Findings Of Fact The proposed addition to the existing commercial docking facilities in the Pine Island Sound Aquatic Preserve would consist of approximately 5,000 square feet of additional overwater structure. The effects of such a facility on the marine ecosystem were described in expert testimony. The structure would cut off penetration of light to the bottom and the organisms living below. The resultant change in the biota under the dock would reduce the number of sedentary species, that is to say those species that remain essentially stationary in a given area, and would increase the number of errant species, that is to say those species which move from place to place. This change in the existing ecosystem directly affects the food chain and ultimately adversely affects commercial and sports fishing. Other negative impacts on the area due to the proposed construction would be increased boat traffic, sewage, introduction of petroleum products into the waters and an increase in the number and size of boats docking in the area thereby expanding the shaded area beyond that of the dock itself. Though the actual amount of damage to the preserve from both the shading effect and usage as a whole cannot be quantified without appropriate natural asset inventroy and study, some amount of damage would occur to the biological integrity of the area. The proliferation of docks within the Aquatic Preserve along with the cumulative impact of such construction must be considered as a potential threat to the Preserve. The cumulative impact and extent of damage which might occur as a result of the proposed construction must be determined through the conduct of a study developing a management plan for the Preserve, balancing present and future needs and values. Each individual Petitioner owns waterfront property within the Pine Island Sound Aquatic Preserve. Because of the potential negative impact of the proposed project and its cumulative impact with other projects on waterfront property, each Petitioner would be materially affected by the granting of this lease. No use or management criteria, ultimate or incipient, for the Pine Island Sound Aquatic Preserve have been adopted. However, since December, 1975, DNR has been engaged in the process of adopting such rules for the Biscayne Bay Aquatic Preserve. Once adopted, these rules will serve as a model for rules to be promulgated for the other aquatic preserves including Pine Island Sound Aquatic Preserve. No studies have been conducted by DNR of Pine Island Sound Aquatic Preserve. There is no inventory of available commercial docks, boat traffic, ingress or egress within the Preserve. The proposed rules for the Biscayne Bay Aquatic Preserve are not presently being applied to aquatic preserve leases.
The Issue Whether a permit (DER File #411890893) should be issued to James R. Langford in accordance with the Notice of Intent filed herein.
Findings Of Fact In addition to the Department and the National Park Service, a copy of the Initial Order was mailed to: James R. Langford, 6008 Shore Acres Drive, N.W., Bradenton, Florida; and James R. Langford, c/o Benson Engineering, Inc., 311 67th Street West, Bradenton, Florida 34209. Benson Engineering, Inc., was agent for James R. Langford in presenting Langford's application to the Department. All Orders and Notices of Hearings including the Initial Order, mailed to James R. Langford at 6008 Shore Acres Drive, N.W., Bradenton, Florida by the Division of Administrative Hearings were returned by the U.S. Postal Service indicating that the forwarding order had expired. All attempts by the undersigned, including contacting Benson Engineering, Inc., to contact Langford by telephone were unsucessful. Benson Engineering, Inc. received Notice of the Hearing. Mr. Benson appeard at the hearing, and advised the undersigned that he was the agent for Langford in presenting Langford's application to the Department. However, there was nothing in the record where Langford had requested that Benson be allowed to act as his Qualified Representative and Benson did not present anything at the hearing. Therefore, Benson was not allowed to act as Langford's Qualified Representative. Langford did not appear at the hearing, and made no contact with the undersigned, or counsel for the Department or counsel for the National Park Service. Counsel for both the Respondent and the National Park Service attempted to locate Langford on different occasions but were unsuccessful. Counsel for the Department even contacted the real estate office that was handling the sale of the property subject to the permit application but was also unsuccessful in this attempt. There was no evidence presented in support of Langford's application for a permit to build the dock in question.
Recommendation Accordingly, upon the foregoing Findings of Fact and Conclusion of Law, it is, RECOMMENDED: That the Department enter a Final Order denying Respondent James R. Langford's application for permit, DER File Number 411890893. DONE and ENTERED this 24 day of August, 1992, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 24 day of August, 1992. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Patricia Cortelyou-Hamilton, Esquire U.S. Department of the Interior National Park Service SE Regional Office 75 Spring Street SW Atlanta, Georgia 3030 James R. Langford 6008 Shore Acres Dr NW Bradenton, Florida 34209 James R. Langford c/o Benson Engneering Co. 311 67th Street W Bradenton, Florida 34209 Carol Browner, Secretary State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue At issue in this proceeding is whether PAM 98-01, a small scale amendment to the future land-use map ("FLUM") of the Lee County Comprehensive Plan (the "Lee County Plan" or the "Plan"), changing the future land-use designation of approximately 9.9 acres of land on Pine Island from Rural to Outlying Suburban, complies with the requirements of the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: Parties Petitioners, Barbara Dubin and William Dubin, are residents and property owners on Pine Island in the portion of Lee County affected by PAM 98-01. Ms. Dubin testified that she and her husband timely participated in the adoption process and made their objections before the Lee County Local Planning Agency (the "LPA") and the Board. No evidence was offered to contest Ms. Dubin’s testimony on this point. Therefore, the Dubins are each "affected persons" as that term is used in Sections 163.3184(1)(a) and 163.3187(3)(a), Florida Statutes, and have standing to file a petition challenging the adoption of PAM 98-01. Ms. Dubin is a member of the Civic Association and knowledgeable regarding its activities. She testified that the Civic Association has been incorporated as a not-for-profit corporation in the State of Florida for at least the past ten years. The purpose of the Civic Association is the preservation and protection of the environment and quality of life of Pine Island. The Civic Association has between 130 and 160 members, all of whom reside on Pine Island. Ms. Dubin testified that the Civic Association owns land and a building on Pine Island, at the intersection of Pine Island Road and Stringfellow Road, near the 9.9-acre parcel that is the subject of PAM 98-01. The Civic Association uses this building for its meetings, conducted monthly for ten months of the year with a break during the summer months. The Civic Association collects member dues within Lee County, and has a bank account in Lee County. It conducts educational activities, monthly meetings, publishes a monthly newsletter containing educational information concerning Pine Island land-use and quality of life issues, and participates in governmental meetings concerning Pine Island. Through members who spoke on its behalf, the Civic Association participated in the adoption process and objected to PAM 98-01 at the LPA hearing and the Board meeting at which the amendment was adopted. The Civic Association is an "affected person" as that term is used in Sections 163.3184(1)(a) and 163.3187(3)(a), Florida Statutes, and has standing to file a petition challenging PAM 98-01. Respondent, Lee County, is the local government whose land-use plan amendment is at issue in this proceeding. Intervenor, Gregory Eagle, is the owner of the real property that is the subject of PAM 98-01, and has standing to participate as a party in this proceeding. Pine Island The Greater Pine Island Area is located in Lee County west of the City of Cape Coral, south of the open waters of Charlotte Harbor, east of Captiva Island, North Captiva Island and Cayo Costa Island, and north of Sanibel Island. The Greater Pine Island Area consists of Pine Island, Little Pine Island, and the historic community of Matlacha, which is located on the Pine Island Road Causeway across the Matlacha Pass Aquatic Preserve between Little Pine Island and the Lee County mainland. The waters surrounding the Greater Pine Island Area are the waters of the Matlacha Pass Aquatic Preserve to the east, San Carlos Bay to the south, the Pine Island Sound Aquatic Preserve to the west, and Charlotte Harbor to the north. Pine Island is a long, narrow, roughly rectangular island, with the long sides running north and south. The island is roughly 16 miles long and two miles wide. Existing communities and residential development on Pine Island are essentially confined to five parts of the island. At the far north end of the island is the fishing community of Bokeelia, where the Dubins live. A golf course sits just south of Bokeelia. A residential development called Pineland is situated on the island’s northwest coast, between Bokeelia and Pine Island Road. At the center of the island, at the junction of Pine Island Road and Stringfellow Road, is the Pine Island Center, which is the main urban area of the island. A residential development called Flamingo Bay is situated between the Pine Island Center and the south end of the island. At the south end of the island is the small fishing village of St. James City. Matlacha is a small historic village that grew up around the Pine Island Causeway, which was built in the early decades of this century to connect Pine Island to the mainland. Lee County has designated parts of Matlacha as an historic district. Lee County statistics indicate a total of 26,393 acres on Pine Island, 13,693 acres of which are reserved for conservation uses. The existing land-uses of the remaining approximately 12,700 acres are as follows: 6,032 acres are vacant or undeveloped; 3,273 acres are used for active and passive agricultural activities; 2,084 acres are used for residential activities, including 822 acres classified as rural; 138 acres are used for commercial activities; 24 acres are used for industrial activities; and 1,148 acres are allocated for public uses. The current permanent population of Pine Island is 10,511 persons, and the seasonal population is 15,900 persons. There are currently 5,954 dwelling units on Pine Island. In 1990, the population of Pine Island was 7,300 persons, and the number of dwelling units was 5,520. The Lee County Plan recognizes and gives priority to property rights previously granted for about 6,800 additional dwelling units in Policy 14.2.2, set forth infra in the discussion of Transportation Need Projections. Lee County Plan In 1984, Lee County adopted its first official FLUM as an integral part of the Lee County Plan. On that initial FLUM, Intervenor’s property was divided into two land-use categories: Urban Community and Rural. The maximum standard density for the Urban Community designation established by the 1984 Plan was six dwelling units per acre (du/ac). Maximum density for the Rural designation was 1 du/ac. In 1985, the Florida Legislature passed the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes. In 1987, the Civic Association hired a professional planner to study the Greater Pine Island Area and prepare recommendations that Lee County could incorporate in its 1989 revision of the Lee County Plan, pursuant to the 1985 legislation. In 1988, the Civic Association issued the resulting study, which provided a description of the population, generalized land-use and zoning patterns, historic and archaeological resources, the area’s transportation network, and the availability of public services such as potable water and sewer facilities as of 1987. The "development suitability" of Intervenor’s property was discussed in relation to the listed items as well as hurricane evacuation and the condition of Pine Island and Stringfellow Roads. The study made extensive recommendations to amend the Lee County Plan, and was used by the Civic Association as the basis for initiating amendment PAM/T 88-07 to the Lee County Plan. Lee County staff analyzed and evaluated the recommendations of the study, and incorporated many of them into the 1988/89 update of the Lee County Plan, including what is now Goal 14 relating to Greater Pine Island. As to the property at issue in this proceeding, staff recommended that the land-use category be changed to all Rural. The FLUM was indeed amended to include all of the subject property in the Rural category. William Spikowski, who was the Lee County planner in charge of preparing the 1988/89 update to the Lee County Plan, testified that the intent was to limit most industrial and commercial development on the island to the Pine Island Center, which was given the Urban Community designation allowing the greatest number of mixed and nonresidential uses. Mr. Spikowski testified that the lines around this area were tightly drawn to clearly separate urban from rural uses, with some exceptions where the intensities "stepped down" to recognize existing development. PAM 98-01 Since about 1992, Intervenor has owned 58 acres of vacant land approximately 3/4 of a mile south of the intersection of Pine Island Road and Stringfellow Road. The 9.9-acre property that is the subject of PAM 98-01 is a portion of this 58-acre parcel, and is currently zoned CC and CG, both commercial zoning designations. The 58-acre parcel has been considered for a change in land-use classification three times since 1989, when it was excluded from the adjacent urban center of Pine Island and given a Rural designation. This parcel was the only commercially-zoned property adjacent to the urban center that was excluded from the urban center in 1989. Prior to 1989, as noted above, the subject parcel was designated as Urban Community in the Lee County Plan. The change of the parcel from Urban Community to Rural in 1989 was not challenged at the time it was adopted. On two prior occasions, the Board has considered but not approved proposals that would have returned the full 58-acre parcel to an urban land-use designation; on another occasion, the Board rejected a proposal that would have effectively locked the parcel out of any urban use designation. Greg Stuart, an expert in land-use planning who sits on the LPA, testified that the county’s concern with the earlier proposals was a reluctance to change the entire 58-acre parcel to an urban land-use and thus increase population capacity on the island. PAM 98-01 was in part an attempt to satisfy this concern by proposing a change for a smaller portion of the tract, and to the least intense urban use available. Matt Noble, Lee County’s principal planner, also testified that he believed the smaller area and less intense classification were factors in the Board’s decision to approve PAM 98-01. He added that another factor in the Board's approval of PAM 98-01 was that this property "appears to have been singled out" in the 1988 amendment cycle, in that it was the only commercially-zoned property adjacent to the Pine Island Center not to have been included in the Pine Island Center. Immediately south of the 58 acre parcel is a vacant Rural designated parcel with AG-2 and RM-2 zoning. South of this vacant parcel are three parcels (two Rural designated, one Wetlands designated) owned by the Greater Pine Island Water Association. The Water Association has constructed a reverse osmosis ("RO") plant on one of the Rural parcels. Immediately south of the RO plant site is the Island Acres Subdivision, with a Rural designation. On June 5, 1995, the Board approved a rezoning of this property to RPD, which permits the development of 31 single-family residential dwellings on lots ranging from just over one acre to just over 1/2 acre, the excavation of a 12.23-acre lake, and an 8.55-acre wetland preserve area. As of the submission of the Staff Report on April 13, 1999, the internal roads of Island Acres Subdivision had been constructed but no dwellings had yet been built. Immediately east of Intervenor’s 58-acre parcel are vacant lands designated Rural and Wetlands. To the west is Stringfellow Road, and on the west side of Stringfellow Road is a 134-acre vacant parcel designated Rural. Additional vacant land designated Rural is on the west side of Stringfellow Road. To the north of and abutting Intervenor’s 58-acre parcel is a developed property with a Huntington Bank building. This property is zoned CC and CG, and is split between Urban Community and Rural land-use designations. To the north of the Huntington Bank parcel is a Winn-Dixie Shopping Center, zoned C-1A and located within the Urban Community of Pine Island Center. In summary, while Intervenor’s parcel is the only commercially-zoned property adjacent to the Pine Island Center that does not also have an Urban land-use designation, it is also the case that the only urban or commercial development in the vicinity is to the north of Intervenor’s property, with the exception of the RO plant. Mr. Noble testified that Intervenor’s parcel is served by public services at least to the same extent as the nearby properties included in the Pine Island Center designation. Mr. Noble agreed that the Staff Report’s notation that there is no sewer service available to Intervenor’s property was not a unique characteristic of this property; in fact, there is no central sewer service on Pine Island that property owners at large may tap into. As noted above, there are over 600 acres of land in the Greater Pine Island Area with commercial zoning. This acreage includes vacant land in the Pine Island Center with a current land-use designation of Urban Community, which indicates "a mixture of relatively intense commercial and residential uses," "distinctly urban" but developed at "slightly lower intensities." PAM 98-01 would change the land-use designation of Intervenor’s vacant 9.9-acre parcel from Rural to Outlying Suburban, increasing the permissible residential density from 1 du/ac to 3 du/ac, an increase of 20 dwelling units, assuming the entire parcel is developed residentially. Intervenor’s application proposed 25,000 square feet of commercial development on three acres of the parcel, and 21 dwelling units on the remaining acreage. The Staff Report pointed out, however, that Lee County cannot condition the requested change in land-use designations to limit development potential to this proposed scenario. Therefore, the Staff Report applied the most intensive scenario of retail commercial uses that could occur on the property. At the hearing, Mr. Noble, Lee County’s lead planner on this application, testified that while the staff’s conclusions were based on commercial uses, the residential aspects of the project were also evaluated in the section of the Staff Report dealing with population accommodation. The Staff Report concluded as follows: The subject property has had quite a long history concerning it’s [sic] future land-use designation. The property’s owners have consistently been requesting an increase in density and intensity, while the citizens of Pine Island, just as consistently, have been opposed. This request is the smallest in area to date, with the least intensive increase in density and intensity. The owner argues that, under the current designation, the property is not developable. This contention would appear to be invalid, given the development of the Island Acres subdivision, immediately to the south of the RO plant. Pine Island is a unique place with considerable constraints to development as an urban area. With no increase in land-use designation, the level of service on Pine Island Road and Stringfellow Road will operate below the adopted standard before the year 2020. The thresholds established by Policy 14.2.2 will be exceeded by the year 2005. Limited access and it’s [sic] location in regards to hurricane vulnerability make it difficult to entertain or justify increases in density and/or intensity. There are ample areas currently designated on the island to accommodate the proposed development scenario. The full range of urban services, such as sanitary sewer and mass transit, are not and will not be available to this site. This would be the first land-use amendment on Pine Island since the 1988 Pine Island Land-use Study was incorporated into the Lee Plan. Even though a considerable amount of time has passed since the study’s completion, few changes in the condition of the island have occurred. Staff concludes that there are viable uses allowed on this property. Staff can see no compelling reason to support this proposed land-use amendment. While the impact of ten acres changing from a Rural designation to the Outlying Suburban category, when looked at on a county wide basis, is minimal, the unique circumstances on Pine Island do not support this change. The LPA voted against adoption of PAM 98-01 by a vote of 4-1, with two members (including Mr. Stuart, who worked on the project for Intervenor) abstaining. The LPA adopted the findings of fact set forth in the Staff Report, and added its concern with maintaining the current line of separation between urban and suburban uses. One LPA member did comment that "if there is another shopping center site on Pine Island, it’s probably this property," and in the "long run" there may be a need for another shopping center on Pine Island. The Board voted 3-2 to adopt PAM 98-01, finding that "the request would result in minimal impacts to such services as transportation, public safety, schools, and population accommodation." The petition filed by Petitioners, as amended, raised the following issues of fact and law: Data and Analysis: that PAM 98-01 is unsupported by data and analysis for increased residential and commercial designation on Pine Island and thus is not in compliance with Section 163.3177(8) & (10)(e), Florida Statutes, and Rules 9J- 5.005(2), 9J-5.006(2)(b) & (c), and 9J- 5.006(5)(a) & (g), Florida Administrative Code. Coastal Hazard: that PAM 98-01 is not in compliance with Section 163.3178(2), Florida Statutes, and Rules 9J-5.006(2), 9J- 5.012(3), and 9J-5.012(3)(b)6., Florida Administrative Code, because it directs population to the known or predictable coastal high hazard area. Land-use Suitability: that PAM 98-01 is unsupported by data and analysis supporting the suitability of land for increased residential density or intensity of commercial development and thus is not in compliance with Section 163.3177(6)(a), Florida Statutes, and Rules 9J-5.006(2), 9J- 5.006(2)(b), and 9J-5.006(5)(a) & (g), Florida Administrative Code. Internally Inconsistent: that PAM 98-01 is internally inconsistent with the following Lee County Plan goals, objectives, and policies: Policy 5.1.2 prohibiting residential development where physical constraints or hazards exist, or requiring the density and design to be adjusted accordingly. Constraints or hazards include flood, storm, or hurricane hazards, and environmental limitations. Goal 14 requiring that the management of growth on Pine Island maintain the island’s unique natural resources and character, and insure that island residents and visitors have a reasonable opportunity to evacuate when a hurricane strike is imminent. Objective 14.1 requiring that Pine Island have no unnecessary loss of native upland vegetation or habitat. Policy 14.2.2, set out in full above, concerning future development regulations to limit future development approvals when traffic reaches certain thresholds. Objective 14.3 requiring that county regulations, policies and discretionary actions to recognize "certain unique characteristics" of Greater Pine Island justifies different treatment of existing and future residential areas than in mainland Lee County. Goal 75 protecting human life and developed property from natural disasters. Objective 75.1 and Policies 75.1.2 and 75.1.4 concerning densities in coastal high hazard areas. Objective 77.2 and Policies 77.2.3 and 77.2.6 concerning protection of natural plant communities. Policy 77.4.4 restricting the use of protected plant and wildlife species habitat to that which is compatible with the requirements of endangered and threatened species and species of special concern. Policy 77.8.1 concerning the protection of gopher tortoise burrows. Goal 79 and Objectives 79.1 and 79.2 concerning evacuation times and shelter capacity. Inconsistent with State Plan: that PAM 98-01 is inconsistent with Section 187.201(7)(b)23, Florida Statutes, which concerns protecting life and property from natural disasters such as hurricanes, and Section 187.201(10)(a), Florida Statutes, which concerns protecting natural habitats and ecological systems. Suitability In 1989, Lee County’s Department of Community Development prepared the Pine Island Commercial Study, in response to a general directive by the Board to develop a means of identifying future commercial sites throughout Lee County, and in direct response to issues emerging from the review of two specific commercial zoning cases on Pine Island. The Commercial Study was initiated to research, analyze, and quantify commercial zoning needs for Pine Island, and then identify suitable locations for potential future development. The Commercial Study concluded that in 1989 there were over 600 acres of commercially-zoned property on Pine Island, and that this acreage was "far in excess of any possible need, even at build-out, of Pine Island." The study went on to say: However, it is recognized that not all the lands currently zoned commercially are in advantageous locations, nor are they in appropriate land-use categories. In fact, properties in locations with strong market demand and good transportation access and suitable lot sizes are relatively limited. The Commercial Study also concluded that much of the land already zoned for commercial use was zoned C-1 and C-1A, "carryover" categories from older Lee County ordinances based on "pyramid" zoning, i.e., they also allowed residential uses. The study found that the most desirable solution to this problem would be to rezone these properties to non-commercial categories, but recognized the prohibitive cost of such a "relatively massive undertaking." It recommended the more practical option of modifying zoning regulations to make it clear that retail commercial uses can only be located within "designated commercial nodes," regardless of their zoning categories. The Commercial Study also concluded that additional retail uses would be needed on Pine Island as the population grows, although current uses were adequate to meet existing needs "until the year 2000," and that commercial development should be concentrated in the Pine Island Center, with possible convenience store sites at St. James City and Bokeelia. Approximately 236 acres were identified in the Commercial Study as appropriate commercial areas. The Commercial Study stated that this was more than four times the amount needed for 1990 retail and general commercial uses. Mr. Spikowski testified that it is typical for more property to be zoned commercial than is actually needed, because land owners are attempting to maximize the value of their property. He testified that a "slight surplus," in the range of 15 to 25 percent, is appropriate to avoid giving a few land owners a monopoly on future development. The property at issue in this proceeding was not included in the 236 acres deemed appropriate for commercial development. Despite several efforts from 1990 through 1993, no amendment establishing these commercial nodes was ever adopted by the Board. Ultimately, the Civic Association itself withdrew its support for the commercial nodes plan, stating that the plan as proposed would promote commercial strip development and commercial sprawl. In 1993, the Board adopted Policy 14.4.3, which would have required Lee County staff to update the Commercial Study in 1995. However, no such update was ever undertaken, and in 1998 the Board amended the Lee County Plan to delete Policy 14.4.3. The staff report recommending deletion of the policy noted that current demand for commercial sites had been minimal and did not warrant a full scale update of the Commercial Study, and concluded that the 1989 Commercial Study was "still a current document" not in need of an update. The Lee County Plan incorporates a "planning community" concept through an overlay, commonly referred to as the "FLUM 2020 Overlay," that establishes certain acreage allocations for uses that can occur within 20 discrete planning areas before the year 2020. Pine Island is one of these planning areas. The FLUM 2020 Overlay is intended to allocate development throughout the county and prevent excessive development in particular land-use categories beyond the projected need. The FLUM 2020 Overlay allocates development on Pine Island through the year 2020 as follows: Category Allocation (in acres) Intensive Development (for Residential Development) 5 Urban Commercial (for Residential Development) 526 Suburban (for Residential Development) 636 Outlying Suburban (for Residential Development) 466 Rural (for Residential Development) 1,129 Outer Island (for Residential Development) 37 Wetlands (for Residential Development) 88 Commercial 165 Industrial 64 j. Public 1,722 k. Active Agriculture 2,313 l. Passive Agriculture 960 m. Conservation 13,693 n. Vacant 4,586 Total 26,390 Below this list of allocations is a table called "Non Regulatory Allocations," which shows a total of 26,393 acres, slightly different from the total derived above. The "Non Regulatory Allocations" table lists 13,738 acres as conservation lands, leaving 12,700 acres. An additional 4,586 acres are designated "Vacant" in the "Non Regulatory Allocations," but their land-use designation is not identified. The FLUM 2020 Overlay provides for 165 acres of commercial development on Pine Island by the year 2020. Mr. Spikowski testified that Lee County’s database indicated that as of 1997 there were 138 acres developed commercially on Pine Island, leaving a need of 27 acres of vacant land for commercial development before the year 2020. Mr. Noble, the principal planner for Lee County, testified that his conclusion, reflected in the Staff Report, was that there is no need for additional commercial or urban lands on Pine Island, and that approval of PAM 98-01 would cause unnecessary commercial development on Pine Island. He testified that these conclusions were largely based on the findings of the 1989 Commercial Study of Pine Island. Mr. Noble also testified that, despite his conclusion as to the lack of need for commercial development, the FLUM 2020 Overlay allocates sufficient acreage to accommodate the property involved in PAM 98-01 without requiring an amendment to the overlay. Mr. Noble testified that no effort was made to update the findings of the 1989 study, because none was needed. He testified that there has been very little rezoning or development activity on Pine Island since 1989 aside from some clearing for agricultural uses, and therefore the 1989 study represents the best available data. Mr. Spikowski agreed with this assessment, testifying that while the 1989 study is somewhat out of date, it still provides good information on how much commercial development is needed to serve the community. Mr. Spikowski testified that the study still provides more information than exists for other parts of Lee County regarding the relationship between commercial development and commercial zoning. Mr. Noble admitted that the county’s capabilities in collecting and categorizing data have improved since 1989, but did not agree that revising the study would result in improved information, because the county’s zoning information is so inaccurate that one could not rely on the existing land-use data base to update the study. Thus, despite the fact that the county’s data base is now linked to the property appraiser’s records on a parcel by parcel basis, an accurate revision of the study would require verification of each parcel, and the lack of activity on Pine Island indicated to Mr. Noble that such an expenditure of resources was not needed to assess this application. Mr. Noble testified that the staff recommendation against approval was not a statement that approval of PAM 98-01 would be illegal. Mr. Noble also agreed there was a difference between opining that there is no need for more commercial and urban classifications, and holding that more such classifications are not allowed. He attended the meeting at which the Board approved the amendment, and believed the Board understood staff’s presentation and considered all relevant information in arriving at its decision. Mr. Noble testified that the Lee County Plan is currently in compliance with all applicable legal requirements, and he did not think that PAM 98-01 would place the plan out of compliance. Mr. Stuart, Intervenor’s planner, testified that once he began to understand that Lee County staff had concerns with overcommercialization of Pine Island based on the 1989 study, he took a hard look at that data. He testified that the 602 acres of commercial property set out in the Commercial Study did not appear correct "when you look at the map." Mr. Stuart testified that he performed a specific land- use study using the Lee County Division of Planning geographic information system resources. Mr. Stuart began by looking at the 1989 study, and noted that no information was available to show how the county derived the 602-acre figure. The only thing available in the county’s files was a single sheet aggregating the numbers into a total, without explanation of how the constituent numbers were derived. Mr. Spikowski, who was Lee County’s head planner in 1989, testified that the 602-acre figure was calculated "very carefully," but offered no detail to illumine that conclusory statement. Mr. Stuart testified that, though he suspected the total was inflated, he assumed that it was reasonably accurate for purposes of his analysis. Mr. Stuart considered the currently expected population of Pine Island based upon currently available data, the county’s planning conversion ratio of 2.09 persons per household on Pine Island, the county’s conversion ratio adjusting Pine Island’s population for seasonal residents, and then calculated the projected need for commercial development expressed in acres, using the same ratios that Lee County uses in planning for this purpose. Mr. Stuart also developed a computer table, with the assistance of county staff, of all the commercially-zoned property on Pine Island. He then adjusted the output to correct data entry errors and approximated the commercial acreage determined to be available in the 1989 Commercial Study. Mr. Stuart next examined the properties parcel by parcel to delete those commercially-zoned properties that have already been put to non-commercial use, that are wetlands unlikely to be commercially developed, that are in use as public facilities, and those that may not be developed because they are designated with outdated zoning categories that are restricted under the Lee County Land Development Code. This process derived an estimate of the number of commercially-zoned acres on Pine Island that are either in commercial use or are available for commercial use. Mr. Stuart’s analysis concluded that there is actually a deficit on Pine Island of 69 acres of commercially-zoned property that may as a practical matter be put to commercial use, when the projected demand for such property to serve the projected population of Pine Island is taken into account. In summary, it is found that Petitioners failed to demonstrate by a preponderance of the evidence that the increase in residential density and commercial intensity contemplated by PAM 98-01 is not suited to accommodate the population of Pine Island. The most conservative estimate rendered by the data and analysis indicates a need for an additional 27 acres of commercial development. No amendment of the FLUM 2020 Overlay is needed to effect this small-scale FLUM amendment. Mr. Stuart’s analysis is credited to the extent it supports a finding of substantial need. Petitioners offered no competent substantial evidence regarding residential allocations and the lack of any need for additional residential density, and thus failed to overcome the presumption that the Board’s action in adopting PAM 98-01 was correct on this point. Transportation Vehicular access from the mainland to Pine Island is provided solely by way of Pine Island Road, a two-lane road that proceeds over Matlacha Pass, through the Matlacha community, and over Little Pine Island by a series of bridges and causeways. North/south access on Pine Island is by way of Stringfellow Road, a two-lane road that runs from the community of Bokeelia at the north end of Pine Island to the community of St. James City at the south end of Pine Island. William Spikowski, a planner who testified on behalf of Petitioners, stated that widening the narrow, two-lane Pine Island Road to accommodate more traffic would be at best a difficult and expensive proposition. He testified that the right-of-way through most of the Matlacha community is only about 66 feet wide, and the buildings are often located directly adjacent to the right-of-way. He testified that if the right-of- way were widened to 90 feet to accommodate extra lanes, 75 buildings would have to be removed and several other businesses would lose their parking lots. Mr. Spikowski concluded that Pine Island Road is the biggest limitation on the island’s development. The Lee County Plan designates Pine Island Road as a constrained roadway as it passes through Matlacha, due to the narrow right-of-way and scenic, aesthetic, and environmental considerations. Matt Noble, a Lee County planner, testified that there were no improvements scheduled for Pine Island Road for the next three years, and that the road is projected to operate at Level of Service "F" in the year 2020 based on the applicant’s analysis. Level of Service "F" is below the standard adopted by the Lee County Plan. Mr. James Banks, a professional engineer expert in transportation engineering and planning, testified that the predictive methodology employed by county staff, i.e., assuming no road improvements while loading the system with future traffic demands, would result in a Level of Service "F" rating for nearly every major roadway in Lee County for the year 2020. He testified that this was an improper method for reviewing development permits. Mr. Banks testified that the proper method is to look at the roadway’s capacity at the time of the development application to determine whether there is available capacity today. If there is no capacity available, then the developer must devise a way to mitigate the impact, alleviating any degradation below the road’s adopted level of service. The permitting system is "first come, first serve," meaning that if the capacity is available today, then the permit is issued. Mr. Banks testified that there is no data indicating that the capacity of Pine Island Road will be exceeded by the year 2005. The sole hurricane evacuation route from the Greater Pine Island Area is by way of Stringfellow Road to Pine Island Road, then north on Burnt Store Road. Burnt Store Road is also the evacuation route for the City of Cape Coral. Several Pine Island residents testified as to their concerns that any increase in development on the island will further compromise the ability to evacuate the island in the event of a hurricane. There are no hurricane shelters on Pine Island, and no public services on the island during hurricanes. The Lee County Staff Report for PAM 98-01 raised similar concerns, concluding that the applicant is "seeking to increase density thereby increasing the number of persons at risk, impacting evacuation routes and shelter space." At the hearing, Matt Noble, Lee County’s principal planner and the lead planner working on the Staff Report, testified that the quoted statement in the Staff Report assumed that the development on the 9.9-acre parcel would be residential. He further testified that commercial development of the property would have no effect on evacuation times, which are based on the number of residents attempting to leave the island. Mr. Noble’s testimony on this point conflicts somewhat with the Staff Report’s statement that the application was reviewed using the most intensive scenario of retail commercial uses occurring on the property. However, given that the proposed plan amendment could not limit the development that could ultimately be requested on the property, it was not arbitrary for the county staff to consider both residential and commercial uses as potential development scenarios. James Banks, Intervenor’s transportation planning expert, testified that if residential demand on Pine Island exceeds the capacity of commercial development to satisfy it, there would be an increase in traffic on Pine Island Road as residents leave the island to do their basic shopping. Conversely, if enough commercial development occurs on the island to consume the residential demands, the number of off-island trips would be reduced. Mr. Noble agreed that there might be an increase in trips off the island if there were insufficient commercial development to serve the residents on Pine Island. He testified that there is a planning principle supporting integrated and coordinated land-use development, and part of that principle is to capture as many trips as close to residential development as possible to avoid urban sprawl. Mr. Noble testified that the Board considered this principle in its deliberations, and that one Commissioner expressly stated that having additional commercial capacity on Pine Island might improve the transportation flow on Pine Island Road by decreasing the number of trips off the island. Policy 14.2.2 of the Lee County Plan states as follows: In order to recognize and give priority to the property rights previously granted by Lee County for about 6,800 additional dwelling units, the county shall consider for adoption development regulations which address growth on Pine Island and which implement measures to gradually limit future development approvals. The effect of these regulations would be to appropriately reduce certain types of approvals at established thresholds prior to the adopted level-of- service standard being reached, as follows: When traffic on Pine Island Road between Burnt Store Road and Stringfellow Boulevard reaches 810 peak hour, annual average two-way trips, the regulations shall provide restrictions on further rezonings which would increase traffic on Pine Island Road. When traffic on Pine Island Road between Burnt Store Road and Stringfellow Boulevard reaches 910 peak hour, annual average two-way trips, the regulations shall provide restrictions on the further issuance of residential development orders (pursuant to the Development Standards Ordinance), or other measures to maintain the adopted level of service, until improvements can be made in accordance with this plan. Lee County has not actually adopted regulations restricting rezonings and/or development orders based upon the 810/910 peak hour traffic thresholds on Pine Island Road between Burnt Store and Stringfellow Roads. Mr. Noble testified that the main reason for the adoption of Policy 14.2.2 was the county’s concerns regarding hurricane evacuation. He agreed that, even if the prescribed regulations had been adopted, they would restrict rezonings and development orders, not amendments to the comprehensive plan. Mr. Noble testified that the 810 and 910 vehicle limits are not standard calculations derived by the Department of Transportation, and cannot be mathematically derived from any planning model. Mr. Spikowski testified that the 810 and 910 vehicle per hour thresholds were based on roughly 80 percent and 90 percent, respectively, of the level of service proposed by either the Civic Association or Lee County staff at the time of the policy’s adoption. He further testified that the 810 trip per hour threshold has already been reached. James Banks, Intervenor’s expert in transportation planning, agreed with Mr. Noble that the 810 and 910 vehicle limits were essentially arbitrary thresholds adopted by the Board, and further testified that these thresholds are unrelated to the actual capacity of the road. Mr. Banks testified that Lee County’s own Concurrency Management Inventory and Projections indicate that the actual capacity of Pine Island Road between Burnt Store and Stringfellow Roads is 2,170 vehicles per hour at Level of Service "E", and that the road is currently operating at Level of Service "A," the highest designation. Mr. Banks testified that under any possible development scenario involving the parcel at issue in this proceeding, the impact would be no worse than Level of Service "B" for this portion of Pine Island Road, still well below the road's capacity. In summary, Petitioners failed to demonstrate by a preponderance of the evidence that PAM 98-01 will compromise evacuation of Pine Island in the event of a hurricane, or that the development that might ultimately be allowed pursuant to the Outlying Suburban designation will strain the operating capacity of Pine Island Road in the critical areas described above. Even assuming the additional traffic generated will push trips per hour beyond the 810 threshold and toward the 910 trip per hour threshold, Policy 14.2.2 by its terms places no restrictions on development; rather, it provides that the Board will consider adopting development regulations "to gradually limit future development approvals." Coastal High Hazard Area Closely related to the transportation and evacuation concerns is the issue of development limitations on barrier islands such as Pine Island. Goal 75 of the Lee County Plan and its implementing objectives and policies addresses development in coastal high- hazard areas. Objective 75.1 limits new development on barrier islands to densities that meet required evacuation standards, and states that allowable densities for undeveloped areas within the coastal high hazard areas will be considered for reduction. Mr. Noble testified that other Outlying Suburban lands and proposed residential development on Pine Island have been found to comply with Objective 75.1, but that there have only been a "couple" of such projects due to the sparse development activity on the island. Policy 75.1.2 prohibits rezonings to allow higher densities on barrier and coastal islands if the capacity of critical evacuation routes would be exceeded. Mr. Spikowski conceded that approval of three homes per acre on the seven acres proposed for residential development by Intervenor would not exceed the Lee County Plan’s stated evacuation times, but argued that taking a narrow view of this project in a vacuum is "the antithesis of planning," which calls for a view of the "big picture" rather than the individual project. Policy 75.1.4 states that density reductions for undeveloped areas within the coastal high-hazard areas will be considered, but does not require such reductions. In 1993, the Florida Legislature amended Section 163.3178(2)(h), Florida Statutes, to require that coastal elements of comprehensive plans designate "coastal high-hazard areas," defined as Category One evacuation zones, i.e., areas that must be evacuated for a Category One hurricane. Rule 9J- 5.003(17), Florida Administrative Code, was subsequently amended to reflect the statutory change. Petitioners contend that PAM 98-01 cannot be adopted at this time because the Lee County plan amendments defining the coastal high hazard area have not been finally adopted. Petitioners contend that adoption of PAM 98-01 would violate Rule 9J-5.002(8), Florida Administrative Code, which provides: Effect of Rule Amendments. No amendment to this chapter shall have the effect of causing plans or plan amendments which were adopted prior to the effective date of the amendment to become not in compliance. Minimum criteria contained in any amendment to this chapter shall be addressed in the first subsequent transmitted plan amendment which is directly related to or requires the application of those criteria. Petitioners contend that the quoted rule provision operates to give effect only to such plan amendments dealing with potential "coastal high-hazard areas" as were adopted prior to the amendment of Rule 9J-5.003(17), Florida Administrative Code. Petitioners argue that until the mandated definitions are finally adopted, PAM 98-01 would render the Lee County Plan out of compliance. Petitioners' reading of the quoted rule is strained and not persuasive. They are correct that the first sentence operates to grandfather plan amendments adopted prior to a given rule amendment. The language of the second sentence requires the local government to address rule amendments "in the first subsequent transmitted plan amendment." By its terms, the rule would have the practical effect of prohibiting interim plan amendments dealing with the subject matter of the rule amendments, as urged by Petitioners, because such an interim plan amendment would by definition not be the "first subsequent transmitted amendment." However, the second sentence does not address the situation presented here, of a small-scale plan amendment that is not formally "transmitted" to the Department of Community Affairs for review pursuant to Section 163.3184(3), Florida Statutes. "Transmittal" of a plan amendment triggers an array of procedural requirements that Section 163.3187(1)(c), Florida Statutes, is specifically designed to avoid. Petitioners’ argument on this point would effectively tie the small-scale plan amendment process irrevocably to the more cumbersome "large-scale" amendment process each time the Department of Community Affairs chooses to amend Chapter 9J-5, Florida Administrative Code, in such a way as to require compliant local plan amendments. This would defeat the Legislature’s purpose in disengaging small-scale amendments from many of the formalities of the plan amendment process. In any event, no party to this proceeding seriously contended that the property in question in fact lies outside of the coastal high-hazard area. The Staff Report, while acknowledging that the property is not yet "technically included" in the coastal high-hazard area, expressly treated the property as if it were, applying Goal 75 of the Lee County Plan in its analysis of the project. The Intervenor did not contest this treatment. These findings of fact accept that the subject property lies within the coastal high-hazard area, and that the property was treated by both Lee County staff and the Board as lying within the coastal high-hazard area, rendering moot Petitioners’ procedural arguments regarding the formal adoption of the new statutory definition. In summary, Petitioners failed to establish by a preponderance of the evidence that PAM 98-01 does not comply with statutory, rule, or Lee County Plan provisions dealing with development in coastal high-hazard areas. Natural Resources Intervenor’s 9.9 acre parcel, a pine flatwood community dominated by slash pine in the canopy with an understory of saw palmetto and other upland species, contains protected plants and animals. Uniformly distributed over the parcel are 551 beautiful pawpaws, as counted in the survey of the property conducted by Boylan Environmental Consultants on behalf of Intervenor. Petitioners did not dispute this count of the beautiful pawpaws on the site. The beautiful pawpaw has been designated an endangered species by the United States Fish and Wildlife Service and the Florida Game and Freshwater Fish Commission (now called the Florida Fish and Wildlife Conservation Commission). Lee County has designated the beautiful pawpaw as a protected species. Beautiful pawpaws are small plants with deep tubers, and are difficult to relocate. The beautiful pawpaws on the 9.9- acre parcel are currently healthy and viable. Intervenor’s 9.9-acre parcel also contains 10 active, 21 inactive, and 22 abandoned gopher tortoise burrows, as counted by Boylan Environmental Consultants and not disputed by Petitioners. Gopher tortoises are listed as a species of special concern by the Florida Fish and Wildlife Conservation Commission, and are listed as a protected species by Lee County. Gopher tortoise burrows are also appropriate habitat for indigo snakes and gopher frogs, both of which are listed as protected species by Lee County. Betsie Newton Hiatt, a senior environmental planner with Lee County and an expert in environmental planning, testified that she made a "cursory inspection" of the subject property and observed the beautiful pawpaws and gopher tortoise burrows on the site. She did not actually count the plants or burrows, but testified that she observed enough to consider the counts made by Boylan Environmental Consultants to be accurate. Ms. Hiatt testified that a management plan would be necessary prior to development of the parcel, and that it would be possible to submit a detailed management plan meeting all Lee County Land Development Code requirements for property that has beautiful pawpaws and gopher tortoise burrows and that lies within an Outlying Suburban land-use category. Ms. Hiatt testified that part of her duties is the implementation of Policy 77.2.6 of the Lee County Plan, which requires avoidance of needless destruction of upland vegetation communities through consideration during the site plan review process of alternative layouts of permitted uses. She testified that this policy is implemented in the Lee County Land Development Code through open space and indigenous preservation requirements. She finally testified that it would be possible to meet the open space requirement while developing the parcel at issue in this proceeding. Ms. Hiatt testified that the policy requires that approximately one third of the beautiful pawpaws found on a site be preserved in place, one third may be relocated in preservation areas, and one third may be removed. She testified that the open space requirement for commercial use of a 9.9-acre site would be about three acres, and that about 380 beautiful pawpaws could survive in this area. This would be about 69 percent of the 551 beautiful pawpaws found on the site, slightly more than the requisite two-thirds that must be preserved. Rae Ann Boylan, the expert in environmental land-use planning whose company performed the species survey on the property, testified that allowing the site to lay fallow would be as bad for the beautiful pawpaws as development, because other shrubs would eventually overgrow them without management of the site. Ms. Boylan also testified that a management plan would be required prior to development to accommodate the listed species. She testified that Lee County requires a developer to excavate the tortoises that can be found and place them out of harm’s way. She further noted that Policy 77.8.1 of the Lee County Plan provides for off-site mitigation, if unavoidable conflicts make on-site protection of the tortoises infeasible. Policy 5.1.2 of the Lee County Plan prohibits residential development where physical constraints or hazards exist, including hurricane hazards and environmental limitations. Mr. Noble of Lee County testified that residential development has been approved on Pine Island under this policy, and that the decision whether this policy applies to a given project is made at the time of development or site plan approval. Mr. Spikowski agreed that Policy 5.1.2 is a limitation on development, but argued that now is the time to evaluate the matter. He testified that if there are physical constraints or hazards that should stop approval of additional subdivisions on Pine Island, the county should not wait for the development order stage to draw the line. Mr. Spikowski explained that, as a practical matter, the development order stage consists of arguments about the details of the development, not whether it will occur at all. Mr. Spikowski's testimony is credited as a valid statement of planning philosophy, but not as stating a legal barrier to the Board's decision in this matter. In summary, Petitioners failed to demonstrate by a preponderance of the evidence that PAM 98-01 by its terms will have any adverse impacts on native upland vegetation, wildlife habitat, natural plant communities, or protected plant and wildlife habitat. Even after PAM 98-01 is enacted, the Lee County Plan provisions protecting all these natural resources will remain in place. Any subsequent development will be required to comply with the provisions of the Lee County Plan and the State Comprehensive Plan establishing protection of the resources. Data and Analysis Section 163.3177(8), Florida Statutes, requires that all elements of a comprehensive plan be based upon data appropriate to the element involved. Rule 9J-5.005(2)(a), Florida Administrative Code, provides in relevant part: All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of the adoption of the plan or plan amendment at issue. The local government is not required to engage in original data collection, but the data used must be the best available. Rule 9J-5.005(2)(b) and (c), Florida Administrative Code. Rule 9J-5.006(2)(c), Florida Administrative Code, provides that the Future Land-use Element, including the FLUM and amendments thereto, must include an analysis of the amount of land needed in each category of land-use to accommodate the projected population. This analysis must estimate the gross acreage needed by land-use category and their densities and intensities, and describe the methodology used to arrive at those estimates. The preponderance of the evidence establishes that there was sufficient data and analysis to permit the Board to conclude that PAM 98-01 was justified. As found above, even the most conservative estimate of Mr. Spikowski, the expert retained to oppose the amendment, conceded that the data indicated there remains a need for 27 acres of vacant land for commercial development on Pine Island before the year 2020. The Commercial Study relied upon by Petitioners also concedes that much of the property currently zoned for commercial uses is not in fact appropriate for such uses. The evidence establishes that Lee County itself has historically recognized this fact but has declined to expend the resources needed to update the zoning on Pine Island, largely due to the overall paucity of development activity on the island. The evidence in this proceeding establishes that the property at issue is the only commercially-zoned property adjacent to the Pine Island Center that was not included in that center during the 1989 Plan update process, presumably because it was vacant property at the time. Despite all the testimony regarding properties on Pine Island having inappropriate commercial zonings, not one witness suggested that the property at issue should not be zoned commercially. At least one member of the LPA recognized the appropriateness of this property for development "in the long run," but the LPA voted against the amendment to preserve the clear demarcation between urban and rural uses in the current FLUM. However, even Mr. Spikowski conceded that the clear line between urban and rural uses was compromised at the outset to allow for existing uses, and that the FLUM change contemplated by PAM 98-01 would merely add another "blip" to a line on the map that already contains breaks and changes between urban and rural uses. Mr. Spikowski’s argument that PAM 98-01 would create urban sprawl is thus overstated. PAM 98-01 does not designate uses in excess of demonstrated need. It does not appreciably compromise the clear separation between rural and urban uses. It does not discourage or inhibit infill development. In fact, PAM 98-01 could just as plausibly be said to constitute infill in the vicinity of the Pine Island Center; at the very least, it does not leap over undeveloped lands that are available and suitable for development. The subject property lies between commercial uses to the north and a public facility use, the RO plant, to the south. PAM 98-01 does not fail to protect environmentally sensitive habitat, because the beautiful pawpaws and the gopher tortoise burrows on the site will be dealt with as provided in the Lee County Plan during any subsequent development and site planning of the property. Mr. Spikowski’s ultimate opinion that PAM 98-01 is "illegal" is based on his view, also expressed in the Staff Report, that there is "no compelling reason" to adopt the requested amendment. Mr. Spikowski testified that, because Pine Island has an overallocation of commercial land, anyone wishing to add to the total has "a really high burden to show that this is so much better located than the existing land, or [that] other land should be eliminated in favor of this land, and that burden hasn’t been met." As explained in the conclusions of law below, this is not the standard for judging the legality of a small scale development amendment. Mr. Spikowski’s policy disagreement with the Board’s action has been noted and fully considered, but his judgment that PAM 98-01 is "illegal" cannot be credited. In summary, Petitioners failed to demonstrate by a preponderance of the evidence that PAM 98-01 is not supported by relevant and appropriate data and analysis as required by Section 163.3177(8), Florida Statutes, and Rule 9J-5.005(2), Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding small scale development amendment PAM 98-01 to be in compliance. DONE AND ENTERED this 27th day of December, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 27th day of December, 1999. COPIES FURNISHED: Thomas W. Reese, Esquire 2951 61st Avenue, South St. Petersburg, Florida 33712 Thomas L. Wright, Esquire Timothy Jones, Esquire Assistant County Attorneys Lee County, Florida 2115 Second Street Post Office Box 398 Fort Myers, Florida 33902 Pete Doragh, Esquire Annis, Mitchell, Cockey, Edwards & Roehn, P.A. Post Office Box 60259 Fort Myers, Florida 33906-6259 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue This cause came before the Hearing Officer upon the Petition of Nancy K. Taylor submitted in accordance with Section 120.57, Florida Statutes. The Petition was for review of the intent to issue a construction permit to the Cedar Key special Water and Sewer District for the Cedar Key Water Reclaiming Facility in Cedar Key, Florida. Subsequent to the filing of the Petition by the Petitioner; and prior to the hearing, the parties entered into a Stipulation narrowing the issues to the phasing out of septic tanks and the monitoring of the progress of local comprehensive plans to phase out septic systems in coastal areas, flood plains, rivers and the stream banks and above-shallow aquifers and the issue regarding capitalization and fees for future users. Subsequent to the entering into the Stipulation, the Respondent, Department of Environmental Regulation ("Department"), filed a Motion in Limine and later amended the Motion in order to limit the introduction of certain evidence. The Respondent, Cedar Key Special Water and Sewer District ("District"), concurred in the Motion in Limine. A hearing was held on the Motion in Limine by teleconference on October 22, 1990. At that hearing, the Motion in Limine was denied in part and granted in part. As a result of the hearing on the Motion in Limine, the issues were narrowed to (l) whether the Department has the authority to ensure that the modified facility would have sufficient capacity to serve the District's service area, and (2) whether the Department could require the District to install collection lines to unsewered properties within the service area that are currently utilizing septic tanks.
Findings Of Fact The District was created by the Florida Legislature through the enactment of Chapter 63-1569, Laws of Florida, as a political subdivision for the purposes of supplying water and disposing of sewage within the District boundaries as set forth in Section 1 of the enabling act and as indicated on the map offered as the District's Exhibit CK 5. Pursuant to Section 4 of Chapter 63-1569, the District has the power to fix and collect rates, to fix and collect charges for connections to the sewer system, and to levy ad valorem taxes on all of the taxable property in the District. The District's service area encompasses all of those properties situated within the incorporated city limits of Cedar Key and the unincorporated areas of the four-island group, collectively known as "Cedar Key", as well as approximately 25 square miles (an estimated 20,000 acres) of the mainland in unincorporated Levy County. See District's Exhibit CK 5. The District provides all treatment services to the City of Cedar Key. The District's existing facility has a capacity of 100,000 gallons per day ("gpd"), and the average daily flow is 80,000 gpd. However, on weekends, the flow peaks at 189,000 gpd. In May of 1987, the District imposed a limit on new connections due to capacity-related violations of its operating permit. This limitation is commonly referred to as the moratorium. The moratorium was instituted because of the inability of the existing treatment system to adequately treat waste during periods of peak flow. The legislature appropriated through the Department a grant in aid of $2.5 million to improve the existing plant. The Department has cost and financing responsibility for use of the funds. On January 2, 1990, the District filed an application for a permit with the Department seeking authorization to modify and expand its current 0.100 mgd activated sludge waste water treatment plant to a 0.166 mgd cyclical nitrogen removal extended aeration waste water treatment plant with tertiary filters and high level chlorination, and for the construction of an approximate 200-foot by 250-foot non- public access drip irrigation system for reclaimed water reuse. The facility and the site for the proposed reuse system are located in Cedar Key, Florida. The Petitioner is a resident of Cedar Key and owns property within the service area of the District, but is not presently connected to the system due to the lack of collection lines in her area. There are currently 95 homes utilizing septic tanks in Cedar Key, including the Petitioner's. Of these, 37 are inside the area served by the collection system and have been kept from hooking up by the moratorium. Another 58 are outside the sewered area, but within the District. Septic tanks are a source of non-point pollution which degrades coastal waters and has resulted in the closing of shellfish harvesting areas. The expansion and modification, which is the subject of the challenged permit, will increase the capacity of the treatment facility to 166,000 gpd with a peak capacity of 304,000 gpd. The waste can be adequately treated by means of cyclical aeration, filtration and chemical addition and will take care of current weekend peaks. The design for the expansion and modification is compatible with the City of Cedar Key's Comprehensive Plan adopted on January 23, 1990 and was based upon the population growth projections formulated by the Cedar Key Citizens Planning Committee through the year 2010. These projections reflect an estimated population consisting of 1,028 permanent residents, 303 seasonal residents, and 333 transient residents, for a total of 1,664 residents. Of the increased capacity of the proposed facility, 93% is allocated for the City of Cedar Key. Only 7% is available for non-City use. The capacity of 166,000 gpd for the proposed facility was computed by multiplying the projected population of 1,664 by the industry standard of 100 gpd per person. Although peak usage was not projected, the proposed facility can handle 1.83 times the average daily flow (304,000 gpd). The current peak weekend flow is 1.89 times the current average daily flow. Of the 25 square miles of District service area located on the mainland, approximately 10,000 acres are suitable for development. The existing facility does not have the capacity to serve the islands adequately, much less the mainland. Although the proposed facility's increased capacity will be sufficient to service the projected growth on the island and the mainland, it would be more economical to build a satellite package plant on the mainland, rather than to transport the waste from the mainland to the island. The capacity of the proposed system will benefit in the future by the installation of 6-liter toilets in all commercial enterprises located within the District in accordance with a resolution recently adopted by the District. Significant infiltration into existing sewer lines has been identified. Such infiltration increases the gallonage of water treated as it diminishes the amount of sewage which can be treated within the plant's operating limits. Repairs to the existing sewers are planned. The modifications and improvements contemplated by the permit will increase daily treatment capacity, decrease average daily use, and result in increased capacity to adequately process and treat the wastes generated by the current and future population within the entire District's service area through the year 2010. The capacity of the proposed facility is significantly larger than is necessary to treat the waste for the island service area. Where there are existing sewer lines, the lots are virtually built out. Although only a portion of the island service area has collection and transmission lines, there are no plans for construction of additional collection lines. Approximately 77% of the homes in the District's service area are connected to the system. As stated above, 95 homes on the islands have septic tanks. Following modification and expansion of the treatment plant, the moratorium will be lifted; and 37 residents in the District's island service area can apply for new connections. There are no plans for expanding service to the other 58 island residents within the District. The Cedar Key Comprehensive Plan provides for the priorities for new hookups to the treatment system. Under existing agreements, the District provides all treatment services for the City of Cedar Key. The District has "adopted" the Comprehensive Plan, and it would have to provide services to the City in a manner consistent with the Plan. The Comprehensive Plan provides priorities for new connections to the waste treatment system. These priorities are set out in the Conclusions of Law at page 10 below and are incorporated by references into these Findings. The District must obtain approval of the Department prior to authorizing additional connections to the system. Any expansion of the existing collection system of the District will require an additional permit before any new collection systems can be constructed. Collection systems, by definition, consist of "sewers, pipelines, conduits, pumping stations, force mains, and all other facilities used for collection and transmission of waste water from individual service connections to facilities intended for the purpose of providing treatment". See Rule 17- 604.200(1), Florida Administrative Code. Collection systems are permitted in accordance with Chapter 17-604, Florida Administrative Code. Rule 600.630, Florida Administrative Code, indicates that the Department regulates septic tanks in conjunction with the Department of Health and Rehabilitative Services. New connections will also be limited by funding constraints since funding of new collection lines falls upon the District and the District's customers. See Comprehensive Plan, page 3A-2I, section 3A-3.2, referenced above. There are only a few demands for expansion of the service area from environmentalists. Taxpayers in the District do not want to pay for the expanded collection system. Residents within the District and outside the existing collection system generally do not want to bear the cost of hookup fees. Given its taxing powers and ability to charge for its services by the District, various methods of financing expansion of the collection system exist. These include creating a special assessment district in an area without existing collection lines.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Department enter a Final Order granting the application of the District and issue the permit to expand and modify the waste water treatment facility and to construct the land application reclaimed water reuse system at the proposed site in Cedar Key, Florida, subject to the following special permit conditions agreed upon by stipulation of the parties: A dechlorination facility shall be installed at the emergency outfall location to dechlorinate the effluent prior to its discharge through the emergency outflow; Testing for enterococcus will be performed annually at the point of plant outflow, with a baseline test to be conducted prior to plant operation; and The District be required to expand the collection and transmission lines within the District as follows: 0-5 years: Extend service to those existing structures not hooked up within the District and city on the islands. 5-10 years: Extend service to new structures within the District on the islands. 10-15 years: Extend service to structures within the District off-island. 15-20 years: As required. DONE AND ENTERED this 14 day of November, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 14 day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4687 Department's Proposed Findings of Fact Adopted as paragraph 7. Adopted as paragraph 1. Adopted as paragraph 2. Adopted as paragraph 3. Adopted as paragraph 8. Adopted as paragraph 21. Adopted as paragraph 4. Adopted as paragraph 11. Adopted as paragraph 12. Adopted as paragraph 13. Adopted as paragraphs 14 and 15. Adopted as paragraph 12. Adopted as paragraph 16. Adopted as paragraph 6. Adopted as paragraph 18. 16-17. Adopted as paragraph 20. Adopted as paragraph 10. Adopted as paragraph 5. Adopted as paragraph 20. 21-23. Adopted as paragraph 21. Adopted as paragraph 22. Adopted as paragraph 25. Adopted as paragraph 22. District's Proposed Findings of Fact The proposed findings of fact were unnumbered and contain multiple findings; however, the only additional finding presented is that there are 564 commercial and residential sewer hookups in Cedar Key. This is true but not necessary to determine the issues. Petitioner's Proposed Findings of Fact Adopted as paragraph 5. Rejected, as irrelevant. Rejected, as argument. Rejected, as contrary to record. Rejected, as irrelevant. Rejected, as irrelevant. Adopted as paragraph 6. Adopted as paragraph 4. Rejected, as true but not required for a determination of the issues. Adopted as paragraph 9. Rejected, as irrelevant. Best evidence is that the allocation is 93% to City, 7% to unincorporated County. Best evidence is restated in paragraph 3 and 13. 14A. Rejected. District adopted the Comprehensive Plan. 14B. The Comprehensive Plan uses 250,000 gpd; however, there is no evidence presented in support of this figure. The application estimate of 166,000 was supported at hearing. 14C. It is not required for a determination of the issues. 14D. It is not required for a determination of the issues. 14E. True. Discussed in Conclusions of Law. 14F. Rejected, as contrary to record. 14G. Rejected, as contrary to record. 14H. Rejected, as contrary to record. 14I. Rejected, as contrary to record. 14J. True. Discussed in Conclusions of Law. 14K. Rejected, as contrary to record. 15. Rejected, as contrary to record. COPIES FURNISHED: Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Nancy K. Taylor, pro se P.O. Box 690 Cedar Key, FL 32625 Theodore M. Burt, Esq. P.O. Box 308 Trenton, FL 32693 William H. Congdon, Esq. Assistant General Counsel and Vikki R. Shirley, Certified Legal Intern Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue is whether an application by Petitioner, Hancock Bridge Marina, LLC (Petitioner or Hancock), for an Environmental Resource Permit (ERP) and sovereign submerged lands lease to expand an existing docking facility on Hancock Creek near the Caloosahatchee River in unincorporated Lee County (County), Florida, should be approved.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Background Hancock is a limited liability corporation with two shareholders: Donald Epler and Stefen Heinke. After conducting a feasibility study, on April 26, 2004, Hancock purchased a 5.51-acre parcel of property in the County with the expectation of constructing and operating a 400-slip marina and a 5,000- square-foot building housing a restaurant, ship's store, and other sundry items needed for operation. (Hancock has subsequently revised its plan by reducing the number of slips requested from 400 to 352.) The cost of the property was around $2.5 million. The property is located in an unincorporated part of the County on the north side of the Caloosahatchee River (River), a Class III water, south of Hancock Bridge Parkway, east of the City of Cape Coral, and west of U.S. Highway 41 and the City of North Fort Myers. The property currently contains a 30-wet slip marina with 13 finger piers and a 4-slip T-dock. The remainder of the parcel is essentially vacant. The parcel borders a River tributary named Hancock Creek, which is a man- altered tidal creek branching off of the River in a northwestern direction, and the North Key Canal, which extends east from Hancock Creek for approximately one-half mile. Access to the River, which is no more than a hundred yards or so south of the parcel, is by traversing North Key Canal and Hancock Creek. The Department is the state agency with the authority under Part IV of Chapter 373, Florida Statutes, to issue an ERP. In addition, the Department has authority from the Board of Trustees of the Internal Improvement Trust Fund to review and take final agency action on requests to authorize activities in sovereign submerged lands. See § 253.002(1), Fla. Stat. The Commission is the agency with constitutional regulatory authority over "wild animal life and fresh water aquatic life and shall also exercise regulatory and executive powers of the state with respect to marine life." See Art. IV, § 9, Fla. Const. The Commission's authority for the regulation of manatees is derived from the Florida Manatee Sanctuary Act, which is codified in Section 379.2431, Florida Statutes. Under Sections 373.428 and 380.23, Florida Statutes, it also has authority to review ERP applications for federal consistency purposes pursuant to the federally approved Florida Coastal Management Program. On September 12, 2005, Petitioner filed an application for an ERP (a regulatory approval) and a lease to use sovereign submerged lands (a proprietary approval) with the Department's South District Office in Fort Myers, Florida. (For unknown reasons, the application was resubmitted to the Department on August 14, 2006.) The two requests are linked, and the Department cannot approve one without approving the other. See Fla. Admin. Code R. 62-343.075(2). The application seeks authority to expand in two phases the existing 30-slip facility. The first phase would generally authorize the construction of a 198-slip upland dry storage facility and reconfiguration of the existing docks. In phase 2, Hancock would add 154 dry slips and construct a 5,000-square-foot marina building. Because the docks are constructed on and over sovereign submerged lands, a proprietary authorization is necessary. Before making a decision on the application, the Department forwarded a copy to the Commission for its recommendation. After receiving the Commission's comments, which consist of 89 pages, including transmittal letters, on December 10, 2007, the Department issued its Notice of Intent to deny the ERP and proprietary authorization on the grounds the project area is sited in an area of very high level of manatee use and the project will increase local boat traffic, resulting in significant adverse effects on the manatee, which is listed by the state and federal governments as an endangered species. A more detailed description of the reasons for denial is found in the Notice of Intent. See Petitioner's Exhibit 6, pages 4 through 9; Department's Exhibit 1.b., pages 4 through 9. The Department acknowledges that its decision was based wholly upon the Commission's determination that the project, as proposed, would have an adverse impact on manatees. The DRI and Estoppel In its Petition, Hancock contends that the Department is "estopped to deny a permit for Phase 1 of the marina in light of its acquiescence to the approval of DRI 2-8990-99." By way of background, in 1990, Hancock's predecessor in interest (Waterway Group, Inc.) applied with the County for a DRI which included, among other things, 400 dry boat spaces on the property. DRI 2-8990-99 was approved by the County on July 8, 1991, and has been amended three times. See Petitioner's Exhibit 3. The original terms of approval contained several conditions that specifically addressed manatee protection. One separated the project into two phases of 200 spaces, the first of which was authorized without additional studies, while the second was subject to additional study and review by the Florida Department of Natural Resources (DNR). When the DRI was approved, the State's manatee protection program was under the jurisdiction of the DNR. That agency reviewed the DRI and recommended manatee protection conditions. The conditions in the final approval were consistent with the program's recommendation. On June 29, 2004, the County adopted a resolution approving a MPP for the County. See Petitioner's Exhibit 4. It was not adopted as an ordinance, and individual notice was not provided to interested property owners, including Hancock's principals. After adoption, the County incorporated the MPP into its Comprehensive Plan. The MPP is a planning document that provides a comprehensive review of manatee and boating data on a county-wide basis. It is developed, reviewed, and approved by local, state, and federal governments and is used for guidance when considering appropriate levels of slip densities within a county. The County is one of thirteen counties directed to adopt a MPP. On October 20, 2004, Hancock filed with the County an application to amend its DRI. The application included requests to extend the DRI approval a third time and to revise the site plan. The site plan changes included a reduction in the total number of dry spaces from 400 to 352. On June 20, 2005, the County approved the DRI amendment. The Development Order included a finding of fact that the marina was exempt from the requirements of the MPP because Section 8.4 of the MPP "exempts existing projects with valid permits and Chapter 380 vested status for the construction of slips (wet or dry) that have not been constructed at the time the MPP was adopted by the Board of County Commissioners." See Petitioner's Exhibit 3, Third Development Order Amendment for Hancock Bridge Marina, page 4, paragraph H. Hancock then filed the instant application on September 12, 2005. To date, Hancock has expended $1,731,000.00 in its permitting efforts, including the DRI extension and ERP application. There is no evidence that during the DRI process, the Department or Commission made any representations to Hancock about its ability to obtain an ERP or sovereign submerged lands authorization. Also, neither agency was consulted during that period of time, presumably because the DRI and ERP processes are separate and independent of one another. Permitting Criteria Section 373.414, Florida Statutes, contains the standards and criteria governing the approval of an ERP. Subsection (1) requires that the applicant provide reasonable assurance that the regulated activity is "not contrary to the public interest." In determining whether this test is met, paragraph (1)(a) requires that the Department consider and balance the following criteria: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature. Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. These same factors are found in Florida Administrative Code Rule 40E-4.302, an ERP rule adopted by the South Florida Water Management District. This rule has been adopted by reference by the Department to be used when it considers ERP applications within the geographical jurisdiction of that water management district. See Fla. Admin. Code R. 62-330.200(4). An additional requirement in the rule is that an applicant give reasonable assurance that the project will not cause unacceptable cumulative impacts. See Fla. Admin. Code R. 40E- 4.302(1)(b). Besides the foregoing requirements, additional conditions for the issuance of an ERP are found in Florida Administrative Code Rule 40E-4.301, also adopted by reference by the Department. Relevant here are requirements that the applicant give reasonable assurances that the proposed activity (a) will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters, and (b) will not cause adverse secondary impacts to the water resources. See Fla. Admin. Code R. 40E-4.301(1)(d) and (f). Section 373.414(1)(b), Florida Statutes, provides that if an applicant is unable to meet the above criteria, the Department shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects that may be caused by the regulated activity. In this case, mitigation measures have been proposed by Hancock and are discussed below. Finally, Section 373.4132, Florida Statutes, requires that the Department evaluate applications for dry storage facilities for ten or more vessels in the same manner as any other ERP application, including that the applicant demonstrate that the facility will not be harmful to the water resources, provides reasonable assurance that the secondary impacts from the facility will not cause adverse impacts to the functions of the wetlands and surface waters, and meets the public interest test in Section 373.414(1)(a), Florida Statutes. There are no rules or statutes which require that the Department consider the status of, or otherwise take into account, a DRI in evaluating an application for an ERP or proprietary authorization. Impacts on Manatees After reviewing the application for an ERP, the Department determined that the project, as proposed, should be denied because of direct, secondary, and cumulative effects it would have on manatees. The Department further determined that the applicant had not met the applicable requirements under Florida Administrative Code Rule Chapter 18-21 for authorization to use sovereign submerged lands. In making these determinations, the Department considered not only potential deaths of manatees, but also potential impacts such as harassment, disturbance, and sub-lethal boat strikes. The latter strikes may cause permanent injury and can affect reproduction and behavior. The State is a refuge and sanctuary for the manatee. See § 379.2431(2), Fla. Stat. The manatee is a marine mammal that can live as long as sixty years. It is unable to tolerate prolonged exposure to temperatures below around sixty-one degrees, which makes it susceptible to cold-related stress and death. Consequently, the manatees typically seek warm water when temperatures drop below sixty-eight degrees, migrating seasonally over extensive geographic areas. Hancock's marina is located just off the River. The River is one of the most studied and significant habitats for manatees on the west coast of Florida. The County's water bodies, including the River, provide manatees with submerged aquatic vegetation for foraging, fresh water sources, and several warm-water sites to use as refuges during colder weather. Hancock Creek, which is used to access the River from the marina, is an area used by manatees because it provides fresh water and a quiet environment. Manatees also use the River as a major travel corridor between the Florida Power and Light Company (FPL) power plant on the Orange River, a tributary of the River located around eight miles upstream from the project site, and the estuaries found downstream where foraging resources are abundant. Hundreds of manatees go up and down the River throughout the year, and those traveling to and from the warm water around the FPL plant must travel past Hancock Creek. Manatee deaths have occurred within a five mile radius of the project site. Also, the number of manatee watercraft- related deaths in the River has steadily increased over the years. According to a 1998 study of boating activity in the County, vessels use the River more as a travel corridor to the bays and estuaries outside of the River than as a destination itself, and that on weekends there is almost constant traffic with vessels leaving or entering the mouth of the River every thirty-five seconds. The majority of the boats leaving the project site are expected to travel downstream through the mouth of the River, an area with substantial vessel congestion. This travel pattern, in conjunction with the typical travel patterns of manatees, indicates that there is a great potential for boat/manatee overlap in the River, increasing the likelihood of impacts to manatees. Besides manatee deaths, there are sub-lethal effects of increased boat traffic in the area. Increased traffic in important manatee areas may create disturbances which will alter behaviors such as feeding, suckling, or resting, or it may separate mothers from their calves. Also, vessel traffic may cause them to leave preferred habitats. Finally, as noted above, vessel collisions with manatees produce non-lethal injuries as well, causing pain and extreme scarring, which can alter natural behaviors and affect reproduction. The single biggest known cause of death to manatees is impacts from boats. The project would increase the risk of watercraft collisions with manatees in this region. As the level of boat traffic increases, the probability of boat and manatee collisions is also likely to increase. Because the project is located along the travel corridor between the largest wintering aggregation of manatees on Florida's west coast and their local foraging habitat, the expected secondary impacts from increased vessel traffic associated with the project is expected to reduce the value of the functions of the River as a travel corridor. Therefore, the secondary impacts of vessel traffic from the expansion of the marina are expected to result in adverse impacts to manatees. In 1990, the DNR reviewed the proposed DRI for this site under the state manatee program. It found that during the preceding thirteen years (1976-February 1990), thirty-six manatees had died from water-related injuries in the County. Within a five-mile radius of the site, four manatees had died from watercraft-related injuries. DNR concluded that since the manatee protection speed zones for the River had just been established, they were expected to offset the impact of the additional 198 slips. From March 1990 until September 2006, however, twenty-five additional manatees have died from watercraft-related injuries within a five-mile radius of the site. Therefore, the number of deaths had increased without the additional 198 slips. The logical inference is that if the new slips are allowed, boat traffic and the associated adverse impacts on manatees will likewise increase. The fact that dry slips will be used does not change the Department and Commission's evaluation of the project. A boat has the same risk to a manatee whether stored in a wet or dry facility. Marine industry groups suggest that an average usage rate is between ten and fifteen percent at any time, and that usage is likely to increase on the weekends. Thus, as density increases so does the risk. In addition to its own analysis, the Commission reviewed the County MPP, which indicated that nine additional slips at this location would be acceptable, for a total of thirty-nine. This number was calculated by using a slip density of three slips for every one hundred feet of shoreline owned. (The actual linear feet of shoreline owned by Hancock is unclear. The Commission concedes that Hancock "may own a total of 1,214 linear feet of shoreline.") A MPP typically allows for higher boat densities in areas that pose less risk to manatees and lower boat densities in higher risk locations. Had the MPP not been considered, the number of allowable slips would remain at thirty since the MPP provides for a countywide strategy instead of a case-by-case review. To date, the Commission has never recommended approval of a marina application in the County that would authorize more docks than the MPP would authorize. The Commission initially makes an independent assessment of the application without regard to the MPP. In this case, based upon mortality data, aerial surveys, telemetry data, rescue data, and boat studies, the Commission determined that no further slips are appropriate. Therefore, even if the County's MPP is based upon outdated data and analysis, as Hancock contends, approval of the application would not be warranted. Petitioner's expert posited that the proposed project would only result in one manatee death over the next twenty years, which would amount to no more than a de minimus impact on the overall population. Assuming this to be true, manatees are nonetheless an endangered species, and there is no minimal amount of death that is considered acceptable. The witness also opined that Hancock is entitled to an unlimited number of slips under the MPP due to flawed data and analysis underpinning that document. In formulating his recommendations, however, Hancock's expert relied on mathematical models and statistics while ignoring the principles of manatee behavior and biology. Finally, the expert agreed that the greater the number of boats in the water, the greater the likelihood that a manatee could be accidentally crushed. On the issue of impacts to manatees, the testimony of the Commission witnesses is deemed to be the most credible and persuasive. The more persuasive evidence supports a finding that the marina will be located in an area adjacent to the River, that large numbers of manatees use the River, and that the project is expected to increase boat traffic. This in turn will lead to a higher incidence of boating-related manatee casualties in the area. Therefore, the proposed activity adversely affects the conservation of wildlife and marine productivity in the vicinity of the project; it adversely affects the marine productivity in the area; it is permanent in nature; and it diminishes the current condition and relative value of functions performed by areas affected by the activity. On balance, then, the project is contrary to the public interest. Based on the evidence presented, Hancock has not provided reasonable assurance that the project will not cause adverse secondary impacts to water resources, as required by Florida Administrative Code Rule 40E-4.301(1)(f). Similarly, based on the evidence presented, Hancock has not provided reasonable assurance that the project will not result in unacceptable cumulative impacts upon wetlands and other surface waters, as required by Florida Administrative Code Rule 40E-4.302(1)(b). By failing to provide reasonable assurances that the facility will not be harmful to water resources, that the secondary impacts from the facility will not cause adverse impacts to the functions of wetlands and surface waters, and that the project meets the public interest test, Hancock has failed to satisfy the requirements of Section 373.4132, Florida Statutes. Mitigation If an applicant cannot meet the requirements of Section 373.414(1)(a), Florida Statutes, the Department "shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects that may be caused by the regulated activity." As noted in Finding of Fact 27, supra, the Department is willing to approve an additional nine slips that would be allowed under the County MPP, for a total of thirty- nine. According to Hancock, this number is not acceptable because more slips are needed to make the project financially feasible. Although a copy of the application is not a part of this record, the testimony suggests that in its application, Hancock proposed certain measures to mitigate the impacts on manatees. In a letter to the Department dated November 8, 2007, however, the Commission stated that "[i]f the Applicant propose[s] changes to the project to minimize fish and wildlife resource impacts that are consistent with the Lee County MPP, such a project would be consistent with Chapter 370.12(2), F.S." (The Legislature has subsequently consolidated this statute into Section 379.2431, Florida Statutes.) Despite this lack of clarity in the record, sometime during the application process, and presumably before the Notice of Intent was issued, the Commission staff discussed with Hancock whether the following mitigation measures would offset or adequately reduce the impacts: placing a size restriction on boats docking at its facility; providing boater education; installing speed zone marking and making it a requirement for all boats at the marina to be equipped with a speed zone map or a Global Positioning Satellite unit with speed zone mapping; implementing a volunteer watch program to enforce speed limits; making a cash donation to study manatee population dynamics; and installing sonar avoidance technology on vessels. The Commission established that these measures, even if implemented, would not offset the impacts from 198 slips expected with phase 1 of the project. For example, the research associated with sonar technology is not yet completed, and devices are not available for boaters. Also, given the location of the project, even with additional law enforcement and boater education, the impacts would not be offset due to the level of traffic already existing on the River at that site, and the importance of the area to manatees. The middle of the River is a high-speed corridor (with a twenty-five miles per hour speed limit) and even with one hundred percent compliance in that zone, a small boat can still hit and kill a manatee. The Proprietary Authorization Because denial of the ERP is being recommended, the proprietary authorization must likewise be denied. See Fla. Admin. Code R. 62-373.075(2). Even so, for the purpose of addressing all issues in this Recommended Order, a discussion of the application for proprietary authorization is set forth below. Florida Administrative Code Rule Chapter 18-21 contains the rules that implement the administrative and management responsibilities of the Department in authorizing activities in sovereignty submerged lands. Florida Administrative Code Rule 18-21.004 establishes the specific standards and criteria to be applied by the Department in determining whether Hancock should be allowed to use sovereign submerged lands. Paragraph (1)(a) provides that "[f]or approval, all activities on sovereignty lands must be not contrary to the public interest." The public interest is defined as "demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action." See Fla. Admin. Code R. 18-21.003(43). The more persuasive evidence supports a finding that, on balance, the project is contrary to the public interest based upon the standards in the rules. Florida Administrative Code Rule 18-21.004(2)(a) provides that "[a]ll sovereignty lands shall be considered single use lands and shall be managed primarily for the maintenance of essentially natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming. Compatible secondary purposes and uses which will not detract from or interfere with the primary purpose may be allowed." The evidence does not show that Hancock's proposed marina expansion constitutes a secondary use not interfering with the propagation of wildlife. Therefore, the project is not consistent with this rule. Florida Administrative Code Rule 18-21.004(2)(b) provides that "unless there is no reasonable alternative and adequate mitigation is proposed," activities which result in significant adverse impacts to sovereignty lands and associated resources shall not be approved. As previously found, the mitigation measures proposed by Hancock are not adequate. Paragraph (2)(i) of the rule further provides that activities in submerged lands "shall be designed to minimize or eliminate adverse impacts on fish and wildlife habitat, and other natural or cultural resources. Special attention and consideration shall be given to endangered and threatened species habitat." Because Hancock failed to prove that the project would not result in unmitigated adverse impacts to manatees, it fails to meet this criterion. Paragraphs (7)(d) and (e) of the rule are general conditions for authorization and provide that activities "shall be constructed and used to avoid or minimize adverse impacts to sovereignty submerged lands and resources" and "shall not adversely affect any species which is endangered, threatened, or of special concern." Here the more persuasive evidence shows that neither condition has been met.
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 denying Petitioner's application for an ERP and authorization to use sovereign submerged lands to expand an existing marina on Hancock Creek in Lee County, Florida. DONE AND ENTERED this 15th day of May, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2009.
The Issue The issue here concerns the entitlement of the Petitioner, Hernstadt Broadcasting Corporation to be granted certain environmental permits from the Respondent, State of Florida, Department of Environmental Regulation, which would allow the Petitioner to construct a radio transmitter tower and access dock within the Biscayne Bay which is located in Dade County Florida. 1/
Findings Of Fact The Petitioner in this action, Hernstadt Broadcasting Corporation, owns and operates radio station WKAT, which is located in Miami Beach, Dade County, Florida. The Petitioner is licensed by the Federal Communications Commission to pursue this enterprise. On April 30, 1980, the State of Florida, Department of Environmental Regulation received an application from the Petitioner, which application requested permission to construct a radio transmitter tower and access dock in Biscayne Bay, Dade County, Florida. (The tower end dock are part of a proposed station complex in which the radio station building is to be constructed upland from the Bay.) The project, if allowed, would be located off the north side of the Julia Tuttle Causeway which connects the City of Miami and the City of Miami Beach via the Biscayne Bay. The tower and access dock, if constructed, would be located in submerged lands owned by the State of Florida. In view of the location of this apparatus in Biscayne Bay, it would be subject to the provisions of the Biscayne Bay Aquatic Preserve Act found in Chapter 258, Florida Statutes, together with other provisions of statute and rule. To place the access dock in the Bay, the Petitioner proposes to drive pilings into the Bay bottom to support the access dock which is 200 feet long and four (4) feet wide. The support mechanism for the radio tower would also be constructed by the driving of pilings into the Bay bottom and the radio transmitting tower, once built, would be 400 feet tall and would have attached stabilizing guy wires connected to anchors driven into the Bay bottom. As the pilings are driven into the floor of the Bay, the displaced soils will be compressed into lower elevations or redistributed against the pilings. Respondent's Exhibit No. 15, admitted into evidence, is a copy of the original application for permit, which was modified by site plans and sketches depicted in Respondent's Exhibit No. 16, admitted into evidence, shortening certain dimensions related to the access dock. (These modifications came about subsequent to the Department of Environmental Regulation's permit application appraisal found as Petitioner's Exhibit No. 10, which is dated June 23, 1980.) After review of the project, in the face of the aforementioned modifications, the Department of Environmental Regulation issued a letter of intent to deny the permit request. This letter of intent was dated September 9, 1980, a copy of which may be found as petitioner's Exhibit No. 11, admitted into evidence. The authority stated for such denial are these provisions of Subsection 258.165(3)(b), Florida Statutes (Supp. 1980), and Rule 17-4.242(1), Florida Administrative Code. Subsequent to the issuance of the letter of intent to deny, a further modification was made on the project increasing the length of the proposed access dock to the presently requested 200 feet. This modification is depicted in petitioner's Exhibit No. 12, admitted into evidence, which shows site plans and other pertinent information related to the project. Another modification to the project which the Petitioner claims is not subject to permit review by the Department of Environmental Regulation, and for which the Department of Environmental Regulation takes a contrary point of view, concerns the use of a grid of nickel-plated copper straps, approximately 40 feet by 40 feet, constituted of a mesh of approximately 1/4 inch in diameter by 1 inch sections to be placed underneath the tower and on the Bay bottom for purposes of grounding the tower. This item was not made known to the Respondent until September 30, 1980, at a time subsequent to the letter of intent to deny. The Petitioner in this action pursues the project on the basis of a joint use agreement entered into with the State of Florida, Department of Transportation, in which the Department of Transportation, in return for the ability to use the radio tower for communications in connection with a surveillance and traffic control system for Interstate Highway-95 and for the ability of the City of Miami, Florida, to use the facility for a tactical communication repeater installation, would grant to the Petitioner the Department of Transportation's rights and opportunities as easement holder in the area where the subject project would be constructed. See Petitioners' Exhibit No. 3, admitted into evidence. The Department of Transportation's rights stem from an easement grant from the Trustees of the Internal Improvement Trust Fund. See Petitioner's Exhibit No. 13, admitted into evidence. The rights of the Petitioner, by assignment from the Department of Transportation, do not relieve Petitioner of the obligation to gain the necessary approval of the Trustees of the Internal Improvement Trust Fund in the person of the State of Florida, Department of Natural Resources for permission to use those submerged lands over which the access walkway and tower would be constructed, notwithstanding any rights and privileges assigned to the Petitioner by the Department of Transportation as easement from the Trustees of the Internal Improvement Trust Fund. This is true because the perpetual easement granted from the Trustees to the Department of Transportation for right-of-way and dredging purposes related to the roadway which is constituted of the Julia Tuttle Causeway and to the adjacent Bay bottoms related to construction and maintenance of that roadway, does not envision assignment of the submerged lands to an entity in the position of the Petitioner, which entity does not have as its purpose the construction or maintenance of the roadway; hence, the necessity to gain permission from the Department of Natural Resources if the access dock and tower are to be constructed on the submerged land of the State. The easement held by the Department of Transportation is specific in nature and does not contemplate the construction of a radio station. (It is not necessary to comment on the question of whether a joint use agreement between the Department of Transportation and Hernstadt as that Department's assignee for rights and privileges bestowed upon the Department from the Trustees based on the easement rights granted on October 2, 1941, would allow the construction of the building of the radio station building which would be at the upland terminus of the access dock which also adjoins the radio tower, the Department of Environmental Regulation having offered no claim for permitting jurisdiction over the radio station building.) The Petitioner proposes to move its radio station from the existing location in Miami Beach because buildings in the general area of the radio station interfere with the radio signal and, in addition, there is interference caused by radio transmissions from Cuba. The terms of the license held by Petitioner on issuance from the Federal Communications Commission limit the movement of the station's transmitter tower to a location no more than four (4) miles from the current location. At the time of the hearing, the Petitioner had not located an alternative tower site, other than the proposed site. As stated before, if the tower were constructed, the State of Florida, Department of Transportation would utilize the tower in its communications network and the City of Miami Fire and Police Departments would likewise desire to use the tower. The Florida Marine Patrol and the Florida Highway Patrol would also be interested in using the proposed tower for communications purposes. The City of Miami Planning and Advisory Board and the City Commission of that municipality would be in favor of the construction of the proposed radio tower. Dade County, Florida, has adopted a Comprehensive Master Plan, copies of which may be found as Respondent's Exhibit No. 19, admitted into evidence. Within that document is a discussion of environmental concerns within the county to include Biscayne Bay and, in particular, concern for protection of environmentally sensitive areas such as Biscayne Bay and an interest by the County to provide a wide range of public water oriented opportunities for the populace. Subsequent to the time of the submission of the permit application, and specifically, in October, 1980, Dade County, through its Metropolitan Planning Department and in conjunction with the Metropolitan Dade County Environmental Resources Management Department prepared a proposed Biscayne Bay Management Plan, a copy of which may be found as Respondent's Exhibit No. 17, admitted into evidence. This plan was approved by the Board of County Commissioners of Dade County, Florida, by an Ordinance, a copy of which may be found as the Respondent's Exhibit No. 18, admitted into evidence. The Biscayne Bay Management Plan encourages the enhancement of public access to the Bay for uses such as fishing, boating, shoreline wading and view in and the preservation and enhancement of the environmental, chemical and aesthetic qualities of the Bay. Furthermore, if the necessary permission could be obtained, Dade County, has future plans to use the subject Julia Tuttle Causeway as a public access to the Bay. The location of the radio tower and associated facilities would interfere with the proposed use by Dade County. The Department of Environmental Regulation, in keeping with Section 403.0615, Florida Statutes, 2/ through a program in conjunction with Dade County is attempting the restoration of the biological and chemical characteristics of the Biscayne Bay. Some of the items included in this program would be enhancement of aquatic vegetation, including seagrasses and mangroves and the promotion of aesthetics and public access to Biscayne Bay, to include the area of the Julia Tuttle Causeway. Radio station WKAT presents public service programs; is a part of the Emergency Broadcasting System and broadcasts emergency information in times of natural disaster. On the question of environmental implications of this project, the placement of the pilings would cause the destruction of certain seagrasses in that area, while at the same time promoting the introduction of marine life along the surfaces of the tower and dock supports. Seagrasses in the area where the grounding system would be placed may be destroyed and although the copper to be used would be nickel plated, thereby inhibiting the release of the toxic properties of the coated copper, eventually the nickel plating would break down and the marine life communities adjacent to the mesh would be harmed by the copper. The loss of seagrasses under the grid could cause a reduction in fish population. The installation of the radio tower and access dock in the Biscayne Bay is an impediment to navigation; however, the Petitioner intends to place channel markers to divert boat traffic away from the tower and its environs. There is no expected difficulty with run-off, discharges or other forms of pollution related to the construction or operation of the tower facility, although there will be some turbidity caused in the construction phases of the project. The project would be located in a State Aquatic Preserve within the meaning of Chapter 258, Florida Statutes; would be located in waters of the State within the meaning of Chapters 253 and 403, Florida Statutes; would be in navigable water within the meaning of Chapter 253, Florida Statutes, end would be in an Outstanding Florida Water within the meaning of Rule 17-4.242(1), Florida Administrative Code.
