The Issue The issues to be determined in this appeal are whether the decision of the Community Development Board (Board) to approve Flexible Development Application FLD2017-07012 filed by Gulfview Lodging, LLP (Gulfview), cannot be sustained by substantial competent evidence before the Board, or that the decision of the Board departs from the essential requirements of law.
Findings Of Fact The 0.59-acre project site is located at the northeast corner of South Gulfview Boulevard and Fifth Street and wraps around the McDonald’s parking lot and Frenchy’s Beach Café (Frenchy’s) to the west. The project site includes two parcels owned by Gulfview, and 2,195.09 square feet of the South Gulfview Boulevard right-of-way, which will need to be vacated by the City. Gulfview’s proposal is to demolish all structures currently on the project site and build a seven-floor hotel with 150 units per acre, which would be 88 rooms if the City vacates the 2,195.09 feet of right-of-way. Gulfview’s application for development approval was filed with the City on July 28, 2017, including design plans. The subject property is zoned Tourist (T) District with an underlying Future Land Use Plan (FLUP) category of Resort Facilities High (RFH). The subject site is located in the Beach Walk district of Beach by Design.2/ The maximum permitted density for the site pursuant to Beach by Design is 150 units per acre. The application contemplates a subsequent vacation process for the 2,195.09 square feet of City right-of-way. On July 20, 2017, the City Council approved the allocation of up to 59 units from the Hotel Density Reserve under Beach by Design (Case No. HDA2017-04001) and adopted a resolution to the same effect (Res. No. 17-19). Preston’s attorney admitted that he attended the July 20, 2017, City Council hearing that resulted in the July 28, 2017, Hotel Density Reserve Development Agreement (Development Agreement) between Gulfview and the City. Preston’s attorney attended the July 20 City Council hearing on behalf of Frenchy’s, but conceded to the Board and at oral argument that Frenchy’s is located on the land owned by Preston, as trustee, and Preston is the sole shareholder of Frenchy’s. The Development Agreement was recorded in Book 19727, Page 2465-2503 of the Public Records of Pinellas County, Florida, on August 2, 2017. The Development Agreement includes Exhibit “B”-- the same set of design plans that were filed with Gulfview’s July 28, 2017, application for development approval. Section 6.2.4 of the Development Agreement specifically states: The overall number of proposed units density provided for by this Agreement (88 units) is contingent upon the proposed vacation of the 2,195.09 square feet of South Gulfview Boulevard right-of-way within the Beach Walk district. The City shall process a right-of- way vacation ordinance to vacate the 2,195.09 square feet of South Gulfview Blvd. right of way within the Beach Walk district conditioned upon submission of a complete set of building plans for construction of the improvements shown on Exhibit “B”. Regardless of whether or not the vacation is granted the maximum permitted density of the property may not exceed 150 units per acre. Gulfview’s application requires a Level Two approval. Under Section 4-206 of the Community Development Code, a Level Two approval requires mailing of a notice of application to owners of properties “within a 200-foot radius of the perimeter boundaries of the subject property.” The notice mailed by the City identifies both the north parcel and the south parcel by address and parcel number. The notice also describes the quasi-judicial public hearing process before the Board and ends with an invitation “to discuss any questions or concerns about the project and/or to better understand the proposal and review the site plan” with the assigned planner. The City Clerk mailed notice of Gulfview’s application to owners of parcels located within 200 feet of the two parcels identified in the notice, including Preston. Preston does not dispute receiving the notice. Section 4-206 of the Community Development Code also requires the posting of a sign on the “parcel proposed for development.” Preston does not dispute that the sign was posted. Preston objected that the mailed and posted notices did not reference the proposal to vacate 2,195.09 square feet of right-of-way. He argued that if he had known more than “a few days ago” when he received the Staff Report ahead of the October 17, 2017, Board meeting that the right-of-way was proposed to be vacated, he would have had expert witnesses at the hearing to give “an equal presentation” in response to Gulfview’s presentation. Preston requested a continuance citing lack of proper notice and insufficient time to prepare for the public hearing. Preston did not introduce any testimony or other evidence regarding the application. Preston’s primary objection to the project was vacation of the right-of-way and he wanted the opportunity to present witnesses regarding that issue. Vacating the right-of-way is a separate process and the hearing before the Board is not the proceeding in which the right-of-way vacation is decided. However, the substantial competent record evidence shows that Preston had actual notice as early as July 20, 2017, that the proposed project contemplated vacating 2,195.09 square feet of right-of-way. Preston’s other objection was that Gulfview’s design plans did not meet the requirements of Beach by Design’s Beach Walk District overlay. Preston argued to the Board that the hotel’s proposed design did not meet the redevelopment goals for addition of facilities and amenities generally described as areas for outdoor dining, outside cafes, and other seaside amenities.3/ However, although Preston had actual notice of the hotel design plans as early as July 20, 2017, he did not introduce any expert testimony or other evidence to support those objections. The Staff Report states that Beach by Design proposed to create a great beach front, known as “Beach Walk,” by relocating South Gulfview Boulevard from the existing right of way. Beach by Design recognized that the redevelopment and revitalization of the properties that front on South Gulfview were and, to a certain extent, still are generally constrained by several factors including small parcel sizes and the Coastal Construction Control Line. As a result, most of the motels and hotels which existed along the east side of South Gulfview would have limited opportunities for redevelopment even if Clearwater Beach were repositioned in the tourism market place. Beach by Design proposed to relocate South Gulfview to the west of its current alignment in order to achieve multiple purposes. First, it would create a drive with a real view of the Beach and the Gulf of Mexico. Second, it would allow the City to vacate the east 35 feet of the existing right of way in favor of the properties along the eastern frontage of existing South Gulfview as an incentive for appropriate redevelopment. Many of those existing properties would substantially benefit from an additional 35 feet of depth which could be used for the addition of facilities and amenities such as safe and comfortable areas for outdoor dining. The creation of Beach Walk and the realignment of South Gulfview Boulevard have all been realized. Several segments of the South Gulfview Boulevard have already been vacated and many of the properties along South Gulfview Boulevard have, in the years since the initial adoption of Beach by Design, been redeveloped with hotels. As noted, this proposal also includes a vacation of a portion of the South Gulfview Boulevard right-of-way which will facilitate the redevelopment of the subject site with a new hotel playing an important role in the ongoing renewal and revitalization of the Beach. Specifically, the vacation will allow for the location of an outdoor seating area providing a strong link between Beach Walk and the proposed hotel as supported by Beach by Design. Therefore, the proposal is consistent with this provision. (Emphasis added). The Staff Report concluded that the proposed project is consistent with applicable provisions of the Community Development Code, applicable components of the City’s Comprehensive Plan, the Beach Walk District of Beach by Design, and the Design Guidelines of Beach by Design. Mark Parry, Senior Planner with the City, testified that “the proposed number of units, 88, is contingent on vacation of that right-of- way,” and if the right-of-way is not later vacated, it “would knock out about eight units.” Mr. Parry also testified that the proposed project provides amenities and an outdoor seating area as specified by Beach by Design. Preston only conducted a very short cross-examination of Mr. Parry, despite having party status to do so. Sue Ann Murphy, an experienced land use planner, also testified that the proposed development complied with all applicable Community Development Code, Comprehensive Plan and Beach by Design requirements. The project architect, Istvan Peteranecz, AIA, was accepted by the Board as an expert. Mr. Peteranecz answered questions from Board members regarding the design of the proposed hotel’s main entrance, including the porte cochere and public seating area adjacent to the Beach Walk and immediately south of Frenchy’s. Preston did not cross- examine Ms. Murphy or Mr. Peteranecz, despite having party status to do so. Substantial competent evidence in the record supports the conclusion that the proposed project is consistent with applicable provisions of the Community Development Code, applicable components of the City’s Comprehensive Plan, the Beach Walk District of Beach by Design, and the Design Guidelines of Beach by Design. At the conclusion of the public hearing, the Board acknowledged Preston’s pending request for continuance and proceeded with discussion. After extensive discussion among the Board members, a motion was made and seconded for the Board “to approve case number FLD2017-07012 based on the evidence, the testimony presented, and the application, the staff report, and at today’s hearing, and to adopt the findings of fact and conclusions of law stated in the staff report with all of the conditions of approval, as listed.” The motion carried. On October 19, 2017, the City entered a Development Order memorializing the Board’s decision. The Development Order includes a Finding of Fact that “[t]he total lot area includes 2,195 square feet of the South Gulfview Boulevard right-of-way which would need to be vacated by the City,” and includes a Condition of Approval that “application for a building permit be submitted no later than October 17, 2019, unless time extensions are granted.” The City represented at oral argument that if the proposed development is not consistent with the Development Order (e.g., if the approximately 2,195 square feet of the South Gulfview Boulevard right-of-way is not vacated), Gulfview will not be able to get a building permit without going through a minor amendment process for a less intense project.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA10-GM-115 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished as indicated to each of the persons listed below on this DW say of , 2010. aula Ford Agency Clerk By U.S. Mail Amy Taylor Petrick, Assistant County Attorney Palm Beach County 300 North Dixie Highway, Suite 359 West Palm Beach, FL 33401 Tel.: (561) 355-2529 Fax.: (561) 255-4324 Email: apetrick@co.palm-beach.fl.us William L. Hyde, Esquire Gunster, Yoakley & Stewart, P.A. 215 S. Monroe Street, Suite 618 Tallahassee, FL 32301 Phone: (850) 521-1980 Facsimile: (850) 576-0902 Email: whyde@gunster.com James M. Crowley, Esquire Gunster, Yoakley & Stewart, P.A. 450 E. Las Olas Blvd., Suite 1400 Fort Lauderdale, FL 33301 Phone: (954) 713-6416 Facsimile: (954) 523-1722 Email: jcrowley@gunster.com FINAL ORDER NO. DCA10-GM-115 Claudia McKenna, City Attorney City of West Palm Beach 401 Clematis Street West Palm Beach, FL 33401 Phone: (561) 882-1350 Facsimile: (561) 822-1373 Email: cmckenna@wpb.org Keith W. Davis, Esquire Trela White, Esquire Attorney for Village of Royal Palm Beach Corbett & White, P.A. 1111 Hypoluxo Road, Suite 207 Lantana, FL 33462 Phone: (561) 586-7116 Facsimile: (561) 586-9611 Email: keith@corbettandwhite.com; trela@corbettandwhite.com By Hand Delivery Richard E. Shine Assistant General Counsel Department of Community Affairs By Interoffice Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675
The Issue The issue for determination at the final hearing was whether the Petitioner Blaha possessed the requisite standing to maintain this action and if so, whether the Applicant Aquarina Developments, Inc., established by a preponderance of the evidence entitlement to a permit from the Coastal Construction Control Line ("CCCL") which would authorize construction of the following: (1) twelve above-ground balconies extending five feet over the CCCL; (2) two roof overhangs extending approximately one foot over the CCCL; (3) two dune walkovers and four decks providing elevated beach access; and (4) a temporary fence extending no more than five feet beyond the CCCL. At the final hearing, the Respondent Aquarina Developments, Inc., (hereafter "Aquarina" or "Applicant") offered Respondent's Exhibits 1-16, which were admitted into evidence. Edward Fleis, Howard J. Teas, Bert Leltz and Ross Witham testified on behalf of the Respondents. Peter Pritchard, Rob Lee and Georges Blaha testified for the Petitioner. Additionally, public comment was taken as provided at Section 120.57(1)(b)(4), Florida Statutes. A Proposed Recommended Order has been submitted by the Respondent Aquarina Developments, Inc. To the extent that the proposed findings submitted by Respondent are not reflected in this Order, they are rejected as unsupported by the weight of credible evidence or as being immaterial to the results reached.
Findings Of Fact By application No. 775-020.61 filed on July 1, 1981, Respondent Aquarina requested a coastal construction permit for construction of portions of twelve cantilevered balconies, two roof overhang sections, a temporary construction fence, four elevated wooden decks, and two dune crossovers, all seaward of an established coastal construction control line ("CCCL") in Brevard County, Florida. The purpose of the proposed structures is to enhance utilization of the beach by residents of Aquarina's PUD located between the Atlantic Ocean and Mullet Creek, a tributary of the Indian River in South Brevard County, while at the same time inhibiting the deleterious effects of unrestrained pedestrian and vehicular access across the beach dune on the property. Respondent Aquarina's project is located on the barrier islands separated from the mainland by the Indian River, thirteen miles south of Melbourne and five miles north of Indian River County. Aquarina proposes to develop a condominium community approved as a PUD by Brevard County, with a projected population of 3,400 persons including 1,600 residential units, a commercial area, and 500 hotel rooms. The project includes at least two condo- mini urn buildings located entirely landward of the CCCL except for the following specific portions: Twelve cantilevered balconies ex- tending approximately five feet beyond the CCCL but not touching the ground; Two roof overhang sections extending approximately one foot beyond the CCCL; Two beach-dune walkover structures to be constructed a maximum of seventy- five feet seaward of the CCCL, which are to provide controlled beach access; Four elevated wooden observation decks constituting integral parts of the walkover structures; A temporary construction fence extending no more than five feet beyond the CCCL. On or about November 20, 1981, the Department indicated its intent to recommend to the Executive Director the issuance of the Applicant's coastal construction permit. After the granting of a requested extension of time, Petitioner Blaha filed objections and a Petition for the Initiation of Formal Proceedings under Section 120.57, Florida Statutes. The Petition raised three issues: Whether construction of the proposed minor structures seaward of the CCCT would harm sea turtles inhabiting the area at issue; Whether a new CCCL should have been set based on changing conditions in the area; Whether the additional shading caused by the proposed structures would harm the dune vegetation system. At the beginning of the hearing, the Hearing Officer heard argument and received evidence on the issues raised by the Motions to Dismiss filed by the Department and the Applicant. The Respondent's Motions raised three issues: Whether the Petitioner had standing to initiate this cause; Whether the alleged impact that the Applicant's proposed coastal construction would have on sea turtles lies within the jurisdiction of the Department and the Hearing Officer under Chapter 161 of the Florida Statutes; and Whether the exact configuration of the CCCL is a proper subject for consi- deration at a hearing challenging the proposed issuance of a coastal construction permit. Petitioner Blaha admitted that he did not live on the beach at issue and in fact lived on the west side of State Road A1A, three miles to the north of the Applicant's proposed project. The Petitioner stated that he was the Director of the Space Coast Branch of Friends of Animals, an environmental organization concerned about wildlife, although not representing the organization in this proceeding, and that he had a general interest in protecting the beach from erosion, a problem affecting everyone on the barrier island. In response to the argument that Petitioner Blaha had no special interest differing in kind from the interests of the general public, the Petitioner alleged that he runs on the beach and observes the sea turtles, arguing that this evinces a more than average interest in protecting the beach and its wildlife. The Hearing Officer also heard argument on whether the Department has jurisdiction to consider potential impacts on the nesting habitats of sea turtles from proposed coastal construction, under Chapter 161, Florida Statutes. Petitioner Blaha urged that although Section 161.053, Florida Statutes and the rules promulgated thereunder do not address sea turtles and their protection, the statute should be so interpreted. The Department responded that any jurisdiction it may have over sea turtles would be reposited in its Marine Resource Division, not in the permitting procedures for a coastal construction permit. In addition, federal laws protect endangered sea turtles, and the federal government has primary jurisdiction over the regulation of the nesting habitats of such sea turtles. Similarly, the Applicant and the Department pointed out that the Petitioner's criticism of the placement of the present CCCL falls outside the scope of a hearing on the issuance of a coastal construction permit, since Section 120.54, Florida Statutes provides for rulemaking proceedings for those attempting to change a rule established CCCL and Rule 16B-33.10, Florida Administrative Code, contains provisions for CCCL revisions or modifications on application of a riparian owner of property at or on the CCCL. Petitioner Blaha is not a riparian property owner and this was not a proceeding under Section 120.54, Florida Statutes. Respondent Aquarina established that it had taken and would continue to take all reasonable actions necessary to ensure the protection of sea turtles that inhabit the site through public relations campaigns and public advertisements to educate the public and especially the residents of the PUD and through architectural design efforts and dareful construction practices that will limit the impact of the proposed development on sea turtles and their nesting habitats. Moreover, to the extent that the development might have an impact on sea turtles, the source of the impact would not primarily be the structures at issue in these proceedings, but the buildings, parking lots, and other human habitation lying landward of the CCCL. The proposed temporary construction fence to be placed five feet beyond the CCCL will help conserve the dunes by limiting the potential impact of construction, and the Respondent Aquarina has agreed to restore that affected area to its natural state upon the completion of construction. Most importantly, the proposed dune crossovers will protect the dunes from the destruction that is occurring in the dunes to the north of the project and on the project site itself because of unrestrained pedestrian and vehicular traffic over and/or through the dunes and the accompanying destruction of dune vegetation in those areas. The dune crossovers are wooden walkways on raised pilings designed to have as little contact with the dunes as possible, with railings to restrain pedestrians from straying away from this direct access from the condominiums to the beach. The crossovers will make it unnecessary and undesirable for residents and visitors to create alternative foot paths through the heavy dune vegetation to the beach. Coupled with the educational program already being implemented by Aquarina, the dune crossovers should help to conserve the dunes. The Respondent Aquarina established that the incremental shading caused by the proposed roof overhangs extending about one foot beyond the CCCL and the cantilevered balconies extending approximately five feet beyond the CCCL would not significantly add to the shading from the buildings themselves, which lie entirely landward of the CCCL. The evidence showed that even the impact of the shading from the landward buildings would have no significant impact on the dune vegetation system or increase the rate of erosion or deterioration of the dune. See Rule 16B-33.02(23)(b), Florida Administrative Code. The additional impact from the minor structures for which the Respondent Aquarina seeks its permit should be minimal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent Department of Natural Resources, through its Executive Director, grant the requested construction control permit to the Applicant Aquarina Developments, Inc., subject to the conditions stated in the proposed permit (No. BE-80), the draft of which was attached to the Department's letter of November 20, 1981, notifying Petitioner Blaha of the Department's intent to issue the requested permit. DONE and ORDERED this 25th day of October, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1982. COPIES FURNISHED: Georges Blaha 280 Flamingo Drive Melbourne Beach, Florida 32951 Deborah A. Getzoff, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Clifford A. Schulman, Esquire GREENBERG TRAURIG ASKEW HOFFMAN LIPOFF QUENTEL & WOLFF, P.A. 1401 Brickell Avenue Miami, Florida 33131 Henry Dean, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Executive Director Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303
Findings Of Fact Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application numbers SJ 220, SJ 221 and SJ 222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
The Issue The issue for determination is whether the Town of Indian River Shores is entitled to a coastal construction control line permit to construct a beach access seaward of the coastal construction control line in Indian River Shores, Florida.
Findings Of Fact The Town of Indian River Shores (Town) is an incorporated municipality located on a five-mile stretch of the Atlantic Ocean in Indian River County, Florida. The Town has a population of approximately 2,700 residents. The Town's Public Safety Department has the combined functions of law enforcement, fire protection, and life support (lifesaving). All of the Officers of the Public Safety Department are cross-trained and cross-designated as police officers, firefighters, and emergency service specialists who are either paramedics or emergency medical technicians (EMTs). The Officers are on eight-hour shifts; each shift has approximately four to five Officers on duty, i.e., a police officer, a firefighter, a paramedic, and an EMT. When fully staffed, the Public Safety Department consists of 25 Officers. Because of the small number of Officers and their varied duties, restrictions and limitations are placed on their deployment. One of the vehicles used by the Public Safety Department in the performance of duties is an all terrain vehicle (ATV). The Public Safety Department has one ATV which is used on the beach for patrol and rescue purposes and for moving rescue and lifesaving equipment to and from the beach. In order to access the beach, the Public Safety Department must travel across the dune, primarily through private property (Corrigan Beach) located approximately 3.4 miles from the office of the Public Safety Department. The Town determined that this location was unsatisfactory for beach access due to the property being offered for sale, the great distance of the property from the Public Safety Department's office, and the dune being breached each time the ATV is taken onto the beach. The Town determined, however, that Beachcomber Lane, a public street within the Town, was the best choice for beach access and entry by the Public Safety Department. Beachcomber Lane is approximately 1,000 feet in total length and extends from Highway A1A to the bluff of the Atlantic Ocean. The Pubic Safety Department is located approximately 1,500 feet from Beachcomber Lane. The residents of Beachcomber Lane include Peter Broom, Jeremy R. Geffen, and Duane Jackson. At various times, the Public Safety Department has also used Beachcomber Lane as an access to the beach on emergency bases. Currently, a public raised wooden walkway, with steps, leads over the dune and onto the beach at the Atlantic Ocean end of Beachcomber Lane. In order for the Public Safety Department to obtain beach access by way of Beachcomber Lane, an access ramp will have to be constructed seaward of the coastal construction control line (CCCL). Such construction requires, among other things, a permit from the Department of Environmental Protection (DEP). To design and present the plan to the DEP for a proposed beach access by way of Beachcomber Lane, the Town obtained the services of Coastal Technology Corporation (Coastal Technology), an engineering firm. On July 24, 1996, Coastal Technology filed an application on behalf of the Town with the DEP for a permit to construct a beach access ramp seaward of the CCCL. The application process included the submission of detailed drawings and other documents required by DEP. In the application, Coastal Technology described the construction, in pertinent part, as follows: 6. The proposed work consists of the removal of Brazilian Pepper . . . and installation of a 100 foot (approximate) long, 10 foot wide stabilized emergency access ramp. To minimize the impact to the existing native vegetation, the proposed emergency access ramp will be located approximately 8 feet from the north Right-of-Way within the area of the existing Brazilian Peppers. . . . A 2-inch layer of washed concrete sand will be placed between the limestone and paver blocks for a proper leveling of the previous paver blocks. The paver blocks will be TURFSTONE . . . which . . . have been permitted by DEP at other locations. . . . The openings in the TURFSTONE will be filled with excavated beach sand from the proposed access ramp footprint. Any remaining sand . . . will be placed at the seaward end of the proposed access ramp. To mitigate for any potential impact to native vegetation, 6 sea grapes will be installed . . . and any sea oats removed during excavation will be kept alive and replanted within those areas void of sea oats. Three 6-inch by 6-inch pressure treated posts will be installed with a chain fence. A locking chain fence will be used to prohibit the general public from accessing the beach through the emergency access ramp. In the application, Coastal Technology presented the justification for the construction, in pertinent part, as follows: 7. The proposed access ramp at Beachcomber Lane is specifically for the use by the Town of Indian River Shores for emergency access to the beach. The access ramp will have a locking chain only accessible by the Public Safety Department and has been designed to accommodate four-wheel drive patrol and EMT vehicles. . . . Beachcomber Land [sic] site was chosen by the Town because of : 1) the relative stability of the shoreline at that location; and, [sic] 2) accessibility from the Indian River Shores Town Hall which is on the west side of A1A across from Beachcomber Lane. The application indicated that the proposed beach access ramp was being constructed for emergency access to the beach. However, prior to the filing of the application, both emergency and routine patrol access by the Public Safety Department were discussed as uses for the access ramp at public meetings by the Town's public officials in which the subject of the access ramp was brought up. Such use for the beach access ramp was contemplated by the Town from the very inception of the plan for the access ramp. Routine patrol is defined by the Public Safety Department to be patrolling approximately every other day for one or two hours. By notice dated August 7, 1996, the DEP requested public comment on the Town's application for the CCCL permit. By letter dated August 21, 1996, residents of Beachcomber Lane, including Mr. Broom, Mr. Geffen, and Mr. Jackson, provided the DEP with their comments on the Town's application. On September 3, 1996, the Town's application for the CCCL permit was considered complete by the DEP. On November 6, 1996, at the request of DEP, the Town conducted a public meeting to obtain public comments regarding the proposed beach access ramp. The residents of Beachcomber Lane were notified of the public meeting, and among the residents attending the meeting were Mr. Broom, Mr. Geffen, and Mr. Jackson. At the public meeting, the Town clearly stated that the proposed beach access ramp would be used by the Public Safety Department for both emergency and routine patrol purposes with the ATV. Also, the Director of the Public Safety Department indicated that, based upon information collected regarding criminal activity and suspected criminal activity along the beach, routine patrol was needed.2 The application process culminated in the issuance of a Final Order by the DEP on November 27, 1996, granting the CCCL permit, with special permitting conditions in addition to the standard conditions. The CCCL permit granted by the DEP was Permit No. IR-507. The proposed beach access ramp to be constructed is approximately 100 feet in length and 10 feet in width. The construction will utilize turf blocks which permit grass and foliage to grow through the blocks on the access-way. A provision of the DEP Final Order requires the removal of exotic plants (Brazilian Pepper), which are not native plants, and the replanting of native vegetation adjacent to the access-way. On December 6, 1996, public notice of DEP's issuance of the CCCL permit to the Town was published in the Town's local newspaper. The Town agrees to abide by the special conditions, as well as the standard conditions, to the issuance of the CCCL permit. The beach access ramp on Beachcomber Lane will be used by the Town's Public Safety Department for public service purposes, including emergency rescue, training, and routine patrol. Beachcomber Lane is the appropriate location for the beach access ramp. The DEP has determined that the construction of the beach access ramp meets all the requirements of the DEP for the issuance of the CCCL permit. The DEP has determined the proposed beach access ramp to be a minor structure. The construction of the proposed beach access ramp will cause no significant adverse impact or cumulative impact on the beach dune system. The design of the proposed beach access, with the conditions added by the DEP, minimizes adverse impact of the access ramp. Native vegetation will be maintained and replenished around the proposed beach access ramp. The proposed construction of the beach access ramp will not result in a significant adverse impact to the beach and dune system. No net excavation in the sandy soils seaward of the control line will result from the construction. No structurally induced scour will result from the construction because the proposed structure is designed to break- away during a storm. The potential for wind and waterborne missiles during a storm is minimized by the construction. Public access to the beach is not interfered with by the beach access ramp. The construction of the beach access ramp will occur in a nesting habitat of the marine turtle, i.e., loggerhead, leatherback and green turtle. The DEP addressed protection of the nesting area through one of its special conditions to the issuance of the CCCL permit. The special condition included "no construction, operation, transportation or storage of equipment or materials seaward of the dune crest during the marine turtle nesting season" which is March 1 through October 31 of each year. With this special condition, the construction, itself, will have no adverse impact on the marine turtle or the turtle nesting. The Town agrees to abide by this special condition.3 The access ramp, itself, will have minimal impact on the marine turtles and will not cause a "take" of the turtles. Furthermore, the use of the ATV by the Public Safety Department will have no adverse impact on the marine turtles or the turtle nesting. At hearing, the DEP made another recommendation for the issuance of the CCCL permit, involving the marine turtle. Prior to the issuance of the Final Order, the DEP was not fully aware that the proposed beach access ramp was to be used for both emergency and routine patrol access. Having considered the circumstance of routine patrol, the DEP further recommends that a survey of turtle nesting be conducted after construction, but prior to routine use, on the Town's entire five-mile stretch along the Atlantic Ocean to mark turtle nesting areas for their protection and to place certain restrictions on the use of the ATV vehicle. This recommendation will not prohibit or hinder the construction of the beach access ramp.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Town of Indian River Shores the Coastal Construction Control Line Permit No. IR-507, with the special conditions as may be required by the Department for the protection of marine turtles. DONE AND ENTERED this 8th day of December, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1997.
The Issue At issue in this proceeding is whether development orders (building permits) issued by Monroe County to John F. Myers are consistent with the Monroe County Comprehensive Plan and land development regulations.
Findings Of Fact Findings based on parties' stipulations John F. Myers is the owner of real property known as Lot 43, Block 3, Lower Matecumbe Beach subdivision, Lower Matecumbe Key, in unincorporated Monroe County, Florida. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development orders which are the subjects of this proceeding. Petitioner Department of Community Affairs is the state land planning agency with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and regulations promulgated thereunder; and with authority to appeal any development order issued in an area of critical state concern to the Florida Land and Water Adjudicatory Commission. Sections 380.031(18), 380.032, 380.07(2), Florida Statutes. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern, as designated under Sections 380.05 and 380.0552, Florida Statutes. These statutory provisions require that Monroe County adopt and implement a comprehensive plan and land development regulations consistent with the Principles for Guiding Development. Section 380.0552(7), Florida Statutes, formerly Chapter 27F-8, F.A.C. Monroe County has adopted a comprehensive plan, effective September 15, 1986, which complies with the Principles for Guiding Development and which has been approved by the Department in Chapter 9J-14, F.A.C., and by the Administration Commission in Chapter 28-29, F.A.C. The Monroe County comprehensive plan is implemented by and through its adopted land development regulations, codified primarily in Chapter 9.5, Monroe County Code (MCC). On December 10, 1993, Monroe County issued to Respondent Myers seven (7) building permits, each numbered 9230005763, for development of a 4,418 square foot single-family residence with 1,363 square feet of porches, and a 2,300 square foot ground slab. The permits also authorize development of a 183 square foot retaining wall, 38 pilings, and a "dock 183 sq. ft x 8ft." on the subject property. The permits were rendered to the Department on December 14, 1993. The open water shoreline on the subject property has accreted. Included in the environmental standards of the Monroe County land development regulations is Section 9.5-345, Monroe County Code, entitled "Environmental design criteria," which provides, in relevant part: Disturbed Lands: All structures developed, used or occupied on land which are [sic] classified as disturbed on the existing conditions map shall be designated, located and constructed such that: * * * (3) On lands classified as disturbed with beach berm: * * * b. No beach-berm material is excavated or removed and no fill is deposited on a beach berm; * * * f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds; Lower Matecumbe beach is an active nesting area for marine turtles. Loggerhead turtles, the primary marine turtles which nest on Atlantic beaches in the Keys, are a threatened species under the federal Endangered Species Act. There are thirty beaches in the Florida Keys which consist of loggerhead nesting habitat. The beach on Lower Matecumbe Key, including that portion of the beach which fronts on Mr. Myers' property, is a known turtle nesting beach that is ranked as the second most heavily nested beach in the Keys. The Monroe County comprehensive plan recognizes the beaches on Lower Matecumbe Key as known loggerhead turtle nesting beaches. Pursuant to the comprehensive plan, the County has prepared endangered species maps as a tool to be utilized in identifying known turtle nesting areas. Surveys of turtle nesting behavior in the Florida Keys are accomplished through a network of volunteers. The nesting survey information obtained from this volunteer network provides very general locations with varying degrees of accuracy depending on the number and ability of the volunteers and the extent to which they can obtain access to privately owned beach front property. Because of the limitations in the survey data, it is not generally possible to determine whether turtles have nested on a particular lot. Marine turtles most commonly nest within the first 50 feet landward of the mean high tide line, although they have been known to go farther upland. Because of the compressed beach and berm habitat in the Keys, loggerhead turtles have been known to nest in grassy vegetation and woody vegetation more than 50 feet landward of the mean high water line. Mr. Myers' property is properly designated as "disturbed lands" and there exists on this property a "beach-berm complex" which is known to serve as an active nesting area of marine turtles within the meaning of Section 9.5-345, Monroe County Code. The setback requirement found in Section 9.5-345, Monroe County Code, applies to this development. Consequently, no structure may be located within fifty (50) feet of any portion of the beach-berm complex which is known to serve as an active nesting area of marine turtles. Section 9.5-4(B-3), Monroe County Code, contains the following definition that is pertinent to this proceeding: (B-3) "Beach berm" means a bare, sandy shore- line with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. According to the Monroe County Comprehensive Plan, the biota characteristic of beach systems in the Keys occur in up to four distinct generalized zones or associations, assemblages of plants and animals that have adapted to the environmental conditions of that zone. The zones on Keys beaches are described by Volume I of the Comprehensive Plan as follows: The strand-beach association is dominated by plants that are salt tolerant, root quickly, germinate from seed rapidly, and can withstand wave wash and shifting sand. Commonly found species include Sea Purslane (Sesuvium portulacastrum), Railroad Vine (Ipomoea pescaprae), Beach Grass (Panicum amarulum), Sea Oats (Uniola paniculata), Sea Lavender (Tournefortia gnapholodes), Coastal Ragweed (Ambrosia hispida) Bay Cedar (Suriana maritma), Cenchrus and Chamaesyce. On most Keys beaches this association occurs only at the base of the berm since the beach zone is very narrow. These plants also occupy the most seaward portion of the berm and continue some distance landward. * * * The next zone, "strand-dune" association begins with a steep and distinct increase in slope upward from the beach. This sloping portion of the berm receives the effects of the highest spring tides as well as storm-generated wave wash. The berm may be elevated only several inches or as much as several feet above the level of the beach and may extend landward hundreds of feet as a flat-topped plateau or beach ridge. The foreslope of the berm, or beach ridge, is vegetated primarily by the above-listed species of beach association. Grasses and herbaceous plants, which serve to stabilize this area, are most common. Proceeding landward, these pioneer species are joined by other species. * * * The strand-scrub association is generally considered a transition zone between strand-dune and hammock forest. Shrubs and occasional trees occur more frequently here and become more abundant as one proceeds landward. Species often found include Seagrape, . . . Wild Sage (Lantana involucrata), [and] Gray Nicker. . . . The most landward zone on the berm is occupied by tropical hardwood hammocks. On September 11, 1986, Monroe County issued building permit no. 20360 to John Brockway, Respondent Myers' predecessor in title, for development of a single-family residence on the subject property. The permit was issued prior to the effective date of the current Monroe County comprehensive plan and land development regulations, and prior to adoption of the setback provision in Section 9.5-345(o)(3)f., Monroe County Code, which is the subject of this proceeding. The Department of Community Affairs did not challenge the Brockway permit. In 1990, the Board of Trustees of the Internal Improvement Trust Fund issued to John and Patricia Brockway a deed for sovereignty submerged lands adjacent to the subject property. The County-approved site plans for the subject permits indicate that excavation for a stormwater swale will occur seaward of the proposed residence. Mr. Myers has no intent to excavate a stormwater swale seaward of the proposed residence. The subject building permits and approved plans shall be revised to eliminate the stormwater swale and demonstrate the means by which stormwater runoff will be addressed, as required by the Monroe County Code. Based upon this agreement, the Department will not pursue its allegation that the permits are inconsistent with section 9.5-345(0)(3)b., Monroe County Code, and considers that issue to be resolved by this agreement. The parties agree that that portion of the subject permits which authorizes development of a dock on Lot 43 is acceptable, and a dock may be developed on Lot 43, so long as the permits are amended to specify that (a) the dock shall be developed adjacent to Lot 43 on an existing dredged channel and not on the jetty or open water shoreline, and (b) development of the dock is conditioned upon the Owner obtaining permits for a principal use. Findings based on evidence at hearing The subject property is generally triangular in shape. It fronts on a cul-de-sac on the northeast side. Along the west side of the property is a dredged channel and a jetty or riprap revetment. Along the south side the property fronts on the Atlantic Ocean. On the east side of the property is a single-family residence. The subject property is undeveloped except for a fill pad or fill pile established some time ago around the cul-de-sac to the western side of the property. The purpose of the setback requirement in Section 9.5-345(o)(3)f., Monroe County Code, is to provide a habitat buffer to protect marine turtles from direct and indirect impacts of development, such as lighting impacts, noise, and clearing activities behind structures when people use their back yards. Buffers are a commonly used planning technique for both planning purposes and environmental purposes. The beach berm on the subject property has not moved over time. The shoreline has accreted in recent years and therefore the mean high tide line has moved seaward. This accretion provides additional habitat for marine turtles and affects the setback measurement when it is expressed as a number of feet from mean high water, as both parties have done in this case. However, the fact that a shoreline is either accreting or eroding is not relevant to a determination of the location of the beach berm. The parties agree that the berm is identified, at least in part, by a visual assessment of the increase and decrease in elevation of the property. A berm is essentially a rise in elevation which, moving landward from the water, rises up to a high point then begins to drop back off gradually until one reaches the adjacent grade or the natural grade beyond the berm. When the grade flattens out, that is generally the landward extent of the berm. The greater weight of the evidence shows that the landward extent of the beach berm complex on Respondent's property, and the area commonly utilized by marine turtles as nesting habitat are each approximately 50 feet landward of the mean high water line depicted on the June 1994 survey of Respondent's property. Expressed as a measurement from mean high water, the setback required by Section 9.5-345(o)(3)f., Monroe County Code, on Respondent's property is approximately 100 feet. A variance from the setback provision in Section 9.5-345(o)(3)f., Monroe County Code, is not authorized. However, a variance from the front yard setback may be available to Respondent if he wishes to develop the particular single-family residence shown on the plans approved with the subject permits. The Monroe County comprehensive plan, Vol. I, Background Data Element, Section (3) entitled "Community Character," provides: A principal focus of growth management is the protection and enhancement of quality of life. Community character is a fundamental element of the circumstances described as quality of life. Community character refers to the nature of an area and can be described in terms of both the natural and the built environment. For example, the character of an undeveloped area is determined by the natural environment and is characterized by extensive open space and other environmental values. In contrast, the character of a city is defined by the built environment and the quality of life depends upon the design and effect of buildings. * * * . . . . In the Keys there are readily identifiable community characters that can be defined by the nature and extent of various land uses per community. These community character types are: Native, Sparsely Settled, Sub-Urban, Urban Transition and Urban. The comprehensive plan goes on to describe each type of community character, and includes a lengthy discussion of the criteria for determining community character. These criteria include land use, design of man-made elements including intensity of buildings and the nature of open spaces, landscaping, and social interactions and experiences. Setbacks are not mentioned in the list of criteria for determining community character or in the descriptions of the various community character types. Regardless of whether other homes in the neighborhood meet the setback requirement in Section 9.5-345(o)(3)f., Monroe County Code, requiring Respondent to do so will not affect the community character of the neighborhood as defined in the Monroe County comprehensive plan.
Recommendation Based upon the foregoing it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying permission to develop under Monroe County building permits no. 9230005763 as issued on December 10, 1993. It is further RECOMMENDED that the final order state that Respondent will become eligible for permits if his development plans are modified as provided in paragraph 40 of the Conclusions of Law. DONE AND ENTERED this 15th day of August 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August 1995. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by Petitioner: Paragraphs 1 through 7: Accepted. Paragraph 8: Rejected as constituting a conclusion of law, rather than a proposed finding of fact. Paragraphs 9 through 14: Accepted. Paragraphs 15 and 16: Rejected as statements of position or legal argument, rather than proposed findings of fact. (The statements in these paragraphs are essentially correct, but they are not proposed findings of fact.) Paragraphs 17 through 20: Rejected as further statements of position or legal argument, rather than proposed findings of fact. (To the extent necessary, the parties' positions are addressed in the conclusions of law portion of this Recommended Order.) Paragraph 21: Accepted. (This is a stipulated "fact".) Paragraphs 22 through 24: Accepted, with some minor clarification. Paragraphs 25 through 34: Rejected as subordinate and unnecessary details. (Most of the details proposed in these paragraphs are supported by the evidence and all were considered in the formulation of the ultimate findings of material fact, but none of these details need to be included in the findings of fact in this Recommended Order. The findings proposed in paragraph 33 are rejected for the additional reason that they are supported only be uncorroborated hearsay evidence.) Paragraphs 35 and 36: Accepted in substance. Paragraph 37: Rejected as a statement of position, rather than a proposed finding of fact. Paragraphs 38 and 39: Accepted. Paragraph 40: Rejected as constituting argument, rather than proposed findings of fact. Paragraph 41: Accepted. Paragraphs 42 and 43: Rejected as constituting argument, rather than proposed findings of fact. Findings proposed by Respondent: Paragraphs 1 through 14: Accepted. (These are all stipulated facts.) Paragraph 15: Accepted. Paragraph 16: Rejected as subordinate and unnecessary details. Paragraph 17: First and last sentences rejected as irrelevant. Middle sentence accepted. Paragraph 18: First sentence accepted. Last sentence rejected as subordinate and unnecessary details. Paragraph 19: Most of this paragraph is rejected as subordinate and unnecessary details or as irrelevant. Some portions are rejected as not fully supported by persuasive evidence. Paragraph 20: First sentence rejected as too broadly worded to be meaningful. The last sentence is rejected as being a conclusion that is not warranted by the evidence. Paragraph 21: Accepted. Paragraph 22: First three sentences rejected as subordinate and unnecessary details. Last sentence accepted. Paragraph 23: First sentence rejected as not fully supported by the evidence. The berm line is, in general, a gentle curve that for the most part runs parallel to the gentle curve of the shore line. Second sentence is rejected as irrelevant or as unduly repetitious. Paragraph 24: Second sentence accepted. The remainder of this paragraph is rejected as subordinate and unnecessary details or as irrelevant. Paragraph 25: The first sentence is rejected as not fully supported by the persuasive evidence; the evidence is too vague to support the use of the word "immediately" in this context. The second sentence is rejected as irrelevant. The third, fourth, fifth, and sixth sentences are rejected as being contrary to the greater weight of the persuasive evidence. Paragraph 26: The first four sentences are rejected as subordinate and unnecessary details because the greater weight of the evidence is consistent with the version put forth by the Petitioner's witnesses. Greater confidence has been placed in the measurements by the Petitioner's witnesses than in the conflicting measurements described by Respondent's expert witness. The fifth sentence is accepted in substance. The sixth and seventh sentences are rejected as consisting of arguments or of conclusions that are contrary to the greater weight of the evidence. Paragraphs 27 and 28: Rejected as subordinate and unnecessary details. Paragraph 29: First two sentences rejected as argument. Third and fourth sentences rejected as contrary to the greater weight of the evidence and as apparently based on testimony that has been taken out of context or has been misunderstood. Fifth sentence rejected as argument. Sixth sentence rejected as an over-simplification. Seventh sentence rejected as an argument or conclusion that is contrary to the greater weight of the evidence. Paragraph 30: Rejected as unnecessary summaries of testimony, rather than proposed findings of fact. Further, these summaries are, for the most part, either not fully supported by persuasive competent substantial evidence or are contrary to the greater weight of the evidence. Some of these summaries also emphasize details that are apparently based on a misunderstanding or misinterpretation of selected portions of the evidence and ignore the greater weight of the evidence. Paragraph 31: First sentence rejected as not supported by persuasive competent substantial evidence. (To the contrary, it appears to be based on a misunderstanding or a misinterpretation of Mr. Metcalf's testimony.) The second, third, and fourth sentences are rejected as argument; specifically, argument that is contrary to the greater weight of the evidence. Paragraph 32: Rejected as argument; specifically, argument that is contrary to the greater weight of the evidence. COPIES FURNISHED: Sherry A. Spiers, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Stephanie M. Gehres, Esquire Department of Community Affairs 2796 Overseas Highway, Suite 212 Marathon, Florida 32301-1859 Chris Haughee, Esquire Akerman, Senterfitt & Eidson, P.A. 216 South Monroe Street, Suite 200 Post Office Box 10555 Tallahassee, Florida 32301 Randy Ludacer, Esquire Fleming Street Key West, Florida 33040 Carolyn Dekle, Director South Florida Regional Planning Council 3400 Hollywood Boulevard, Suite 140 Hollywood, Florida 33021 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Bob Bradley, Secretary Florida Land & Water Adjudicatory Commission Carlton Building Tallahassee, Florida 32301
The Issue The issue is whether Petitioner must forfeit his vested benefits in the Florida Retirement System (FRS), pursuant to section 112.3173(3), Florida Statutes, due to Respondent's commission of an act of extortion, as defined in section 836.05, Florida Statutes.
Findings Of Fact Petitioner has lived for much of his life in West Palm Beach. Petitioner's family owned a Pepsi-Cola bottling company in West Palm Beach until selling it five or six years ago. Petitioner started with the company as a truck driver and eventually served as a vice-president. Petitioner served as a locally elected official in West Palm Beach for nearly 20 years. Petitioner was elected commissioner of the Board of Commissioners of the City of West Palm Beach and served for 12 years. Subsequently, he was elected and reelected commissioner of the Board of County Commissioners of Palm Beach County. Petitioner was prevented by term limits from serving beyond his second four-year term, which was due to end in December 2010. However, Petitioner resigned from the county commission five months earlier after he pleaded guilty to, and was adjudicated guilty of, the extortion that is described below. Petitioner had planned to retire from public office after finishing his term in December 2010. In his early 60s and evidently secure financially, Petitioner looked forward to retirement, during which he planned to volunteer in the community and play with his grandchildren. In the final year of his final term in public office, Petitioner busied himself with--or, perhaps more aptly, obsessed over--one major piece of unfinished business: the South Cove Restoration Project. The South Cove Restoration Project is an ecological restoration project in the Lake Worth Lagoon in downtown West Palm Beach. The Lake Worth Lagoon is a 20-mile long body of water in central Palm Beach County. Located just east of Flagler Drive and north of the Royal Park Bridge, the South Cove Restoration Project's primary sponsor is Palm Beach County, although the state has provided funds and the City of West Palm Beach and the Florida Inland Navigation District are also identified as project "partners." The project consists of the creation of two acres of mangrove/spartina habitat, 3.5 acres of potential seagrass habitat, and one acre of rock revetment/oyster reef. The project also includes a 565-foot elevated boardwalk running from the sidewalk along Flagler Drive to the largest mangrove island and a 16-foot square observation deck. Lastly, the project includes the capping of an old dredge hole with clean sand. This will reduce turbidity in the adjacent water column by preventing the continual resuspension of fine-grained particles that tend to collect in the dredge hole. For many years, water-quality issues in the Lake Worth Lagoon have received the attention of state, regional, and local officials, including Petitioner. For a couple of years, Petitioner had served as the county representative to, and chair of, a consortium of governmental entities that had formed the Lake Worth Lagoon Initiative (Initiative). Members of the Initiative have been drawn from the Florida Department of Environmental Protection, the South Florida Water Management District, the Palm Beach County chapter of the League of Cities, and Palm Beach County. The mission of the Initiative is to restore water quality in the lagoon by obtaining and providing funding from various sources for projects to address such issues as water quality, habitat, and pollution-control. The Initiative has supported the South Cove Restoration Project, which is located to the south of a larger project recently undertaken by the City of West Palm Beach to dredge the Intracoastal Waterway adjacent to Flagler Drive as part of extensive renovations of an old city marina. The dredge spoil from the city marina project will provide the fill for the dredge hole in the South Cove Restoration Project. The South Cove Restoration Project was first identified in 1997 as a Surface Water Improvement and Management project. In August 2008, the Department of Environmental Protection proposed to issue the permits necessary for the project's construction and operation. Trump Plaza challenged the proposed permits in DOAH Case No. 08-4752, and Flagler Center Properties, LLP, intervened on the side of Trump Plaza. Trump Plaza is the owner- association of two 30-story condominium buildings, and Flagler Center Properties is the owner of two eight- or nine-story office buildings. Due to the proximity of their buildings to the South Cove Restoration Project, both parties challenged the project on the grounds of, among other things, the potential obstruction of their view and the unreasonable infringement on their qualified rights to a dock. These properties and the uplands adjoining the South Cove Restoration Project are all entirely within the city limits of the City of West Palm Beach. This litigation delayed the issuance of the permits by 15 months. However, in September 2009, an Administrative Law Judge issued a recommended order approving the permits, and, in November 2009, the Department of Environmental Protection issued the final order issuing the permits. Members of the Johnson family own Flagler Center Properties. Like the Koonses, the Johnsons have lived in West Palm Beach for many years. The eldest Johnson is of the age of Petitioner's parents, and Petitioner knew the next generation of Johnsons, as they grew up together in West Palm Beach. The third generation of Johnsons and Koonses even attend the same school. But all of these relationships notwithstanding, at least certain members of the Johnson family with ownership interests in Flagler Center Properties have opposed at least certain aspects of the South Cove Restoration Project. The extortion occurred late in the approval process for the South Cove Restoration Project. The two acts of extortion took place in the six weeks before a vote by city commissioners to allow a fourth wheelchair-ramp access to be constructed from the existing sidewalk, over the seawall, and onto the boardwalk. The city commission vote took place on June 17 or 19, 2010. As expected, the city commissioners unanimously approved the fourth wheelchair ramp. Within a few days after the city vote, the last project sponsor to commit funds--the board of the Florida Inland Navigation District--approved its $1.5 million contribution. Evidently, the District vote was even more of a certainty that the city vote because--to the extent that Petitioner's extortion was designed to ensure final passage of the South Cove Restoration Project--Petitioner's concern, at the time of the extortion, was the city vote, not the District vote. In anticipation of the city vote, on May 6, 2010, at 9:14 a.m., Petitioner called the Johnson family attorney to discuss the Johnson family's continued objection to the project, especially the boardwalk. Petitioner failed to reach the attorney, so he left a voicemail. After a brief greeting, Petitioner demanded that the attorney send Petitioner immediately a memo outlining the remaining objections of the Johnson family to the South Cove Restoration Project. And if you don't--then I'm going to do a Public Records Request to the City of West Palm Beach on this. Dean, just for the heads up, good friend of mine, I'm going to work as hard as I've ever worked in twenty years of public service to take the Johnsons through the ringer on this if they don't support the City of West Palm Beach. I'll have kids picketing at the building and what I'm going to say is they want [a] marina instead of an island. I told you, this is very personal for me. Okay. This is something I really, really want. After twenty years I want the Johnsons to step away and congratulate me personally on all the work I've done. Okay? I have no idea why they're trying to fuck me on the deal but this is very personal. I'm going to work five [sic] hours a day for the next six weeks. I'm going to leverage every possible person, program--I have to get a five-oh vote out of the City Commission. It's very personal, Dean. So, I can't understand why they want to do it ultimately, I want them to say we've [sic] love to have this project. I'm going to door to door at every tenant in the building and throw them under the fucking bus. I'm going to say they want a marina out here versus a public island. I'm going to the FBI--I'm going to the Foundation. I'm going to every tenant in the building. I'm going to see if I have a banking relationship with anybody in there. I want this done and it's a personal thing for me. Shortly after this voicemail, Petitioner instructed a county employee to visit the Flagler Center Properties' site and photograph dead trees and the property's stormwater outfall. The record is not reliably developed on these points, except to the extent that these two issues are mentioned in Petitioner's next voicemail to the Johnson family attorney, which took place after the photographs were taken. To dispel any doubt of his seriousness, Petitioner called the Johnson family attorney again on June 9, 2010, at 6:18 pm: Hey, it's Koons. Just wondering, are the Johnsons still fighting that island on the maintenance issue? I was just wondering because I don't know if you noticed the dead trees that they have in their building in downtown West Palm Beach. Can't even take care of their own property with the dead trees. I don't know why they're worrying about maintenance on something else [the South Cove Restoration Project]. Anyway, also, do you have a map of where their stormwater goes? I was just trying to think if they were ever under a pre- treatment of their stormwater that goes off, I think, right where that island is going to be. Anyway, just let me know. Let me know if you want me to call Code Enforcement or what you want me to do. Thanks. By Information dated August 3, 2010, the State of Florida alleged that Petitioner "on or between May 6, 2010, and June 17, 2010, . . . did either verbally or by a written or printed communication, maliciously threaten an injury to the reputation of [the Johnson family] with intent to compel the persons so threatened . . . to do any act or refrain from doing any act against their will, contrary to Florida Statute 836.05 (2 DEG FEL)". The Information also alleges two misdemeanors that are irrelevant to this case. After three interviews with the authorities, Petitioner resigned from the county commission on August 3, 2010. The next day, Petitioner pleaded guilty to extortion and the two misdemeanors, and the court adjudicated Petitioner guilty of all three offenses and sentenced him to five years' county probation for the extortion and fined him $10,000 for the extortion. There is no evidence whatsoever that Petitioner extorted the Johnson family for personal financial gain. He had already declined to run for another elected office, so the record does not support a finding that he engaged in this extortion for his personal political gain. There is no evidence whatsoever that Petitioner engaged in this extortion for any other personal purposes, including obtaining wheelchair access for a family member or obtaining improper sexual advantage. It is difficult to find that Petitioner engaged in this extortion to cement some sort of personal legacy. The South Cove Restoration Project is not an exceptionally large project, in terms of water quality impacts. It appears to have already been named, so general naming rights--to paraphrase a theater critic, the graffiti of the political/philanthropic class--do not seem to be involved. (Charles Isherwood, "The Graffiti of the Philanthropic Class," N.Y. Times, December 2, 2007, http://www.nytimes.com/2007/12/02/theater/02ishe.html). As noted above, the sole practical concern of Petitioner, at the time of the acts of extortion, was the city vote on the fourth wheelchair ramp. But this vote was a near certainty and concerned an inconsequential matter--a fourth wheelchair ramp--that would not have prevented the project from going forward. Some proponents of the project even believed that the city vote was unnecessary, and a fourth ramp could have been located nearby at a location not within the jurisdiction of the city. Almost all that is left to explain the extortion is Petitioner's characterization of his acts, which he admitted were driven by anger, frustration, and stupidity. The narcissistic demands in the first voicemail that the Johnson family pay public homage to Petitioner and the eerie passive- aggressive nature of the second suggest pride to the point of hubris. But nothing else--except, of course, anger and stupidity. At all material times, Petitioner was in FRS-covered employment, owned vested FRS benefits, and had not filed for FRS retirement benefits. By letter dated November 8, 2010, Respondent advised Petitioner that he had forfeited his FRS benefits when he entered a guilty plea to the felony of extortion. He timely requested a hearing.
Recommendation It is RECOMMENDED that the Division of Retirement Services enter a final order determining that Petitioner's acts of extortion, described above, do not constitute grounds for forfeiture of his FRS pension. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 8th day of August, 2011. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Jason Dimitris, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Mark A. Emanuele, Esquire Panza, Maurer and Maynard, P.A. Bank of America Building, Third Floor 3600 North Federal Highway Fort Lauderdale, Florida 33308
The Issue The issue in these cases is whether the Santa Rosa County comprehensive plan, as adopted on September 27, 1990, and the remedial amendments adopted on April 22, 1993, are in compliance.
Findings Of Fact Exception #2. The Hearing Officer, in an October 15, 1993 order, determined that the issues in the consolidated cases would be those 13 issues stated in the petition filed on July 15, 1993, in Case No. 93-4980, which ruling was observed by the parties at the final hearing (RO page 3). Petitioners/Intervenors take issue, thus, "At no time during these proceedings did the Petitioners abandon the issues raised in their Petitions to Intervene filed in the original noncompliance proceeding." The Respondent County and the Petitioner/Respondent Department take the position that the original, noncompliance proceeding was extinguished when the Department issued its cumulative notice of intent pursuant to section 163.3184(16), Florida statutes. The County and the Department further disagree with the Hearing Officer's conclusion of law determining that the issues of public access and Navarre Beach dune system should be determined pursuant to the preponderance of the evidence standard in section 163.3184(10), Florida statutes. The County and the Department urge the Agency to enter its order addressing all issues accordingly. Subsection (9) of section 163.3184, Florida statutes, governs proceedings if the local plan or amendment is in compliance. In the words of the statute, "In this proceeding, the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." Subsection (10) of section 163.3184, Florida statutes, governs proceedings if the plan or amendment is determined to be not in compliance. The statute specifies, in this subsection: In the proceeding, the local government's determination that the comprehensive plan or plan amendment is in compliance is presumed to be correct. The local government's determination shall be sustained unless it is shown by a preponderance of the evidence that the comprehensive plan or plan amendment is not in compliance. Subsection (16) of section 163.3184, Florida statutes, authorizes the Department of Community Affairs to enter into voluntary compliance agreements to resolve issues raised in proceedings initiated pursuant either to subsection (9) -- in compliance determinations -- or subsection (10) -- not in compliance determinations. It is under this subsection that the cumulative notice in this case was issued. Paragraph (f) of subsection (16) provides, in part, as follows: If the local government adopts a comprehensive plan amendment pursuant to a compliance agreement and a notice of intent to find the plan amendment in compliance is issued, the state land planning agency shall forward the notice of intent to the Division of Administrative Hearings and the pending s. 120.57 proceeding concerning the plan or plan amendment shall be dismissed by the hearing officer as to the department. Any affected person may challenge the plan or plan amendment which is the subject of the cumulative notice of intent by filing a petition with the agency as provided in subsection (9). The language of the statute is somewhat problematic. It is unclear how a proceeding can be dismissed as to one of the parties, in this case, the state land planning agency issuing the notice of intent. See Department of Community Affairs, et al. v. DeSoto County, Final Order No. AC-94-009 (Fla. Admin. Comm. January 31, 1994), approving, Recommended Order of Dismissal, DOAH Case No. 91- 6039GM (DOAH January 13, 1994)(approving interpretation of statute). Further, this statutory language as to dismissal of the proceeding as to the department arguably is at odds with the next sentence, which states that affected persons may challenge the plan or amendment which is the subject of the cumulative notice by filing a petition with the agency as subsection (9) provides. The statutory language does not say, "Any other affected person" may challenge; it says "Any affected person" may challenge, which ending s. 120.57 proceeding. Paragraph (f) also deals with the issue of a cumulative notice that the plan amendment is not in compliance, as follows: If the local government adopts a comprehensive plan amendment pursuant to a compliance agreement and a notice of intent to find the plan amendment not in compliance is issued, the state land planning agency shall forward the notice of intent to the Division of Administrative Hearings, which shall consolidate the proceeding with the pending proceeding and immediately set a date for hearing in the pending s. 120.57 proceeding. It is clear from that statutory language that the cumulative notice proceeding is consolidated with the pending original proceeding if the Department of Community Affairs finds the amendment not in compliance, in contrast to the language used if the Department's cumulative notice is an "in compliance" determination. Finally, paragraph (f) deals with persons who are not parties to the pending original proceeding, as follows: Affected persons who are not a party to the underlying s. 120.57 proceeding may challenge the plan amendment adopted pursuant to the compliance agreement by filing a petition pursuant to subsection (9) or subsection (10). This language seems to do more than provide for persons who are not parties to the underlying proceeding to file subsection (9) or subsection (10) petitions depending upon whether the cumulative notice is an "in compliance" one or a "not in compliance" one, as the case may be. The language also aids in interpreting the previous sentence of the paragraph, "Any affected person may challenge the plan or plan amendment which is the subject of the cumulative notice of intent by filing a petition with the agency as provided in subsection (9)." If that sentence were only intended to apply to affected persons who were not parties to the underlying proceeding, there would be no need for the sentence above-quoted, "Affected persons who are not a party to the underlying s. 120.57 proceeding may challenge the plan amendment adopted pursuant to the compliance agreement by filing a petition pursuant to subsection (9) or subsection (10)." As the state land planning agency and the Agency of final jurisdiction in an "in compliance" proceeding, it is the responsibility of the Department of Community Affairs to interpret the operable statute. Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987 (Fla. 1985.) The Department of Community Affairs interprets the subject provisions of section 163.3184(16), Florida statutes, to mean that, if the Department issues a cumulative notice of "in compliance," the previously existing, original proceeding is extinguished. Thereafter, all affected parties must file petitions challenging the cumulative notice, and the proceeding is governed exclusively by the "fairly debatable" standard and the procedures set out in subsection (9) of section 163.3184, Florida statutes. The particular standard of proof to be applied is based upon the issuance of a notice of intent to find the plan or amendment in compliance or not in compliance. Sheridan v. Lee County, DOAH Case No. 90-7791GM, Final Order No. DCA93-158- FOF-CP (Department of Community Affairs, June 28, 1993). In Department of Community Affairs, et al. v. City of Jacksonville, DOAH Case No. 90-7496GM (January 24, 1994), Final Order No. DCA94-258-FOF-CP (Department of Community Affairs, February 24, 1994), the Department of Community Affairs expressly adopted the interpretation of Hearing Officer J. Lawrence Johnston as set forth in the Recommended Order of Dismissal and Final Order Closing File in the case of Department of Community Affairs v. DeSoto County, DOAH Case No. 91-6039GM (January 19, 1993), approved, Final Order No. AC-94-990 (Fla. Admin. Comm. January 31, 1994), a copy of which is attached hereto as Exhibit B and incorporated by reference. That recommended order at footnote 3 -- recognized that there is contrary dicta in the Recommended Order in Department of Community Affairs, et al. v. Hillsborough County, DOAH Case No. 89-5157GM (December 8, 1992). In the instant case, the Hearing Officer erred in treating the proceeding as one in which both subsections (9) and (10) of section 163.3184, Florida statutes, continued to apply. The burdens of proof -- whether the fairly debatable standard, or the preponderance of the evidence standard -- could be alternatively assigned to a given issue, depending upon whether the issue remained from the original proceeding, or arose as a result of the proceeding brought in response to the cumulative notice. But the statute does not appear to allow the proceeding to be resolved as it was in the instant case, i.e., under both subsections (9) and subsections (10). If that were the case, it would be unclear in a given case as to which entity appropriately should enter the final order, the Administration Commission, or the Department of Community Affairs. Clearly, that does not comport with the objective of the Legislature in specifying the entities with final order authority separately in subsections (9) and (10). Petitioners/Intervenors suggest, in Exception #34, which is dealt with below, that both the Administration Commission and the Department of Community Affairs enter a final order in this. This would result in untenable situations, such as the potential for inconsistent rulings, separate appeals, etc. The Hearing Officer should have treated the proceeding exclusively as one arising as a result of a cumulative notice of "in compliance" governed under the auspices of subsection (9) of section 163.3184, Florida statutes. In that case, the issues should have been those directed to the cumulative notice; thus, Petitioners/Intervenors' complaint in this exception -- that the Hearing Officer should not have limited the issues to those set forth in the July 15, 1993 petition, which was filed as a result of the cumulative notice -- is not well- taken. Further, the standard of proof in a proceeding brought following a cumulative notice of "in compliance" must be the "fairly debatable" standard of section 163.3184(9), Florida Statutes. In this case, however, the Hearing Officer made his various determinations and weighed the evidence with respect either to the fairly debatable standard, or to the preponderance of evidence standard, depending upon the issue. It would be implausible at best, impossible at worst, for the Agency now to attempt to reweigh the selected issues -- those that have been determined using the preponderance of the evidence standard -- under the fairly debatable standard. The Department of Community Affairs, as the Agency entering the Final Order in this cause, is not free to reweigh evidence; that is the prerogative of the Hearing Officer when there are factual issues of ordinary proof. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Moreover, such a reweighing of the issues, even if authorized, would not change the outcome. The issues that were decided under the preponderance of the evidence standard were decided against the Petitioners/Intervenors in this case. The outcome would not change if the fairly debatable standard were applied to those issues. The Agency therefore declines the invitation to apply the fairly debatable standard throughout the proceeding, as it should have been done by the Hearing Officer. Nonetheless, the Agency also must deny Petitioners/Intervenors' Exception #2. PETITIONERS/INTERVENORS EXCEPTION #2 is DENIED. Exception #3. This exception is directed to the Hearing Officer's exclusion of testimony regarding Petitioners/Intervenors' allegations of "urban sprawl." Petitioners/Intervenors assert that a cursory review of the subject petition reveals that "urban sprawl" was properly raised as an issue, even though that precise term was not used. The Hearing Officer heard argument directed to the issue of the "urban sprawl" question (TR Vol. I, pp. 12-18) and determined that it was not within the scope of the petition filed on July 15, 1993 (see Exception #2, above). The Agency has reviewed the subject petition and the portions of the record dealing with argument directed to this issue, and the Agency does not find a sufficient basis for granting the exception. PETITIONERS/INTERVENORS EXCEPTION #3 IS DENIED. Exceptions #4, #5 and #6. The basis for these exceptions is the Hearing Officer's finding of fact, in paragraph 13 of the Recommended Order, that publicly-owned lands in the Garcon Point Project would not be injured by the development of privately- owned lands north of the project. According to the Petitioners/Intervenors, "The evidence introduced at the administrative hearing clearly refutes this finding." Petitioners/Intervenors allude to witness testimony that contradicts the conclusion of the expert who was tendered in general ecology and natural systems, Dr. Joe A. Edmisten [TR Vol. III, pages 78-87] on this point at hearing; it is upon Dr. Edmisten's testimony that the paragraph is supported. The contradictions notwithstanding, however, the paragraph to which these exceptions are directed is supported by competent, substantial evidence in the record, and thus the exceptions must be denied. [Edmisten (TR Vol. III), pages 95-96.] PETITIONERS/INTERVENORS' EXCEPTIONS #4, #5, AND 6 are DENIED. Exception #7. This exception is directed to paragraph 14 of the Recommended Order, in which the Hearing Officer found, "More than 95 percent of Garcon peninsula is jurisdictional wetland for the U.S. Army Corps of Engineers . . . ." According to the Petitioners/Intervenors, no evidence was introduced to support this finding. There is competent, substantial evidence in the record sufficient to support the finding. [Edmisten (TR Vol. III), page 89.] PETITIONERS/INTERVENORS' EXCEPTION #7 is DENIED. Exception #8. In Exception #8, Petitioners/Intervenors take exception to the following finding of fact in paragraph 15 of the Recommended Order, "Little development will occur on the Garcon peninsula . . ." The Petitioners/Intervenors assert that the evidence at the hearing "clearly refutes this finding" and, in support thereof, refer to Future Land Use Map indications of densities of up to four dwelling units per acre and commercial development for Garcon peninsula. The finding is supported by competent, substantial evidence in the record. [Edmisten (TR Vol. III), pages 90-91.] PETITIONERS/INTERVENORS EXCEPTION #8 is DENIED. Exception #9. Petitioners/Intervenors take exception to the findings of fact of paragraph 20 of the Recommended Order, which relates to the condition of the Navarre Beach dune system and the testimony of the expert in coastal geomorphology. The apparent basis for the exception is stated by Petitioners/Intervenors thus, "The fact that the Navarre Beach dune system is still a valuable resource is a compelling reason for implementing a dune protection program which will ensure the system's long-term viability." A finding of fact cannot be overturned on the basis of the argument stated by the Petitioners/Intervenors. Moreover, the findings of fact in paragraph 20 are supported by competent, substantial evidence. [Stone (TR Vol. II), page 155.] PETITIONERS/INTERVENORS' EXCEPTION #9 is DENIED. Exception #10. The Petitioners/Intervenors take exception to paragraph 26 of the Recommended Order wherein the Hearing Officer finds, "The County maintains control over those beach access points shown on the Navarre Beach Future Land Use Map by maintaining them in an unleashed status." The Petitioners/Intervenors state that the evidence clearly refutes the finding, and that the Navarre Beach Future Land Use Map does not identify beach access points. The finding is based upon sufficient competent, substantial evidence of record, and must be sustained. (Miller [TR Vol. I), pages 166-167; Joint Exhibit 1, Plan Objective 11.A.9, and policies 11.A.9.1-9.S, pages 11-6 through 11-7.] PETITIONERS/INTERVENORS' EXCEPTION #10 is DENIED. Exception #11. Petitioners/Intervenors take exception to paragraph 30 wherein the Hearing Officer states that the expert of the Petitioners/Intervenors "did not critique the plan, but said it was laudable." The Petitioners/Intervenors assert in this exception that the evidence clearly refutes this finding in that the expert in question, Dr. Sneed B. Collard, criticized the Santa Rosa County Comprehensive Plan for failing to contain policies and objectives to implement the plan's goal to protect the Pensacola Bay system. The context in which the Hearing Officer made the statement to which exception is taken is important to an understanding of the finding. paragraph 30 of the Recommended Order, in its entirety, reads as follows: Petitioners' expert also admitted that the plan was laudable in terms of the manner in which it seeks to protect the Bay system. While he criticized the plan for not containing clear implementation of its noteworthy goals, he later admitted that if all points of implementation were covered in detail, the plan would become a lengthy and cumbersome document of a more scientific nature. He further admitted to being unaware of the appropriate level of detail for a comprehensive plan and later stated that he did not critique the plan, but said it was laudable. [FF 30; RO page 14.] That having been clarified, the specific statement to which Petitioners/Intervenors take this exception is supported by competent, substantial evidence of record, to wit, the testimony of Dr. Collard, "I didn't critique the Santa Rosa Plan. I said it was laudable." [Collard (TR Vol. I), page 140]. PETITIONERS/INTERVENORS' EXCEPTION #11 is DENIED. Exception #12. The Petitioners/Intervenors take exception to the finding in paragraph 31 of the Recommended Order that finds "that all challenges to the issuance of environmental permits for the bridge have been voluntarily dismissed by the challengers." The Petitioners/Intervenors take this exception based on relevancy. The context of the statement is not clear from the exception. The entirety of paragraph 31 reads as follows: Although petitioners raised the bridge as an issue in these cases, very little evidence was presented concerning the potential impacts of the proposed bridge. It is noted, however, that all challenges to the issuance of environmental permits for the bridge have been voluntarily dismissed by the challengers. It is clear from the context that the information was "noted" and not accorded great weight in the findings. Moreover, the Hearing Officer's inclusion of the information was not erroneous. Thus, there is an insufficient basis to grant the exception. PETITIONERS/INTERVENORS' EXCEPTION #12 is DENIED. Exception #13. Petitioners/Intervenors take exception to the findings of fact contained in paragraphs 37-54 of the Recommended Order, as follows: The Hearing Officer failed to consider or give any ruling with respect to the proposed findings of fact set forth at paragraphs 9-28 and the conclusions of law set forth at paragraphs 96-106 and 111 of Petitioners/Intervenors' proposed Recommended Order. indeed, the Hearing Officer utterly failed to even mention the Wet Prairies and their associated endangered and threatened species. As to the proposed findings of fact included in paragraphs 9-28 of Petitioners/Intervenors' proposed recommended order, the Hearing Officer did so rule, "[paragraphs] 7-34. Partially accepted in findings of fact 10-15 and 37- 54." [RO page 38.] As to paragraphs 96-106 and 111 of Petitioners/Intervenors' proposed recommended order, the Hearing Officer did not make explicit rulings. The subject paragraphs were conclusions of law, which the Hearing Officer is not required to address. In pertinent part, section 120.59(2), Florida Statutes, provides, "If . . a party submitted proposed findings of fact . . . in connection with the proceeding, the order must include a ruling upon each proposed finding . ." It was thus within the sound discretion of the hearing officer to rule only upon the Petitioners/Intervenors' findings of fact. PETITIONERS/INTERVENORS' EXCEPTION #13 is DENIED. Exception #14. Petitioners/Intervenors take exception to the Hearing Officer's finding in paragraph 40 of the Recommended Order that states, "The plan contains extensive provisions designed to implement the Wetlands FLUM (Future Land Use Map) and provide significant protection of wetlands and the natural resource functions of wetlands." The Petitioners/Intervenors assert that no evidence was introduced to support this finding. The finding is based upon competent, substantial evidence, and therefore the exception cannot be granted. [Joint Exhibits 3 and 4, Plan Policies 11.A.4.5 (fig. 7-30); 11.B.3.3; 11.A.1.8.a.b.; 11.A.1.8.c.; 11.A.1.7; 11.A.4.3; 11.B.3.3; 11.A.2.1; 11.B.3.1.; 11.B.3.6; 11.A.1.4; and 11.A.1.8.] PETITIONERS/INTERVENORS' EXCEPTION #14 is DENIED. Exception #15. The basis for this exception is the finding of fact in paragraph 49 of the Recommended Order wherein it is found that the Santa Rosa County Comprehensive Plan "grants only very limited development rights in the Garcon Peninsula region, while also providing significant protections for natural resources in that area." Petitioners/Intervenors assert that the evidence refutes this finding. The finding is based on competent, substantial evidence in the record. [Joint Exhibits 3 and 4.] PETITIONERS/INTERVENORS' EXCEPTION #15 is DENIED. Exception #16 and #17. In Exceptions #16 and #17, Petitioners/Intervenors take exception to paragraph 50 of the Recommended Order. In that paragraph, the Hearing Officer finds that, short of public acquisition, "no other reasonable method by which this area can be comprehensively protected and preserved as an intact ecological unit was presented." The Hearing officer further finds, "Requiring the County to reduce densities to the point where a moratorium on development in the area is created would create inverse condemnation . . Petitioners/Intervenors state that the evidence clearly refutes these findings, that evidence was presented that one dwelling unit per 40 acres was appropriate for the Garcon peninsula, and that designations of up to four units per acre and commercial development would completely destroy the unique ecology of Garcon peninsula. Further, the Petitioners/Intervenors assert that the issue of inverse condemnation was not supported by competent evidence introduced, and that densities of less than four dwelling units per acre can be implemented without creating an "inverse condemnation" situation. As to the reasonableness of the preservation effort, the Agency has reviewed the testimony as to that point, and concludes that the finding is within the allowable inferences from the evidence presented, and within the permissible prerogatives of the Hearing Officer. [Dorman (Vol. III), page 13.] The inverse condemnation finding is rejected as being legally incorrect, but this rejection is irrelevant as to the result because it is cumulative in nature. PETITIONERS/INTERVENORS" EXCEPTIONS #16 and #17 are DENIED. Exception #18. This exception is directed to the finding of fact in paragraph 51 which states that "the great majority of undeveloped areas on the Garcon peninsula currently fall within the wetlands permitting jurisdiction of DEP [Department of Environmental protection] and the federal government. As a consequence, permits for development will be difficult to obtain at best." Petitioners/Intervenors aver that there was no evidence introduced to support this finding. To the contrary, however, the finding is adequately supported by competent, substantial evidence. [Edmisten (Vol. III), pages 90-91.] PETITIONERS/INTERVENORS' EXCEPTION #18 is DENIED. Exception #19. In Exception #19, Petitioners/Intervenors take exception to the finding of fact in paragraph 52 of the Recommended Order, in which it is stated that the Petitioners/Intervenors "failed to prove to the exclusion of fair debate that the plan inappropriately treats wetlands and wildlife habitat on the Garcon peninsula in light of chapter 163 requirements." This is a permissible inference from the evidence presented, both from testimony adduced at hearing, and from the Santa Rosa County Comprehensive Plan itself. PETITIONERS/INTERVENORS' EXCEPTION #19 is DENIED. Exception #20. This exception takes issue with the findings of fact of paragraphs 55-63 of the Recommended Order because the Hearing Officer "failed to consider or give any ruling" on the proposed conclusions of law in the Petitioners/Intervenors' proposed recommended order at paragraphs 142 and 143. The Hearing Officer is not required to do so for the reasons more specifically set forth in disposing of Exception #13, above. PETITIONERS/INTERVENORS' EXCEPTION #20 is DENIED. Exception #21. In Exception #21, Petitioners/Intervenors take exception to the findings of fact of paragraphs 64-70 of the Recommended Order in that the Hearing Officer "failed to consider or give any ruling" on Petitioners/Intervenors' proposed findings of fact at paragraphs 41 and 54-56 of their proposed recommended order, as well as their conclusions of law at paragraphs 112-118 and 121-126 of the same. As to the findings of fact, the Hearing Officer made such rulings, "[paragraphs] 35-56. Partially accepted in findings of fact 16-20 and 64-70." [RO page 38.] As to the conclusions of law, that issue has been addressed above in disposing of Exception #13, as also applied in disposing of Exception #20. PETITIONERS/INTERVENORS' EXCEPTION #21 is DENIED. Exception #22. Petitioners/Intervenors ground this exception on the failure of evidence to support the finding of fact, in paragraph 64 of the Recommended Order, that the Santa Rosa County Comprehensive Plan requires "restoration of preexisting impacts of altered dunes . . The finding is based upon competent, substantial evidence, and therefore the exception must be denied. [Joint Exhibits 3 and 4.] PETITIONERS/INTERVENORS' EXCEPTION #22 is DENIED. Exception #23. Petitioners/Intervenors take exception to the finding of fact in paragraph 69 for the following reasons: The Hearing Officer found that the dune system was protected because the County encourages dune walkovers, sand fences, and other similar methods. The evidence introduced at the administrative hearing clearly refutes this finding. Without a mandatory program of providing such methods to protect the dune system from pedestrian traffic, the plan's alleged protection is illusory. This finding is based upon competent, substantial evidence of record. [Joint Exhibits 3 and 4; Plan Policies 7.A.6.3 and 11.A.1.3.] PETITIONERS/INTERVENORS' EXCEPTION #23 is DENIED. Exception #24. Petitioners/Intervenors base this exception on the finding of fact in paragraph 70 of the Recommended Order wherein the Petitioners/Intervenors assert that the Hearing Officer finds that the Petitioners/Intervenors failed, in the words of the filed exception: "to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan" does not fulfill the Chapter 163 and Rule 9J-5 requirements for protection of the Navarre Beach dune system. The testimony of Dr. Stone clearly refutes this finding. In point of fact, that is not an appropriate paraphrase of the wording of the finding of fact in paragraph 70. The finding of fact, verbatim, is as follows: [P]etitioners have failed to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan does not contain policies which are designed to prevent individual and cumulative impacts of development on beach and dune systems. The finding is a permissible conclusion from the evidence adduced at the hearing, and is based upon competent, substantial evidence. [Joint Exhibits 3 and 4.] PETITIONERS/INTERVENORS' EXCEPTION #24 is DENIED. Exception #25. Petitioners/Intervenors take exception to the findings of paragraphs 74-76 of the Recommended Order based upon the failure of the Hearing Officer to consider or rule on conclusions of law contained in paragraphs 128- 132 of the Petitioners/Intervenor's proposed recommended order. As specified in the disposition of Exception #13, above, and as carried forth in the disposition of Exceptions #20 and #21, above, the exception is denied. PETITIONERS/INTERVENORS, EXCEPTION #25 is DENIED. Exceptions #26, #27, and #28. These exceptions are directed to paragraph 75 of the Recommended Order. The findings of the paragraph that are the basis for the exception include the following: The record does not reflect impacts, if any, the project may have to the environment, but does indicate that adequate mitigation is proposed. The County cannot legally adopt any plan provisions which are inconsistent with a state transportation project. . [P]etitioners have failed to show to the exclusion of fair debate that the plan's treatment of the proposed Santa Rosa Bay Bridge is inappropriate. The findings are supported by competent, substantial evidence. [Edmisten (TR Vol. III); Joint Exhibit 2, Vol. I, pages 4-32 through 4-40.] Exceptions #27 and #28 are simply argument of the Petitioners/Intervenors' position in this proceeding and, as such, are insufficient to overturn findings supported by competent, substantial evidence. PETITIONERS/INTERVENORS' EXCEPTIONS #26, #27, and #28 are DENIED. Exception #29. This exception is directed to paragraphs 77-79 of the Recommended Order, alleged to be in error because the Hearing Officer failed to consider or rule on the conclusions of law in Petitioners/Intervenors' paragraphs 133-140 of their proposed recommended order. As more specifically discussed in disposing of Exception #13, and as concluded in the denials of Exceptions #20, #21, and #25, the Hearing Officer is not required to make such rulings. PETITIONERS/INTERVENORS' EXCEPTION #29 is DENIED. Exceptions #30, #31 and #32. In these exceptions, Petitioners/Intervenors assert that there was no evidence introduced to support the findings, in paragraph 77-79 of the Recommended Order, concerning beach access points. In paragraph 77, Petitioners/Intervenors take exception to the finding that reads, "The plan contains a number of provisions designed to ensure the continued availability of beach access. The future land use map indicates a number of beach access points shown on the map as conservation/recreation." In support of this exception, Petitioners/Intervenors state, "Indeed, during cross examination of Ms. Miller by the County, counsel for the County attacked Ms. Miller for stating that the beach access points were identified on the Navarre Beach Future Land Use Map." In response, Respondent County and Petitioner/Respondent Department state: The Petitioners' own witness, Yvonne Miller, testified that beach access points were indicated on the FLUM. [Citation omitted.] The fact that counsel for the County obtained clarification from Ms. Miller concerning her understanding of how access points were identified on the map is irrelevant to the validity of this finding of fact, and is not a basis for overturning same. As to paragraph 78, Petitioners/Intervenors take exception to the finding that reads that "petitioners have failed to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan does not include appropriate objectives and policies concerning public access to the beach." In response, Respondent County and Petitioner/Respondent Department state, "The plan support documents include extensive data and analysis concerning public access to beaches." With respect to paragraph 79, Petitioners/Intervenors take exception to the finding that the Future Land Use Map includes many public access points. The Agency has reviewed the testimony adduced at hearing regarding beach access points [Miller (TR Vol. 1), pages 150- 169]. The Hearing Officer's conclusions drawn from the testimonial evidence are within the allowable range of inferences. Based upon the record testimony, the findings of fact in paragraphs 77-79 to which exceptions are taken is based upon competent, substantial evidence in the record. [Miller (TR Vol. 1), pages 150-169; Joint Exhibit 2, Vol. II, pages 7-17 through 7-19; Joint Exhibit 7.] PETITIONERS/INTERVENORS' EXCEPTIONS #30, #31, and #32 are DENIED. EXCEPTIONS TO CONCLUSIONS OF LAW Exception #33. Petitioners/Intervenors take exception to the conclusion of law in paragraph 87 of the Recommended Order wherein the Hearing Officer concluded that the petitions challenging the plan must fail. Petitioners/Intervenors assert that they have met their burden of proof, and their petition must be granted. The Hearing Officer found that the Petitioners/Intervenors failed to meet their burden of proof. The conclusion of law ultimately was based upon the Hearing Officer's findings of fact in this case. Factual issues susceptible of ordinary methods of proof are the prerogative of the hearing officer. Heifetz v. Department 6f Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). It is for the hearing officer to consider the evidence presented, resolve conflicts, judge credibility of witness, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence. Id., 475 So.2d at 1281. In this case, the Hearing Officer did so, and his findings of fact did not support the position of the Petitioners/Intervenors. The conclusion of law was the logical result of the Hearing Officer's permissible rulings on the findings of fact. PETITIONERS/INTERVENORS' EXCEPTION #33 is DENIED. Exception #34. Petitioners/Intervenors take exception to the conclusion of law in paragraph 90 of the Recommended Order wherein the Hearing Officer recommends that the Department of Community Affairs enter the final order in this cause, finding the Santa Rosa County Comprehensive Plan in compliance. Petitioners/Intervenors assert that both the Department of Community Affairs and the Administration Commission should enter a final order finding the plan to be not in compliance. For the reasons set out in disposing of Petitioners/Intervenors' Exceptions #1 and #2, above, the Administration Commission is not the entity to whom the Recommended Order in this cause should be directed. The Department of Community Affairs is the appropriate Agency to enter the final order in this cause. As to the issue of compliance, the Department found the plan, as amended, to be in compliance; the Hearing Officer heard evidence and considered the issues, and found the plan, as amended, to be in compliance. The conclusion is the logical and ultimate result of the findings of fact in this case, which were based upon competent, substantial evidence. The Petitioners/Intervenors have not borne their burden of proving that the plan, as amended by remedial amendments, is not in compliance. PETITIONERS/INTERVENORS' EXCEPTION #34 is DENIED. WHEREFORE, the Department of Community Affairs adopts the Recommended Order of the Hearing Officer, and issues this Final Order determining that the Santa Rosa County Comprehensive Plan, as amended, is in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Department of Community Affairs enter a final order determining the Santa Rosa County comprehensive plan, as amended, to be in compliance. DONE AND ENTERED this 12th day of July, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of July, 1994. Petitioners: APPENDIX TO RECOMMENDED ORDER CASE NOS. 90-7706GM AND 93-4980GM 1-3. Partially accepted in finding of fact 2. 4. Covered in preliminary statement. 5-6. Partially accepted in finding of fact 1. 7-34. Partially accepted in findings of fact 10-15 and 37-54. Partially accepted in finding of fact 9. 36-56. Partially accepted in findings of fact 16-20 and 64-70. 57-65. Partially accepted in findings of fact 31-36 and 74-76. 66-77. Partially accepted in findings of fact 24-26 and 77-79. 78-83. Partially accepted in findings of fact 27-30 and 55-63. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the more credible, persuasive evidence, subordinate, or unnecessary to the resolution of the issues. Respondents: Because respondents' joint proposed order exceeded the forty page limit imposed by Rule 60Q-2.031, Florida Administrative Code, the undersigned has considered the contents of the proposed order but has not made specific rulings on each proposed finding. See Sunrise Community, Inc. v. DHRS, 14 F.A.L.R. 5162 (DHRS, 1992), affirmed 619 So.2d 30 (Fla. 3rd DCA 1993). COPIES FURNISHED: Linda Loomis Shelly, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 Stephanie M. Callahan, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 Thomas V. Dannheisser, Esquire County Attorney Santa Rosa County Courthouse Room 106 Milton, FL 32570 Kenneth G. Oertel, Esquire Post Office Box 6507 Tallahassee, FL 32314-6507 David A. Theriaque, Esquire Building F, Suite 100 820 East Park Avenue Tallahassee, FL 32301 Mr. Robert Carl 9277 Deer Lane Navarre, FL 32566 John M. Harold, Esquire J. Dan Gilmore, Esquire 4400 Bayou Boulevard, Suite 45 Pensacola, FL 32503
The Issue The issue in this case is whether Comprehensive Plan Amendment 2002-02, adopted by the Town of Jupiter (Town) as Ordinance 62-02, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The Parties Petitioner, Anna Current, resides at property on the Jupiter River in the Town of Jupiter at 711 Ryan Road, Jupiter, Florida 33477. The Town of Jupiter (Town) is a municipality of the State of Florida whose address is 210 Military Trail, Jupiter, Florida. The Department of Community Affairs (DCA) is the state land planning agency with the duty to review comprehensive plan amendments pursuant to Sections 163.3164(20) and 163.3184. The Amendment Amendment 2002-02 (Amendment), which was adopted by the Town's Ordinance 62-02, consists of four text amendments, one amendment to the Transportation Map Series, and one amendment to the future land use map (FLUM) element. The first text amendment amends the Transportation Element by adding Policy 2.2.6. Policy 2.2.6 requires updates to the Town's Bicycle Transportation Master Plan. The second text amendment amends the text of the Conservation Element. Specifically, it amends Policy 1.2.5 to reference the June 2000 as opposed to the December 1985 version of the "Loxahatchee River National Wild and Scenic River Management Plan." The third text amendment adds two new policies to the Intergovernmental Coordination Element of the Town’s Comprehensive Plan. These policies reference and adopt certain parameters for the Western Corridor Interlocal Agreement, an interlocal agreement between the Town, Palm Beach County and Martin County. The fourth text amendment amends certain tables related to Level of Service and Capacity Standards in the Public School Facilities Element. The fifth change adds Figures 10 and 10a and amends Figures 5, 6 and 7 of the Transportation Map Series. The sixth and final section of the Amendment changes the Future Land Use Map for the Town of Jupiter. Specifically, it redesignates 12.3 acres in Jupiter Community Park from the recreation land use category to the conservation land use category. The Adoption Process On August 13, 2002, the Town's Planning and Zoning Commission, acting as the local planning agency (LPA), held a public hearing and recommended that the Jupiter Town Council approve seven separate comprehensive plan amendments. These amendments consisted of five text amendments, an amendment to the Transportation Map Series (with modifications), and a Future Land Use Map (FLUM) amendment. Petitioner testified that this LPA public hearing was not advertised in advance. The Town's witness, David Kemp, who is the Town's Principal Long Range Planner, did not dispute Petitioner's testimony; instead, he testified that he did not recall whether this LPA public hearing was advertised. There was documentary evidence that, on July 7, 2003, the Town Planner sent an e-mail message to the Town's Clerk informing her that, with regard to Petitioner's request for "proof of publication" of the advertisement for the LPA meeting on August 13, 2002, the Town Planner's staff had reviewed all relevant files and was unable to locate the requested public records. There also was documentary evidence that the Town's Records and Archives Manager notified the Town's Clerk by e- mail on April 29, 2003, that Petitioner had requested a copy of the "proof of publication" of the advertisement for the LPA public hearing on August 13, 2002, and had been informed that no advertisement was necessary since it was a regular meeting of the LPA. The minutes of the LPA's meeting on August 13, 2002, show that the six component parts being considered as part of the proposed Amendment 2002-02 were on the LPA's regular meeting consent agenda. The minutes indicate that two of the components were "pulled" from the consent agenda. The minutes also indicate that no one in attendance at the meeting spoke on the proposed amendments. The minutes do not reflect that the LPA or any of its members invited public participation before a vote was taken on the six components of the proposed amendments. Neither the Town nor DCA introduced evidence of an advertisement for the LPA's meeting on August 13, 2002, notwithstanding their listing of proof of publication of the advertisement as a joint exhibit of the DCA and the Town in their Joint Prehearing Statement, and Petitioner's stipulation to its admissibility. The minutes of the LPA meeting on August 13, 2002, reflect that Petitioner was not present during the consent agenda portion of the meeting. They indicate that she appeared later for the regular agenda portion of the meeting and spoke in favor of a site plan/special exception/PUD application being considered during that portion of the meeting. On Tuesday, September 3, and Tuesday, September 17, 2002, the Jupiter Town Council held public hearings and approved the transmittal of Ordinance 62-02, consisting of all seven of the proposed plan amendments recommended by the LPA, to DCA. The transmittal public hearing was held on a weekday at least seven days after the advertisement for the public hearing, which appeared in the Palm Beach Post, a newspaper of general circulation in the Town, on August 25, 2002. The advertisement included the title of the proposed Ordinance 62- 02, in bold: AN ORDINANCE OF THE TOWN . . . AMENDING ORDINANCE NO. 57-89, THE COMPREHENSIVE PLAN OF THE TOWN . . . ; AMENDING THE TEXT OF THE CONSERVATION, FUTURE LAND USE, INTERGOVERNMENTAL COORDINATION, AND PUBLIC SCHOOL FACILITIES ELEMENTS; AMENDING THE TEXT AND MAP SERIES OF THE TRANSPORTATION ELEMENT; PROVIDING FOR AN AMENDMENT TO THE FUTURE LAND USE ELEMENT TO CHANGE THE LAND USE DESIGNATION OF A 12.3 ACRE PROPERTY LOCATED IN THE NORTHERN PART OF THE TOWN'S COMMUNITY PARK AT 3377 CHURCH STREET FROM A RECREATION DESIGNATION TO A CONSERVATION DESIGNATION; . . . . The advertisement also included a map showing the location of the 12.3-acre property. At the transmittal hearing, the public was invited to comment, and three individuals offered public comments. On September 26, 2002, DCA received the proposed amendments. Although the Town requested that DCA not review the Amendment or issue an Objections, Recommendations, and Comments Report (ORC report), Petitioner requested a review and ORC report, and DCA determined that a review and ORC report were necessary, even if not requested by Petitioner. DCA conducted a review of the proposed amendments for consistency with the requirements of Chapter 163, Part II, Florida Statutes, Florida Administrative Code Rule 9J-5, the Treasure Coast Regional Planning Council Strategic Policy Plan, and Chapter 187, Florida Statutes (the State Comprehensive Plan), and issued an ORC report to the Town of Jupiter on November 27, 2002. The ORC report raised only one objection, specifically to a text amendment that would allow for increased densities in the Coastal High Hazard Area. The Town Council held a public hearing on December 17, 2002, at which six of the seven proposed changes contemplated by the transmitted proposed amendments were adopted. (The Town did not adopt the amendment to which DCA has objected in the ORC report.) This adoption hearing was held on a weekday at least five days after the advertisement for the public hearing appeared in the Palm Beach Post, a newspaper of general circulation in the Town. The advertising appeared on December 10, 2002. The advertisement included, in bold, the same title of the proposed Ordinance 62-02 as the transmittal hearing advertisement, except that reference to the text change to the Future Land Use Element was omitted. The advertisement also included a map showing the location of the 12.3-acre property (as well as other properties affected by other ordinances being advertised at the same time). At the adoption hearing, Petitioner offered written comments. There were no other comments or objections. Petitioner attempted to prove that the Town failed to meet a statutory requirement to provide sign-forms for comprehensive plan amendment hearings. She proved that no sign-in forms were provided for the LPA hearing on August 13, 2002. She did not prove that no sign-in forms were provided for the transmittal hearings in September 2002 or for the adoption hearing in December 2002. On December 23, 2002, DCA received the Town’s adopted Amendment 2002-02 for review. DCA conducted a review of adopted Amendment 2002-02 for consistency with the requirements of Chapter 163, Part II, Florida Statutes, Rule 9J-5, the Treasure Coast Regional Planning Council Strategic Policy Plan, and Chapter 187, Florida Statutes (the State Comprehensive Plan). Amendment 2002-02 was found to be "in compliance." DCA's witness, Senior Planner, Dr. Joseph Addae- Mensa, testified that DCA's review of an adopted plan amendment includes verification that the local government held the required advertised transmittal and adoption hearings. According to his testimony, this ordinarily is accomplished by a simple review to ascertain that the local government included the usual statement in its submission to DCA to the effect that the required advertised public hearings had been held. In this case, the Town's submission included such a statement, and DCA's review went no further. Town's Public Participation and Advertising Requirements Petitioner asserts that the Town's adoption of Resolution No. 58-87 on December 1, 1987, specified additional or more stringent public participation and notice procedures for the consideration and recommendation of comprehensive plans and amendments by the Town's LPA and for the adoption of such plans by the Town's governing body. However, Section 1 of the Resolution stated: The Town of Jupiter hereby adopts the following procedures [for the LPA and Town Council] to implement . . . [minimum] criteria as established by [DCA] . . . pending the enactment of permanent provisions by Ordinance, provided, however, that any failure by the Town to fully comply with the technical requirements hereof shall not be cause to invalidate the adoption of any Amendments to the Jupiter Comprehensive Plan which otherwise meet the requirements of law . . . . In addition, on March 3, 1998, the Town's new home-rule charter became effective. It provided in Article VI that "procedures for the adoption of ordinances and resolutions for the Town of Jupiter shall be as made and provided by the Florida Statutes, as may be hereafter amended and revised" and that the Town Council "may provide, by appropriate action, requirements for the adoption of ordinances and resolutions which are more stringent than those set forth in the Florida Statutes." There was no evidence of any subsequent "appropriate action" to establish procedures that are "more stringent . . . than those set forth in the Florida Statutes." Resolution 58-87 was neither repealed nor re-enacted after the effective date of the home-rule charter. However, it appears that the home-rule charter should be viewed as repealing or superseding Resolution 58-87. In any event, for purposes of this proceeding, as indicated, Resolution 58-87 did not add any compliance review criteria to the "requirements of law." Data and Analysis for the Conservation Element Petitioner attempted to challenge the text amendment to the Conservation Element of the Town’s Comprehensive Plan. The Amended Petition states: "The restrictions placed on the Loxahatchee River Buffer were hastily prepared, flawed, and dubious in value. It was submitted without valid data and analysis." It was determined at the hearing that Petitioner actually mistakenly was seeking to challenge either a subsequent FLUM amendment considered by the Town Council in July, 2003, or land development regulations that were considered by the Town Council in February, 2003. These are not the changes to the Conservation Element of the Town’s Comprehensive Plan adopted in Amendment 2002-02. The amendment at issue here merely changed a reference from the December 1985 version of the "Loxahatchee River National Wild and Scenic River Management Plan" to the June 2000 plan. Submitted with the Amendment was data and analysis in the form of a staff report describing the procedural process used to adopt the amendment to the Conservation Element, staff analysis, and a narrative explanation of why this essentially housekeeping item was needed. Petitioner presented no evidence at hearing that this minor change to the Conservation Element was submitted without adequate valid data and analysis. Data and Analysis for the Transportation Element Petitioner challenged the modification of Transportation Map Series figures 5, 6 and 7, and on the basis that they were supported by old data from 1999. DCA did not raise this as an objection in their ORC report. The Florida Department of Transportation ("FDOT") did raise the issue of old data as an objection in its comment letter to DCA dated October 21, 2002. After receipt of the comment letter, however, Town Staff contacted FDOT regarding the objection. Town Staff explained that the Town was completing a transportation study related to the Indiantown Road Corridor and indicated the Town's commitment to incorporating the data and analysis contained in the final transportation study into the Transportation Element in a subsequent round of comprehensive plan amendments. At the final hearing, David Kemp, Principle Long Range Planner for the Town, testified that the Transportation Map Series amendments were to reflect only the possible alignment of a future roadway, that the Town had utilized the most current data based on the interlocal agreement and the alignments shown in the interlocal agreement, and that the Town had resolved the FDOT's concerns regarding the data. Submitted with the Amendment was data and analysis in the form of a staff report describing the procedural process used to adopt the amendment to the Transportation Element and Map Series, staff analysis which responded to FDOT's objections, and a narrative explanation describing the changes and why they were needed. Petitioner did not prove beyond fair debate that the Transportation Map Series amendment was not supported by data and analysis. Other Substantive Issues Other issues Petitioner may have raised in her challenge to the compliance determination in this case either were dropped or were unfounded, some having been mistakenly directed to Town action other than the Amendment at issue in this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCA enter a final order finding the Town's Amendment 2002-02 to be "in compliance." DONE AND ENTERED this 24th day of October, 2003, in Tallahassee, Leon County, Florida. S __________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2002.
