The Issue The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 31
The Issue Whether the Division of Administrative Hearings (DOAH) has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if a Petition for Relief is referred to the DOAH for formal hearing based on a Notice of Determination: No Jurisdiction issued by the Florida Commission on Human Relations (FCHR).
Recommendation Based on the foregoing, it is RECOMMENDED that the FCHR resume jurisdiction of the matter and complete the investigation of the Charge of Discrimination, pursuant to Section 760.11(3), Florida Statutes, or permit Petitioner to make her election of remedies pursuant to Section 760.11(8), Florida Statutes. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2002. COPIES FURNISHED: William R. Amlong, Esquire Amlong & Amlong, P.A. 500 Northeast Fourth Street Second Floor Fort Lauderdale, Florida 33301-1154 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Keith C. Tischler, Esquire Powers, Quaschnick, et. al. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue on appeal is whether, pursuant to Clearwater Code of Ordinances Section 4-505, to sustain or reverse, with or without conditions, the decision of the Community Development Board on June 20, 2003, denying Cepcot Corporation's application to build a convenience store with two islands for pumping gas.
Findings Of Fact Petitioner The Cepcot Corporation (Cepcot) owns real property located at 657 Court Street in the downtown zoning district of the City of Clearwater (Property). On December 17, 2002, Cepcot filed a Flexible Development Application for a comprehensive infill redevelopment project (Application) on the Property. At the time of the proposal, the Property, which comprises 0.95 acres, was developed with a restaurant in a building that was the former Clearwater train station, a thrift store, and a park. The Application proposes the demolition of these improvements and their replacement with a 3200 square-foot convenience store and two gas pump islands. The Property fronts Chestnut Street to the south, East Avenue to the east, and Court Street to the north. The surrounding area is developed with office uses to the west and south, a privately owned utility plant to the north, and warehouse uses to the east. Upon the completion of the Memorial Causeway bridge, which is presently under construction, traffic to the beach will use Court Street and traffic from the beach will use Chestnut Street. In response to questions and suggestions from Respondent's staff, Cepcot revised the proposed site plan several times. The Application is presently complete. Respondent's Planning Department prepared a Staff Report, which finds that the proposed project does not meet certain requirements and recommends denial of the Application on several grounds. On June 17, 2003, Respondent's Community Development Board (CDB) considered the Application. CDB denied the Application and issued a development order explaining the reasons for denial as follows: The proposal is inconsistent with the adopted Community Development Code, the Comprehensive Plan, 1995 Clearwater Downtown Redevelopment Plan, and the Downtown Design Guidelines. The proposed automobile service station is not a permitted use within the downtown district. Approval of the proposed use may encourage other like uses and may be detrimental to downtown redevelopment. The proposal does not comply with the Flexible Development criteria as a comprehensive infill redevelopment project per Section 2-803. The proposal is not in compliance with the other standards in the Code including the general applicability criteria for Section 3-913. Most of the reasons cited for denial involve Respondent's Community Development Code (CDC), which is the land development regulations. The Property is in the Downtown District. CDC Section 2-901 states: "The intent and purpose of the Downtown District is to establish a mixed use downtown where citizens can work, live, and shop in a place which is the economic, governmental, entertainment and cultural focal point of a liveable city." CDC Section 2-902 sets forth the permitted uses within the Downtown District, and CDC Chart 2-100 lists permitted uses by zoning district. The proposed uses are not among the permitted uses for the Downtown District (or the Tourist District, to which portions of the record refer). CDC Section 2-903.C sets forth the following ten criteria to be applied in determining if the proposed use qualifies as a Comprehensive Infill Redevelopment Project (CIRP) that may qualify an otherwise non-permitted use: The development or redevelopment of the parcel proposed for development is otherwise impractical without deviations from the use, intensity and development standards; The development of the parcel proposed for development as a Comprehensive Infill Redevelopment Project will not reduce the fair market value of abutting properties; The uses within the comprehensive infill redevelopment project are otherwise permitted in the City of Clearwater; The uses or mix of uses within the comprehensive infill redevelopment project are compatible with adjacent land uses; Suitable sites for development or redevelopment of the uses or mix of uses within the comprehensive infill redevelopment project are not otherwise available in the City of Clearwater; The development of the parcel proposed for development as an comprehensive infill redevelopment project will upgrade the immediate vicinity of the parcel proposed for development; The design of the proposed comprehensive infill redevelopment project creates a form and function which enhances the community character of the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole; Flexibility in regard to lot width, required setbacks, height and off-street parking are justified by the benefits to community character and the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole; Adequate off-street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development; The design of all buildings complies with the Downtown District design guidelines in Division 5 of Article 3. CDC Section 3-913.A sets forth the General Applicability criteria. CDC Section 3-913.A.1 states: "The proposed development of the land will be in harmony with the scale, bulk, coverage, density, and character of adjacent properties in which it is located." CDC Section 3-913.A.5 states: The proposed development is consistent with the community character of the immediate vicinity of the parcel proposed for development."
The Issue The issue is whether the establishment of the Bartram Springs Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Overview Petitioner, SouthStar Development Partners, Inc., is seeking the adoption of a rule by the Florida Land and Water Adjudicatory Commission (Commission) to establish a community development district proposed to consist of approximately 1,025 acres located within the boundaries of the City of Jacksonville (City). The City is a consolidated government which has jurisdiction over and extends territorially to the limits of Duval County. The proposed name for the new District is the Bartram Springs Community Development District (the District). There are no parcels within the external boundaries of the proposed District which are to be excluded from the District. The estimated cost of the infrastructure facilities and services which are presently expected to be provided to the lands within the District was included in the Petition. The sole purpose of this proceeding was to consider the establishment of the District as proposed by Petitioner. Summary of Evidence and Testimony Whether all statements contained within the Petition have been found to be true and correct. Petitioner's Composite Exhibit 1 consists of the Petition and its attachments as filed with the Commission. Mr. J. Thomas Gillette, III, regional manager for north Florida for Petitioner, testified that he had reviewed the contents of the Petition and approved its findings. Mr. Gillette also generally described certain of the attachments to the Petition. Finally, Mr. Gillette testified that the Petition and its attachments were true and correct to the best of his knowledge. Mr. Douglas C. Miller, a professional engineer with England, Thims & Miller, Inc., testified that he had assisted in the preparation of portions of the Petition and its attachments. Mr. Miller also generally described certain of the attachments to the Petition which he or his office had prepared. Finally, Mr. Miller testified that the attachments to the Petition prepared by England, Thims & Miller, Inc., and admitted into evidence, were true and correct to the best of his knowledge. Dr. Henry H. Fishkind, president of Fishkind & Associates, Inc., testified that he had prepared Exhibit 11 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Dr. Fishkind also testified that the SERC submitted as Attachment 11 to Petitioner's Composite Exhibit 1 was true and correct to the best of his knowledge. The Petition included written consent to establish the District from the owners of one hundred percent of the real property located within the lands to be included in the proposed District. Mr. Gillette also testified that the ownership of the lands to be included within the proposed District had not changed. The Petition and its exhibits are true and correct. Whether the establishment of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan. Mr. Gary R. Walters, a land planner and president of Gary Walters & Associates, reviewed the proposed District in light of the requirements of the State Comprehensive Plan found in Chapter 187, Florida Statutes. Mr. Walters also reviewed the proposed District in light of the requirements of the City of Jacksonville Comprehensive Plan. The State Comprehensive Plan "provides long-range policy guidance for the orderly social, economic and physical growth of the State" by way of twenty-six subjects, and numerous goals and policies. From a planning perspective, two subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District, as do the policies supporting those subjects. Subject 16, Land Use, recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed District will have the fiscal ability to provide services and facilities and help provide infrastructure in a fiscally responsible manner in an area which can accommodate development within the City. Subject 26, Plan Implementation, provides that systematic planning shall be integrated into all levels of government, with emphasis on intergovernmental coordination. The proposed District is consistent with this element of the State Comprehensive Plan because the proposed District will systematically plan for the construction, operation, and maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations. Additionally, the District meetings are publicly advertised and are open to the public so that all District property owners and residents can be involved in planning for improvements. Finally, Section 189.415, Florida Statutes, requires the District to file and update public facilities reports with the local governments, which they may rely upon in any revisions to the local comprehensive plan. Dr. Fishkind reviewed the proposed District in light of the requirements of the State Comprehensive Plan and found that from a financial perspective, two subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District, as do the policies supporting those subjects. Subject 18, Public Facilities, provides that the state shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. The proposed District will be consistent with this element because the District will plan and finance the infrastructure systems and facilities needed for the development of lands within the District; it will be a stable, perpetual unit of local government and will be able to maintain the infrastructure servicing the lands within the District; and it will allow growth within the District to pay for itself at no cost to the City. Subject 21, Governmental Efficiency, provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District will be consistent with this element because the proposed District will economically and efficiently finance and deliver those public services and facilities as needed by the District's residents and property owners. The proposed District will be professionally managed, financed, and governed by those whose property directly receives the benefits of the services and the facilities provided. Creating a District does not burden the general taxpayer with the costs for the services or facilities inside the proposed District. Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. The City of Jacksonville Comprehensive Plan contains various elements which are supported by numerous goals and objectives. Mr. Walters testified that portions of three of these elements were relevant when determining whether or not the proposed District was inconsistent with the local comprehensive plan. Within the Future Land Use Element are Goals and Objectives which are targeted to effectively manage growth in areas designated to accommodate future development and provide services in a cost-efficient manner. The proposed District is consistent with this plan element. The development within the proposed District is part of a Chapter 380, Florida Statutes, Development Order, which states that the "development is consistent with the local comprehensive plan and local land development and zoning regulations." The Development Order itself specifically notes that a community development district may be established. The proposed District is a recognized vehicle to provide the necessary services and facilities to the lands within the boundaries of the proposed District consistent with the City of Jacksonville Comprehensive Plan’s objective of coordinating land uses with urban services delivery. The goal of the Intergovernmental Coordination Element is to establish processes among various governmental, public, and private entities to coordinate development activities, preservation of the quality of life, and the efficient use of available resources. The proposed District will assist in the coordination process by providing and maintaining community infrastructure in a way that is not inconsistent with the plans and activities of related public and private agencies. The Capital Improvements Element is intended to provide necessary infrastructure in a timely and orderly manner. The proposed District will expand the areas within the City that receive infrastructure in a manner consistent with the Development Order for the area and the City of Jacksonville Comprehensive Plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the local Comprehensive Plan, and will in fact further the goals provided. The Florida Department of Community Affairs (DCA) reviewed the Petition for compliance with its various programs and responsibilities. After conducting a review of the petition for consistency with the approved Development Order and Comprehensive Plan, the DCA concluded that the Petition for the Establishment of the Bartram Springs Community Development District was not inconsistent with either the Comprehensive Plan or Development Order. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Messrs. Miller, Walters, and Fishkind. The proposed District will include approximately 1,025 acres, located within the borders of the City. All of the land in the proposed District is part of a planned community included in the Bartram Park Development of Regional Impact (the DRI). Functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function requires a management capability, funding source, and an understanding of the size of the community's needs, so as to handle the growth and development of the community. Each function must be designed to contribute to the development or the maintenance of the community. The size of the District as proposed is approximately 1,025 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. The proposed facilities can be provided in an efficient, functional, and integrated manner. Compactness relates to the location in distance between the lands and land uses within a community. The community is sufficiently compact to be developed as a functionally inter-related community. The compact configuration of the lands will allow the District to provide for the installation and maintenance of its infrastructure in a long-term, cost-efficient manner. Petitioner is developing all of the lands within the District as a single master-planned community. All of these lands are governed by the DRI issued by the City. From planning, economics, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. Whether the proposed district is the best alternative available for delivering community development services and facilities to the area that will be served by the proposed district. It is presently intended that the District will construct or provide certain infrastructure improvements as outlined in the Petition. Installation and maintenance of infrastructure systems and services by the proposed District is expected to be paid through the imposition of special assessments. Use of such assessments will ensure that the real property benefiting from District services is the same property which pays for them. Two alternatives to the use of the District were identified. First, the City might provide facilities and services from its general fund. Second, facilities and services might be provided by some private means, with maintenance delegated to a property owners' association or a home owners' association. The District is preferable to these alternatives at focusing attention on when, where, and how the next system of infrastructure will be required. This results in a full utilization of existing facilities before new facilities are constructed and reduces the delivered cost to the citizens being served. The District will construct certain infrastructure and community facilities which will be needed by the property owners and residents of the project. Expenses for the operation and maintenance of the facilities the District retains are expected to be paid through maintenance assessments to ensure that the property receiving the benefit of the district services is the same property paying for those services. Only a community development district allows for the independent financing, administration, operations, and maintenance of the land within such a district. Only a community development district allows district residents to ultimately completely control the district. The other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities to the land included in the proposed District because it is a long-term, stable, perpetual entity capable of maintaining the facilities over their expected life. From planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. Whether the community development services and facilities of the proposed district will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services will not duplicate any existing regional services or facilities. None of the proposed services or facilities are presently being provided by another entity for the lands to be included within the District. Therefore, the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. As cited previously, from planning, economic, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The community to be included in the District has a need for certain basic infrastructure systems, and the proposed District provides for an efficient mechanism to oversee the installation of these improvements. From planning, engineering, economic, and management perspectives, the area that will be served by the District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the petition and other information to be submitted to the Commission. The Commission has certified that the Petition to Establish the Bartram Springs Community Development District meets all of the requirements of Section 190.005(1)(a), Florida Statutes. The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, the City and its citizens, Petitioner, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which is difficult to quantify but nonetheless substantial. Administrative costs incurred by the City related to rule adoption will be modest. These modest costs are offset by the $15,000 filing fee required to accompany the Petition to the City. Residents within the District will pay non-ad valorem or special assessments for certain facilities. Locating within the District is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to residents within the community development district will include a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Section 190.005(1)(a), Florida Statutes, requires a petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition filed herein contains a SERC. It meets all requirements of Section 120.541, Florida Statutes. Petitioner has complied with the provisions of Section 190.005(1)(b)1., Florida Statutes, in that the City was provided four copies of the Petition and was paid the requisite filing fee. Section 190.005(1)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in Duval County for four consecutive weeks prior to the hearing. The notice was published in a newspaper of general paid circulation in Duval County (The Florida Times Union) for four consecutive weeks on May 3, May 10, May 17, and May 24, 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120 and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Bartram Springs Community Development District, as requested by Petitioner, by formal adoption of the proposed rule attached to this Report as Appendix C. DONE AND ENTERED this 19th day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2002. COPIES FURNISHED: Cheryl G. Stuart, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 Charles Canady, General Counsel Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Gregory M. Munson, Esquire Office of the Governor 400 South Monroe Street, Room 209 Tallahassee, Florida 32399-6536 APPENDIX A Petitioner's Witnesses at Hearing J. Thomas Gillette, III SouthStar Development Partners, Inc. 4720 Salisbury Road, Suite 126 Jacksonville, Florida 32256-6101 Douglas C. Miller, P.E. England, Thims & Miller, Inc. 14775 St. Augustine Road Jacksonville, Florida 32258-2463 Gary R. Walters Gary Walters & Associates 12 Crooked Tree Trail Ormond Beach, Florida 32174-4338 Dr. Henry H. Fishkind Fishkind & Associates, Inc. 11869 High Tech Avenue Orlando, Florida 32817-1490 APPENDIX B List of Petitioner's Exhibits Exhibit Number Exhibit Description Petition with attachments Notice of Receipt of Petition Division of Administrative Hearings Referral Letter Department of Community Affairs Transmittal Letter Department of Community Affairs Review Letter Ordinance 2000-451-E State Comprehensive Plan The Florida Times Union Proof of Publication APPENDIX C Text of Proposed Rule CHAPTER 42___-1 BARTRAM SPRINGS COMMUNITY DEVELOPMENT DISTRICT 42___-1.001 Establishment. 42___-1.002 Boundary. 42___-1.003 Supervisors. 42____-1.001 Creation. The Bartram Springs Community Development District is hereby established. Specific Authority 120.53(1), 190.005 F.S. Law Implemented 190.005 F.S. History-New 42____-1.002 Boundary. The boundaries of the District are as follows: A portion of Sections 28, 29, 32 and 33, together with a portion of Section 48, of the Christopher Minchin Grant, all lying in Township 4 South, Range 28 East, Duval County, Florida, being more particularly described as follows: For a Point of Reference, commence at the corner common to said Sections 32 and 33, Township 4 South, Range 28 East, said Duval County and Sections 4 and 5, Township 5 South, Range 28 East, St. Johns County, Florida, said corner also lying on the county line dividing said Duval and St. Johns Counties; thence North 89° 04' 41" East, along said county line, 3281.18 feet; thence North 00° 55' 19" West, departing said county line, 5.00 feet to the Point of Beginning. From said Point of Beginning, thence South 89° 04' 41" West, 3281.22 feet to a point lying on the line common to said Sections 32 and 33; thence South 89° 33' 42" West, departing said common line, 699.85 feet to the Easterly limited access right of way line of State Road No. 9B, a variable width right of way as established on State Road Department Right of Way Map Section 72002-2513, dated 09-08-92; thence Northwesterly and Northeasterly, along said Easterly limited access right of way line, the following courses: (1) North 40° 25' 37" West, 2161.10 feet to the Point of Curvature of a curve, concave Northeasterly having a radius of 2744.79 feet; (2) along the arc of said curve, through a central angle of 14° 47' 23", an arc length of 708.51 feet to the Point of Tangency of said curve, said arc being subtended by a chord bearing and distance of North 33° 01' 55" West, 706.55 feet; (3) North 25° 38' 14" West, 2143.97 feet to the Point of Curvature of a curve, concave Easterly having a radius of 1789.86 feet; (4) along the arc of said curve through a central angle of 37° 18' 23", an arc length of 1165.41 feet to a point on said curve, said arc being subtended by a chord bearing and distance of North 06° 59' 02" West, 1144.93 feet; (5) North 10° 17' 40" East, along a non-tangent bearing, 500.14 feet; (6) North 11° 40' 10" East, 1913.60 feet to a point lying on the Southerly line of the North 1/2 of said Section 29; thence North 88° 42' 41" East, departing said Easterly limited access right of way line and along last said line, 2914.25 feet to the Southwest corner of the Northwest 1/4 of said Section 28; thence North 89° 02' 27" East, along the Southerly line of the Northwest 1/4 of said Section 28, a distance of 233.49 feet to a point lying on the Westerly right of way line of the Florida East Coast Railroad, a 100 foot right of way as now established; thence South 41° 00' 02" East, along said Westerly right of way line, 1203.71 feet to a point lying on the Westerly line of the Easterly 1/4 of the Northwest 1/4 of the Southwest 1/4 of said Section 28; thence South 00° 59' 05" East, departing said Westerly right of way line and along said Westerly line of the Easterly 1/4, a distance of 424.47 feet to the Southwest corner of said East 1/4 of the Northwest 1/4 of the Southwest 1/4; thence North 88° 54' 34" East, along the Southerly line of said East 1/4, a distance of 355.82 feet to a point lying on the aforementioned Westerly right of way line; thence South 41° 00' 02" East, along said Westerly right of way line, 6946.50 feet; thence South 81° 44' 38" West, departing said Westerly right of way line, 1239.95 feet; thence North 89° 51' 10" West, 1102.07 feet; thence South 10° 16' 03" West, 955.68 feet to the Point of Beginning. Containing 1025.40 acres, more or less. Specific Authority 120.53(1), 190.005 F.S. Law Implemented 190.004, 190.005 F.S. History-New 42____-1.003 Supervisors. The following five persons are designated as the initial members of the Board of Supervisors: J. Thomas Gillette, III, L. Alfredo Rodriguez-Walling, Walter Kehoe, Thaddeus D. Rutherford, and Leo W. Johns. Specific Authority 120.53(1), 190.005 F.S. Law Implemented 190.006(1) F.S. History-New.
Findings Of Fact On January 15, 1993, Westinghouse Communities of Naples, Inc., (Westinghouse) filed a Petition with the Secretary of the Florida Land and Water Adjudicatory Commission (FLWAC), seeking establishment by rule of the Pelican Marsh Community Development District (CDD) in an unincorporated area of Collier County, Florida. The Secretary certified that the contents of the Petition were complete and on March 12, 1993, forwarded the Petition to the Division of Administrative Hearings. On May 3, 1993, Westinghouse filed an Amended Petition with the FLWAC Secretary. The Amended Petition revised related provisions contained in Paragraph 10 and Exhibit 7 of the original Petition. The amendments address delivery of water, wastewater and irrigation service within the CDD and set forth the obligations of the proposed CDD and the Collier County Water-Sewer District related to the construction, ownership and operation of interim and permanent facilities for such services. The FLWAC Secretary determined that the contents of the Amended Petition were complete and on May 21, 1993, forwarded the Amended Petition to the Division of Administrative Hearings. Notice of the date and location of the public hearing was published in the Naples Daily News, a daily newspaper in Naples, Florida on May 13, 20, 27 and June 3, 1993. A copy of such notice was served upon the Department of Community Affairs as required by Rule 42-1.011, Florida Administrative Code. Notice of the hearing was published by the FLWAC's Secretary in the Florida Administrative Weekly on May 14, 1993, as required by Rule 42- 1.010(1)(b), Florida Administrative Code. Westinghouse submitted a copy of the Petition to the Collier County Board of County Commissioners ("Board") on February 26, 1993 and submitted a copy of the Amended Petition to the Board on April 16, 1993. As required by Section 190.005(1)(b)1, Florida Statutes, Westinghouse paid the $15,000 filing fee to the Board. A public hearing before the Board was held on May 4, 1993. Such hearing is optional pursuant to Section 190.005(1)(c), Florida Statutes. Upon completion of the hearing, the Board adopted Resolution No. 93- 187 through which it determined that the establishment of the CDD was in the best interests of the county and its citizens and that the county was supportive of the establishment of the CDD. A transcript of the county hearing was filed with the FLWAC on May 4, 1993. If approved by the FLWAC, the CDD will be an independent special purpose local government as authorized by Chapter 190, Florida Statutes, with power to plan, finance, construct, operate and maintain the community infrastructure (except as to certain water and sewer services discussed elsewhere herein) within the jurisdiction of the CDD. The CDD will manage and finance basic services for the residential community known as Pelican Marsh. The 2,075 acres of the community development to be serviced by the CDD is located north of the City of Naples within an unincorporated area of Collier County. To the north of the CDD lies unimproved land, residential subdivisions and Immokalee Road (County Road 846). To the east is unimproved land and the site of a proposed extension of Livingston Road. To the south is Vanderbilt Beach Road (County Road 862), the site of a proposed extension of Vanderbilt Beach Road, and Pine Ridge subdivision. To the west is North Tamiami Trail (U.S. Highway 41). The land within the proposed CDD is currently zoned as "Urban Residential", "Activity Center" and "Proposed Activity Center". Westinghouse has entered into the record, as Exhibit "C", an Application for Public Hearing for Rezone and Conditional Use Requests and a draft Planned Unit Development document for a portion of the community consisting of approximately 1086.5 acres. The draft Planned Unit Development document authorizes a mixture of land uses, including single and multi-family housing, limited to 780 dwelling units and a 27-hole golf course with clubhouses. Westinghouse has acknowledged in its Amended Petition that the Collier County Water-Sewer District is the permanent supplier of all water, wastewater and irrigation service in the CDD and that the CDD shall be obligated to convey all water, sewer and irrigation facilities to the County and its Water-Sewer District upon completion. Westinghouse also acknowledges certain rights and obligations of the CDD with respect to the construction and operation of interim water, wastewater and irrigation facilities. The cost of such facilities will be borne by the CDD through various types of financing mechanisms. Only those persons who receive the benefit of the services will pay the costs involved in provision of the facilities. Summarization of Testimony and Evidence Mr. Louis H. Hoegsted is Executive Vice President of Westinghouse Communities of Naples, Inc., the corporation that filed the Petition and Amended Petition in this matter. Mr. Hoegsted has general responsibility for planning the Pelican Marsh community, including the filing of the petitions. Westinghouse, a Florida corporation, has developed the community of Pelican Bay in Collier County, Florida. Mr. Hoegsted was involved as the company representative in the formation and operation of the former Pelican Bay Improvement District, created by special act of the Florida Legislature. Pelican Bay was merged by Collier County into the County Water-Sewer District. Mr. Hoegsted identified Westinghouse's Composite Hearing Exhibits "A" through "R". All of the below-described documents were prepared under the supervision of Mr. Hoegsted. The exhibits identified by Mr. Hoegsted are as follows: Composite Exhibit "A" includes four exhibits numbered "A-1" through "A-4". Exhibit "A-1" is a General Location Map, which identifies the site of the proposed CDD. Exhibit "A-2" is a Boundary Map of the area to be served by the CDD. Exhibit "A- 3" is a Boundary Map of the land area included within the jurisdiction of the CDD. Exhibit "A-4" is a copy of the Collier County Comprehensive Plan Map, as amended June, 1993. Exhibit "B" is the Preliminary Development Agreement of May 20, 1993 executed between the Florida Department of Community Affairs and Westinghouse. Exhibit "C" is a copy of a draft Planned Unit Development document which upon adoption would establish the zoning for a portion of the proposed development. Composite Exhibit "D" is made up of 12 separate exhibits identified as Exhibits "D-1" through "D-9" with subparts. Exhibit "D-1" is the Petition filed with the FLWAC in this case. Exhibit "D-2" is a map showing the location of the land area to be serviced by the CDD. Exhibit "D-3" is a metes and bounds description of the CDD. Exhibit "D-4" is composed of the written consent of Westinghouse Communities of Naples, Inc. and the Manatee Fruit Company, as owners of land within the CDD. (Also filed as Exhibit "R-1" is an additional consent of the remaining land owners within the CDD.) Exhibit "D-5" (including subparts a-c) is composed of drawings showing the Collier County waste water service system, potable water service system and the drainage outfalls. Exhibit "D-6" is the proposed schedule and cost estimates for construction of CDD infrastructure. Exhibit "D-7a" is a copy of the Collier County Comprehensive Plan Future Land Use Map. Exhibit "D-7b" is a copy of the Department of Community Affairs compliance letter related to the Collier County Comprehensive Plan, as amended. Exhibit "D-8" is an acknowledgment by Westinghouse that Collier County is authorized to regulate the provision of water and sewer facilities within the CDD. Exhibit "D-9" is a Statement of Economic Impact for the CDD by Fishkind & Associates, Inc. Composite Exhibit "E" consists of 12 exhibits identified as "E-1" through "E-9" including subparts. Composite Exhibit "E-1" includes the Amended Petition filed with the FLWAC in this case. Exhibit "E-2" is a map showing the location of the land area to be serviced by the CDD. Exhibit "E-3" is a metes and bounds description of the CDD. Exhibit "E-4" is composed of the written consent of Westinghouse Communities of Naples, Inc. and the Manatee Fruit Company, as owners of land within the CDD. Exhibit "E-5" (including subparts a-c) is composed of drawings showing the Collier County waste water service system, potable water service system and the drainage outfalls. Exhibit "E-6" is the proposed schedule and cost estimates for construction of CDD infrastructure. Exhibit "E-7a" is a copy of the Collier County Comprehensive Plan Future Land Use Map. Exhibit "E-7b" is a copy of the Department of Community Affairs compliance letter related to the Collier County Comprehensive Plan, as amended. Exhibit "E-8" is an acknowledgment by Westinghouse that Collier County is authorized to regulate the provision of water and sewer facilities within the CDD. Exhibit "E-9" is a Statement of Economic Impact for the CDD by Fishkind & Associates, Inc. Composite Exhibit "F" includes four items. Exhibit "F-1" is the prehearing stipulation filed in this case. Exhibit "F-2" is a Memorandum of Agreement between Westinghouse and Collier County related to the provision of water, wastewater and irrigation facilities and services within the proposed CDD. Exhibit "F-2a" is a draft copy of an interlocal agreement related to the provision of water, wastewater and irrigation facilities and services within the proposed CDD. Exhibit "F-2b" is a copy of Collier County Resolution No. 93-187 indicating that the Board of County Commissioners supports the establishment of the CDD. Composite Exhibit "G" consists of two items: Exhibit "G-1", a Westinghouse letter dated February 26, 1993 submitting the Petition to Collier County; and Exhibit "G-2", a Westinghouse letter dated April 16, 1993 submitting the Amended Petition to Collier County. Exhibit "H" is a photocopy of the $15,000 check from Westinghouse to Collier County constituting the filing and processing fee. Composite Exhibit "I" includes Exhibit "I-1", a letter dated February 26, 1993 transmitting the Petition to David Coburn of the FLWAC, and Exhibit "I-2" a letter dated May 3, 1993, transmitting the Amended Petition to Mr. Coburn. Composite Exhibit "J" includes four exhibits. Exhibit "J-1" is Mr. Coburn's letter of notification dated March 12, 1993 to the Florida Department of Community Affairs (DCA) transmitting the Petition for DCA review. Exhibit "J-2" is Mr. Coburn's letter of notification dated March 15, 1993 to the Southwest Florida Regional Planning Council (SWFRPC) transmitting the Petition for SWFRPC review. Exhibit "J-3" is Mr. Coburn's letter of notification dated May 5, 1993 to the DCA transmitting the Amended Petition for review. Exhibit "J-4" is Mr. Coburn's letter of notification dated May 5, 1993 to the SWFRPC transmitting the Amended Petition for review. Composite Exhibit "K" consists of two exhibits, "K-1" and "K-2", both letters from Mr. Coburn to the Florida Division of Administrative Hearings transmitting the Petition and Amended Petition, dated March 12 and May 21, 1993, respectively. Composite Exhibit "L" includes six exhibits. Exhibit "L-1" is a certified copy of the notice of publication of receipt of Petition and notice of hearing as published in the Florida Administrative Weekly. Exhibits "L-2" through "L-6" are the tear sheets from the Naples Daily News setting forth notice of the hearing held in this case. Exhibit "M" consists of excerpts from the Collier County Comprehensive Plan. The complete official copy of the Collier County Comprehensive Plan was filed with the Hearing Officer prior to the hearing and is transmitted with the record established during the hearing. Exhibit "N" is a letter from the Florida Department of Community Affairs to Collier County stating that the DCA had determined that the relevant Comprehensive Plan Amendment was in compliance with state law. Exhibit "O" is a copy of the State Comprehensive Plan for the State of Florida appearing in Chapter 187, Florida Statutes. Exhibit "P" consists of a white paper dated March, 1993 and prepared by Dr. Lance deHaven-Smith, a political economist. The report addresses growth management considerations and the proposed establishment of the Pelican Marsh CDD. Composite Exhibit "R" consists of two parts. Exhibit "R-1" is an additional consent of the remaining land owners within the CDD. (Exhibit D-4 contains the originally filed consent documents.) Exhibit "R-2" is an updated estimate of proposed infrastructure construction costs and deadlines. As Executive Vice President of Westinghouse Communities of Naples, Inc., Mr. Hoegsted directed the planning and preparation of the Petition and Amended Petition filed in this matter. The consultants who reviewed the project on behalf of Westinghouse were directed to assume that the CDD would provide all services and facilities which it was able to provide under Sections 190.011 and 190.012, Florida Statutes, with the exception of the County's provision of water, wastewater and irrigation services and facilities. (As addressed elsewhere herein, the County Water and Sewer District is to be the sole provider of water, wastewater and irrigation water within the Water-Sewer District boundaries in accordance with Collier County Ordinance Nos. 78-10, 79-33, 88-76, 90-86 and 90-87.) The consultants were directed to consider the factors enumerated in Subsection 190.005(1)(e), Florida Statutes. Based upon review of their analysis, Mr. Hoegsted asserts that all statutory criteria have been satisfied. There is no evidence to the contrary. The Statement of Economic Impact prepared for the CDD by Fishkind & Associates, Inc., includes an analysis of economic costs and benefits to all persons directly affected by the Petition, estimates the impact of the CDD on competition in the open market and describes the source of information and methodology used in preparing the statement. According to the statement, the creation of the CDD will not constitute a significant burden to either the State of Florida or Collier County. There is no evidence contrary to that contained within the Fishkind report. Thomas R. Peek is a professional engineer with Wilson, Miller, Barton and Peek, Inc., an engineering consulting firm located in Naples, Florida. Mr. Peek was accepted as an expert in civil engineering related to provision of infrastructure development in Southwest Florida communities. Mr. Peek is familiar with the CDD and with the status of the development approvals and related land development permits and approvals from local and state authorities for the Pelican Marsh community. He is knowledgeable as to the steps involved in engineering basic systems, facilities and services for community developments. He opined that there is a high probability for quality long term infrastructure maintenance by an independent special district government. Mr. Peek testified that he had reviewed the Amended Petition and attachments and that they contained no information inconsistent with engineering considerations raised by the state or the Collier County Comprehensive Plans. It is anticipated that the CDD will be requested to provide water management, utilities, roads, landscaping and street lighting. Mr. Peek is unable to predict whether the CDD will be asked to exercise any additional powers pursuant to Section 190.012(2), Florida Statutes. Such additional powers relate to certain public improvements and community facilities as parks, fire prevention, schools, security, and mosquito control. Mr. Peek opined that the land within the proposed CDD is of sufficient size, compactness and contiguity to be developable as one functionally interrelated community and is amenable for a CDD, that there are no land features or facilities which could make the benefits of the CDD difficult to provide, and that the CDD will not be inconsistent with the Collier County local government comprehensive plan. There is no evidence contrary to that provided by Mr. Peek. His testimony is accepted. Dr. Lance deHaven-Smith is a political science professor and provost of the Broward County campus of Florida Atlantic University. He was accepted as an expert in political science and in alternative ways to provide community infrastructure. Dr. deHaven-Smith reviewed the Petition from a general infrastructure and growth management policy perspective. He further addressed the relevant statutory criteria. Based on his review he prepared a report, "Growth Management Considerations in the Proposed Establishment of the Pelican Marsh Community Development District". The report is identified as Westinghouse Exhibits "D-9" and "E-9". According to Dr. deHaven-Smith, Collier County has experienced substantial growth in recent years, requiring a rapid expansion in infrastructure for transportation, water, waste water treatment, law enforcement, recreation, and many other services. Community development districts play an important role in growth management by facilitating large scale, high quality development and relieving local governments of the burden of paying for and managing many of the services and public works that such developments require. According to Dr. deHaven-Smith, to the extent that there are weaknesses in the state's growth management system, community development districts provide a means of appropriate controlled development. Even though the state has adopted a state comprehensive plan, the need for CDDs exists, especially in areas such as Collier County where growth is at a rate twice that of other Florida communities. Accordingly, Dr. deHaven-Smith opined that the CDD is a good tool in the growth management process. Dr. deHaven-Smith described the manner in which the CDD would operate and carry out the powers prescribed in the development order for Pelican Marsh District. He opined that, relative to the alternatives for providing the infrastructure necessary for the Pelican Marsh community, the CDD mechanism is the most appropriate alternative. He further noted that although the CDD has a range of specific and general powers, it is controlled by substantive and procedural limitations and would be subservient to Collier County. Dr. deHaven-Smith reviewed the statutory factors and related information that must be considered in order to establish a CDD. He opined that all statements within the petitions are true and correct, that the creation and establishment of the CDD is not inconsistent with applicable portions of the state and local comprehensive plans, that the area of land within the CDD is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community, that the CDD is the best alternative for delivering community development services and facilities, that the services and facilities are compatible with the capacity and uses of existing local and regional community development services and facilities, and that the area to be served is amenable to separate special-district services and facilities. There is no evidence contrary to the witness' testimony which is hereby accepted. David Crawford is Director of Planning and Governmental Relations with Westinghouse Bayside Communities, Inc. He has 15 years experience in the planning of infrastructure provision for community development and has been involved in the preparation of comprehensive plans for several Florida counties. He testified as to the permitting and development approval status of the Pelican Marsh community and the physical characteristics and situations to be found within the area of the proposed CDD, including two existing roadways, a drainage canal, an outfall and various utilities which cross the property. Mr. Crawford described the state comprehensive plan and how the establishment of the CDD would be consistent with and facilitate certain enumerated policies in the plan. Mr. Crawford stated that the CDD will not be inconsistent with the Collier County Comprehensive Plan. With respect to state concurrency requirements, Mr. Crawford asserted that the CDD is the best method to provide sustained infrastructure to a community. Mr. Crawford stated that the CDD is a responsive, efficient, timely and economic means of providing services to a community's future population without over-burdening the existing residents. He asserted that the land within the CDD is of sufficient size, compactness and contiguity to be developable as one functionally interrelated community and that the land area in the CDD is amenable to separate special-district government. According to Mr. Crawford, the establishment of the CDD will not create any incompatibility with the existence of any regional systems, services or facilities. In Mr. Crawford's opinion, the establishment of the CDD will not overburden the Collier County government with respect to providing maintenance over the long-term infrastructure to the proposed development nor overburden the taxpayers of Collier County. Furthermore, he opined that the CDD will not be a needless or unacceptable proliferation of local government in view of the six factors required to be considered for its establishment under Chapter 190. Mr. Crawford testified that it is not premature to establish the CDD before issuance of the final development order under Section 380.06, Florida Statutes. Because infrastructure construction activities require construction permitting from the county, it is unlikely that the CDD would construct infrastructure inconsistent with the eventual development order to be issued by the county. There is no evidence contrary to the testimony of Mr. Crawford and it is accepted. Gary L. Moyer serves as district manager for twenty-three community development districts throughout the state. As a district manager, he coordinates the planning, financing, construction, operation, and maintenance of infrastructure provided to new community developments. Mr. Moyer was accepted as an expert in district management and government. Mr. Moyer reviewed the factors used in FLWAC's determination regarding whether the petition should be approved. He concluded that all criteria were satisfied. Within the context of his expertise, Mr. Moyer opined that all statements in the Amended Petition to be true and correct, that the CDD is compatible with all state and local comprehensive plans, that the land area of the CDD is of sufficient size and compactness and is sufficiently contiguous to be developable as one functional interrelated community, that the CDD is the best alternative for delivering the proposed services and facilities to the development, that the CDD is not incompatible with the capacity and uses of existing local and regional community development services and facilities, and that the area to be served is amenable to separate special-district government. Mr. Moyer noted that the CDD will be subject to the same checks, balances and accountability as other general purpose governmental entities. The CDD Board of Supervisors is governed by state ethics laws, "Government in the Sunshine," public records law and statutes related to accountability of public officials. Mr. Moyer noted that, once established, the CDD becomes a "partner" with local government in achieving the goals and objectives of the community. Mr. Moyer stated that the operations of the CDD must be in accordance with local government's comprehensive plan and construction standards. He further noted that the CDD must supply planning documents to the local government to ensure consistency with the local comprehensive plan. There being no evidence to the contrary, Mr. Moyer's testimony is accepted as being credible on these issues.
Conclusions Having considered the entire record in this cause, and without evidence to the contrary, it is concluded that: All statements contained within the Petition have been found to be true and correct. Section 190.005(1)(e)1., Florida Statutes. The creation and establishment of the CDD is consistent with applicable elements or portions of the state comprehensive plan and the Collier County comprehensive plan, as amended. Section 190.005(1)(e)2., Florida Statutes. The area of land within the CDD is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Section 190.005(1)(e)3., Florida Statutes. The CDD, in accordance with applicable state and local law and the Memorandum of Agreement executed by Westinghouse and Collier County, is the best alternative available for delivering community development services and facilities to the area that will be served by the CDD. Section 190.005(1)(e)4., Florida Statutes. In accordance with applicable state and local law and the Memorandum of Agreement executed by Westinghouse and Collier County, the community development services and facilities of the CDD will be compatible with the capacity and uses of existing local and regional community development services and facilities. Section 190.005(1)(e)5., Florida Statutes. The 2,075 acre tract of land that will be served by the CDD is amenable to separate special-district government, in accordance with the provisions of Chapter 190, Florida Statutes, and the Memorandum of Agreement between Westinghouse and Collier County. Section 190.005(1)(e)6., Florida Statutes. DONE and ISSUED this 10th day of September, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1490 APPENDIX "A" NAMES AND ADDRESSES OF WITNESSES Louis H. Hoegsted Westinghouse Communities of Naples, Inc. 801 Laurel Oak Drive, Suite 500 Naples, Florida 33963 Thomas R. Peek Wilson, Miller, Barton & Peek 3200 Bailey Lane at Airport Road Naples, Florida 33942 Dr. Lance deHaven-Smith 5935 North West 96 Drive Parkland, Florida 33076 David Crawford Westinghouse Bayside Communities 9200-101 Bonita Beach Road, South West Bonita Springs, Florida 33923 Gary Moyer 10300 North West 11 Manor Coral Springs, Florida 33071 APPENDIX "B" LIST OF DOCUMENTARY EVIDENCE Composite Exhibit "A" Exhibit "A-1" is a large General Location Map, which outlines the general location of the proposed Pelican Marsh community within Collier County. Exhibit "A-2" is a Boundary Map of the development to be served by the CDD. Exhibit "A-3" is a Boundary Map of the land area to be included within the jurisdiction of the CDD. Exhibit "A-4" is a copy of the Collier County Comprehensive Plan Map, as amended June, 1993. Exhibit "B" Exhibit "B" is the Preliminary Development Agreement, dated May 20, 1993 between the Florida Department of Community Affairs and Westinghouse. Exhibit "C" Exhibit "C" is a draft of Planned Unit Development document which may establish the zoning for a portion of the proposed development. Composite Exhibit "D" Exhibit "D- 1" is the Petition filed with the FLWAC. Exhibit "D-2" is a map showing the location of the land area to be served by the CDD. Exhibit "D-3" is a metes and bounds description of the CDD. Exhibit "D-4" is composed of the written consent of Westinghouse Communities of Naples, Inc. and the Manatee Fruit Company, as owners of land within the CDD. (Exhibit "R-1" is the additional consent of the remaining land owners within the CDD.) Exhibit "D-5" is composed of drawings showing the Collier County waste water service system, potable water service system and the drainage outfalls. Exhibit "D-6" is a proposed schedule of the deadlines and cost estimates to construct CDD infrastructure. Exhibit "D-7" is a copy of the Collier County Comprehensive Plan Future Land Use Map. Exhibit "D-7b" is a copy of the Department of Community Affairs compliance letter related to the Collier County Comprehensive Plan, as amended. Exhibit "D-8" is an acknowledgment by Westinghouse that Collier County is authorized to regulate the provision of water and sewer facilities within the CDD. Exhibit "D-9" is a Statement of Economic Impact for the District by Fishkind & Associates, Inc. Composite Exhibit "E" Exhibit "E-1" is the Amended Petition. Exhibits "E-2" through "E-9" are identical to Exhibits "D-2" through "D-9" except for a minor change to the Acknowledgement in Exhibit "E-8". Composite Exhibit "F" Exhibit "F-1" is the Prehearing Stipulation signed by Collier County and Westinghouse with attachments and filed in this case. Exhibit "F-2" is a Memorandum of Agreement between Westinghouse and Collier County related to the provision of water, wastewater and irrigation facilities and services within the proposed CDD. Exhibit "F-2a" is a draft copy of an interlocal agreement related to the provision of water, wastewater and irrigation facilities and services within the proposed CDD. Exhibit "F-2b" is Resolution No. 93-187 of Collier County indicating that the Board of County Commissioners supports the establishment of the CDD. Composite Exhibit "G" Exhibit "G-1" is a letter from Westinghouse to Collier County, dated February 26, 1993, submitting the Petition to the county. Exhibit "G-2" is a letter from Westinghouse to Collier County, dated April 16, 1993, submitting the Amended Petition to the county. Exhibit "H" Exhibit "H" is a photocopy of the $15,000 check constituting the filing and processing fee from Westinghouse to Collier County. Composite Exhibit "I" Exhibit "I-1" is a transmittal letter from Attorney Kenza van Assenderp to David Coburn of the Florida Land and Water Adjudicatory Commission dated February 26, 1993 which accompanied the Petition. Exhibit "I-2" is a transmittal letter from Attorney Kenza van Assenderp to David Coburn of the Florida Land and Water Adjudicatory Commission dated May 3, 1993 which accompanied the Amended Petition. Composite Exhibit "J" Composite Exhibit "J" consists of four letters of notification from David Coburn, Secretary of the Florida Land and Water Adjudicatory Commission to the Florida Department of Community Affairs and the Southwest Regional Planning Council transmitting the Petition and Amended Petition. Composite Exhibit "K" Exhibit "K-1" is a letter dated March 12, 1993 from David Coburn to the Florida Division of Administrative Hearings transmitting the Petition. Exhibit "K-2" is a letter dated May 21, 1993 from David Coburn to the Florida Division of Administrative Hearings transmitting the Amended Petition. Composite Exhibit "L" Exhibit "L-1" is a certified copy of the notice of publication of receipt of Petition and notice of hearing as published in the Florida Administrative Weekly. Exhibits "L-2" through "L-6" are the tear sheets from the Naples Daily News setting forth notice of the hearing held in this case. Exhibit "M" Exhibit "M" consists of excerpts from the Collier County Comprehensive Plan. The complete official copy of the Collier County Comprehensive Plan was in the possession of the Hearing Officer at the time of the hearing and is transmitted with the record established during the hearing. Exhibit "N" Exhibit "N" is a letter from the Florida Department of Community Affairs to Collier County wherein notice was given of its determination that the Comprehensive Plan Amendment was in compliance with state law. Exhibit "O" Exhibit "O" is a copy of the State Comprehensive Plan for the State of Florida appearing in Chapter 187, Florida Statutes. Exhibit "P" Exhibit "P" is a March, 1993 report prepared by Dr. Lance deHaven-Smith regarding growth management considerations and the proposed establishment of the Pelican Marsh Community Development District. Exhibit "R" Exhibit "R-1" is an additional consent of the remaining land owners within the CDD. (Exhibit D-4 contains the originally filed consent documents.) Exhibit "R-2" is an updated estimate of proposed infrastructure construction costs and deadlines. COPIES FURNISHED: David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission 311 Carlton Building Tallahassee, Florida 32301 Kenza Van Assenderp, Esquire Post Office Box 1833 Tallahassee, Florida 32302-1833 Richard D. Yovanovich, Esquire 3301 Tamiami Trail East Naples, Florida 33962-4976
The Issue The issue to be determined in this case is whether two amendments to the Sunny Isles Beach Comprehensive Plan (Comp Plan), adopted by Ordinance Nos. 2019-549 and 2019-550 (Plan Amendments) on December 19, 2019, are "in compliance," as that term is defined in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties Petitioner resides and owns property within the City. Petitioner provided oral comments and objections to the City during the period beginning with the transmittal hearing for the Plan Amendments and ending with the adoption of the same. The City is a Florida municipal corporation with the authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. Land Use Designations The City was incorporated in 1997. In 2000, the City adopted its initial Comp Plan. As part of the initial Comp Plan, the City established the Town Center Planned Development District (Town Center) as an overlay area, which did not establish any densities or intensities. However, the Town Center overlay did contain underlying land use designations for the area as set forth in Policy 14A and 14B of the Comp Plan, which had established densities and intensities. The Mixed-Use Business land use category established a base density of 25 dwelling units per acre (du/acre), with a maximum density of 85 du/acre with density bonuses. Intensity was limited to a maximum of 2.0 floor area ratio (FAR). Community Facilities land use category established a maximum density of 25 du/acre, with the intensity limited to a maximum 2.0 FAR. Recreation Open Space land use category does not allow for development; therefore, there is zero density and intensity. In addition to the densities and intensities permitted for the identified land use categories, pursuant to Policy 14C of the Comp Plan, locations within the Town Center were designated as receiver districts for Transferable Development Rights (TDRs). Specifically, subparagraph (c) of Policy 14C established the limits on the use of TDRs by providing that: In no case […] shall the density or intensity on a receiver site exceed thirty (30) percent increase in the maximum permitted by the land use category limitations set in Policy 15B . . . and . . . in no case shall the resulting density bonus increases on any given receiver site exceed the number of dwelling units attainable on the sender site(s) under [comprehensive plan] provisions so as to assure NO net increase in city-wide residential dwelling unit Comprehensive Plan capacities occurs. Policy 14B of the Comp Plan set forth the Town Center's goals and objectives, including: The Town Center is encouraged to become the hub for future urban development intensifications around which a more compact and efficient urban structure will evolve. The Town Center is intended to be a moderate to high intensity design-unified area which will contain a concentration of different urban functions integrated both horizontally and vertically. The center will be characterized by physical cohesiveness, direct accessibility by mass transit services and high quality urban design. The Town Center is located to have direct connections to the 167th Street Causeway and Collins Avenue to ensure a high level of accessibility to the northeast Miami-Dade/bi-county area. Background In 2004, the City established the Town Center Zoning District in its Land Development Regulations (LDRs), which provided a maximum FAR of 5.2, and a maximum density of 75 du/acre. The intensity in the LDRs, as reflected by the FAR, exceeded the amount in the Comp Plan. However, the density in the LDRs was less than what was allowed in the Comp Plan. In 2007, the City proposed a comprehensive plan amendment that would have assigned density and intensity to the Town Center Planned Development District in its entirety. The state land planning agency objected to the proposed plan amendment in part because of a lack of data and analysis related to concurrency, emergency services, and hurricane evacuation routes. Beginning in 2005, the City approved a number of site plans for various development projects in the southern portion of the Town Center with underlying Mixed-Use Business land use designations. At that time, the City reviewed those developments solely for compliance with the City's LDRs for the Town Center Zoning District and without consideration of the maximum density and intensity allowable for the underlying land uses in the Comp Plan. As a result, all the approved projects in the southern portion of the Town Center with an underlying land use of Mixed-Use Business were permitted to be developed with intensities up to 5.2 FAR, which exceeded the allowable intensity of 2.0 FAR set forth in the Comp Plan for the Mixed-Use Business land use category. However, the densities allowed for those approved projects followed the Comp Plan, as the maximum density for the Mixed-Use Business land use category was 85 du/acre, whereas the maximum density allowable in the LDRs was 75 du/acre. Therefore, even though the City had not been evaluating the proposed site plans for compliance with the Comp Plan, all of the developed projects had densities that complied with the Comp Plan. In December 2018, a public hearing was conducted by the City Commission to consider the site plan for a development known as the Infinity Project. The proposed site for the Infinity Project was in the northern half of the Town Center. The City Commission unanimously voted to defer the matter to the January 2019 City Commission Meeting. To date, the application for site plan approval for the Infinity Project in the northern portion of the Town Center has not been approved or considered by the City Commission. While the City was considering the Infinity Project, the City became aware of the inconsistency between its Comp Plan and its LDRs with respect to the density and intensities within the entire Town Center area. As a result, the City began to take actions to remedy this inconsistency. In July 2019, the City Commission considered an ordinance to transmit to the state land planning agency, the Department of Economic Opportunity (DEO), a text-based comprehensive plan amendment to modify the FAR in the entire Town Center area. The City Commission voted to defer the matter. Instead, on August 28, 2019, the City Commission adopted on first reading an ordinance establishing a 12-month moratorium on the submission and consideration of any zoning applications in the Town Center District. The City Commission adopted the ordinance on second reading on September 19, 2019. On August 28, 2019, the City Commission also adopted a resolution declaring zoning in progress relating to development and redevelopment in the Town Center Zoning District. The Plan Amendments On October 17, 2019, the City Commission adopted on first reading Ordinance No. 2019-549, transmitting to DEO text-based amendments to the Town Center District that divided the Town Center into two overlay development districts: Town Center South and Town Center North. The text-based amendments also provided for density and intensity in the Town Center South overlay for the first time. Specifically, the maximum density was established at a maximum of 75 du/acre, and the intensity was established at a maximum of 5.2 FAR. These were the same as the LDRs. The Plan Amendments did not amend any portions of Policy 14C of the Comp Plan with respect to TDRs. The purpose of these amendments was to grandfather the various developments within Town Center South, which were previously approved with intensities that were inconsistent with the Comp Plan. Contrary to Petitioner's allegation, the density of each of these developments complied with the Comp Plan at the time of each’s approval. On October 17, 2019, the City Commission also adopted on first reading Ordinance No. 2019-550, transmitting to DEO the FLUM Plan Amendments reflecting the creation of the Town Center South and Town Center North overlay districts, and providing for amendment of the land use designation for certain properties located in Town Center South. Amendments to land use designations for specific properties in the Town Center South overlay area included changing the Bella Vista Park and Gateway Park from Mixed-Use Business to Recreation and Open Space. The Gateway Park Parking Garage changed from Recreation and Open Space to Community Facility. The Miami-Dade County Water and Sewer Facility changed from Mixed-Use Business to Community Facility. All these FLUM changes reflected a decrease in density. On October 17, 2019, the City Commission passed Resolution 2019-3006 (Plan of Action), adopting a schedule to bring the City's LDRs into conformity with the provisions of the amended Comp Plan, as provided by section 163.3194(1)(b). On October 30, 2019, the Florida Department of Transportation issued a letter to Alex David, the City’s planning and land use consultant, advising that it had reviewed the proposed text-based Plan Amendments and "found that the amendment will not have an adverse impact on transportation resources and facilities of State importance." On November 15, 2019, the South Florida Water Management District sent correspondence advising that there are "no regionally significant water resource issues" and offered only technical guidance regarding regional water supply planning. On November 25, 2019, the South Florida Regional Planning Council found that the proposed Plan Amendments were generally consistent with the Strategic Regional Policy Plan for South Florida. On November 22, 2019, the City's Mayor received correspondence from DEO advising that it had reviewed the proposed Plan Amendments and "identified no comment related to adverse impacts to important state resources and facilities within the [DEO's] authorized scope of review." DEO did provide a technical assistance comment. On December 19, 2019, the City Commission adopted both Ordinances on second reading. DEO's technical assistance comment directed the City to clarify that Town Center South and Town Center North were overlay districts and not separate land use categories. The City incorporated that clarification in bold text in the body of the adopted ordinance. The City then forwarded the adoption package of Plan Amendments to DEO for its review. On December 30, 2019, DEO issued a letter to Mr. David advising that the Plan Amendments package was complete and would be reviewed in accordance with section 163.3184(3). On January 28, 2020, DEO issued a letter to the City's Mayor advising that it had completed its review "and identified no provision that necessitates a challenge of the Ordinances adopting the amendment." Petitioner challenged the Plan Amendments on four grounds: (1) the City failed to submit relevant and appropriate data and analysis; (2) the Plan Amendments were internally inconsistent with the existing Comp Plan; (3) the Town Center South District was a new land use category; and (4) the Plan Amendments should not have been reviewed under the expedited review process pursuant to section 163.3184(2). Relevant and Appropriate Data and Analysis Petitioner alleged that the City did not provide any data or analysis to show it considered the impacts of alleged "massive increase of density and intensity in Town Center South on hurricane evacuation times [. . .]". Hurricane Evacuation Times and CHHA Petitioner's expert witness, Daniel L. Trescott, an expert in comprehensive planning and hurricane evacuation, opined that only increases in density would impact hurricane evacuation times, and that increases in intensity would not adversely affect hurricane evacuation times. Specifically, Mr. Trescott testified that if there was no increase in density then, in his expert opinion, the Plan Amendments would not trigger the need to evaluate the other policies and issues related to hurricane evacuation and Coastal High Hazard Areas (CHHA). Petitioner did not introduce any evidence that would support a finding that the Plan Amendments would actually increase density in Town Center South. Mr. Trescott testified that he did not perform an analysis that would demonstrate potential impacts on density resulting from the Plan Amendments. Also, Petitioner did not introduce any evidence to support a finding that the Plan Amendments would diminish future hurricane evacuation times, in the absence of a density increase. In fact, the undisputed testimony of the City's experts established that the Plan Amendments actually decreased the net density allowed in Town Center South. Claudia Hasbun, the City's planning and zoning director, was accepted as an expert in land use planning. Ms. Hasbun testified that the Plan Amendments would decrease the potential maximum allowable density in Town Center South by 462 dwelling units. Ms. Hasbun's analysis demonstrated that after consideration of the density provided by the Plan Amendments, including the land use changes reflected in the FLUM amendment, there was a significant reduction in potential maximum allowable density in Town Center South. Ms. Hasbun testified that the net total number of dwelling units that could ever be developed would decrease by 462 dwelling units for Town Center South because of the Plan Amendments. This analysis encompassed the absolute maximum redevelopment potential, and still reflected a reduction in density in Town Center South. Mr. Trescott confirmed that the potential maximum allowable density that existed under the current Comp Plan was actually greater than would be allowed under the Plan Amendments. He also acknowledged that land use changes reflected on the FLUM amendment would result in a decrease in density within Town Center South. Therefore, the uncontroverted evidence showed that the Plan Amendments decrease density. The City also presented the expert witness testimony of Alex David, the planning consultant with Calvin, Giordano & Associates, Inc. Mr. David testified that there would not be any impact on hurricane evacuation times resulting from the Plan Amendments. The reason was that the potential maximum allowable density resulting from the Plan Amendments was significantly reduced from the existing maximum potential density. Mr. David's testimony was undisputed, and Petitioner's expert witness conceded that there would be a net decrease in maximum potential density resulting from the Plan Amendments. Mr. David testified that a map created from a 2016 Sea, Lake, and Overland Surges for Hurricanes (SLOSH) computerized storm surge model was utilized to determine whether any portions of Town Center South were in the CHHA. The referenced SLOSH map was incorporated into the Comp Plan in 2016. Mr. David testified that the SLOSH model does depict five very minimal areas of Town Center South within the CHHA. However, those areas either have an underlying land use designation of Recreation Open Space, cannot be developed for residential purposes and have no density, or they are located on parcels that have already been developed (or in one case is currently being developed) at higher elevations. The parcels developed or being developed at higher elevations have the appropriate mitigation to remove them from the CHHA. As a result, under the 2016 SLOSH model map in the Comp Plan, none of the property affected by the Plan Amendments was located in the CHHA. During the hearing, Mr. Trescott suggested that the City should utilize the map developed from the 2017 version of the SLOSH model, rather than the 2016 version adopted in the Comp Plan. Despite testifying that the City was required to use the 2017 version of the SLOSH map, Mr. Trescott admitted that Miami-Dade County, the entity responsible for emergency management, had not adopted the 2017 SLOSH map. Mr. Trescott also admitted that the State of Florida had not adopted the 2017 SLOSH map into the State's Emergency Plan. In addition, Mr. David testified that he was unaware of any jurisdiction in Florida that had adopted the 2017 SLOSH map. Thus, it was reasonable for the City to rely on the data contained in the 2016 SLOSH map incorporated in its Comp Plan. Consistent with Mr. Trescott's testimony, since there is no increase in density, the Plan Amendments would not trigger the need to evaluate the other policies and issues related to hurricane evacuation and CHHA. Petitioner did not prove beyond fair debate that the City failed to provide relevant and appropriate data or analysis with respect to impact on hurricane evacuation times. The evidence adduced at the hearing established that such an evaluation was not required because density was decreased by the Plan Amendments. Even so, the evidence established that since density was decreased by the Plan Amendments, hurricane evacuation times would not be impacted, and that, pursuant to the 2016 SLOSH model map adopted in the Comp Plan, none of the property affected by the Plan Amendments was located within the CHHA. Concurrency Analysis Petitioner also contended that the City failed to submit any data or analysis to show the impacts on sewer and water capacities, traffic/transportation, coastal management, infrastructure, and schools. However, the memorandum incorporated into Ordinance No. 2019-549 clearly demonstrated that an analysis was conducted. The analysis determined that the City did meet its level of service (LOS) standards for each of those areas. In addition, Mr. David testified to the methodology used to analyze concurrency for each of the areas and the conclusions reached with respect to them. His testimony was not contradicted and demonstrated that the Plan Amendments meet the City's LOS standards. Mr. David testified that in completing the concurrency analysis, he utilized data based upon the existing development in Town Center South. He opined that the methodology was a conservative approach for evaluating concurrency. Mr. David also testified that all the projects developed in Town Center South had been individually and separately reviewed for concurrency purposes during the site plan approval process. Internal Inconsistency Petitioner alleged that the Plan Amendments were internally inconsistent with two provisions of the City's existing Comp Plan. Objective 3C, which reads as follows: The City of Sunny Isles Beach shall not increase maximum densities and intensities in the Coastal High Hazard Area beyond that which is permitted in the Comprehensive Plan and Land Development Regulations as of May 1, 2016, including bonuses and transfer of development rights provided therein. The provision of facilities and services to accomplish the timely evacuation of the City's residents in advance of approaching hurricanes shall be a priority of the Sunny Isles Beach's transportation and hurricane preparedness programs. The City's Comp Plan did not assign densities and intensities in the Town Center Development District overlay as of May 1, 2016. However, as previously found, the City's LDRs did include densities and intensities for the Town Center as of May 1, 2016. These Plan Amendments did not increase the densities and intensities contained in the LDRs as of that date, and therefore, are not internally inconsistent with the City's existing Comp Plan. Petitioner also asserted that the Plan Amendments were inconsistent with Policy 5C, which provides as follows: All planning activities pertaining to development and redevelopment and the provision of public services and facilities in the City of Sunny Isles Beach shall be consistent with the "Population Estimates and Projections" outlined below, as they are periodically amended and updated. During the hearing, the City introduced the 2019 population estimates derived from the U.S. Census Bureau. The census data reflected that the 2019 population estimate was 21,804, which was below the 2020 estimates set forth in Policy 5C. Further, the unrebutted testimony of the City's experts, Ms. Hasbun and Mr. David, was that the Plan Amendments would decrease the maximum potential density that could be developed in Town Center South. Petitioner did not introduce any evidence that the population estimates and projections would increase because of the Plan Amendments. Petitioner did not prove beyond fair debate that the Plan Amendments were internally inconsistent with Objective 3C and Policy 5C of the City's existing Comp Plan. New Land Use Category Petitioner alleged that Town Center South was a new land use category. Petitioner referenced the comments from DEO that the City should consider amending the FLU text to clarify that Town Center North and Town Center South are overlay districts, not separate land use categories. However, the City did specifically incorporate those comments in Ordinance No. 2019-549, where the word "overlay" appears in bold text to reflect said clarification. Petitioner's claim that the City created a new land use category called "Town Center South" was not supported by the evidence. Expedited Review Process Petitioner alleged that the City should not have proceeded with the expedited review process because of the City's alleged past failures to comply with the law. Section 163.3184(2) provides for an expedited review process for adoption of comprehensive plans and amendments. The two exceptions to this expedited review process are contained in section 163.3184(2)(b) and (c), neither of which are applicable to the Plan Amendments. Petitioner suggested that the Plan Amendments should have been treated as an evaluation and appraisal review (EAR) under section 163.3191. However, the determination of whether the comprehensive plan should be evaluated under this provision is the responsibility of the City. Also, the City's last EAR was conducted in 2016, so the City is not required to perform the analysis again until 2023. Petitioner failed to introduce any evidence to support a finding that the City is precluded from proceeding pursuant to section 163.3184(3). Summary Petitioner failed to carry her burden of proving beyond fair debate that the City of Sunny Isles Beach Plan Amendments adopted by Ordinance Nos. 2019-549 and 2019-550 on December 19, 2019, are not in compliance, as that term is defined in section 163.3184(1)(b).
Conclusions For Petitioner Magaly Gordo: Ralf Gunars Brookes, Esquire Ralf Brookes Attorney Suite 107 1217 East Cape Coral Parkway Cape Coral, Florida 33904 For Respondent City of Sunny Isles Beach: Gregory Thomas Stewart, Esquire Elizabeth Desloge Ellis, Esquire Nabors, Giblin & Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 Valerie Vicente, Esquire Nabors, Giblin & Nickerson, P.A. Suite 1000 8201 Peters Road Plantation, Florida 33324
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the City of Sunny Isles Beach Plan Amendments adopted by Ordinance Nos. 2019-549 and 2019-550 on December 19, 2019, are "in compliance," as that term is defined in section 163.3184(1)(b). DONE AND ENTERED this 3rd day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S FRANCINE M. FFOLKES Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2021. Gregory Thomas Stewart, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 Elizabeth Desloge Ellis, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 Ralf Gunars Brookes, Esquire Ralf Brookes Attorney Suite 107 1217 East Cape Coral Parkway Cape Coral, Florida 33904 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 Edward A. Dion, Esquire City of Sunny Isles Beach Fourth Floor 18070 Collins Avenue Sunny Isles Beach, Florida 33160 Valerie Vicente Nabors, Giblin and Nickerson, P.A. Suite 1000 8201 Peters Road Plantation, Florida 33324 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128
Findings Of Fact Petitioner, Deltampa, Inc., a Florida corporation and wholly owned subsidiary of the Deltona Corporation, a Delaware corporation, is the owner of approximately 5,408 acres of property located in northern Hillsborough County, Florida. (Testimony of Motchkavitz, Exhibit 4) Petitioner proposes to develop its property into a functionally interrelated residential community called Tampa Palms, which will ultimately consist of approximately 13,500 single-family and multiple-family dwelling units, a regional shopping center, an industrial park, golf courses, parks and related recreational facilities, commercial and office facilities, and educational facilities. (Testimony of Motchkavitz; Exhibits 1, 6) The proposed name of the new district shall be the Tampa Palms Community Development District, and its external boundaries are set forth in the Legal Description at Exhibit 4. (Exhibit 4-5) The Tampa Palms development is planned to be constructed over a period of 20 years in four phases of five years each. The total area to be developed consists of approximately nine square miles of which some 60 percent or about 3,000 acres will involve low-density housing or open space, parks, and golf courses. Residential development will take place over 1,651 acres or about 30 percent of the site. A full range of community support facilities planned to meet the needs of the residents will include two school sites, 20 park sites, six church sites, two fire station sites, and two public facility sites, totalling about 300 acres or some six percent of the site. There will be 3,000 single-family residential units and about 10,500 multiple-family units. Density of the 1,650 acres of residential development will be approximately 8.5 units per acre, with 2.2 units per acre for single family units. Maximum density in the multifamily area will be 35 units per acre, and overall density for the entire site is projected to be 2.5 units per acre. (Testimony of Motchkavitz, Exhibit 1A) The site in question is a contiguous parcel which is bordered on the east generally by the lower Hillsborough River flood detention area and the proposed 1-75 right-of-way for the interstate highway which is under construction at the present time. The Hillsborough River runs across the southern portion of the site and Cypress Creek, an ill-defined, non-navigable water course, is on the western portion of the site. The site is approximately 10 miles northeast of Tampa. The property is bisected diagonally northeast to southwest by State Road 581. Interstate highway 1-75 passes by the property at the northwest corner and will eventually merge with the 1-75 Tampa bypass north of the site. The City of Tampa Morris Bridge Water Treatment Plant is located adjacent to the property at the northeast corner on a 60-acre site donated to the city by Deltona and will provide service to residents of Tampa Palms. Hooker's Point Wastewater Facility has a force main within one mile of Tampa Palms and will service the proposed community. The University of South Florida is located immediately to the south of Petitioner's site. (Testimony of Motchkavitz; Exhibits 1, 5) A proposed industrial area will be located in the northeast corner of the property consisting of approximately 75 acres. It is contemplated that only light industry of a research and development type will be conducted there. Additionally, about 150 acres in that general area will be used for shopping centers, hotel, and office facilities. (Testimony of Motchkavitz; Exhibits 1, 6) Potable water for the future residents of Tampa Palms will be supplied by the City of Tampa, which operates a water treatment plant adjacent to the northeast corner of the proposed development. Non-potable water will be developed by on-site wells to supply irrigation water to the proposed golf courses. The city water treatment plant has sufficient capacity to supply adequate water supplies to the estimated peak population of 31,700. Off-site wastewater treatment will be provided by the City of Tampa advanced wastewater treatment plant at Hooker's Point. No septic tanks will be used at the Tampa Palms development. Wastewater will be collected by a central system and pumped off site for treatment. Solid waste generated by the development will be collected twice weekly by the Hillsborough County Solid Waste Control Department and will be disposed of at a county landfill site. (Testimony of Apthorp; Exhibits 1, 6) The Hillsborough River has a history of flooding in periods of high water and heavy rainfall in the area surrounding Tampa. Several years ago, the Southwest Florida Water Management District and the Corps of Engineers entered into a program called the Lower Hillsborough Flood Detention Program which would attempt to restrict the flooding downstream by acquiring some 17,000 acres to the east of the Tampa Palms site, and constructing a dam at the southeast corner of the Tampa Palms property. It is an open structure through which the river flows in normal conditions, but has the capability of being closed in periods of high water and creating a temporary impoundment. This system also includes a levee which parallels the eastern side of the development site, thus providing flood protection from that direction. To prevent flooding of the site from the Cypress Creek system on the west, Petitioner plans to construct an earthen levee along the western boundaries of its property in a north-south direction and laterally across the northern border in an easterly direction until the elevation is sufficient to preclude flooding problems. The structure will have a maximum height of about six feet in the southernmost section and be as high as only two to three feet in the northern portions. It will have a freeboard or additional dirt belt above the 500-year flood level of Cypress Creek of one-and-a-half feet. The levee will have a 10-foot wide top and a six to one foot slope. It will be sodded and grassed to prevent erosion. There will be several drainage structures throughout the levee to allow drainage from the property to pass into Cypress Creek when the waterway is at a low flow level. These will consist of culverts with gate structures which will require monitoring and continuing maintenance to be performed by Petitioner or its successors. Petitioner plans an extensive drainage system for its property to maintain the integrity of the wetlands areas and to prevent pollution and excessive surface runoff into the Hillsborough River. The proposed drainage system for the project will consist of a network of 15-foot wide grassy swales adjacent to streets and rear yards from which runoff will flow into wetlands or lakes, and then through storm water structures to ultimate outfall into the Hillsborough River. The system is designed to permit drainage by gravity through extensive areas of natural vegetation to remove pollutants and result in approximately the same flow into receiving waters as existed prior to development of the property. Some 180 acres of lakes will be created from areas dredged to secure fill for the development. All lake areas will be deeper than six feet to lessen the establishment of aquatic plants and will be monitored for water quality as necessary. About twenty 50-foot long concrete seawalls will be built near the lakes to impound water, thereby creating additional storage, and equipped with piping which will allow the water to slow the drain down after storm events. It is anticipated that such controlled structures will eliminate the potential for any flood-type impacts to downstream users and allow more contact time with natural wetland vegetation. The drainage system will be operated and maintained by Petitioner until such time as an acceptable and qualified public entity assumes such responsibilities. (Testimony of Motchkavitz, Exhibit 14) Fire and police protection will be provided to the proposed district by Hillsborough County. In addition, the County will provide for solid waste collection and issuance of building permits. (Testimony of Motchkavitz, Exhibit 1) Pursuant to application of the Deltona Corporation on November 8, 1979, for approval of a development of regional impact pursuant to the provisions of Section 380.06, F.S., the Hillsborough County Board of County Commissioners, by Resolution adopted October 1, 1980, issued a Development Order approving the application, subject to various conditions. In the Development Order, the Board of County Commissioners concluded that the development would not unreasonably interfere with the achievement of the objectives of the adopted state land development plan applicable to the area and was consistent with local land development regulations, and with the report and recommendations of the Tampa Bay Regional Planning Council. (Exhibit 7) By Resolution dated May 6, 1981, the Board of County Commissioners expressed its opinion that Petitioner should continue its efforts to establish a community development district for the Tampa Palms development and specifically found that: The creation of a community develop- ment district in conjunction with the development of Tampa Palms is not, in the Board's opinion, inconsistent with the approved Hillsborough County Com- prehensive Land Use Plan or other local land use regulations, and A community development district appears, in the Board's opinion, to be the best alternative available for delivering to and maintaining the com- munity development services and facil- ities in the Tampa Palms area, and The services and facilities to be operated and maintained by the proposed district do not appear to be, in the Board's opinion, incom- atible with the capacity and uses of existing and proposed local and regional community development ser- vices, and The Tampa Palms development, due to its size and location and the extent of community services and facilities to be created within the development appears to be, in the Board's opinion, amenable to separate special district government. (Exhi- bit 2) The five persons designated to serve as initial members of the Board of Supervisors of the proposed community development district are Frank E. Mackle, III; Richard F. Schulte, William I. Livingston, Paul M. Schaefer, and Edward G. Grafton. It is intended that they shall serve as the Board of Supervisors until replaced in accordance with Section 190.006, F.S. (Petition) The following ultimate findings are made based upon the testimony and documentary evidence adduced at the hearing: All statements contained within the Petition have been found to be true and correct. (Testimony of Apthorp) The creation of the district is not inconsistent with any applicable element or portion of the state comprehensive plan or of the effective local government comprehensive plan. This finding is supported by the Development Order and subsequent Resolution issued by the Hillsborough County Board of County Commissioners. (Exhibits 2, 7) The area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. This finding is supported by the previous findings of fact concerning the size of the proposed district and the fact that the 5,400 acres are in one contiguous parcel. The district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. This finding is supported by the Development Order issued by the Hillsborough County Board of County Commissioners and its subsequent Resolution acknowledging that a community development district would be the best alternative available for such purposes. Hillsborough County is presently not in a position to provide many of the essential services required by a community of the contemplated size of Tampa Palms, including but not limited to public streets and an extensive surface water management system. The proposed development will result in a substantially self-contained community which will be comprehensively planned so as to provide necessary services required by its residents. A community development district will be in a position to provide reliable operation and maintenance of those services and facilities not otherwise conducted by the County or other appropriate unit of local government. (Exhibits 2, 7) The community development services and facilities of the district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The proposed development of the property is scheduled, in accordance with the terms of the County Development Order, to coincide with the provision of essential area services which will not be provided by the district. (Exhibits 2, 7) The area that will be served by the district is amenable to separate special-district government. This finding is supported by the foregoing findings of fact which establish that the nature and location of the proposed Tampa Palms development would be facilitated and best served by the establishment of a separate special-district government under all of the facts and circumstances.
Recommendation Based upon the findings of fact and conclusions of law hereby submitted, it is RECOMMENDED: That the Florida Land and Water Adjudicatory Commission grant the Petition of Deltampa, Inc., and adopt a rule which will establish the Tampa Palms Community Development District, pursuant to Section 190.005(1), Florida Statutes. DONE and ENTERED this 20th day of October, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1981. COPIES FURNISHED: Robert S. Schumaker, Esquire Deltona Corporation Post Office Box 369 Miami, Florida 33145 Honorable John T. Herndon Secretary, Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301
Findings Of Fact The Guana River Marsh Aquatic Preserve (the Preserve) is state-owned property. Title is held by the Board of Trustees of the Internal Improvement Trust Fund. It includes some 13 miles of Atlantic Ocean beach within St. Johns County. Within the boundaries of the Preserve is included the Guana River State Park (the Park). It, too, is state-owned. It is managed and operated by the Division of Recreation and Parks (the DRP) of the Department of Environmental Protection (the DEP). Some of the Preserve's Atlantic Ocean beaches are included within the boundaries of the Park. The "wet sand," or "hard sand," area of the Atlantic Ocean beaches in the Preserve is the area of the beach between mean high water and mean low water. The mean high water line is essentially the landward extent of the ocean at mean high tide; the mean low water line is essentially the landward extent of the ocean at mean low tide. When the tide is low, this entire area of the beach is exposed. It remains wet and, generally, relatively hard-packed during the time it is exposed. However, there are beds of "red shell" in this part of the beach that are softer. In the summer, this part of the beach averages approximately 50 feet in width. In the winter, when the waves and tides generally are higher, it is narrower. In the Preserve, the mean high water line usually is indicated both by debris washed up during the highest tides and left on the beach and by a "shelf." This "shelf," made by the erosive action of the ocean waves during the highest tides and during storms, rises at an angle of approximately 45 degrees and can be from one to four or five feet high. Landward of this shelf is the "dry sand" or "soft sand" beach, also sometimes referred to as the "upper beach." It extends landward from the mean high water line to the vegetation line, where the dunes start. Usually, some pioneer vegetation is found in the uppermost reaches of this part of the beach, forming what is called the "foredune" area of the beach. The tides along the Atlantic Ocean beaches in the Preserve are semi- diurnal, i.e., there usually are two high tides and two low tides a day. These high and low tides last approximately one hour, and each day they occur approximately an hour later than they did the day before. There are five beach access points with motor vehicle parking areas located along U.S. Highway A1A within the Preserve. Three are within the Park. There is parking for approximately 120, 68, 79, 42 and 25 vehicles in these five parking areas. There also is a current proposal for the addition of three more access points in the Park, with parking for a total of 340 vehicles, five beach bathhouses, and five pedestrian overpasses. There are many other places where pedestrians can walk from A1A to the beaches, including 30 County-controlled access points. But there are no lawful parking areas adjacent to any of these other access points at this time, and parking on the right-of-way of A1A is prohibited. Currently, the only lawful motor vehicle access to the Atlantic Ocean beaches in the Preserve is to the south of the Preserve. Prior to the agency action challenged in these proceedings, motor vehicles lawfully could be driven onto the beach at this access point and be driven north into the Preserve, so long as they remained below the mean high water line. A former access near the north end of the Preserve has been cordoned off. To leave the Preserve, motor vehicles would have to be turned around and driven back south to the same motor vehicle access point. Due to the restricted access to the Atlantic Ocean beaches in the Preserve, not much use is made of those beaches. In comparison, beaches to the south are used much more heavily. Of the relatively few who use the motor vehicle access to the south and drive on the beach north through the Preserve, some ultimately use the beaches to picnic, swim, surf, beach-comb and similar activities; some probably just drive on the beach. There was no evidence quantifying the uses currently being made of the beaches in the Preserve. In the past, homemade motor vehicles called "skeeters" were built with a light-weight chassis and over-sized wheels. They were used for driving on both the hard and soft areas of the beaches, as well as illegally in the dunes. This practice has been curtailed due to better enforcement of the prohibitions against driving in the dunes, a generally heightened environmental consciousness among the public, and prohibitions against driving the "skeeters" on public highways. Generally, there has been less driving on the beaches of the Preserve in recent years, although the practice persists at a reduced level. At all times of the year, it sometimes is impossible to drive along the entire length of the beaches in the Preserve without driving on the soft sand area. This is especially true during the winter months when the waves and tides are higher and storms are more frequent. But even in the summer months, there are times when "red shell beds" in the "wet sand" part of the beach must be circumvented to avoid getting stuck. Especially when the tide is not at its lowest, the only way to avoid some of these "red shell" beds is to drive over the "shelf" and onto the "soft sand." Depending on the tides, this may also be necessary in order to turn a vehicle around on the beach. In many places, the "soft sand" area is not very wide, and it would be necessary under those circumstances to drive in the "foredune" area. The times of the daily high and low tides can be obtained relatively easily by members of the public. But there is no assurance that all persons who would drive on the beaches would know the times of the tides. Nor is there any assurance that persons who drive the "wet sand" or "hard sand" part of the beaches at low tide also would plan to both start their beach drive and their return trip during low enough tides to be able to avoid driving on the "soft sand" part of the beach. For these and other reasons, it would be difficult, if not practically impossible, to effectively monitor beach driving throughout the Preserve and consistently enforce a restriction to driving only on the "wet sand" or "hard sand" areas of the beach. In the summer months, sea turtles lay eggs in nests dug in the sand of the foredune and dune areas of the Atlantic Ocean beaches in the Preserve. After a period of incubation in the nests, the turtle hatchlings dig themselves out of the nests and crawl to the ocean to begin their lives in the sea. Driving motor vehicles over nests on those parts of the beaches in the summer months could crush eggs in their nests or pack the sand hard enough to reduce the number of hatchlings that emerge from the nest alive. In addition, driving motor vehicles in these area, even in other parts of the year, can leave ruts in the beach that disorient hatchlings that leave the nests in summer so that fewer reach the ocean alive. Sea turtles crawl out of the ocean to their nest sites at night. Artificial lighting can disturb their nesting and egg-laying activities. However, it seems that moving lights, or lights that turn on and off (in the manner of car lights), create more of a disturbance than stationary lights, such as those more often found at residences along the beaches in the Preserve. The Management Plan does not prohibit artificial lighting along the beaches in the Preserve, but it recommends that further attention be given to this problem and that ways to address the problem be explored and pursued in cooperation with the County. Various shore birds, including the threatened least tern, make their nests in the foredune area of the beaches in the Preserve. Driving on the foredunes destroys and disturbs nesting habitat and disturbs the nesting activities of these birds. In addition, both these ground nesting shore birds and a variety of migratory birds make use of different areas of the beaches to rest and feed. Driving on the beaches disturbs these activities, as well. The only known nesting colony of least terns in St. Johns County is located in the Park, where beach driving is prohibited. The Division of Parks and Recreation (DPR) of the Department of Environmental Protection (DEP) has utilized F.A.C. Rule 16D-2.002(4)-(5) to prohibit driving or parking motor vehicles on the beaches of the Park by not designating the beaches as driving or parking areas within the Park. At least parts of the beaches in the Park have been posted as areas where driving motor vehicles is prohibited. In order to develop a management plan for the Preserve, the manager of the Preserve personally researched the geology, climate and natural resources of the Preserve, as well as the records of the County, and also collected data pertaining to the Preserve from several state agencies. Over the course of a year, the manager's input was taken into consideration, and a management plan, called the Guana River Marsh Aquatic Preserve Management Plan (the Management Plan), was developed for the Preserve. It was adopted by the Board of Trustees of the Internal Improvement Trust Fund on December 17, 1991. The Management Plan recites in pertinent part: At the present time, motorized vehicular traffic is permitted, by county ordinance, below the natural vegetation line on the beaches adjacent to the Atlantic Ocean in St. Johns County. Vehicles are not allowed on the 4.2 miles of beach within Guana River State Park. The coarse coquina sand and steep profiles of the beaches in the preserve make driving on the wet sand area difficult. Drivers are forced to cross the dry sand area, damaging the foredunes, pioneer dune vegetation and sea turtle nesting habitat. Due to the negative environmental impacts resulting from this activity, motorized vehicular traffic shall not be considered an authorized activity on sovereign submerged lands within [Prime Resource Protection Area] PRPA beach management areas of the preserve, and therefore will be prohibited. Under the Management Plan, all of the Atlantic Ocean beaches in the Preserve are Prime Resource Protection Area, and the driving of motorized vehicles on them is prohibited. On June 11, 1993, the DEP's DRP sent St. Johns County a letter advising that, based on the Management Plan, DEP no longer would permit the driving of motor vehicles on the Atlantic Ocean beaches in the Preserve. The proposed amendment to F.A.C. Rule 18-20.004(7), incorporating the Management Plan, was noticed in the Florida Administrative Weekly on August 6, 1993. On or about August 18, 1993, the DEP agreed not to enforce the beach driving prohibition in the Preserve until these cases are resolved.
The Issue The central issue in this case is whether the Department of Environmental Regulation (Department) should grant a dredge and fill permit which has been requested by the Respondent, William R. Cullen (Applicant). That proposed permit has been opposed by the Petitioners (who will be referred to collectively as Petitioners for convenience sake).
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received, the following findings of fact are made: The Department is the state agency authorized to issue permits pursuant to Chapter 403, Florida Statutes. The Respondent, William R. Cullen, filed an application for a dredge and fill permit to construct a slip marina on June 4, 1985. The original request was subsequently amended to seek approval for a forty-two slip commercial marina. The project site for the Applicant's marina is located at Key Largo, Monroe County, Florida. The site is within Buttonwood Sound, Florida Bay. The property is owned by Mr. Cullen and his family. All of the proposed improvements will be constructed on submerged lands or uplands owned or controlled by the Cullen family. The project site is located within a commercial area of Key Largo and contains frontage on both the water, Buttonwood Sound, and the highway, U.S. Highway 1. The project site has a basin which was created by the excavation of materials used for road construction from the shoreline and the installation of an L-shaped rock jetty which runs roughly perpendicular and then parallel to the shoreline. This jetty was installed during the late 1960s. The water depths within the basin range from 3 feet to approximately 14 feet. The water within the basin is subject to the same tidal considerations as the waters within Buttonwood Sound. There is no interruption of the flow of water in and out of the basin from those waters of the Sound. The water within this basin is within an Outstanding Florida Water as defined in Rule 17-3.041, Florida Administrative Code. The Applicant's plan calls for the excavation of appproximately 30,170 square feet of upland area and the dredging of the existing basin for approximately 18,460 dredged square feet. During the construction phases, the Applicant proposes to install turbidity curtains to limit the adverse effects expected during that time. The improvements are intended to be a permanent alteration to the basin design and will permanently modify the marine life habitat within that basin. The Applicant proposes to remove portions of the existing jetty to allow additional water to flow through the basin unimpeded by the jetty walls. The removal of the jetty walls will expedite the dilution and flushing of potential pollutants from the basin on a tidal frequency. That flushing is purported to assure that the water quality within the basin will not be diminished. However, such pollutants will be flushed into Buttonwood Sound. Stormwater accumulating on the upland project is to flow toward a lower upland area and should not to be dumped into the basin. The proposed marina is to have fueling facilities and the Applicant has agreed to design that system to limit inadvertent spillage. Further, as a condition of the permit, the Applicant has agreed to abide by the Department of Natural Resources' spill contingency plan requirements. The proposed marina is designed to provide portable sewage pumpout facilities for each slip. A permanent pumpout facilities will also be available. The Applicant seeks to attract boats in the range of 30 to 50 feet in length at this facility. While there are a number of other marinas in other areas of Key Largo which might accomodate that size boat, the marinas in the immediate vicinity of this project site are designed for smaller craft. The area within the basin consists of unvegetated bottom, submerged rip-rap, sea grasses, and hardbottom/algae communities--the predominant classifications being the latter two. The deeper hardbottom areas are to be filled and portions of the sea grasses will be dredged in order to configure the proposed docks. Additionally, other sea grass areas will be shaded, and thereby disturbed, by the construction of the docks. There are no historical or archaeological features relevant to the proposed site. The area has not been designated as a critical manatee area, however, manatees do frequent the project vicinity and have been observed feeding immediately adjacent to the basin. The permit proposed for this project requires a water quality monitoring plan. In addition to sampling for coliform, diesel by-products, oils, greases, detergents, oxygen, copper, lead and zinc, the plan requires sampling for aluminum, cadmium, and chromium. The monitoring stations are to be located both within the basin (2 stations) and outside the basin (2 stations). Liveaboards or others continuously docked at the marina will create additional shading which will disrupt and adversely affect the sea grass system. In order to provide access to the marina, the Applicant intends to dredge a channel in an area containing sea grass which is undisputedly within the Outstanding Florida Waters. The Department deemed the subject application was complete on February 23, 1988. The Department did not apply the Keys Rule found in Rule 17-312.400, Florida Administrative Code, to this project. The Department also did not apply the Mitigation Rule found in Rule 17-312.300, Florida Administrative Code, to this project. Michael Dentzau has personally reviewed and processed 250-300 dredge and fill permits during his tenure with the Department. Of those projects he has reviewed, he has not recommended that dense sea grass beds of the type located within this project site be dredged in order to construct a commercial marina. Phillip Edwards was responsible for executing the Intent to Issue in this case. In determining that this project had provided reasonable assurances that water quality standards will not be violated, Mr. Edwards weighed the public interests criteria set forth in Section 403.918, Florida Statutes. Because he received letters purportedly from elected officials, Mr. Edwards presumed that the project was in the public interest. That assumption of fact has not been established by this record. According to Mr. Edwards, the adverse effects expected by this project could be adequately addressed by the permit conditions when weighed against the public interest in favor of the project. Since Mr. Edwards' assumptions as to the public interest in this project have not been established, his conclusion regarding the weight that interest should receive can be given little consideration. The project as proposed by the Applicant will not adversely affect navigation or cause harmful erosion or shoaling. The project as proposed by the Applicant will adversely affect fishing or marine productivity within the basin since it will permanently alter the basin biologically by destroying sea grass. The increased boat traffic within the Sound will also detract from the present recreational uses enjoyed by area residents. According to Mr. Edwards, it is very unusual for the Department to issue a permit when sea grasses will be adversely affected. In the 17 years in which he has reviewed permits, only two occasions merited approval when the destruction of sea grasses to the extent in this case would result. Neither of those cases were factually similar to the case at issue. In those cases, however, elected officials advised Mr. Edwards, as he presumed they had here, that there was a public need for the permit. Increased boat traffic will result in increased manatee mortality due to collisions. In order to assure water quality will not be degraded within a marina, the project should have a short flushing time comparable to healthy natural embayments. In this case, the flushing proposed by the Applicant is dependent, in part, on winds which may be inconsistent or relatively minimal during the summer months.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order denying the permit requested by the Applicant. DONE and ENTERED this 22nd day of August, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1990. APPENDIX TO CASE NOS. 89-3779 et seq. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONERS: The first three sentences of paragraph 1 are accepted; the remainder is rejected as argument or irrelevant. Paragraph 2 is accepted. Paragraph 3 is accepted. With regard to paragraph 4, it is accepted that the Department deemed the application complete on February 23, 1988; otherwise, the paragraph is rejected as argument. With regard to paragraph 5, it is accepted that the habitat within the basin is the same as the habitat throughout Florida Bay and that the basin is not "enclosed" hydrologically; otherwise, the paragraph is rejected as argument or comment. Paragraphs 6, 7, 8, 9, 10, 11, and 12 are rejected as argument, conclusions of law, or comment. The paragraphs do not recite facts pertinent to this case. Paragraphs 13, 14, and the first two sentences of paragraph 15 are accepted. The remainder of paragraph IS is rejected as argument. The first two sentences of paragraph 16 are accepted. The remainder of the paragraph is rejected as comment or argument. Paragraph 17 is accepted. Paragraph 18 is rejected as argument. To the extent that paragraph 19 accurately describes Van de Kreeke's assessment of the report it is accepted; otherwise rejected as irrelevant, comment, argument, recitation of testimony or unsupported by the record. The report upon which comment is directed was not offered in this cause to prove its truth/accuracy. Paragraphs 20 through 22 are rejected as comment, argument, recitation of testimony or unsupported by the record-- see comment to paragraph 19 above. Paragraphs 23 through 26 are accepted. Paragraphs 27 and 28 are rejected as argument, comment, or contrary to the weight of the evidence. Paragraphs 29 and 30 are accepted. Paragraph 31 is rejected as argument or contrary to the weight of the evidence. Paragraphs 32 and 33 are accepted. Paragraph 34 is rejected as hearsay, irrelevant, or argument. Paragraph 35 is rejected as comment or argument. Paragraph 36 is accepted. Paragraphs 37 through 40 are rejected as argument or contrary to the weight of the evidence. Paragraphs 41 through 43 are accepted. Paragraph 44 is rejected as contrary to the record. Paragraph 45 is rejected as argument. Paragraph 46 is rejected as argument or contrary to the weight of the evidence. Paragraph 47 is accepted but is comment. Paragraphs 48 and 49 are accepted. Paragraph 50 is rejected as repetitive. Paragraph 51 is rejected as argument or conclusions of law. The first three sentences of paragraph 52 are accepted. The remainder of the paragraph is rejected as argument. The first sentence and that portion of the second sentence of paragraph 53 that ends with the word "authenticity" is accepted. The remainder of the paragraph is rejected as argument or conclusions of law. Paragraphs 54 and 55 are accepted. Paragraph 56 is rejected as irrelevant or hearsay. Paragraph 57 is rejected as hearsay. Paragraph 58 is rejected as argument, comment, or irrelevant. Paragraphs 59 through 66 are accepted. Paragraph 67 is rejected as contrary to the weight of the evidence. Paragraph 68 is rejected as contrary to the weight of the evidence. Paragraphs 69 and 70 are accepted. Paragraph 71 is rejected as repetitive. Paragraph 72 is rejected as argument. The first sentence of paragraph 73 is accepted; the remainder is rejected as contrary to the weight of the evidence. Paragraph 74 is accepted. Paragraphs 75 through 77 are rejected as contrary to the weight of the evidence. Paragraphs 78 and 79 are accepted. Paragraph 80 is rejected as repetitive. With the inclusion of the words "and hardbottom and algae" paragraph 81 is accepted. Paragraph 82 is accepted. Paragraph 83 is accepted. Paragraph 84 is rejected as contrary to the weight of the evidence. 5l. Paragraphs 85 through 89 are accepted. With the substitution of the word "not" for the word "ever" in the last sentence of paragraph 90, it is accepted. Paragraphs 91 through 94 are accepted. Paragraph 95 is rejected as not supported by the record or contrary to the weight of the evidence. Paragraphs 96 through 100 are accepted. Paragraph 101 is rejected as repetitive. Paragraphs 102 through 106 are rejected as argument, comment, or irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraph 1 is accepted. Paragraph 2 is rejected as contrary to the weight of the credible evidence. The waters within the basin are of the same origin as they were prior to the creation of the jetty; no artificial body of water was created. With regard to paragraph 3 it is accepted that the jetty was constructed in the late 1960s. Paragraph 4 is accepted. With regard to paragraph 5 it is accepted that that is the applicants proposal no conclusion as to the likelihood of that is reached. Paragraph 5 is accepted. Paragraph 6 is accepted. Inevitably, however, spills will occur and must be considered as an adverse affect of the project. Paragraph 7 is accepted. Paragraph 8 is rejected as unsupported by competent evidence or contrary to the weight of the evidence presented. Paragraph 9 is rejected as contrary to the weight of the evidence. Paragraph 10 is accepted. Paragraph 11 is accepted but is inadequate to offset the adverse affects to manatees. Paragraph 12 is accepted but is inadequate to limit the adverse affects to sea grass. Paragraph 13 is rejected as contrary to the weight of the evidence. Paragraph 14 is rejected as contrary to the weight of the evidence. Paragraph 15 is accepted. Paragraph 16 is accepted. Paragraphs 17 and 18 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE APPLICANT: Paragraphs 1 through the first sentence of paragraph 6 are accepted. The second sentence of paragraph 6 is rejected as contrary to the weight of the evidence. Paragraphs 7 through Il are accepted. Paragraph 12 is rejected as irrelevant. Paragraphs 13 through the first sentence of paragraph 17 are accepted. The remainder of paragraph 17 is rejected as contrary to the weight of the evidence. Paragraph 18 is accepted. Paragraph 19 is rejected as unsupported by the record or contrary to the weight of the evidence. Paragraph 20 is accepted. Paragraphs 21 through 26 are rejected as contrary to the weight of the evidence. Paragraph 27 is rejected as contrary to the weight of the evidence or unsupported by competent evidence. The first sentence of paragraph 28 is accepted, the remainder rejected as speculative, comment, or unsupported by the record. The first sentence of paragraph 29 is accepted, the remainder rejected as contrary to the weight of the evidence. Paragraph 30 is accepted. Paragraph 31 is rejected as contrary to the weight of the evidence. Paragraph 32 is rejected as contrary to the weight of the evidence. Paragraph 33 is accepted but is irrelevant. Paragraph 34 is rejected as contrary to the weight of the evidence. Paragraph 35 is accepted; however, sea grasses not disturbed by dredging will still suffer adverse affects from shading and silting. Paragraph 36 is accepted but see comment to paragraph 35 above. Paragraph 37 is accepted. Paragraph 38 is accepted. Paragraph 39 is accepted but is irrelevant. Paragraph 40 is accepted. Paragraph 41 is accepted. Paragraph 42 is accepted. Paragraph 43 is rejected as irrelevant. Paragraph 44 is rejected as contrary to the weight of the evidence. Paragraph 45 is accepted but it should be noted that is not the extent of the proposal. Paragraph 46 is rejected as contrary to the weight of the evidence. Paragraph 47 is accepted. Paragraph 48 is rejected as contrary to the weight of the evidence. Paragraph 49 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: Pamela Presnell Garvin Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Charles Lee Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Robert Routa P.O. Box 6506 Tallahassee, Florida 32314-6506 Linda McMullen McFARLAIN, STERNSTEIN, WILEY & CASSEDY, P.A. 600 First Florida Bank Building Tallahassee, Florida 32301 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
