code. Policy 1.3.1 Within one year of transmitting this plan, include Planned Unit Development provisions in the zoning provisions of a development code to help achieve residential development. Objective 1.4 By July 1989, adopt a development code to implement land use policies that correspond to the category on the Future Land Use Plan and minimize hurricane evacuation. Policy 1.4.1 The following land use densities, intensities and approaches shall be incorporated in the land development code; development will be required to use these densities in a mixed use Planned Unit Development format -Residential: Single-family detached and attached units at a density of 6 units per acre or less in a PUD mixed-use format. -Commercial: Supporting boat clubs/marinas, restaurants and light convenience retail; this would either be in the residential PUD or the National Park Recreation category i.e. not shown on the map. -Recreation and Open Space: This category includes primarily the National Park. The future land use map depicts only two future land uses: "recreational," which is described on the map as constituting lands of the "National Park and City Park;" and "residential," which is indicated on the map as constituting "[l]ess than 6 units per acre in Planned Unit Developments with supporting service commercial." Because Policy 1.4.1 of the future land use element permits a maximum "residential" density in the City of "6 units per acre" whereas the future land use map reflects that the City's maximum permissible "residential" density is "less [emphasis supplied] than 6 units per acre," these two provisions of the City's adopted plan are inconsistent. On the future land use map, only Ragged Keys One through Five are designated for "residential" use. The remaining land in the City, including the privately held bay and ocean bottom surrounding these islands, is designated on the map for "recreational" use. There are statements in the plan document that reflect that "residential" development is contemplated not just for the five Ragged Keys, but for the entire 842 acres of privately held land in the City. Such statements include the following which are found in the discussion of the data and analysis allegedly underlying the future land use element: Residential Capacity- The islands under municipal jurisdiction have not been developed, and there are only 842 acres of suitable vacant land for the development of residential units. Based on the Land Use Plan PUD density of six units per acre, this would suggest a build-out of 5,000 housing units. * * * Needs Assessment: Not Applicable and Other Issues- There are no incompatible or blighted uses. Some private redevelopment might be involved in upgrading the boat dock and several recreational housing units. Rather than an analysis of the land required to accommodate the projected population, this is a case where the 842 acres of buildable private land can accommodate a build-out population of about 5,000 although 720 is projected for the year 2000 based upon a projected private market demand for development at five units per acre requiring 78 acres. * * * Future Land Use Plan: Land Use Category- As indicated above, all non-Park Service land and bay bottom (842 acres) is designated "Residential Planned Unit Development With Supporting Commercial;" this will accommodate the projected population. * * * Future Land Use Plan: Impact- It is important to note the minimal impact that the private development area (842 acres), will have on the total area of the City which encompasses 42,208 acres. * * * Future Land Use Plan: Density- Approximately 842 acres, at a density of less than six units per acre, are proposed for development of the recreational units. These statements, however, are not included in those portions of the plan document that were adopted by the City Council and therefore are not part of the City's adopted plan. In addition to depicting future land uses, the future land use map also shows shoreline areas. Beaches, wetlands, and flood plains, however, are not identified on the map. Transportation Element The transportation element of the City's adopted plan contains the following goals, objectives and policies: Goal 1- To meet the unique circulation needs of Islandia. Objective 1.1- As development occurs, achieve an internal circulation system that uses paths for pedestrians, bicycles and golf carts but not automobiles. Policy 1.1.1- By July 1989, enact a development code that requires developers to provide such a path system, a) concurrent with development, and b) that connects with other adjacent developments and the boat dock facilities. Policy 1.1.2- Include development code provisions that require adequate access to the development from the mainland i.e. either by boat or aircraft facilities. Housing Element The following goals, objectives and policies are set forth in the housing element of the City's adopted plan: Goal 1- To provide recreational housing units compatible with the unique locational and environmental character of Islandia. Objective 1.1- Achieve and maintain quality housing with supporting infrastructure. Policy 1.1.1- By July 1989, enact a development code that provides an expeditious review process yet assures concurrent adequate private infrastructure. Policy 1.1.2- Include building and property maintenance standards that will assure that units are maintained in sound condition. Policy 1.1.3- To assure environmentally sound design, City codes shall include building standards (sensitive to hurricanes) and site plan review. Infrastructure Element As evidenced by the following goals, objectives and policies set forth in the infrastructure element of the City's adopted plan, the City intends that infrastructure needs will be met by private developers, rather than by the City through the expenditure of public funds: Goal 1- To provide adequate private infrastructure to serve the projected limited recreational residential development. Objective 1.1- Assure provision of adequate, environmentally sensitive private infrastructure concurrent with development through a 1989 development code. Policy 1.1.1- By July 1989, enact a development code that requires City site plan review with engineering design standards in the areas of water supply, sewage disposal, drainage, solid waste, groundwater recharge and wellfield protection plus incentives for the use of solar energy and solid waste recycling (to reduce disposal quantities by 30 percent). Policy 1.1.2- Require all development to meet the following level of service standards: -Sewage disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day 5/ -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid waste: off-island disposal by individual homeowners or other property owners. Objective 1.2- Encourage multi-unit water and sewer systems in order to protect the fragile environment through the 1989 development code. Policy 1.2.1- Include planned unit development provisions in the development code to be enacted by July 1989 thereby encouraging joint systems rather than individual wells and septic tanks. 6/ Policy 1,3- Protect wellfield aquifer recharge areas from development. Policy 1.3.1- By 1991, enact development code provisions that require developers to designate their wellfield aquifer recharge areas, and authorize the City to then prohibit development within said areas and related drainage systems. Objective 1.4- Each developer shall provide a mechanism for water conservation. Policy 1.4.1- At the time building permits are issued for the first development, the City and developer shall jointly prepare a water conservation plan for normal and emergency consumption. Coastal Management Element The City's adopted plan contains the following goals, objectives and policies relating to coastal management: Goal 1- To conserve, manage and sensitively use the environmental assets of Islandia's coastal zone location. Objective 1.1- Through the 1989 development code adoption, continue to protect the barrier island function and wildlife habitat. Policy 1.1.1- Retain the integrity of the islands by strictly regulating shoreline dredge and fill through the development code. Policy 1.1.2- Require common open space in conjunction with private development to retain wildlife habitats, wetlands and mangroves and assist in preservation of marine water quality and living resources. Objective 1.2- Through the 1989 development code adoption, include estuarine protection policies and thus assure environmental quality. Policy 1.2.1- The development code shall result in drainage, sewage disposal and shoreline setback policies that protect the estuary. Policy 1.2.2- As private development occurs, the City shall use the County's Biscayne Bay Aquatic Preserve Management Plan as a basis for review and maintain liaison with the Biscayne Bay Management Committee's staff. This will also be the vehicle for coordinating with the City of Miami (which is some 10 miles to the north) in terms of estuarine. Objective 1.3- Continue the current pattern which is all uses, including shoreline uses, are water dependent. Policy 1.3.1- Use the development code to maintain a shoreline use pattern that is either park, natural private land or residential with supporting boat facilities; by definition, all Islandia uses are water dependent. Objective 1.4- Protect the current natural beach and dune configuration. Policy 1.4.1- Through the development code, require any private development to a) setback far enough from the beach to retain the dunes and b) retain the related vegetative cover and wetlands or mitigate on a fair value ratio. Goal 2- To minimize hurricane damage both to property and people. Objective 2.1- Continue the current City policy of not providing infrastructure unless public safety or natural resource preservation so requires. Policy 2.1.1- The City shall not program any municipal infrastructure; private development will provide its own circulation, water and sewer systems. Objective 2.2- Residential development will be limited in amount and density, and setback from the shoreline due to the coastal high hazard area location. Policy 2.2.1- Maintain density controls so that the City will experience only limited new residential development and thereby not jeopardize hurricane evacuation capabilities or undue concentration on the private islands which are the high hazard area. (Analysis explains why directing population away from the coastal high hazard area is not feasible.) 7/ Objective 2.3- By July 1989, adopt development code provisions that assure adequate boat evacuation capability by developers and occupants. Policy 2.3.1- The development code shall require, as a condition of development permit approval, an evacuation plan showing adequate boat or aircraft capability. Objective 2.4- By 1993, prepare an emergency redevelopment plan. Policy 2.4.1- By 1993, the first phase of residential development should be underway; that will permit preparation of a realistic post-disaster redevelopment plan. Currently there is little to "redevelop." Objective 2.5- Preserve both resident and general public access to the beach. Policy 2.5.1- Over 98 percent of Islandia's area is public land with shoreline access. However, the remaining two percent should be developed so as to maximize resident beach access through planned unit development requirements. 8/ Objective 2.6- The City's objective is not to provide any public infrastructure; private developers shall provide infrastructure in conformance with level of service standards, concurrent with development. Policy 2.6.1- Developers shall provide infrastructure, with a design sensitive to hurricane vulnerability, concurrent with the impact of development within a development code concurrency management system and in keeping with the following levels of service: -Sewage Disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day. 9/ -Water: wells providing 300 gallons per residential unit per day. -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically). -Solid Waste: off-island disposal by individual homeowners or other property owners. Conservation Element The following goals, objectives and policies are found in the conservation element of the City's adopted plan: Goal 1- To preserve and enhance the significant natural features of Islandia. Objective 1.1- Continue policies that help achieve compliance with State Department of Environmental Affairs [sic] air quality regulations; see policy for measurability. Policy 1.1.1- Continue to prohibit automobiles in the City. Objective 1.2- By July 1989, require drainage practices that avoid direct development runoff into the ocean or bay. Policy 1.2.1- By July 1989, enact development code provisions that require on-site runoff detention. Objective 1.3- By July 1989, achieve protection of existing vegetation and wildlife communities. Policy 1.3.1- By July 1989, enact development code provisions that require retention of a percentage 10/ of prime vegetative cover and wildlife habitat; particularly mangroves. Policy 1.3.2- These development regulations shall also address preservation/mitigation of the scattered island wetlands and related soils. Policy 1.3.3- Work with Federal park officials to assure that any National Park improvements are sensitive to the mangrove and other environmentally sensitive vegetative/wildlife/ marine habitats. Objective 1.4- By July 1989, have basis to avoid development activities that adversely impact the marine habitat. Policy 1.4.1- By July 1989, enact development code provisions that control dredge and fill activities, and boat anchorages in order to protect the marine and estuarine character, including the fish feeding areas on the Biscayne Bay side of the islands; special care must be taken to avoid any disruption of the tidal channels between the islands. Objective 1.5- When development occurs, achieve carefully located and designed well and sewage disposal systems. Policy 1.5.1- By July 1989, enact development code provisions that require City technical review of all well and sewage disposal systems to assure well water protections, groundwater conservation and sewage effluent control. Policy 1.5.2- When the first phase residential development permits are issued, develop an emergency water conservation program. This element of the City's adopted plan does not contain a land use and inventory map showing wildlife habitat and vegetative communities. Recreation and Open Space Element The recreation and open space element of the City's adopted plan prescribes the following goals, objectives and policies: Goal 1- To provide recreation facilities and open space which are responsive to the leisure-time needs of residents. Objective 1.1- By July 1989, achieve controls that achieve common access to the bay and the ocean. Policy 1.1.1- The City shall enact development code provisions that protect common access to the shoreline as development occurs. Objective 1.2- By July 1989, assure private recreational resources in the limited development projects to complement the National Park. Objective 1.2.1- The City shall enact development code provisions that require private recreational facilities for developments over a certain size, to complement the public National Park. Policy 1.3.1- The City shall urge Congress to retain the National Park thereby providing a Level of Service of at least 57 acres of public open space per permanent resident prior to the year 2000. 11/ Objective 1.4- Ensure the preservation of public and private open space. Policy 1.4.1- By July 1989, enact development code regulations to assure preservation of adequate private open space in conjunction with private development. Policy 1.4.2.- Work with Congress and National Park Service to assure preservation of this public open space resource. Policy 1.4.3- The City shall retain City Key in its ownership for potential use as a municipal park. Intergovernmental Element The following goals, objectives and policies in the City's adopted plan address the matter of intergovernmental coordination: Goal 1 - To maintain or establish processes to assure coordination with other governmental entities where necessary to implement this plan. Objective 1.1- By 1994, at least three of the seven issues listed in the Analysis shall be the subject of formal agreement, assuming development review has been initiated. Policy 1.1.1- The Mayor shall oversee the implementation of the recommendations outlined in the Analysis section of this element. Policy 1.1.2- In particular, the Mayor shall work with County Office of Emergency Management relative to hurricane warning and evacuation mechanisms. Policy 1.1.3- The City shall continue to work with the County and Regional planning agencies in an attempt to reach consensus on a mutually agreeable land use designation for the private islands. Policy 1.1.4- If necessary, the City shall use the South Florida Regional Planning Council to assist in the mediation of any major intergovernmental conflicts; the County land use plan is a potential example. Policy 1.1.5- After development is initiated, the Mayor shall annually issue a report outlining the services the City is providing and providing information on intergovernmental coordination. Policy 1.1.6- The City shall review all development applications in the context of the Biscayne Bay Aquatic Management Plan and maintain liaison with the staff to the Committee responsible for this plan. Objective 1.2- The Mayor shall meet at least annually with the National Park Superintendent to coordinate the impact of the City's development upon adjacent areas. Policy 1.2.1- City officials shall maintain liaison with the National Park Service on any land use or development impacts along their common boundaries. Objective 1.3- By 1999, assure level of service standards coordination with the County relative to solid waste. Policy 1.3.1- As first phase development is completed, City officials shall work with County officials on the long range implications of solid waste disposal to determine adequacy and approach. The "seven issues listed in the [intergovernmental] Analysis" section of the plan document (reference to which is made in Objective 1.1) concern the following subjects: land uses and densities; historic resources; private holdings within the National Park; permitting for construction and related infrastructure; solid waste; Biscayne Bay water quality; and emergency evacuation. The "land uses and densities" issue raised in the Intergovernmental Analysis section of the plan document relates to the alleged inconsistency between the City's plan and Dade County's plan regarding the land use designation of the privately held land in the City. It is asserted in this section of the document that the "Metro-Dade Comprehensive Plan shows the privately owned land in Islandia as 'Parks and Recreation' rather than residential." The following recommendation to resolve this alleged conflict is then offered: To date, the coordination on this issue has been sporadic. 12/ If neither the County nor National Park Service are willing to acquire these islands at a fair price, then the County plan should be amended to show them as residential. The Regional Planning Council can serve as a mediator. Dade County's adopted plan provides the following explanation of the significance of a "Parks and Recreation" land use designation in terms of the development potential of the land so designated: Both governmentally and privately owned lands are included in areas designated for Parks and Recreation use. Most of the designated Privately owned land either possess outstanding environmental qualities and unique potential for public recreation, or is a golf course included within a large scale development. The long term use of such golf courses is typically limited by deed restriction. If the owners of privately owned land designated as Parks and Recreation choose to develop before the land can be acquired for public use, the land may be developed for a use, or at a density comparable to, and compatible with surrounding development providing that such development is consistent with the goals, objectives, policies of the CDMP (the County's plan). This allowance does not apply to land designated Parks and Recreation that was set aside for park or open space use as a part of, or as a basis for approving the density of, a residential development. Certain commercial activities that are supportive of the recreational uses and complementary to the resources of the park, such as marine supply stores, fuel docks or tennis and golf clubhouses may be considered for approval in the Parks and Recreation category. Other commercial recreational or entertainment, or cultural uses may also be considered for approval in the Parks and Recreation category where complementary to the site and its resources. Some of the land shown for Parks is also environmentally sensitive. These areas include tropical hardwood hammocks, high- quality Dade County pineland, and viable mangrove forests. Some sites proposed for public acquisition under Florida's Conservation and Recreational Lands (CARL) program are identified in this category on the LUP (Land Use Plan) map although they may be as small as ten acres in size. Many of these areas are designated on the LUP map as "Environmentally Protected Parks" however, some environmentally sensitive areas may be designated simply as Parks and Recreation due to graphic restraints. All portions of parkland designated Environmentally Protected Parks or other parkland which is characterized by valuable environmental resources is intended to be managed in a manner consistent with the goals, objectives, and policies for development of the applicable environmental resources or protection area. Because it is an environmentally sensitive area, the City of Islandia, including the five Ragged Keys, has been designated "Environmentally Protected" parkland on the County's future land use map. Under the County's plan, the maximum density permitted on land so designated is one unit per five acres. With respect to the issue of historic resources, it is stated in the Intergovernmental Analysis section of the document containing the City's plan that the preservation of such resources within Biscayne National Park is the responsibility of the "National Park Service working with the State Bureau of Historic Preservation (within the Department of State) and the County Historic Preservation Division." Regarding the matter of private holdings within Biscayne National Park, the assertion is made in the Intergovernmental Analysis section of the plan document that "[a]lthough existing formal agreements exist relative to individual life estates and long-term leases by private owners within the Park, there is a need for a formal agreement relative to joint development review and agreements between the National Park Service and the City." As to permitting requirements, the Intergovernmental Analysis section of the plan document acknowledges "the array of permits required [from federal, state and county agencies] for private development and related infrastructure" in the City. In view of the regulatory authority of these agencies, the recommendation is made that the "City development code should establish a systematic review process flow chart meshing with the concurrency management system." Concerning the issue of solid waste, it is suggested in the Intergovernmental Analysis section of the plan document that "once first phase development is completed, the off-island disposal of solid waste by residents should be monitored for effectiveness" and if "this system is not working, a City-County collection arrangement would have to be developed." With respect to the issue of the water quality of Biscayne Bay, it is noted in the Intergovernmental Analysis section of the plan document that the County's "Biscayne Bay Aquatic Preserve Management Plan (Biscayne Bay Management Plan) can serve as a guide to intergovernmental estuary planning and protection as development occurs" and that therefore the "City should consult with the [County's Biscayne Bay Management Committee] staff when development proposals reach preliminary status." 13/ The Biscayne Bay Management Plan is codified in Chapter 33-D of the Metro-Dade County Code. It identifies guidelines and objectives designed to optimize the quality and quantity of marine life in the bay, to protect the bay's endangered and rare plants and animals, and to avoid irreversible and irretrievable loss of the bay's resources. The following are among the guidelines set forth in the plan: Coastal construction should be compatible with the Bay's natural features. . . * * * 8. Siting of new marinas and docking facilities should avoid use of shoreline areas containing viable submerged communities and near-shore areas of inadequate navigational depths. Such facilities should not negatively impact existing water quality. * * * The total impact from the many individual development or user activities along the Bay shoreline should not be allowed to negatively affect the Bay's biological, chemical or aesthetic qualities. Facilities in and over Bay waters and its tributaries should only be constructed if their development and use are water- dependent. Concerning the issue of emergency evacuation, the observation is made in the Intergovernmental Analysis section of the document that the "City's hurricane vulnerability makes an effective early warning imperative." It is therefore recommended that "[w]hen development occurs, the City should formalize an arrangement with the County 14/ including formal contacts, evacuation route/shelter designations and boat monitoring mechanism." 15/ Capital Improvements Element The capital improvements element of the City's adopted plan establishes the following goals, objectives and policies: Goal 1- To undertake municipal capital improvements when necessary to complement private new development facilities, within sound fiscal practices. Objective 1.1- The Mayor shall annually monitor public facility needs as a basis for recommendations to the City Council. Policy 1.1.1.- Engineering studies shall form the basis for annual preparation of a five- year capital improvement program, including one year capital budget if and when such municipal projects are deemed necessary. This element shall be reviewed annually. Policy 1.1.2- Overall priority for fiscal planning shall be those projects that enhance residential development and the environment, as per Land Use Plan. Policy 1.1.3- In setting priorities, the following kinds of criteria will be used: -Public Safety implications: a project to address a threat to public safety will receive first priority. -Level of service or capacity problems: next in priority would be projects needed to maintain the stated Level of Service. -Ability to finance: A third criteria is the budgetary impact; will it exceed budget projections? -Quality of life projects: lowest priority would be those projects not in categories 1 or 2 but that would enhance the quality of life. -Priority will be given to projects on islands experiencing development. Policy 1.1.4- Pursue a prudent policy in terms of borrowing for major capital improvements; in no case borrow more than two percent of the total assessed value in any one bond issue or loan. Objective 1.2- By July 1989, the City shall adopt a development code containing a concurrency management system to integrate the land use plan, capital improvement element and levels of service. Policy 1.2.1- City officials shall use both the Future Land Use Plan and financial analyses of the kind contained herein as a basis for reviewing development applications, in order to maintain an adequate level of service; all except parks are expected to be private: -Sewage disposal: septic tanks or package treatment plants providing treatment capacity of 300 gallons per residential unit per day 16/ -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid Waste: off-island disposal by individual homeowners or other property owners -Public open space: 57 acres per permanent resident Objective 1.3- Major future development projects shall pay their fair share of the capital improvement needs they generate. Policy 1.3.1- The proposed development code and related review process shall require on-site detention and drainage structures acceptable to regional environmental agencies plus private water and sewer systems. Policy 1.3.2- The development code preparation shall include the consideration of impact fees. Policy 1.3.3- Pedestrian paths shall be installed as a part of all new development. Objective 1.4- Achieve mechanisms whereby public and private facility requirements generated by new development are adequately funded in a timely manner. Policy 1.4.1- The development code shall specify that no development permit shall be issued unless assurance is given that the private (or possibly public) facilities necessitated by the project (in order to meet level of service standards) will be in place concurrent with the impacts of the development. The capital improvements element of the City's adopted plan also contains an Implementation section which provides as follows: Five-Year Schedule of Capital Improvements Not applicable; no deficiencies and no projects planned for 1990-1994 period. Programs For purposes of monitoring and evaluation, the principal programs needed to implement this Element are as follows: Initiate an annual capital programming and budgeting process as soon as warranted by prospective projects; use project selection criteria. Use engineering or design studies to pinpoint the cost and timing of any potential needs or deficiencies as they are determined. Amendments to the development code to a) assure conformance to the "concurrency" requirements relative to development orders, levels of service and public facility timing, and b) explore selected impact fees e.g. for park, boat dock and beach renourishment. Data and Analysis If a comprehensive plan is to be an effective tool in managing a community's future growth and development, it must be based, not upon unsubstantiated assumptions or wishful thinking, but rather upon appropriate data and reasoned analysis of that data. Typically, the first step in developing a comprehensive plan is to ascertain the projected population of the community. Once such a projection is made, the amount of land needed to accommodate the projected population must then be determined. The analysis does not end there, however. Before any decision is made regarding how, and to what extent, the community's land will be used in the future to meet the needs of the projected population, the character of the land, including its soils, topography, and natural and historic resources, must be examined so that its suitability for development can be determined. Only after such a suitability determination is made and the carrying capacity of the land is evaluated is it appropriate to assign land use designations and densities. The City Council did not follow this conventional approach in developing its comprehensive plan. Instead, it used a methodology that is fundamentally flawed and not professionally accepted. Without collecting and analyzing available information concerning the amount of land needed to accommodate the City's future population and the character and suitability of the City's land to meet the needs of the population, it arbitrarily determined at the outset of the planning process that the privately held land in the City would be designated for "residential" use and that a maximum density of six units per acre would be allowed. It appears that the City Council simply assumed, based on nothing more than the fact that the land was in private ownership, that it was suitable for residential development at six units per acre. Had the City Council examined the information that was readily available to it concerning the character of the privately held land in the City, it undoubtedly would have realized that such land is actually unsuitable for such intense residential development. The City Council, through its consultant, the Swarthout firm, subsequently, but prior to the January 13, 1989, adoption of the City's plan, projected the population of the City and the amount of land needed to accommodate the anticipated population. It estimated that the City's population would be about 300 in 1994 and approximately 720 in the year 2000 and that 78 acres of land would be needed to accommodate the projected population in the latter year. These projections, however, were not made pursuant to a professionally accepted methodology inasmuch as they were based, at least in part, upon the preconceived notion that the City's plan should permit residential development of the privately owned land in the City at a density of six units per acre. In making these projections, the City Council assumed that all of the 842 acres of privately held land in the City would be subject to residential development. The future land use map adopted by the City Council, however, designates only a small portion of that land, the approximately 12 acres comprising the five Ragged Keys, for residential use. This is considerably less land than that the City Council projected would be needed to accommodate the City's population in the year 2000. The final land use decisions reflected on the future land use map were not the product of a thoughtful and reasoned analysis of issues that should have been considered before such decisions were made. The City Council failed to adequately consider and analyze, among other things, the following significant matters before making these decisions and adopting the City's comprehensive plan: the character of the five Ragged Keys and their suitability for residential development at a density of six units per acre, particularly in light of their location in a flood prone area; the adverse impact that such development, including related housing and infrastructure construction activities, would have on the area's natural resources and fragile environment; 17/ whether the potable water 18/ and sanitary sewer needs generated by such development can be met given logistical and environmental constraints; 19/ the financial feasibility of, and problems associated with, siting infrastructure on the land to be developed; 20/ whether the future residents of the City can be safely evacuated from the City in the face of a hurricane or tropical storm given the City's location in a coastal high-hazard area accessible from the mainland only by water and air; 21/ and the need for boat docking and other water-dependent facilities. The City's adopted plan therefore is not supported by appropriate data and analysis. The Regional Plan for South Florida The South Florida Regional Planning Council has adopted a Comprehensive Regional Policy Plan (Regional Plan) to guide future development in Broward, Dade and Monroe Counties. The Regional Plan addresses issues of regional significance. Goal 51.1 of the Regional Plan provides as follows: By 1995 the amount of solid waste placed in landfills will be reduced by 30 percent over the 1986 volume. A local government's comprehensive plan must establish a level of service for solid waste disposal if it is to be consistent with, and further, this goal of the Regional Plan. The City's comprehensive plan does not do so. Goal 57.1 of the Regional Plan states as follows: New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot be economically provided. The City's comprehensive plan contemplates new development in areas where there are no existing nor planned public facilities. Although the plan suggests that infrastructure will be provided by private developers, there is no indication that any consideration was given to the costliness of such a venture. Goal 58.1 of the Regional Plan imposes the following requirement: Beginning in 1987, all land use plans and development regulations shall consider the compatibility of adjacent land uses, and the impacts of development on the surrounding environment. The State Comprehensive Plan The State of Florida also has a comprehensive plan. The State Comprehensive Plan confronts issues of statewide importance. Among other things, it requires "local governments, in cooperation with regional and state agencies, to prepare advance plans for the safe evacuation of coastal residents [and] to adopt plans and policies to protect public and private property and human lives from the effects of natural disasters." It also reflects that it is the policy of the State to "[p]rotect coastal resources, marine resources, and dune systems from the adverse effects of development" and to "[e]ncourage land and water uses which are compatible with the protection of sensitive coastal resources." Dade County Dade County is a political subdivision of the State of Florida. It has regulatory authority over the tidal waters, submerged bay bottom and coastal wetlands in the City of Islandia. It also has the authority under its Home Rule Charter to prescribe appropriate land uses and planning principles for the entire area within its territorial boundaries. Dade County municipalities, however, are free to deviate from the County's plan in fashioning a comprehensive plan of their own. If the residential development permitted by the City's adopted plan occurs, it will have a substantial adverse impact on areas within Dade County's jurisdiction, including Biscayne Bay, which have been designated as areas warranting protection and special treatment. Tropical Audobon Society The Tropical Audobon Society is a not-for-profit Florida corporation which engages in educational, scientific, investigative, literary and historical pursuits relating to wild birds and other animals and the plant, soil, water and other conditions essential to their development and preservation. On occasion, Tropical and its members engage in activity in the City of Islandia. They participate from time to time in census surveys of the City's bird population. In addition, they conduct tours through the City for people who want to observe the area's wildlife. The overwhelming majority of Tropical members are South Floridians. None of its members, however, reside or own land in the City of Islandia. Neither Tropical, nor anyone acting on its behalf, submitted oral or written objections during the City Council proceedings that culminated in the adoption of the City's comprehensive plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED the Administration Commission issue a final order which: (1) dismisses the Tropical Audobon Society's petition to intervene; (2) finds the City of Islandia's adopted comprehensive plan not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, for the reasons set forth in the foregoing Conclusions of Law; (3) directs the City to remedy these specific deficiencies to bring the plan "in compliance;" and (4) imposes appropriate sanctions authorized by Section 163.3184(11), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1990.
Findings Of Fact Petitioner owns property located at 1315 N. Betty Lanes Lots 8 and 9, Block E, Pine Ridge Subdivision in Clearwater, Florida. This property is zoned "CO" (general commercial) The consumption of alcoholic beverages on, premises is not permitted on premises zoned "CO," and therefore requires conditional use approval. Petitioner applied for conditional use approval on or about February 20, 1986 and on March 18, 1986 the Planning and Zoning Board disapproved Petitioner's application for conditional use. Paula Harvey, Planning Directors recommended approval because her review of the application indicated the location was suitable for a restaurant and lounges and the police department indicated no reason for disapproval. She did condition her recommendation on Petitioner demonstrating that all parking requirements of the Land Development Code would be met. A 6,000 square foot; two-story building is located on the subject property, but Petitioner only intends to use 2500 square feet for a restaurant and lounge. Petitioner currently operates a bar serving beer and wine directly across Overlea Lane on Beverly Lanes about forty feet away from the subject property. He testified he intends to close his present bar if he obtains this conditional use approval and opens his restaurant and lounge on the subject property. At his present locations Petitioner serves beer and wine; but not food. On the subject property, he would not sell alcoholic beverages without food, except to 7 persons waiting to be seated in the restaurant. Other than Paula Harvey's testimony that the subject property does not have sufficient parking spaces for the utilization of the entire 6,000 square foot building as a restaurant and lounges there is no competent, substantial evidence in the record as to the number of parking spaces on the property. It cannot be determined if there would be sufficient parking if Petitioner used only 2,500 square feet for the restaurant and lounges and the remainder of the building for some other commercial purpose. The neighborhood surrounding the subject property includes a church, residential, shopping and commercial areas. In addition to Petitioner's present barb there is also one other bar in the neighborhood. Public testimony evidences neighborhood concern about noise, litter, traffic and fighting associated with Petitioner's present bar and Petitioner offered no testimony as to how he intended to control noise, litters traffic and fighting which can reasonably be expected to occur if he opens a 2500 square foot restaurant and lounge with seating for more than 150 people compared to his current 1,600 square foot beer and wine bar.
The Issue The issue is whether Respondent, Daniel A. Reynolds, should take corrective action and pay investigative costs for allegedly controlling, eradicating, removing, or otherwise altering aquatic vegetation on eighty-seven feet of shoreline adjacent to his property on Lake June-in-Winter (Lake June) in Highlands County, Florida, without an aquatic plant management permit.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent is the riparian owner of the property located at 260 Lake June Road, Lake Placid, Highlands County (County), Florida. He has owned the property since 2001 and resides there with his wife and two young children. The parcel is identified as Parcel ID Number C-25-36-29-A00-0171-0000. The southern boundary of his property, which extends around eighty-seven feet, abuts Lake June. Respondent has constructed a partially covered dock extending into the waters of Lake June, on which jet skis, a canoe, and other recreational equipment are stored. The Department is the administrative agency charged with protecting the State's water resources and administering and enforcing the provisions of Part I, Chapter 369, Florida Statutes, and the rules promulgated under Title 62 of the Florida Administrative Code. The parties have stipulated that Lake June is not wholly-owned by one person; that it was not artificially created to be used exclusively for agricultural purposes; that it is not an electrical power plant cooling pond, reservoir, or canal; and that it has a surface area greater than ten acres. As such, the parties agree that Lake June constitutes "waters" or "waters of the state" within the meaning of Florida Administrative Code Rule 62C-20.0015(23), and is not exempt from the Department's aquatic plant management permitting program under Florida Administrative Code Rule 62C-20.0035. Unless expressly exempted, a riparian owner who wishes to control, eradicate, remove, or otherwise alter any aquatic plants in waters of the state must obtain an aquatic plant management permit from the Department. See § 369.20(7), Fla. Stat.; Fla. Admin. Code R. 62C-20.002(1). An aquatic plant is defined as "any plant, including a floating plant, emersed, submersed, or ditchbank species, growing in, or closely associated with, an aquatic environment, and includes any part or seed of such plant." See Fla. Admin. Code R. 62C-20.0015(1). These plants are found not only in the water, but also along the shoreline when the water recedes below the high water mark. They provide important habitat for fish, insects, birds, frogs, and other animals. Torpedo Grass and Maidencane are two common species of aquatic plants or weeds. Applications for a permit are filed with one of the Department's regional offices. After a site inspection is made, a permit is issued as a matter of right without charge or the need for a hearing, and it is effective for a period of three years. A Department witness indicated that there are approximately 1,300 active permits at the present time, including an undisclosed number of permits for property owners on Lake June.3 It is undisputed that Respondent has never obtained a permit. A statutory exemption provides that "a riparian owner may physically or mechanically remove herbaceous aquatic plants . . . within an area delimited by up to 50 percent of the property owner's frontage or 50 feet, whichever is less, and by a sufficient length waterward from, and perpendicular to, the riparian owner's shoreline to create a corridor to allow access for a boat or swimmer to reach open water." § 369.20(8), Fla. Stat. The exemption was established so that riparian owners could create a vegetation-free access corridor to the waterbody adjacent to their upland property. The statute makes clear that "physical or mechanical removal does not include the use of any chemicals . . . ." Id. If chemicals are used, the exemption does not apply. Under the foregoing exemption, Respondent could remove up to 43.5 feet of aquatic vegetation in front of his property on Lake June, or one-half of his eighty-seven foot shoreline. By way of background, since purchasing his property in 2001, Respondent has had a long and acrimonious relationship with his two next door neighbors, Mr. Slevins (to the west) and Mr. Krips (to the east).4 Neither neighbor uses Lake June for recreational purposes. After purchasing the property, Respondent says that Mr. Slevin began to verbally harass and threaten his family, particularly his wife. When Respondent observed the two neighbors repeatedly trespassing on his property, including the placing of an irrigation system and a garden over the boundary lines, Respondent built a fence around his lot, which engendered a circuit court action by the neighbors over the correct boundary line of the adjoining properties. Respondent says the action was resolved in his favor. According to Respondent, Mr. Slevins and Mr. Krips have filed "probably 100 to 200 different complaints on everything from barking dogs, to weeding the yard to calling DEP." Respondent also indicated that Mr. Slevins is a personal friend of the Highlands County Lakes Manager, Mr. Ford. As his title implies, Mr. Ford has the responsibility of inspecting the lakes in the County. If he believes that aquatic vegetation has been unlawfully removed or altered, he notifies the Department's South Central Field Office (Field Office) in Bartow since the County has no enforcement authority. Mr. Reynolds says that a personal and social relationship exists between Mr. Slevins and Mr. Ford, and through that relationship, Mr. Slevins encouraged Mr. Ford to file at least two complaints with the Field Office alleging that Respondent removed aquatic vegetation in Lake June without a permit. In 2002, the Department received a complaint about "aquatic plant management activity" on Respondent's property. There is no indication in the record of who filed the complaint, although Respondent suspects it was generated by Mr. Slevins. In any event, after an inspection of the property was made by the then Regional Biologist, and improper removal of vegetation noted, Respondent was sent a "standard warning letter" that asked him "to let it regrow" naturally. According to the Department's Chief of the Bureau of Invasive Plant Management, Mr. William Caton, Respondent "did not" follow this advice. In 2004, another complaint was filed, this time by the Highlands County Lakes Manager. After an inspection was made, another letter was sent to Respondent asking him to "let it regrow," to implement a revegetation plan, and to contact the Department's Regional Biologist. After receiving the letter, Respondent's wife telephoned Mr. Caton, whose office is in Tallahassee, and advised him that the complaint was the result of "a neighbor feud." Among other things, Mr. Caton advised her that the Department would not "get in the middle" of a neighbor squabble. At hearing, he disputed Mrs. Reynolds' claim that he told her to disregard the warning letter. He added that Respondent did not "follow through with" the corrective actions. As a result of another complaint being filed by the Highlands County Lakes Manager in 2006, a field inspection was conducted on July 12, 2006, by a Department Regional Biologist, Erica C. Van Horn. When she arrived, she noticed that the property was fenced and locked with a "Beware of Dog" sign. Ms. Van Horn then went to the home of Mr. Slevins, who lives next door, and was granted permission to access his property to get to the shoreline. The first thing Ms. Van Horn noticed was that the "lake abutting 260 Lake June Road was completely devoid of vegetation." She further noted that "on either side of that property [there was] lush green Torpedo Grass." Ms. Van Horn found it "very unusual" for the vegetation to stop right at the riparian line. Although she observed that there was "a small percentage of Maidencane" on the site, approximately ninety to ninety-five percent of the frontage "was free of aquatic vegetation." Finally, she noted that the dead Torpedo Grass on the east and west sides of the property was in an "[arc] shape pattern," which is very typical when someone uses a herbicide sprayer. During the course of her inspection, Ms. Van Horn took four photographs to memorialize her observations. The pictures were taken from the east and west sides of Respondent's property while standing on the Slevins and Krips' properties and have been received in evidence as Department's Exhibits 1-4. They reflect a sandy white beach with virtually no vegetation on Respondent's shoreline or in the lake, brown or dead vegetation around the property lines on each side, and thick green vegetation beginning on both the Slevins and Krips' properties. The dead grass to the east had been chopped into small pieces. During her inspection, Ms. Van Horn did not take any samples or perform field testing to determine if herbicides had been actually used since such testing is not a part of the Department's inspection protocol. This is because herbicides have a "very short half life," and they would have broken down by the time the vegetation turns brown leaving no trace of the chemicals in the water. Ms. Van Horn left her business card at the gate when she departed and assumed that Respondent would contact her. On a later undisclosed date, Respondent telephoned Ms. Van Horn, who advised him that he was out of compliance with regulations and explained a number of ways in which he could "come into compliance with these rules," such as revegetation. She says he was not interested. After her inspection was completed, Ms. Van Horn filed a report and sent the photographs to Mr. Caton for his review. Mr. Caton has twenty-seven years of experience in this area and has reviewed thousands of sites during his tenure with the Department. Based on the coloration of the vegetation right next to the green healthy vegetation on the adjoining properties, Mr. Caton concluded that the vegetation on Respondent's property had "classic herbicide impact symptoms." He further concluded that the vegetation had been chemically sprayed up to the boundary lines on each side of Respondent's property before it was cut with a device such as a weedeater. Based on the history of the property involving two earlier complaints, Respondent's failure to take corrective action, and the results of the most recent inspection, Mr. Caton recommended that an enforcement action be initiated. On August 11, 2006, Ms. Van Horn sent Respondent a letter advising him that a violation of Department rules may have occurred based upon the findings of her inspection. The letter described the unlawful activities as being "removal of aquatic vegetation from the span of the total adjacent shore line and significant over spray on to aquatic vegetation of neighboring properties on either side of [his] property." Respondent was advised to contact Ms. Van Horn "to discuss this matter." On May 15, 2007, the Department filed its Notice alleging that Respondent had "chemically controlled" the aquatic vegetation on eighty-seven feet of his shoreline in violation of Section 369.20(7), Florida Statutes, and Florida Administrative Code Rule 62C-20.002(1). The Notice sought the imposition of an administrative penalty in the amount of $3,000.00, recovery of reasonable investigative costs and expenses, and prescribed certain corrective action. On April 28, 2008, the Department filed an Amended Notice alleging that, rather than chemically removing the vegetation, Respondent had controlled, eradicated, removed, or otherwise altered the aquatic vegetation on his shoreline. The Amended Notice deleted the provision requesting the imposition of an administrative penalty, expressly sought the recovery of investigative costs and expenses of not less than $179.00, and modified the corrective action. After her initial inspection, Ms. Van Horn rode by the property in a Department boat on several occasions while conducting other inspections on Lake June and observed that the property "was still mostly devoid of vegetation." At the direction of a supervisor, on June 15, 2007, she returned to Respondent's property for the purpose of assessing whether any changes had occurred since her inspection eleven months earlier. This inspection was performed lakeside from a Department boat without actually going on the property, although she spoke with Respondent's wife who was standing on the dock. Ms. Van Horn observed that the area was still "devoid of vegetation but there was some Torpedo Grass growing back on the [eastern] side." She estimated that "much more" than fifty percent of the shoreline was free of vegetation. Photographs depicting the area on that date have been received in evidence as Department's Exhibits 5-7. Both Respondent and his wife have denied that they use any chemicals on their property, especially since their children regularly swim in the lake in front of their home. Respondent attributes the loss of vegetation mainly to constant use of the back yard, dock area, and shoreline for water-related activities, such as swimming, using jet skis, fishing, and launching and paddling a canoe. In addition, the Reynolds frequently host parties for their children and their friends, who are constantly tramping down the vegetation on the shoreline and in the water. He further pointed out that beginning with the house just beyond Mr. Krip's home, the next five houses have "no vegetation" because there are some areas on the lake that "naturally do not have any vegetation across them." Finally, he noted that Lake Juno suffered the impacts of three hurricanes in 2004, which caused a devastating effect on its vegetation. Respondent presented the testimony of Brian Proctor, a former Department aquatic preserve manager, who now performs environmental restoration as a consultant. Mr. Proctor visited the site in June 2007 and observed "full and thick" Torpedo Grass "growing in the east and west of the property lines." Based on that inspection, Mr. Proctor said he was "comfortable stating that at the time [he] did the site visit in June of '07 there was nothing that appeared to be chemical treatment on Mr. Reynold's property." He agreed, however, that the "shoreline vegetation was poor," and he acknowledged that it was unusual that Lake Juno was lush with aquatic vegetation in front of the neighboring properties to the east and west but stopped at Respondent's riparian lines. When shown the June 2006 photographs taken by Ms. Van Horn, he acknowledged that it "appeared" the property had been chemically treated. He was able to make this determination even though a soil test had not been performed. Photographs introduced into evidence as Respondent's Exhibits 1-4 reflect that on June 27, 2007, there was thick green vegetation on both sides of his property, although one photograph (Respondent's Exhibit 1) shows only limited vegetation along the shoreline and in the lake in the middle part of the property. The photographs are corroborated by a DVD recorded by Respondent on the day that Ms. Van Horn returned for a follow-up inspection. While these photographs and DVD may impact the amount of corrective action now required to restore the property to its original state, they do not contradict the findings made by Ms. Van Horn during her inspection on July 12, 2006. Finally, photographs taken in 2003 to depict what appears to be chemical spraying of vegetation and the construction of a bulkhead without a permit by Mr. Slevins have no probative value in proving or disproving the allegations at issue here. The greater weight of evidence supports a finding that it is very unlikely that heavy usage of the shoreline and adjacent waters in the lake by Respondent's family and their guests alone would cause ninety-five percent of the shoreline and lake waters to be devoid of vegetation when the inspection was made in July 2006. Assuming arguendo that this is true, Respondent was still required to get a permit since the amount of vegetation altered or removed through these activities exceeded more than fifty percent of the vegetation on the shoreline. More than likely, the vegetation was removed by a combination of factors, including recreational usage, mechanical or physical means, and the application of chemical herbicides on each riparian boundary line, as alleged in the Amended Notice. The fact that the Department did not perform any testing of the water or soil for chemicals does not invalidate its findings. Finally, the acrimonious relationship that exists between Respondent and his neighbors has no bearing on the legitimacy of the charges. Therefore, the allegations in the Amended Notice have been sustained. The parties have stipulated that if the charges are sustained, Respondent is entitled to recover reasonable costs and expenses associated with this investigation in the amount of $179.00. As corrective action, the Amended Notice requires that Respondent obtain a permit to remove Torpedo Grass from his property and to replant "126 well-rooted, nursery grown Pontederia cordata ("pickerelweed") at the locations depicted on the map" attached to the Amended Notice. Because the evidence suggests that some of the area in which vegetation was removed in 2006 had regrown by July 2007, the proposed corrective action may be subject to modification, depending on the current state of the property.
Findings Of Fact Ivanhoe is a planned unit development on approximately 864 acres in Broward County extending from Griffin Road on the north, Southeast 148th Avenue on the east, Sheridan Road on the south, and with the westwardly boundary approximately one-fourth mile east of Dyke Road. A planning consultant testified concerning the conceptual site development plan for Ivanhoe prepared pursuant to the Broward County Zoning Code and Land Use Plan. The planned unit development anticipates just less than 2,323 dwelling units (the density limit imposed by the Broward County Land Use Plan), to consist of single family units, townhouses, cluster homes, apartments, and some recreation and commercial land uses. The developers of Ivanhoe will not construct the ultimate dwellings but will develop the land for construction of residences and other buildings by builders. Ivanhoe is to be developed in three phases. The first phase is expected to be platted and ready for ultimate development by 1983, the second phase in 1985, and the third phase in 1988. South Broward is a Florida corporation formed solely to provide utility service to Ivanhoe, and if necessary, adjacent property. The corporation is not presently funded or in operation, but it has retained consulting engineers and management consultants experienced in planning, designing, and operating water and sewer utility systems in Florida. One hundred percent of the capital stock of South Broward is owned by Hugh F. Culverhouse. Mr. Culverhouse also owns other water and sewer utilities in Florida regulated by the Commission. The evidence in the record (Exhibit 1 and Exhibit 2) establishes that South Broward's shareholder possesses substantial assets and net worth, and that he has the financial capability to provide whatever capital is needed in order to construct the required utility facilities and to operate a sound utility company. Although South Broward's utility consultant recommended a 50-50 to 60-40 ratio of equity to contributions-in-aid-of-construction, the shareholder is able to invest all of the capital necessary to construct and operate the entire utility system, or whatever ratio of equity to CIAC the Commission may require, should he be willing to do so. In order to determine alternate means of providing utility service to Ivanhoe, South Broward's consulting engineer prepared a preliminary report setting forth various alternatives and his cost estimates for each. These general engineering plans are sufficiently flexible to meet the changing requirements of the appropriate governmental agencies. However, the preparation of complete, detailed plans is premature until such time as certificates are issued by the Commission. At the present time, neither South Broward nor Cooper City Utilities possesses any permits from regulatory agencies relating to the facilities necessary to serve Ivanhoe. A representative from the Department of Environmental Regulation testified relative to licensing. There is nothing in South Broward's preliminary engineering report that would not allow the required permits to be issued. A representative from the Broward County Health Department, which agency reviews and approves engineering plans for potable water facilities in Broward County, also testified concerning licensing. The plans described in South Broward's preliminary report would be approved if they met all of the appropriate criteria when submitted. From this evidence, therefore, if detailed engineering plans are submitted by South Broward consistent with the general plans contained in the preliminary report, South Broward will be granted the necessary construction and operating permits for its proposed water and sewer systems. Ultimately, South Broward plans to utilize the Broward County regional wastewater treatment facility, to be constructed pursuant to Public Law 92-500 under what is known as a "201 Plan", to provide sewage treatment service to Ivanhoe. South Broward's management consultant presented evidence relative to the company's proposed capital structure, rates, the projected operating budget and manner of operation. South Broward's proposed rates would be in keeping with the rates of other utilities in the area, including Cooper City Utilities, even though South Broward would levy no plant contribution charge and would maintain at least 50-50 ratio of CIAC and invested plant. The past operational experience of South Broward's consultants and its sole stockholder demonstrate that South Broward will be operated in an efficient and sufficient manner. The evidence presented establishes that South Broward possesses the engineering and operational capability to construct and operate the necessary facilities to provide service to Ivanhoe. However, there remains to be established the willingness of South Broward's shareholder to commit sufficient funds to the company for this purpose. There is no competent, direct evidence in the record to demonstrate this point, although the capability of Mr. Culverhouse to make available the necessary funding was not challenged at the hearing, and is found as a fact. South Broward being otherwise able to provide utility service to Ivanhoe, the willingness of its shareholder to provide adequate funding may be demonstrated ex-parte, if the evidence presented by Cooper City Utilities fails to establish that it can provide the service required by Ivanhoe more economically or efficiently than South Broward. In this circumstance, the protest should be dismissed; and the application then being unprotested, may be considered further without another hearing. Section 367.051(1), Florida Statutes. The service area of Cooper City Utilities is located within the municipal boundaries of Cooper City, Florida, with its nearest boundary approximately 2 miles from the closest boundary of Ivanhoe. This utility contends that the Commission should deny South Broward's application for certificates because it is more capable of providing service, and because granting a certificate to South Broward will encourage the proliferation of small water and sewage treatment plants, contrary to the public interest. In order to determine the merits of this protest, it is necessary to evaluate the financial ability of Cooper City Utilities, the capacity of its utility plant to serve the Ivanhoe development, and the feasibility of the plan of service proposed by this utility. For the year 1979, Cooper City Utilities sustained a combined loss in its water and sewer operations of approximately $390,000. As of December 31, 1979, it had a negative net worth or deficit of $952,000. In addition, Cooper City Utilities has filed a petition with the Commission seeking authority to borrow $450,000 for the purpose of meeting existing obligations -- to make refunds to developers, to make refunds of customer deposits, and to fund construction of future improvements to the existing utility plant. (Commission Docket No. 800562-WS). Further, the Supreme Court of Florida has recently denied certiorari to review Commission Order No. 8964 requiring Cooper City Utilities far to refund to its customers an additional amount of approximately $400,000. (Supreme Court Case No. 58,047, Order dated September 12, 1980). As a result, the utility consultant to Ivanhoe has recommended that Ivanhoe not consider connecting to Cooper City Utilities as a source of water and sewer service because of the financial instability of this utility. In summary, this utility is not presently capable of making a financial investment in the amount necessary to provide services to Ivanhoe. The only means by which Cooper City Utilities could construct the facilities necessary to serve Ivanhoe is for the developers to provide all of the funds to construct the facilities in the form of contributions-in-aid-of- construction. Under this utility's proposal, Ivanhoe would provide the funds for off-site facilities in the amount of approximately $575,000 a contribution to plant in the amount of approximately $467,500, and a contribution to the hydraulic share cost of existing off-site facilities of $297,500 ($175 per ERC for 1700 ERCs). The deputy clerk of the City of Cooper City, Florida testified concerning the zoning and land use of the remaining area within the service area of Cooper City Utilities. Based on the present development, zoning, platting, and land use, when the existing service area of this utility is fully developed, the customers will require approximately 1,256,000 gallons per day (based on an average daily flow) of the capacity of the utility's water and sewage treatment plants. This demand will utilize the entire capacity of the sewage treatment plant, which has a design capacity of 1.25 mgd. In addition, the maximum day throughput demand of the service area on the utility's water facilities will be approximately 2.826 mgd, which will utilize substantially all of the capacity of the water treatment plant, which has a throughput design capacity of 3.0 mgd. Thus, if Cooper City Utilities were to serve its existing certificated area and Ivanhoe, it would be required to build additional water and sewage treatment facilities. However, Cooper City Utilities does not have sufficient land at its treatment plant site to construct an expansion to its existing facilities, and it does not presently own or have access to enough land to construct the necessary 20 acres of evapopercolation ponds to provide an effluent disposal at its existing plant. South Broward contends that Cooper City Utilities is not a reliable source of utility service for Ivanhoe because the utility has been negotiating to sell its water and sewer systems to a municipal government in the area. Representatives of Cooper City Utilities have met with representatives of the cities of Sunrise, Cooper City, and Davie concerning the possible acquisition of the utility by these cities. Although there is not sufficient evidence in the record to permit a finding to be made on the matter of a sale of Cooper City Utilities to a municipality, the subject of such a possible sale is relevant to the issue of whether it is in the public interest to grant a certificate to South Broward pursuant to its application. If such a sale were consummated, Ivanhoe and the future residents of the development would be dependent for water and sewer services upon a municipality, the officials of which are not elected by them and who do not represent them. Cooper City Utilities also contends that certification of South Broward as a water and sewer utility would violate the policy of regulatory agencies to encourage the growth and expansion of existing community utility systems, and to discourage the proliferation of small water and sewage treatment facilities. However, the representatives of the regulatory agencies will approve the detailed engineering plans which South Broward submits if the same are in conformity with Chapter 17-22, Florida Administrative Code. Thus, this contention is not persuasive in disposing of the issues herein. The evidence fails to establish that Cooper City Utilities can make an economically feasible extension of its systems to serve the Ivanhoe development, or that it is more capable than South Broward of providing water and sewer service to Ivanhoe, or that it can provide such service more economically or efficiently than South Broward. Although this utility has never failed to provide adequate service, and Possesses sufficient treatment capacity to serve Ivanhoe at the present time, it will be required to expand its facilities in order to serve both its existing certificated territory, and also the Ivanhoe development. Its financial condition is such that it would not be able to finance this necessary expansion of its facilities. In addition, the possible sale of Cooper City Utilities to a municipal government makes it uncertain whether the utility is a reliable source of service. Therefore, this utility's protest is not sufficiently meritorious to warrant a denial of the application of South Broward.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of South Broward Utility, Inc., be granted conditionally, subject to a determination by the staff of the Commission that the company's sole shareholder is willing to commit adequate financing to the company to enable it to provide water and sewer service to Ivanhoe as proposed. It is further RECOMMENDED that the protest filed by the Cooper City Utilities, Inc. be dismissed. THIS RECOMMENDED ORDER entered on this 30th day of October, 1980. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1980. COPIES FURNISHED: James L. Ade, Esquire and William A. Van Nortwick, Jr., Esquire 300 Independent Square Post Office Box 59 Jacksonville, Florida 32202 William E. Sundstrom, Esquire 1020 East Lafayette Street Tallahassee, Florida 32301 William H. Harrold, Esquire Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
Findings Of Fact The Intervenors filed an Application for Dredge and Fill Permit with the Department of Environmental Regulation. The Department entered a notice of its intent to issue a permit. Petitioner requested a formal administrative hearing. The Department forwarded the matter to the Division of Administrative Hearings, where it was given Case No. 82-3155. A Recommended Order which includes Findings of Fact and Conclusions of Law has been entered in Case No. 82-3155. The Findings of Fact and Conclusions of Law set out in the Recommended Order are hereby incorporated into this Final Order and constitute a part of this Final Order. The Petitioner is an association of home owners within a residential development known as "Caloosa." Intervenors are seeking to develop an industrial park on land adjacent to the Caloosa development. Surface and ground waters from the proposed industrial park would drain toward Caloosa. Prior to the Department's entry of the notice of intent to issue a permit to Intervenors, the Department's personnel evaluated the application in free-form proceedings. An environmental specialist who works with the Department as a permit processor proposed to deny the application on account of the fact that Intervenors proposed to fill approximately 70 acres of wetlands, 24 of which were within the Department's permitting authority under Rule 17-4.28, Florida Administrative Code. The administrator of the Department's Dredge and Fill Permitting Section came to the conclusion that denial of the application could not be justified. He felt that the wetlands to be filled served only marginally to preserve water quality in the area. The Intervenors had proposed to artificially create wetland areas in order to compensate for the loss of filled wetland areas. The program administrator suggested to the permit processor that they negotiate to get the Intervenors to create additional artificial wetlands in order to mitigate against any possible adverse effect from the loss of natural wetland areas. These negotiations occurred, and the Intervenors agreed to increase artificially created wetland areas. The Department of Environmental Regulation does not have a rule which provides that its personnel can engage in negotiations respecting a permit application. Negotiations are, however, an inherent part of a permitting process. The Department does not have any written or unwritten policy whereby it accepts such mitigating factors as artificially created wetlands as justifying the filling of natural wetlands. It does not appear that the Department has any rule or nonrule policy concerning mitigation or trade-offs, and it does not appear that the Department has ever had such a rule or policy. The Department does not have a policy of accepting concessions, trade-offs, or mitigating factors so as to allow an applicant to violate the Department's water quality standards. Since there has been a permitting process, such factors as artificially created wetlands have been considered by the Department in determining whether an application meets the Department's criteria for issuance of a permit. The Department's policy is to consider whether an applicant has provided reasonable assurance that the short-term and long-term effects of proposed activities will not result in violations of water quality standards, as required under Rule 17- 4.28(3), Florida Administrative Code. If an applicant has proposed to construct artificial wetlands, the Department would logically consider it in making determinations about granting the permit. There is no evidence in the record of this proceeding from which it could be concluded that the Department has any unpromulgated "mitigation" policy which has the effect of a rule.
The Issue The issues for determination in this proceeding are whether DER properly asserts jurisdiction over the site in question, and whether Petitioner (Vatalaro) is entitled to a permit to fill that site.
Findings Of Fact Sometime in 1986, Billie Vatalaro purchased approximately eleven acres within an approximately 20-acre wetland contiguous to Lake Rouse in east Orange County, Florida. Approximately five acres of the Vatalaro parcel are in the lake itself. In June 1987, personnel from Orange County's planning department and environmental protection department visited the site in response to reports of illegal filling. Correspondence ensued, and meetings were held among Mrs. Vatalaro and her sons and the staff from Orange County. In the meantime, some activity on the site continued, including clearing of trees and vegetation and sometime in January 1988, Mrs. Vatalaro obtained from the Orange County building department building permits and septic tank permits for two houses on approximately 1/2 acre of the property. In early February 1988, the Orange County Environmental Protection Department requested the involvement of DER. Jurisdiction Pamela Thomas is an environmental specialist with DER in the Orlando office. She first visited the site on February 8, 1988, with DER's enforcement officer, a staff person from Orange County, Mrs. Vatalaro, and Mrs. Vatalaro's sons, Russ and Ron Vatalaro. She performed a jurisdictional determination on the occasion of that visit, and returned for subsequent visits on July 20, 1988 and February 22, 1989. Jurisdictional determinations were made pursuant to Rule 17-4.022 F.A.C. (Since renumbered as 17-3.022). This required locating the water body of the state, Lake Rouse, and a determination of whether there is a connection of the water body to the adjacent wetlands. The vegetation is then examined to determine whether canopy, sub-canopy or ground cover will be analyzed. Within the rule are two tests, one used when submerged species predominate, the other used when the wetland vegetation is more transitional. Ms. Thomas located Lake Rouse and found no berms or other barriers between the lake and the wetlands. She also performed transects, visually sampling segments of the area and determined there was continuity between the lake and landward to the site in question. She found a full mature canopy in the uncleared area and loblolly bay, a submerged species, dominated. This area, between the lake and cleared site met the first ("A") test in Rule 17-4.022, F.A.C. The submerged plus transitional species were greater than 50 percent of the vegetation, the submerged species was greater than 10 percent and exceeded the upland species present. Because a portion of the area had been cleared, it was necessary to attempt to reconstruct what vegetation had existed prior to clearing. The cleared area included tall spindly pine trees spaced to indicate that other trees had been growing between them. The pine trees which did not have fill next to them were sitting on hummocks, a common phenomena in wetlands. Within the disturbed area Ms. Thomas found two bore holes where previous soil borings had been done. She and the DER enforcement officer determined by examining those holes that substantial fill had been placed in the cleared area. Root mat was more than ten inches below the surface and water was standing in the bottom of the holes. In order to reconstruct what vegetation had been present in the cleared area, Ms. Thomas completed a series of three feet by ten feet visual transects fanning out into the thicket from the cleared area. The dominant species were Ioblolly bay (gordonia), sweet bay and dahoon, all submerged species. It was apparent that the predominance of trees that had been removed were submerged species, mainly Ioblolly bays. As reconstructed, the biomass in a transect would have been greater than the sum of the biomass of the pine trees. This reconstruction was further validated on subsequent visits to the site when juvenile loblolly bay trees were found seeded and thriving in the disturbed area, but no pine seedlings were found, even though there was adequate time for that to occur. DER staff also viewed aerial photographs provided by the Valataros, taken in 1984, prior to major clearing and in 1987, after the clearing. The photographs are on a scale of 1 to 300 and do not indicate a drastic change in the area that would reflect that the cleared area had been mostly pine trees. The photographs are not of such quality that a conclusive determination can be made on them alone. David Kriz is an area resource soil scientist with the U. S. Department of Agriculture Soil Conservation Service. He visited the site with representatives of DER and Mrs. Vatalaro on July 20, 1988, at the request of DER. He performed three soil borings, the first in an area of bay trees outside the area cleared for the house. This boring revealed Samsula muck, a hydric soil, indicative of being saturated or flooded. The second boring was taken within the area designated for the house pad. This yielded about fifteen inches of fill, then St. Johns soil, an organic sandy layer, which can be hydric if inundated for more than thirty days in a year. It was impossible to determine whether this specimen was hydric, because this surface had been disturbed and filled. The third boring was taken just off the pad, but still in the cleared area. It yielded about nine inches of sandy fill and Samsula muck below, similar to the first boring, and clearly a hydric soil. St. Johns fine sand also appears on the site in a USDA soil conservation map of Orange County. The map is a good guide, but cannot be relied upon without ground tests in specific sites as the scale on the map is 1 to 20,000. Although distinct soil zones are indicated, in fact there are transitional areas between soil types in the zones, which means that in a transitional zone there may be either wet or dry areas. It would be virtually impossible to determine the soil type prevalent in Mrs. Vatalaro's cleared half acre, without the borings. DER properly concluded that it has jurisdiction over the site. Petitioner's expert, William Dennis, concedes that most of the Vatalaro property is within DER's jurisdiction, including a substantial portion of the cleared area, most notably the 43 by 100 foot cleared finger extending south from the cleared area designated for the house. In performing his jurisdictional analysis, Dr. Dennis concentrated on the cleared area. He did not complete transects. He counted and measured trees, and with the aid of a compass, sited them on a chart, received in evidence as Petitioner's exhibit #13. Within the cleared area he found a predominance of pines, and upland species (71%) and some submerged and transitional species (4.8% and 24.2%, respectively). This, he concluded, failed the jurisdictional test described in paragraph 7, above. Dr. Dennis also examined the aerial photographs and determined there was a vegetation break extending approximately 30 feet into the thicket from the northwest corner of the cleared area. He counted and measured trees in that area and found 14.8% submerged species, 35.4% transitional species, and 49.8% upland species. That area failed the jurisdictional "A" test because the submerged species did not outnumber the upland species present. Extrapolating from this finding, he concluded that the upper part of the cleared area designated for placement of the house, is outside of DER's jurisdiction. This conclusion is unreliable. The aerial photographs, particularly the pre-clearance photographs from 1984, are not crisp and clear. It is also possible that in looking at an aerial photograph, the tallest trees, the pines, would overshadow the other species which are also four inches or greater in diameter breast height (DBH) and are, therefore, equally significant. Rule 17.4.022(1)(c), F.A.C. provides that belt transects be used when the line demarcating the landward extent of waters of the state cannot be determined visually or by photo interpretation. DER, but not Mr. Dennis, relied on belt transects. Rule 17.4.022(I)(d), F.A.C. provides that other methods may be used as long as the department and applicant both agree in writing, to the method used. DER did not agree with Dr. Dennis' method. Counting trees in an area that has been disturbed is not a reliable means of establishing what existed prior to clearance when substantial evidence suggests that the clearing left the pines but eliminated the predominant submerged and transitional species. Section 403.8171(5), F.S. provides a "back-stop" to the vegetative jurisdictional determination by providing that "...in no case shall [the landward extent of the waters of the state] extend above the elevation of the 1- in-10-year recurring flood event or the area of the land with standing or flowing water for more than 30 consecutive days per year calculated on an average annual basis, whichever is more landward." The petition in this proceeding raised the issue of the jurisdictional backstop but the application and evidence at a hearing fails to include sufficient information to substantiate that this alternative applies. Generally, a study would be required, and the applicant has not provided such. The Merits of the Application The wetland contiguous to Lake Rouse, within which the Vatalaro property is located, comprises approximately 20 acres. It is the only mature forested wetland of its quality within a large region of east Orange County. This wetland provides a filtration function contributing to the water quality of Lake Rouse and to the waters of the region. The Lake Rouse wetland also provides flood abatement capacity via its soil and plants. The effects of the loss of this capacity in other severely impacted wetlands along the State Road 50 corridor have become evident. The altered areas are no longer able to provide water holding capacities. Wildlife which are residents of the area and which use the area as a stopover will be impacted by alteration of the habitat which they currently rely upon for food, cover, nesting and resting. Examples of those wildlife are ducks and other birds, raccoons, deer and opossums. Even though the proposed project will comprise only 1/2 to 3/4 an acre of the wetland, the impact is significant considering the unique quality of the wetland. Dr. Dennis agrees that alteration of the site would change the habitat value of the area and would impact the functions of the wetlands. He argues, however, that the effects of this project are minimal compared to the development which has already occurred in surrounding areas. Although the applicant has a building and septic tank permit and a Corps of Engineers permit, the regulations for those permits are not the same as the balancing criteria which DER must consider. The Orange County Planning and Environmental Protection Departments recommend denial of the project. No evidence was presented with regard to mitigation proposed or agreed to by the applicant.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a Final Order be entered denying the application for fill permit. DONE and RECOMMENDED this 26th day of May, 1989, 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 26th day of May, 1989. COPIES FURNISHED: Michael D. Jones, Esquire 996 Westwood Square Suite 4 Oviedo, Florida 32765 Vivian F. Garfein, Esquire Department of Environmental Regulation Twin Towers Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues in this case are: Whether Respondent, St. Joseph Garden Courts, Inc. ("Garden Courts"), discriminated against Petitioner, Lillian Craig ("Craig"), on the basis of her race (Caucasian) in violation of the Florida Fair Housing Act; and Whether Gardens Courts retaliated against Craig when she filed a discrimination claim.
Findings Of Fact Craig is an elderly Caucasian woman, who at all times material hereto resided at Garden Courts. Garden Courts is a federally-funded, multi-unit housing project that provides housing to elderly and lower income individuals under Section 202 of the Housing Act of 1959, as amended. On February 27, 2009, Craig entered into a "202 Project Rental Assistance Contract" (the "Lease") with Garden Courts. Craig agreed to lease Unit 311 for the sum of $465.00 per month, plus $60.00 per month for utility services. Craig agreed to abide by all terms and conditions of the Lease, including the Rules and Regulations attached thereto as an addendum. The Rules and Regulations attachment contains the following provision at paragraph 30: Authorized personnel will enter the apartment periodically for routine inspections, maintenance replacement/repairs, and pest control. Routine inspections, as required by HUD, are conducted to determine the condition of the dwelling unit, that the unit is decent, safe and sanitary, and in good physical condition. Inspections may reveal possible lease violations. Photographs will be taken if determined necessary. Any lease violations found during these inspections may result in termination of tenancy. On October 10, 2010, Garden Courts conducted a routine housekeeping and maintenance inspection of Unit 311. Mott, as property manager, headed up the inspection. Mott used a form checklist consistent with Department of Housing and Urban Development (HUD) guidelines for the inspection. Inspections of several other units were performed on the same day. The inspections were conducted by Mott with the assistance of Rudy (last name not provided), the maintenance director. Generally, Mott would inspect the kitchen and bathroom, while Rudy inspected the bedroom(s). Inspections were performed to assure cleanliness, orderliness, and compliance with all safety requirements. Upon inspection of Unit 311, Mott determined that there was one minor deficiency, a dirty stovetop, and one major problem, a fire hazard in the bedroom. The apartment was deemed free of roaches and vermin, free of trash and garbage, and in a "fair" state of cleanliness. Photographs were taken on the unit to document the major deficiency. The situation causing a major fire safety problem in the unit was that Craig had boxes and furniture stacked up in the bedroom which blocked the outside window. Inasmuch as there need to be two methods of ingress/egress for each room, the boxes illegally blocked one of the escape routes. The boxes also were stacked so high that the inspectors could not reach the smoke detector to determine whether it was functional. Further, the boxes blocked the electrical outlets so that they could not be tested. The fact that the boxes contained lots of paper was a concern to Garden Courts due to the possibility of fire. Due to the deficiencies, a follow-up inspection had to be scheduled. Garden Courts usually asked the tenant whether he or she wanted the re-inspection to occur within 15 days or 30 days. In this case, Craig asked for some time to rectify the problem and requested re-inspection a month later. Garden Courts honored her request and scheduled a re-inspection for the unit on September 10, 2010, one month after the initial inspection. Craig was advised by Mott that the boxes and furniture in the bedroom were the cause of Craig's apartment not passing the inspection. There is no credible evidence that Mott told Craig to move the boxes or face eviction. The best evidence is that Craig understood the need to move the boxes and volunteered to do so if she was afforded ample time. When Mott came back to re-inspect the unit a month later, the boxes had been moved. Craig claims she was treated differently from other tenants during her inspection. On the same date that Unit 311 was initially inspected, Mott and Rudy also inspected Units 210, 217, 306, 325, 119, and 116. The tenants of each of those units were Hispanic. Craig asserts that she was treated differently, because she was not Hispanic. That is, Unit 116 also had an issue relating to stacks of boxes, but Mott did not take a picture of that apartment. According to Mott, that was because the other unit was not, in her opinion, as severe a problem as Craig's unit. Each of the Hispanic tenants was given two weeks to a month to correct his or her cited deficiencies, depending on the nature and severity of the issues. Craig was allowed one full month to correct her deficiencies. The tenant of Unit 116 was ultimately given additional time to move the boxes in her apartment due to her physical condition. That tenant asked for and received additional time; Craig did not ask for additional time, because she was able to move her boxes before the scheduled re-inspection. Shortly after the re-inspection, Craig contacted the Jacksonville HUD office to complain about her treatment by Mott. Craig actually filed a Housing Discrimination Complaint with HUD, alleging discrimination based upon her race, Caucasian. HUD notified Mott about the complaint and asked Mott to speak to Craig about the allegations. Mott then tried to contact Craig to discuss the complaint. However, the phone number Mott had for Craig did not have a voice mailbox set up, so Mott was not able to leave Craig a message. On September 15, 2010, Craig returned to Garden Courts after doing some grocery shopping. As she walked through the lobby, Mott asked her to stop and talk for a moment concerning the HUD complaint. Craig indicated that she could not talk at that time because she had to get her groceries put away. Mott told Craig that attempts to leave Craig a message on her cell phone were thwarted due to the fact that the message box had not yet been set up. Craig disputed that statement, saying that she was receiving messages from other people. Craig says that Mott grabbed her arm and yelled at her. Mott remembers only speaking to Craig in a normal tone of voice and requesting a meeting. There is no persuasive evidence as to how the conversation actually occurred. Mott awaited a return call or visit from Craig for a few hours, then drafted a letter to Craig when there was no further contact. The letter again asked Craig to contact Mott to discuss the HUD complaint. The letter included the cell phone number that Mott had on file for Craig and asked Craig to contact Mott by the end of the following day. Craig, however, was apparently unwilling to talk with Mott on her own, so she went to speak with an attorney, rather than contacting Mott. There is no indication that Mott and Craig ever had a meaningful discussion between themselves about the fire hazard issue. At some point in time, a meeting was held that both Mott and Craig, along with legal counsel, attended. However, the results of that meeting are not in evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Lillian Craig in its entirety. DONE AND ENTERED this 13th day of July, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2011.
Findings Of Fact The Resource Recovery Facility The purpose of the proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,352 tons of refuse each day, and generate up to 62.5 megawatts of electrical power. The ultimate capacity of the facility is 3,300 tons of refuse each day, and a generating capacity of 96.1 megawatts. The proposed RRF complex will include a gatehouse and weigh station, refuse receiving and handling building, turbine generator building, administrative building and two landfills for the disposal of ash residue and non- processable solid waste. The site development plans for the project contemplate that solid waste will be delivered by truck to the enclosed refuse and receiving building. All waste will be stored and processed inside the main facility. The Site The site for the proposed RRF is a predominantly undeveloped 248-acre parcel of land situated at the southeast intersection of US 441 (State Road 7) and State Road (SR) 84, an unincorporated area of Broward County. The site is bounded on the north by the right-of- way for I-595, the northerly part of its east boundary by the proposed Ann Kolb Park, the southerly part of its east boundary and the south by the South Fork of the New River Canal (New River Canal), and the west by US 441. The uses surrounding the site are mixed. Located east of the site, and south of the proposed Ann Kolb Park, is a large fossil fuel electric generation facility owned by Florida Power & Light Company (FP&L). To the south, across the New River Canal, is a mixed residential- commercial area of single family residences, duplex residences, and marine-oriented businesses (marinas and fish wholesalers). To the west of US 441 is a mixture of light, medium, and heavy industry, including industrial office space, auto salvage facilities and prestressed concrete pouring yards. North of the right-of-way for I- 595, and SR 84, is a mixture of strip commercial and residential usage. Although the site itself is predominantly unoccupied pasture land, some of its lands have been developed. The southern portion of the site, abutting the New River Canal, is occupied by a marine engineering firm which operates dry dockage and related facilities (heavy industrial use). The other uses currently existing on the site are for a nursery and the sale of prefabricated sheds. Bisecting the site is a parcel of land presently being developed by the City of Fort Lauderdale (City) for a sludge composting facility. Broward County proposes to locate the RRF south of the City's facility, and the landfills north of the City's facility. Consistency of the site with local land use plans and zoning ordinances Broward County has adopted a Comprehensive Plan, pursuant to Chapter 163, Florida Statutes, which establishes guidelines and policies to promote orderly and balanced economic, social, physical, environmental and fiscal development of the area. Pertinent to this proceeding are the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan (the land use plan element of the comprehensive plan) and Broward County's zoning ordinances. The proposed site is designated industrial under the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan. The proposed RRF, with attendant land fill, is a utility for solid waste disposal and, as such, an allowable use under the industrial designation of both plans. Prior to rezoning, various portions of the site were zoned A-I Limited Agricultural, B-3 General Business, M-3 General Industrial, and M-4 Limited Heavy Industrial. Permitted uses ranged from cattle and stock grazing (A-1) to asphalt paving plants, junk yards and the storage of poisonous gas (M-4). On March 16, 1984, the Board of County Commissioners of Broward County approved the rezoning of the site to a Special Use Planned Unit Development District (PUD), and approved the RRF conceptual site plan. The proposed RRF, and attendant landfill, constitute a Planned Special Complex under Broward County's PUD zoning ordinances and, as such, are permitted nonresidential uses. The Department of Community Affairs, the Department of Environmental Regulation, and the South Florida Water Management District concur that the proposed RRF appears to be consistent and in compliance with existing land use plans and zoning ordinances. The Public Service Commission did not participate in this land use portion of the power plant siting process. South Broward Citizens for a Better Environment, Inc. (SBC) was the only party to contest the consistency of the proposed RRF with existing land use plans and zoning ordinances. SBC asserted that the proposed RRF violates: (1) the coastal zone protection element of the Broward County Comprehensive Plan, because the environmental impact assessment required by that element of the plan was inadequate or not done, (2) the urban wilderness inventory guidelines of the Broward County Comprehensive Plan, because the environmental effects of the proposed RRF on the area proposed to be designated as an urban wilderness area (proposed Ann Kolb Park) would outweigh the benefits of the project, and (3) Section 13 of Ordinance numbers 84- 6(2) and 84-7(2), which approved the rezoning for the site, because the impact assessment required by the Ordinances had not been prepared. While the coastal zone protection element and urban wilderness inventory guidelines of the Broward County comprehensive plan were germane to Broward County's decision to rezone the site and approve the development, they are not pertinent to this land use hearing. Broward County's decision is final, and these proceedings do not provide a forum to collaterally attack it. The relevance of SBC's assertions aside, the evidence presented established that the proposed RRF did not violate the coastal zone protection element, the urban wilderness inventory guidelines, or any other element of the Broward County Comprehensive Plan. SBC's assertion that the proposed RRF will violate Section 13 of the rezoning ordinances is ill- founded. Section 13 provides: PRIOR TO LANDFILL DEVELOPMENT, AN IMPACT ASSESSMENT SHALL BE PREPARED BY THE RESOURCE RECOVERY OFFICE OF BROWARD COUNTY TO ADDRESS THE POTENTIAL HYDROLOGICAL IMPACTS OF THE DEVELOPMENT OF THE LANDFILL ON ANN KOLB PARK. DATA AND INFORMATION UTILIZED TO OBTAIN FDER PERMITS WILL BE USED TO CONDUCT THIS ASSESSMENT. IN THE EVENT POTENTIALLY SIGNIFICANT IMPACTS ARE IDENTIFIED, A MANAGEMENT PLAN SHALL BE DEVELOPED TO OFFER RECOMMENDATIONS AND MITIGATIVE ACTIONS TO INSURE THE INTEGRITY OF ANN KOLB PARK. (Emphasis supplied) The evidence is clear that an impact assessment is only required before development commences. Consequently, the proposed RRF does not violate the rezoning ordinances. Notice of the land use hearing was published in the Fort Lauderdale News/Sun-Sentinel, a daily newspaper, on July 4, 1985, and also in the Florida Administrative Weekly on June 28, 1985.
Findings Of Fact Application No. 76-00336 is a request by the City of Plant City, Florida, for a new use from a single well at a location approximately 31 miles east of downtown Plant City. The well would be located in the Hillsborough Basin. The average annual daily withdrawal sought is 2.0 million gallons with a maximum daily withdrawal sought being 3.5 million gallons. The amount requested is consonant with the needs of the city and contains provision for some growth. The Plant City service area encompasses 8,600 acres. The sought for consumptive use will not significantly induce salt water intrusion. The consumptive use sought may interfere with existing legal uses. There are a number of private wells, perhaps 50-60, in the area. Most of these wells are in a subdivision known as Pleasant Acres. These wells will experience drawdowns of up to 4.3 feet which may cause the pump to break suction during the dry season or line pressure to drop. Further, the average drawdown at the property boundary created by the sought for consumptive use will be approximately 6.3 feet. The boundary of the well site is approximately 150 feet from the well. The well could have been located so that the average drawdown at the property boundary would not have been in excess of 5 feet. The well is already in existence, having been constructed over one year ago. The primary purpose of the well is for better fire protection and additional capacity for domestic use and growth in Plant City. The residents of Pleasant Acres are very concerned about the effect of the proposed well on their existing wells. The Southwest Florida Water Management District's staff recommends granting of the permit with the following conditions: That the City of Plant City shall install a totalizing flowmeter on the well. That the City of Plant City shall submit monthly pumpages on a quarterly basis to the following address: Chief, Technical Information Service, SWFWMD, 50560 U.S. 41 South, Brooksville, Florida. That upon completion of construction of all pumping facilities the City of Plant City will pump the permitted facility during the third week of the following May at the maximum rate of 3.5 million gallons per day for at least three days. Private well owners within a radius of mile will be notified prior to the initiation of the tests. Complaints will be handled by the city according to stipulation D. The City of Plant City shall investigate under the direction of the city engineer, all complaints by owners of private wells which are within a mile radius of the permitted facility and which relate to loss of water. Further, the city shall repair or replace at no cost to the owner, those private wells and/or the associated pumping facilities which are substantially affected by the city's with- drawals and which can be attributed to 10 feet or less of drawdown. With the exception of those matters set forth above pertaining to Subsection 16J-2.11(4)(b), F.A.C., none of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.A.C., exist, with regard to this application so as to require its denial.
Recommendation It is recommended that Application No. 76-00336, submitted by the City of Plant City, Florida, be granted in the amount of 2 million gallons per day average annual withdrawal and 3.5 million gallons per day maximum daily withdrawal, provided that the four conditions listed in paragraph 8, above, be placed upon the permit. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. O. Box 457 Brooksville, Florida 33512 Salvador D. Nabong City Engineer City of Plant City P. O. Drawer C Plant City, Florida 33566 Paul Buckman, Esquire City Attorney City of Plant City City Hall Plant City, Florida 33566
