The Issue Whether or not the proposed amendments to Respondent's Rules 18-21.003 and 18-21.004, Florida Administrative Code, comply with Section 120.54, Florida Statutes, or is otherwise an invalid exercise of delegated legislative authority. Specifically, the following issues are raised by the pleadings and presentation of the parties: a) Whether the proposed rule amendments exceed the Respondent's grant of authority by placing a moratorium on the issuance of requests to use sovereign submerged lands adjacent to coastal islands, as more specifically defined by the rule; b) Whether Respondent failed to materially follow rulemaking procedures as prescribed by Section 120.54, Florida Statutes in preparation of the economic impact statement; c) Whether the amendments are arbitrary and capricious because they are unnecessary and are unrelated to the administration and management of sovereign submerged lands; d) Whether the proposed amendments contained terms and definitions which are vague and ambiguous, because the terms as defined are not ascertainable; e) Whether the proposed amendments effectuate a "taking" of Petitioner's property; and f) Whether the claims of Petitioner's Andrews, Depot Key and Lost Tree that the Board of Trustees are estopped from promulgating the proposed amendments are without merit. Additionally, Respondent raised the issue of whether the Petitioners had standing to bring the subject rule challenge.
Findings Of Fact The Board of Trustees of the Internal Improvement Trust Fund (Trustees) holds state land in trust for the use and benefit of the people of the State of Florida, pursuant to Section 7, Article II, and Section 11, Article X of the State Constitution. The Division of State Lands within the Department of Natural Resources (DNR) performs all staff duties and functions related to acquisition, administration and disposition of state lands, title to which is or will be vested in the Trustees pursuant to Section 253.002, Florida Statutes. The Trustees are vested and charged with the acquisition, administration, management, control, supervision, conservation, protection and disposition of all lands owned by, or which may inure to, the State or any of its agencies, departments, boards, or commissions, except for certain exceptions contained in Section 253.03(1), Florida Statutes. Among lands vested in the Trustees are all tidal lands and all lands covered by shallow waters of the ocean or gulf or bays or lagoons thereof, and all lands owned by the state covered by freshwater (i.e., sovereign submerged lands). The Trustees are authorized to administer all state-owned lands and are responsible for creating an overall and comprehensive plan of development concerning acquisition, management, and disposition of state-owned lands so as to insure maximum benefit and use. To accomplish this mandate, the Trustees are empowered to adopt all necessary rules and regulations pursuant to Section 253.03(7)(a), Florida Statutes. Currently, the administration and management of sovereign submerged lands is governed by the provisions of Chapters 18-18, 18-20 and 18-21, Florida Administrative Code. Pursuant to rules contained therein, the Trustees may approve the following types of uses of sovereign submerged lands: a) Consents of use, b) Easements, c) Management Agreements, d) Use Agreements and e) Leases. On June 27, 1989, the Trustees were asked to consider approving the issuance of a 5-year sovereign submerged land lease for the construction of a 42-slip private residential docking facility located adjacent to Atsena Otie Key, an island located off the coast of Cedar Key, which would serve a proposed upland development. Approval of that lease would, if granted, preempt over 14,500 sq. ft. of sovereign submerged lands. Under pertinent rules in place when the Trustees considered the Atsena Otie Key request, Trustees' staff recommended that they approve the requested use. However, based on written public opposition to the approval of that request, the Trustees, during the subject Cabinet meeting, heard from eight persons appeared who urged denial of the requested use maintaining that the proposed project was not in the public interest. Based on public opposition and the concerns raised, the Trustees rejected staff's recommendation and unanimously deferred action on the Atsena Otie lease request. Additionally, the Trustees directed the Division of State Lands to compile a report of what types of federal and state protection of coastal islands currently existed. The Trustees thereafter commissioned its to pull together their authority and promulgate a rule enunciating common standards for application on barrier islands. Treasurer Gallagher moved to have the DNR develop rules for the trustees to follow when making decisions regarding development on coastal islands which was to be presented to the Trustees at the August 22, 1989 Cabinet meeting. Based on the Trustees desire to develop a more clearly enunciated policy of what the state would allow its lands adjacent to coastal islands to be used for in the future and to put the public on notice as to what they could expect the Trustees to permit in terms of the use of sovereign submerged lands adjacent to coastal islands and to also provide its staff with guidance as to how they would analyze requests prior to submitting them for consideration, the proposed rule here under challenge was promulgated to put in place a statewide policy regarding development of undeveloped coastal islands. In addition, the Trustees were concerned about issues being raised as to the use of sovereign submerged lands to facilitate coastal island development which was not being adequately addressed by the local governments comprehensive planning processes. The next developmental stage of the coastal island policy was agendaed at the August 22, 1989 Cabinet meeting. At that meeting, staff presented a report entitled, "Analysis Of Existing Policy And Programs Affecting Florida's Coastal Resources." That report summarized and analyzed the existing federal and state programs affecting Florida's coastal islands. It is noted that there existed no single state or federal program with sufficient standards and authority to adequately protect and manage the entire beaches, dunes, back barriers and wetland systems of Florida's coastal islands. Likewise, there was no easy accessible resource data base or model criteria to assist local and state agencies in the planning, management and regulation of coastal island development and protection. The findings in that report triggered the Trustees to approve a temporary moratorium on authorizations for the use of sovereign submerged lands that would facilitate development of currently unbridged, undeveloped coastal islands until such time as the Trustees could adopt a policy for considering such requests. At that meeting, the Trustees invited public comment before taking action on staff's recommendations. Following public discussions, the Trustees unanimously accepted the staff's report and a temporary moratorium was placed on authorizations for use of sovereign submerged lands that would facilitate development of currently unbridged, undeveloped coastal islands until DNR's Division of State Lands could propose a comprehensive policy for such requests. Following approval of the staff's report and recommendations, the Trustees reconsidered the Atsena Otie Key request for authorization to construct the 42-slip docking facility and the Trustees approved the lease request but made the approval subject to several amendments including a reduction in size from a 42-slip to a 25-slip private residential docking facility. The Trustees next addressed the developing coastal island policy at the December 19, 1989 Cabinet meeting. At that meeting, the Trustees deferred voting on staff's recommendation that they adopt an interim policy governing the use of sovereign submerged lands adjacent to unbridged coastal islands until the February 1990 Cabinet meeting. At the February 6, 1990 Cabinet meeting, following a lengthy public discussion, the Trustees again deferred action on adoption of the interim policy until they more fully reviewed the issues surrounding the emerging policy at a Cabinet workshop. During that meeting, the Trustees were advised by opponents to their policy about the potential environmental impacts that would arise if the policies were implemented and developers were forced to seek alternative means of providing sewer, water and electricity to their developments. After listing to those concerns, the Trustees considered the opponents position but retained their position of restricting the use of sovereign lands. At the conclusion of the discussion, the Trustees voted unanimously to defer action for 90 days until a Cabinet level workshop could be held to delineate the issues regarding the use of sovereign lands to facilitate upland development and to define the extent of the Trustees' jurisdiction and authorization to proceed. During the March 12, 1990 Cabinet workshop, the Trustees received input on their emerging coastal island policy from the Department of Environmental Regulation (DER), the Department of Community Affairs (DCA) and both the Governor's coastal resources Interagency Management Committee (IMC) and the Citizen's Advisory Committee (CAC). 1/ As a result of the workshop at the May 8, 1990 Cabinet meeting, the Trustees directed the staff to develop recommendations for continuing the moratorium and to develop a plan for identifying specific islands that would be protected under the policy. Staff was also directed to work with the DCA to secure funding to complete the inventory and compile data on natural resource values, as a potential land use/development status and development potential on all unbridged coastal islands. At the May 8, 1990 meeting, several of Petitioners voiced opposition to the moratorium but spoke in support of the agency proceeding with rulemaking. Following comments from the public, the Trustees voted to approve and extend the moratorium imposed on August 22, 1989, and for staff to begin rulemaking immediately to begin development of an interim policy until a comprehensive policy and rules governing coastal islands could be adopted by the Board of Trustees. Staff was also directed to work with relevant agencies including the DCA, the coastal resources IMC, and the CAC to develop a definition of coastal islands and undeveloped coastal islands and to give reasonable consideration to development of a comprehensive plan which would be compatible with the Coastal Barrier Resources Act (CBRA). Also, during that meeting, staff was directed to work with the DCA, the IMC and the CAC to develop definitions of "coastal island" and "undeveloped coastal island". The Trustees reiterated the directions to staff to give reasonable consideration to the comprehensive plans of coastal communities and that the policy be compatible with CBRA. The first draft was to be presented to the Trustees in June and a final form of the proposed rule was to be presented at the Trustee's second meeting in September. The Trustees directed staff to include, at a minimum, all unbridged, undeveloped coastal islands units contained within CBRA and all unbridged undeveloped coastal islands within aquatic preserves. The rule was to also address islands which were heavily developed at one end and totally undeveloped at the other. Finally, the staff was to consider the local government's comprehensive plans for coastal communities. At the June 12, 1990 Cabinet meeting, the Trustees were asked to adopt the draft rule prepared. The Trustees after considering the draft, authorized staff to proceed with rulemaking by publishing the rule in the Florida Administrative Weekly and conducting at least three public meetings. On August 31, 1990, DNR received petitions challenging the proposed rules and the moratorium. The petitions raised several issues regarding the proposed rule which had been voiced at the public hearings. In response to those issues, DNR staff sought authority to make amendments to the proposed rule. A report outlining the status of the rule and the revisions were presented to the Trustees at the October 9, 1990 Cabinet meeting. At that meeting, the Trustees accepted the status report including the revision to the amendment to Rules 18-21.003 and 18-21.004, Florida Administrative Code, and authorization to proceed was given to revise the proposed rule. At the October 23, 1990 Cabinet meeting, staff presented the revised proposed rule to the Trustees and requested authorization to formally withdraw the originally proposed rule and to give notice of revision on the instant rule for adoption. An outline explaining the revisions were included within the report. At that meeting, the Trustees approved staff's recommendation to withdraw the original rule and allow the CAC and the IMC to be afforded an opportunity to review the revised rule. On November 11, 1990, the IMC held a public meeting on the revised rule at which time the Trustees received comments, both pro and con, to the revised rule. As a result of those comments, modifications were suggested to the revised rule. At the December 18, 1990 Cabinet meeting, the Trustees authorized staff to withdraw the original proposed amendments and to provide notice of the withdrawal in the Florida Administrative Weekly. As a result of the Trustees consideration of the modification to the rule recommended by the IMC, the following amendment was made to Section 18-21.004(1)(h)(1), Florida Administrative Code: The application is for the purpose of obtaining authorization for a use which was included in a development project which has undergone development of regional impact review and a final development order has been issued pursuant to Chapter 380, Florida Statutes as of the effective date of this rule, and is otherwise permitted by and consistent with the provisions of Rule Chapters 18-18, 18-20, and 18-21, Florida Administrative Code provided, however, that in the case of a substantial deviation to said development order, no authorization of use may be granted for any use that was not included in the original order. Additionally, staff amended the definition of "coastal island segment" to be consistent with CBRA and to provide that if an island segment had an overall density of less than one structure per 5 acres of fastland as of the effective date of the rule, that it be included within the operation of the revised rule. Prior to approval, opponents of the proposed rule engaged the Trustees in a discussion about whether the local government's comprehensive plan process adequately addressed the Trustees' concerns about the protection of natural resources. Following consideration of that discussion, the Trustees made no modification to their policy. The Trustees thereafter voted to continue the moratorium until adoption of the proposed coastal island rule. On August 2, 1991, the Trustees published notice in the Florida Administrative Weekly, Volume 17, No. 31, of their intention to adopt the proposed rule amendments to Rules 18-21.003 and 18-21.004, Florida Administrative Code. As specific authority, Sections 253.03(7) and 258.43(1), Florida Statutes was referenced. On August 31, 1991, Petitioners herein filed challenges, with the Division of Administrative Hearings, to the proposed rule amendments. On September 12, 1991, staff presented the Trustees with a status report regarding the proposed rule in view of the pending challenges. At that meeting, the Trustees reaffirmed their desire to protect undeveloped coastal islands and their adjacent natural resources and directed staff to defend the proposed rule against challenges. In support of this position, the Trustees reaffirmed their desire to curtail development of undeveloped barrier islands as development of such islands poses threats to the natural resources and coastal marine environment and their stated desire to protect those resources. In Section 18-21.003, Florida Administrative Code entitled, "Definitions", was amended by the Trustees' adoption of its coastal island policy to include four new definitions: "Coastal Island", "Fastland", "Undeveloped Coastal Island" and "Undeveloped Coastal Island Segment." The DNR's Office of Marine and Program Planning primarily developed the definitions included in the rule. George Schmahl, an employee at DNR for approximately two years who was accepted herein as an expert in the fields of biology, coastal ecology and coastal resource management, was assigned the task of coordinating the drafting of the definitions. Mr. Schmahl received his guidance for the development of the necessary definitions from the Trustees at the May 8, 1990 staff meeting. The initial draft of the definitional section of the rule contained only the terms "coastal island" and "undeveloped coastal island." Thereafter, the draft was expanded to include definitions for the terms "fastland" and "undeveloped coastal island segment." The definitions were presented to the Trustees for consideration at the June 12, 1991 Cabinet meeting, at which time the Trustees approved staff's draft and directed them to proceed with the rulemaking process. The rule defines "coastal island" as: coastline geological feature lying above mean high water that is completely separated from the coastal mainland by marine or estuarine waters, including those parcels of land which become insular due to natural causes, and is composed of any substraint material, including spoil material. This specifically includes, in addition to exposed coastal island; All islands within aquatic preserves except for Lake Jackson, Rainbow River, Lake Weir and Wekiva River aquatic preserves; and Other islands within confined or semi-confined marine or estuarine waters with an open connection to the Atlantic Ocean or Gulf of Mexico such as bays, lagoons, or inlets. Except for coastal islands within the specified aquatic preserves, it does not include islands or portions of islands within rivers leading into marine and estuarine waters more than one mile upstream of a line drawn at the river mouth from headland to headland. The nucleus for the definition of "coastal island" was derived from the existing definition of "coastal barrier island" found at Section 161.54, Florida Statutes. Schmahl modified the definition in Chapter 161 to take into consideration the phrase as defined by CBRA, and be further modified it to encompass virtually all islands within Florida's coastline. Spoil islands were included in the definition of "coastal island" because the definition of "coastal barrier island" in Chapter 161 specifically includes islands created from spoil disposal. Schmahl opined that "an island so far as the impacts to state lands and the benefits of islands in terms of protection to landward aquatic habitats and mainland ... it didn't matter what the composition of the island ... the issues were the same." Schmahl excluded islands more than one mile upstream from the mouth of a river because the rule was not intended to include, within its operations, islands that occur in river and lake systems within the interior portion of the state. Thus, by excluding islands more than one mile upstream from the mouth of the river, the rule would primarily capture those islands located in close proximity to Florida's coastline. Schmahl explained the choice of one mile upstream as the point at which to connect a line drawn at the river mouth from headland to headland after rejecting other forms of measurements, such as the water salinity or the extent of the tidal influence in the river system, because such methods were difficult to implement and the choice provided a standardized form of measurement which could be objectively applied. A section within the definition of "coastal island" was added to insure that the rule encompassed all islands within aquatic preserves except those islands within freshwater preserves. The freshwater aquatic preserves listed in the rule were identified as islands within freshwater preserves by reviewing aerial maps and excluding any islands located entirely within freshwater aquatic preserve systems. The rule defines the term "fastland" as: That portion of a coastal island above the upper limit of tidal wetland vegetation or if such vegetation is not present, that portion of the island above the mean high water line. Fastland is a common term which is defined in Webster's Third International Unabridged Dictionary as "high and dry land or land above the range of the tides." The term was included within the federal legislation implementing CBRA and was therefore, included within the rule to comply with the Trustees' direction that the definitions be compatible with CBRA's legislation. The term "fastland" was defined to determine whether a particular unabridged island met the definitions for "undeveloped coastal island" and "undeveloped coastal island segment." The rule defines "undeveloped coastal island" as: coastal island not directly or indirectly connected to the mainland by a bridge suitable for automobile traffic, and which has an overall density of less than one structure per five acres of fastland as of December 18, 1990. For the purpose of this definition, a structure means a wall and roofed habitable structure that is principally above ground and affixed to a permanent foundation with a projected ground area exceeding 200 square feet and constructed in conformance with all applicable legal requirements. For the purpose of determining density, facilities such as docks, groins, utility poles and pipelines are not counted as structures. The term "undeveloped coastal island" was primarily derived from definitions used by the Department of Interior Legislation implementing CBRA and is in keeping with the Trustees' instruction that the rule definitions be compatible with CBRA. Likewise, the density threshold of one man-made structure per five acres was taken directly from CBRA's implementing legislation. The term "undeveloped coastal island segment" is defined as: [A]n unbridged coastal island with an overall density of greater than or equal to one structure per five acres of fastland, a segment or portion of the island which either is at least one-quarter mile in linear shoreline length or comprises a minimum of 25% of the total fastland of the island and which consist of less than one structure per five acres of fastland as of December 18, 1990. A segment boundary shall be contiguous with a line drawn from the shore at the point of the outermost structure within a developed area to intersect each shoreline, then continue laterally along the sinuosity of each shoreline until another developed area is encountered or the end of the island is reached. See "undeveloped coastal island" for the definition of a structure. This phrase was included as a result of specific input from the IMC who convinced the Trustees of the importance of protecting large undeveloped areas of island when one or more portions of the islands were developed. In keeping with instructions received from the Trustees and relying on his professional experience, Schmahl also relied on a review of the following documents in developing the rules definitional sections: Coastal Barrier Resources Act, Public Law 97-348, 16 USC, Section 3500; and the Executive Summary of the Report of Congress on the Coastal Barrier Resources System. Section 18-21.004, Florida Administrative Code, entitled "Management Policies, Standards and Criteria," was amended by the Trustees' adoption of the coastal island policy to include four exceptions to the application of the rule. The Division of State Lands drafted language for this section under the direction of the Division's Director who viewed the rule's purpose as a means to modify the moratorium which had been opposed as the Trustees developed and refined the coastal island policy. The rule was to serve as an interim device until a multi-agency comprehensive policy could be developed to address development of and protection of coastal islands and their adjacent resources. The Trustees policy is reflected in language of Section 18-21.004(h), Florida Administrative Code, which provides: No application to use sovereignty, submerged land adjacent to or surrounding an unbridged, undeveloped coastal island or undeveloped island segment may be approved by the Board of Trustees unless it meets the following criteria... . The remaining section codify exceptions to the moratorium which had been defined over the approximate 18-month development stage that the policy underwent. Exception (1), contained in 18-21.004, states: The application is for the purpose of obtaining authorization for a use which was included in a development project that has undergone development of regional impact review and a final development order has been issued pursuant to Chapter 380, Florida Statutes, as of the effective date of this rule and is otherwise permitted by and consistent with the provisions of Rule Chapters 18-18, 18-20 or 18-21, Florida Administrative Code, as applicable, provided, however, that in the case of a substantial deviation to said development order, no authorization of use may be granted for any use that was not included in the original order. The rationale for the exception was premised on the fact that if a project had undergone DRI review, both regional and state agencies had had an opportunity to participate in review of the development. Therefore, such proposed projects had undergone a higher level of review as to the propriety and continuity with development plans than would have otherwise occurred had the review been conducted only at the local level. Thus, the exception was a way of lending credence to this state's policy of encouraging developers to use the DRI review process. The second exception to the Trustees coastal island policy states: The proposed facility is limited to a 2-slip private residential dock that complies with the standards set forth in Section 18-20.004(5)(b), Florida Administrative Code and the upland parcel to which the facility will be attached was not created by platting or subdividing after December 18, 1990. However, as an alternative to multiple private residential docks, the Board may authorize a private docking facility of more than 2-slips if it determines that such a facility would result in greater environmental protection for sovereignty submerged land resources than multiple individual docks, and provided the facility complies with all of the applicable standards. The number of slips associated with such a facility shall not exceed the number of slips which would have been authorized as individual docks. This exception recognized that under certain circumstances a person could construct a dock on their property. However, the intent was to provide notice that as to those purchasers of waterfront property on a coastal island within the definition of the rule after the December 18, 1990, date would be on notice that they would not be permitted to construct a single-family dock and will therefore have no reasonable expectation to receive one. The Trustees recognized that riparian owners have a right to access their property but that such does not extend to a statutory right to construct a dock. The third exception which addresses the provision of utility services provides: With respect to applications to use sovereignty submerged lands for the provision of public utility services, such services were in place as of December 18, 1990, and the requested usage of sovereignty, submerged land will not result in a upgrade of capacity or will not serve additional customers on a unbridged, undeveloped coastal island or undeveloped coastal island segment. Applications may be approved under this provision only to allow the maintenance or repair of existing utility lines, or as necessary to maintain public safety as ordered by the Public Service Commission. The purpose of that exception was to provide notice to the utility companies that if utility service already existed on an island, and it became necessary for the company to work on lines either to repair or maintain existing service, the rule would not prohibit such activity. The purpose was one of protecting some sovereign submerged resources and not facilitate development by use of sovereign lands, and that utility companies would be prohibited from using sovereign lands to serve additional customers or to upgrade existing service. The final exception to the Trustees' policy states: The proposed use is for the purpose of allowing access, for public purposes, to publicly owned uplands or submerged lands for recreation, research, conservation, mosquito control or restoration activities only, at the discretion of the Board, and is otherwise consistent with the provisions of Rule Chapters 18-18, 18-20, or 18-21, Florida Administrative Code. This exception was developed to allay concerns that the state had acquired a number of coastal islands pursuant to its "Save Our Coast Program" for public recreation which would be subject to the moratorium and therefore not used and the exceptions made clear that the use of coastal islands for public purposes and for the general public's enjoyment, remained in tact. Development of the Economic Impact Statement Pursuant to Section 120.54(2)(b), Florida Statutes, each agency shall provide information on its proposed action by preparing a detailed Economic Impact Statement (EIS) which shall include an estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork; an estimate of the cost or the economic benefit to all persons directly affected by the proposed action; an estimate of the impact of the proposed action on competition and the open market for employment, if applicable; a detailed statement of the data and method used in making each of the above estimates; and an analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act of 1985. DNR prepared an EIS which was included with the proposed rule amendments that contained estimates of the cost to the agency of the implementation of the proposed action including the estimated amount of paperwork; of the cost of the economic benefit to all persons directly affected by the proposed action; of the impact of the proposed action on competition in the open market for employment; of the data and method used in making each of the above estimates; and contained an analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act of 1985. The EIS was prepared for DNR by Ed Wood, a senior management analyst, with the Division of State Lands. He is coordinator for rule development at the Division and is responsible for the budget and personnel functions for the Division. He holds a master's degree in education and administration with a specialty in school finance and a bachelor's degree in business administration. He has prepared similar EIS's and received a primer from staff on the agency's rationale for proposing the subject rule. Wood read the draft EIS prepared by Dr. Bell, an economist for the Department, who was hired to assist in the preparation of the EIS. Wood consulted with DNR staff regarding information received at public hearings from citizens possibly affected by the proposed rule in order to assess public opinion about the rule prior to undertaking the paths of development of the EIS. Wood relied heavily on the Department of State's document entitled, "Guide to Rules Promulgation Under The Florida Administrative Procedures Act" dated November 1986, which included examples of EISs. Based on his familiarity with the Division's budget and personnel functions, he is infinitely familiar with cost and both paperwork and manpower necessary to implement the proposed action which would be affected by the proposed rules. At the time Wood consulted with Department staff, there were only six applications pending out of an estimated 867 coastal islands. Based on an inadequate sample of potentially affected parties, Wood did not rely on them as a basis for determination of economic impact, as such would have been speculative. Those portions of Dr. Bell's EIS which were relevant were adopted and utilized heavily by Wood in preparation of the EIS. Likewise, irrelevant portions including analysis of benefits from storm protection, hazard avoidance and shoreline protection, none of which are under the Division's jurisdiction were excluded. The Division fully considered all impacts that were capable of being considered based on the information which was furnished and which was reliable. Estimates of the impact on the action of competition and the over-market for employment were taken verbatim from Dr. Bell's draft EIS. The criteria utilized and adopted from Dr. Bell's draft EIS were sufficiently documented to be utilized and therefore was in fact utilized by Wood in the subject EIS. The information relied upon by Wood in preparation of the EIS was included in the statement of data and methods used. At the time of Wood's preparation of the EIS, there were no pending applications for marinas on affected islands and therefore any impact in that area was deleted as being mere speculation. Finally, as to those estimates of the various impacts which were indeterminate, they were stated as such and Wood failed to speculate as to such costs. Facts Relevant to Petitioner's Depot Key Joint Venture Partnership and George Rex Andrews After being deferred by the Board at its June 27, 1989 meeting, the Andrews lease application for the multi-slip docking facility was Item 22 on the Board's agenda for the August 22, 1989 meeting. Item 21 on the agenda was for recommendation for approval of a moratorium on authorizations for use of sovereignty, submerged land that would facilitate development of unbridged, undeveloped coastal islands. Based on the staff's recommendation in favor of the moratorium, the Andrews lease application was recommended for withdrawal. The Board first approved the lease after amending it to allow 25 slips and approved the moratorium. In April 1991, George Rex Andrews and Verna Andrews Woodlief transferred title to Atsena Otie to the Depot Key Joint Venture to obtain financial resources to develop Atsena Otie in accordance with the approved development plan. The development plans for Atsena Otie include an electrical transmission line to be laid between the town of Cedar Key and Atsena Otie. An easement for the utility transmission line will be required from the Board of Trustees. The proposed rule amendments will prohibit the Trustees from granting the easement necessary for the utility transmission line. Petitioners Andrews and Depot Key Joint Venture argue that the marketability of the lots at Atsena Otie will be greatly reduced if they are unable to obtain the easement required for the utility transmission line. Facts Relevant to Petitioner Lost Tree Village Corporation Lost Tree owns undeveloped islands within the Indian River in Indian River County, Florida, which are unbridged, not served by public or private utilities and which were not platted or subdivided prior to December 18, 1990. Lost Tree has preliminary development plans for a residential development and a golf course on seven of its islands. Other islands which have large areas of wetlands will not be developed but would be part of an overall environmental enhancement and preservation plan. Lost Tree's proposed plan of development will require approval for the use of sovereign, submerged lands. The proposed rule would prohibit a bridge to the island across sovereign submerged lands, the extension of utilities, and docks on the islands. Facts Relevant to Petitioners Munz, Watrous and Broderick Thomas Munz - Burgess Island Thomas Munz is the majority owner of a corporation, Burgess Island Associates, which owns an island known as Burgess of Little Bokeelia Island in Pine Island Sound, Lee County, Florida; the minority interest owners are Munz' wife and children. The island is over 100 acres in size of which about 26 acres is uplands. The applicable local zoning will limit development of the island to 27 units. Munz' development plans for the islands offer a total of 27 homes on the island including any of the four existing structures which continue to be used as residents; some of which may be converted to an office and a museum. The existing residences are served by septic tanks and obtain potable water through a combination of wells and cisterns. The island was not platted or subdivided as of December 18, 1990. Variances have been sought from some local zoning regulations relating to road widths and other development standards, which request was in process as of October 18, 1991. There are currently four docks serving the island. As no bridge will be constructed, plans are to provide a dock for each lot for access, although physical restrictions may require some lots to share a common dock. Authorization for such docks will be needed from the Trustees. Sewage treatment is to be by septic tanks. Potable water would be provided through wells and a Reverse Osmosis (RO) system--either individual RO plants or a central system. Permits necessary for water withdrawal, treatment and distribution systems had been applied for as of October 1991, including a consumptive use permit from the South Florida Water Management District (SFWMD); and an industrial discharge permit from DER; and a water plant and distribution system permit from HRS. A surface water management permit from SFWMD was also being sought. Sufficient electrical facilities are in place to meet the needs of the proposed development. Electricity in the form of an overhead utility line from Pine Island which is submerged for a portion of its route to go underneath a channel. Petitioners urge that the marketability and value of the lots on Little Bokeelia Island would decrease without the availability of individual docks for prospective lot owners. Petitioners urge that a distant, central dock is impractical. Ted Watrous - Buck Key Ted Watrous is the majority owner of a parcel of property, approximately 100 acres in size, on an unbridged island known as Buck Key and Pine Island South. The island is approximately 325 acres in size, the remainder of which is owned by the federal government and the Sanibel-Captiva Conservation Foundation. The island is not connected by bridge to any other land mask, nor is the island platted, subdivided, or currently served by any utilities. Watrous plans to develop 28 to 30 single-family homes on a portion of Buck Key; current local land use regulations would allow up to 35 or 36 single-family residences. Primary plans are for 20 of those lots to be waterfront with individual docks. Buck Key is separated from Captiva Island by a channel approximately 500 ft. wide and which gradually slopes to a depth of approximately 8 ft. Access to Buck Key would be by boat from Captiva Island, which is bridged to the mainland through Sanibel Island. Watrous' plans for the Buck Key development include electric utility lines and telephone cable from Captiva Island. The alternative energy source available is diesel generators. Sewage treatment would be handled on-site via septic tanks. The proposed rule would allow Watrous a single two-slip dock for his parcel which he contends would be impractical and would lower his selling price for the lots due to the limited access which would be occasioned by the two-slip dock for the development. Roger Broderick - Chino Island Roger Broderick is the owner of Chino Island, a 55 acre island located in Pine Island Sound. The island is unbridged or proposed to be bridged to another island and is not currently served by utilities. Broderick plans to develop up to 15 single-family residences on the southernmost 15 acres of the island in two phases, the first phase consisting of 10 homes. The northern portion of the island will be maintained in its natural state except that as a condition of a DER permit for the installation of a subaqueous utility line to the island. An existing man-made berm around the perimeter of the northern portion of the island would be removed to improve the flushing in the area and promote reestablishment of mangroves and other native vegetation. Exotic or nuisance vegetation species such as Brazilian pepper and Australian pine would also be removed as a condition of that permit. Broderick desires to live on the island in addition to developing homesites for sale. A majority of the island including wetlands is proposed to be placed under a conservation easement in perpetuity. Of the southern portion of the island where homes are proposed to be located, a man-made canal exist in the interior of the island with direct deep- water access to Pine Island Sound. It is anticipated that individual docks to serve the residential lots will be constructed in the canal on privately owned submerged lands so no Trustee authorization would be needed to construct docking facilities. Broderick has received authorization for many aspects of his development specifically SFWMD has approved a surface water management permit for control of stormwater runoff. Broderick proposes to provide water to residences with a well and a distribution system; SFWMD has issued a withdrawal permit for the water and HRS has issued a permit for the distribution system. Broderick proposes to provide electricity to the island with a submerged utility cable. The cable would be installed by supersaturating the bottoms with water to create a trench then immediately laying the cable in the trench and allowing settlements to settle in over the cable. Both DER and the U.S. Army Corps of Engineers have issued dredge and fill permits for the installation of the subaqueous line. DER investigated the alignment of the submerged utility line and determined that its impacts would be insignificant. A portion of the submerged utility line is co-located in the maintenance channel of an existing easement for an overhead utility line issued by the Trustees to the Lee County Rural Electric Cooperative for an electric utility line running from Pine Island to Sanibel Island. An application has been submitted to the Trustees for the submerged line covering both the co- located portion of the line and the spur necessary to run to Chino from the existing corridor. As of the final hearing, that application was not complete. Broderick urges that he has explored the possibility of alternative means of providing electricity and determined that the cost would be prohibitive and the alternatives would be inconvenient, unreliable, adversely affecting the marketability of the lots. Lee County has issued a final development order for the project, authorizing commencement of construction of the infrastructure and housepads. Lee County has found the development consistent with its comprehensive plan. Sewage treatment will be provided by individual treatment systems that will disinfect the effluent prior to discharge to a drainfield; the septic tank system is not the typical design and was specifically designed to avoid impacting shellfish harvesting areas.
The Issue The sole issue to be addressed is whether the Petition to establish the Town Center at Palm Coast Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Overview The Petitioners are seeking the adoption of a rule by the Commission to establish a community development district ("CDD") proposed to consist of approximately 1,600 gross acres located within the boundaries of incorporated areas of Palm Coast. The suggested name for the proposed District is the Town Center at Palm Coast Community Development District. There are no out-parcels within the area to be included in the proposed District. The estimated cost of the infrastructure facilities and services, which are presently expected to be provided to the lands within the District, was included in the Petition. The sole purpose of this proceeding is to consider the establishment of the District as proposed by the Petitioners. Summary of Evidence and Testimony Whether all statements contained within the Petition have been found to be true and correct. Petitioners' Exhibit A was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Livingston testified that he reviewed the contents of the Petition and approved its findings. Livingston also generally described the exhibits to the Petition. Livingston testified that the Petition and its exhibits are true and correct to the best of his knowledge. Gaylord testified that he assisted in the preparation of portions of the Petition and its exhibits. Gaylord also generally described Exhibits 5 and 6 to the Petition which he or his office had contributed to and stated that they were true and correct to the best of his knowledge. Fishkind testified that he had prepared Exhibit 10 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Fishkind also testified that the SERC submitted as Exhibit 10 to Petitioners' Exhibit A was true and correct to the best of his knowledge. Livingston testified that the consent by the owner of lands to be included within the proposed District is still in full force and effect. The Petition included written consent to establish the District from the owners of one hundred percent (100%) of the real property located within the lands to be included in the proposed District. Londeree testified that he had prepared Exhibits I-1 through I-3 and briefly described each exhibit. Londeree testified that Exhibits I-1 through I-3 were true and correct to the best of his knowledge. Based on the foregoing, the evidence shows that the Petition and its exhibits are true and correct. Whether the establishment of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or the effective local government comprehensive plan. Londeree reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Londeree also reviewed the proposed District in light of the requirements of the City of Palm Coast Comprehensive Plan. From a planning and economic perspective, three (3) subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, Land Use, recognizes the importance of locating development in areas that have the fiscal abilities and service capacity to accommodate growth. Section 187.201(16), Florida Statutes. It is relevant because CDDs are designed to provide infrastructure services and facilities in a fiscally responsible manner to the areas which can accommodate development. The evidence shows that the establishment of the Town Center at Palm Coast CDD will not be inconsistent with this goal because the District will have the fiscal capability to provide the specified services and facilities within its boundaries. Subject 18, Public Facilities, relates to (i) protecting investments in existing public facilities; (ii) providing financing for new facilities; (iii) allocating the costs of new public facilities on the basis of the benefits received by future residents; (iv) implementing innovative, but fiscally sound techniques for financing public facilities; and (v) identifying and using stable revenue sources for financing public facilities. Section 187.201(18), Florida Statutes. The evidence shows that the establishment of the Town Center at Palm Coast CDD will further these State Comprehensive Plan Goals and Policies. Subject 21, Governmental Efficiency, provides that governments shall economically and efficiently provide the amount and quality of services required by the public. Section 187.201(21), Florida Statutes. The evidence shows that the proposed CDD will be consistent with this element because the proposed CDD will continue to: (i) cooperate with other levels of Florida government; (ii) be established under uniform general standards as specified in Chapter 190, Florida Statutes; (iii) be professionally managed, financed, and governed by those whose property directly receives the benefits; (iv) not burden the general taxpayer with costs for services or facilities inside the District; and (v) plan and implement cost-efficient solutions for the required public infrastructure and assure delivery of selected services to residents. Based upon the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. In 2000, the City of Palm Coast approved a Comprehensive Plan Amendment bringing the Petitioners' property into compliance with the City's adopted Comprehensive Plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the Local Comprehensive Plan, and can be expected to further the goals provided. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Londeree, Fishkind, and Gaylord. The lands that comprise the proposed District will consist of approximately 1,600 gross acres, located within the borders of incorporated Palm Coast. All of the land in the proposed District is part of a planned community included in the Town Center at Palm Coast Development of Regional Impact (DRI), which is currently under review. "Functional interrelated community" means that the community development plan requires that the residents and property owners will be provided those facilities that are the necessary services for a mixed-use community. These facilities include streets, stormwater ponds, water and sewer service, street lighting, sidewalks, bike paths and associated landscaping. All of these elements will tie the land uses of the community together to provide a unity of design and function for the community. The community facilities that are provided require a long-range development plan that addresses the management, scheduling, funding, construction, and maintenance of the required infrastructure for the growth and development of the community. The size of the District as proposed is approximately 1,600 gross acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. The proposed facilities and services require adequate planning, design, financing, construction, and maintenance to provide the community with appropriate infrastructure. Compactness relates to the location in distance between the lands and land uses within a community. The proposed District provides for a cost-effective and efficient design and delivery of the required infrastructure and the future maintenance of same. The Petitioners are developing all the lands within the District as a single master-planned community. All of these lands will be governed by the Town Center at Palm Coast Development of Regional Impact Development Order to be issued by the City of Palm Coast, Flagler County, Florida. The evidence shows that from planning, economics, and engineering perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. Whether the proposed district is the best alternative available for delivering community development services and facilities to the area that will be served by the proposed district. It is presently intended that the District will participate in the construction or provision of certain infrastructure improvements as outlined in the Petition. The District will construct certain infrastructure and community facilities which will be needed by the property owners and residents of the project. It is anticipated that the CDD will issue 30-year special assessment bonds to pay for the major infrastructure improvements. Expenses for the operations and maintenance are expected to be paid through annual maintenance assessments to ensure that the property or person receiving the benefit of the district services is the same property or person to pay for those services. Two types of alternatives to the use of the District were identified. First, the City of Palm Coast might provide facilities and services from its general fund. Second, facilities and services might be provided by some private means, with maintenance delegated to a home owners' association. A community development district allows for the independent financing, administration, operations, and maintenance of the land within such a district. A community development district allows district residents to completely control the district. The other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities to the land included in the proposed District because the District will provide the necessary means to maintain the project consistent with the intent of the original design. Alternative approaches, such as dedicating the area to another municipality, may result in conditions deviating from the original intent of the project. A localized agency (District) that is focused on maintaining and governing the area will help to ensure that the design and intent for which the project was developed and presented to the public will be maintained. The evidence shows that from planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. Whether the community development services and facilities of the proposed district will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. Currently, the land within the proposed District boundaries is undeveloped and, therefore, cannot duplicate the local or regional facilities. The facilities within the District are designed to meet, and in some areas exceed, the current design requirements by local municipalities and are, therefore, compatible with the capacities and uses of the existing regional community development facilities and services. Therefore, the evidence shows that the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. As previously noted, from planning, economics, and engineering perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The community to be included in the District needs the basic infrastructure systems to be provided. From planning and economic perspectives, the area that will be served by the proposed District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the Petition and other information to be submitted to the Commission. Elements of the Petition The Commission has certified that the Petition to Establish the Town Center at Palm Coast Community Development District meets all of the requirements of Section 190.005(1)(a), Florida Statutes. Statement of Estimated Regulatory Costs (SERC) The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District--the State of Florida and its citizens, the County and its citizens, the City and its citizens, the Petitioners, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which are difficult to quantify, but nonetheless substantial. Administrative costs incurred by the City of Palm Coast and Flagler County related to rule adoption should be minimal. Benefits to the City of Palm Coast and Flagler County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed District except for those it chooses to accept. Consumers will pay special assessments for certain facilities. Location in the District by new residents is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers in the area within the CDD will include the option of having a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Section 190.005(1)(a), Florida Statutes, requires the Petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition contains an SERC. It meets the requirements of Section 120.541, Florida Statutes. Other Requirements Petitioners have complied with the provisions of Section 190.005(1)(b)1., Florida Statutes, in that Flagler County and City of Palm Coast were paid the requisite filing fees. Section 190.005(1)(d), Florida Statutes, requires the Petitioners to publish notice of the local public hearing in a newspaper of general circulation in Flagler County and the City of Palm Coast for four successive weeks prior to the hearing. The notice was published in the legal Advertisement section of the Flagler/Palm Coast News-Tribune, a newspaper of general circulation, for five (5) successive weeks, on June 29, July 6, July 13, July 20, and July 27, 2002. Flagler County's Support for Establishment Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioners filed a copy of the Petition and the $15,000.00 filing fee with Flagler County prior to filing the Petition with the Commission. As permitted by Section 190.005(1)(c), Florida Statutes, the Flagler County Commission held a public hearing on May 6, 2002, to consider the establishment of the Town Center at Palm Coast Community Development District. At the conclusion of its public hearing on May 6, 2002, and after considering the factors enumerated in Section 190.005(1)(e), Florida Statutes, and the representations in the SERC, the Flagler County Commission adopted Resolution No. 2002- 50, expressing support for the Commission to promulgate a rule establishing the Town Center at Palm Coast Community Development District. Palm Coast's Support for Establishment Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioners filed a copy of the Petition and $15,000.00 filing fee with the City of Palm Coast prior to filing the Petition with the Commission. As permitted by Section 190.005(1)(c), Florida Statutes, the City of Palm Coast held a public hearing on June 4, 2002, to consider the establishment of the Town Center at Palm Coast Community Development District. At the conclusion of its public hearing on June 4, 2002, the City of Palm Coast Commission adopted Resolution No. 2002-18, expressing support for the Commission to promulgate a rule establishing the Town Center at Palm Coast Community Development District.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120 and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Town Center at Palm Coast Community Development District as requested by the Petitioners by formal adoption of the proposed rule. DONE AND ENTERED this 27th day of August, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 August, 2002. COPIES FURNISHED: Michael Chiumento, III, Esquire Chiumento & Associates, P.A. 4 Old Kings Road, North, Suite B Palm Coast, Florida 32137 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission The Capitol, Room 2105 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Charles Canady, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Exhibit 1 Petitioners' Witnesses at the Public Hearing William I. Livingston, President Florida Landmark Communities, Inc. One Corporate Drive, Suite 3A Palm Coast, Florida 32137 David R. Root 14 Fern Court Palm Coast, Florida 32137 Robert B. Gaylord Singhofen & Associates 6961 University Boulevard Winter Park, Florida 32792 Henry F. Fishkind, Ph.D. Fishkind & Associates 11869 High Tech Avenue Orlando, Florida 32817 Robert D. Londeree Planning and Design Post Office Box 1077 Windermere, Florida 34786 Exhibit 2 List of Petitioners' Exhibits Letter Description Petition for Rulemaking to Establish a Uniform Community Development District (Petition with ten (10) Exhibits) Composite Exhibit -- Prefiled Testimony of William I. Livingston (10 pages) General Location Map Vicinity Map showing District boundaries Metes and Bounds Description of District boundaries B-4 Written Consent of Landowners Utility Plan showing major trunk water mains and sewer interceptors adjacent to District boundaries Development Costs and Timetable Conceptual Site Plan showing public and private uses B-8 Land Use Plan Resolution No. 2002-18, of the City Council of the City of Palm Coast endorsing the formation of the Town Center at Palm Coast CDD Resolution No. 2002-50, of Flagler County, Florida's County Commissioners demonstrating its support of the formation of the Town Center at Palm Coast CDD Proof of Publication from Flagler/Palm Coast News- Tribune Prefiled Testimony of David R. Root (5 pages) Prefiled Testimony of Robert B. Gaylord (6 pages) Utility Plan showing major trunk water mains and sewer interceptors adjacent to District boundaries Development Costs and Timetables Prefiled Testimony of Henry F. Fishkind, Ph.D., (6 pages) Statement of Estimated Regulatory Costs for the Town Center of Palm Coast CDD I Prefiled Testimony of Robert D. Londeree (9 pages) I-1 Town Center at Palm Coast Development of Regional Impact Application for Development Approval Town Center at Palm Coast Development of Regional Impact Application for Development Approval Response to Request for Additional Information (Sufficiency Response) Petitioners' FLUM Amendment for Town Center at Palm Coast Application
The Issue Whether a permit should be issued to Petitioner Theodore B. Meadow to construct a dwelling on the Gulf Coast of Florida as requested in his application filed with Respondent Department of Natural Resources.
Findings Of Fact Having considered the evidence and argument of counsel, the Hearing Officer finds: In July of 1979 Petitioner filed an application for a permit to build a duplex dwelling seaward of the coastal construction setback line on a parcel of land bounded by the theoretical extension seaward of the north/south boundary line of Ponce de Leon Street in Yon's Addition to Beacon Hill on St. Joe Beach, Florida. The parcel of land is 70 feet in width and approximately 175 feet in depth to the high-water line of the Gulf of Mexico and lies between State Road 30 (US Highway 98) and the Gulf of Mexico at St. Joe Beach in Gulf County, Florida. The application, Department of Natural Resources File #79-P-283, was filed pursuant to Rule 16B-25.05, Procedure to obtain variance; application, Florida Administrative Code, which had been promulgated under the authority of Sections 161.052, 161.053 and 370.021(1), Florida Statutes. Attached to the application was a copy of a deed to subject property to Albert H. Hinman dated December 12, 1977; an undated authorization from the owner of the property to Petitioner Meadow to apply for a variance and if granted to construct a building on the property; a survey of the property; a floor plan of the building with a typical wall section; and a topographical plat of the lot involved. In response to Rule 16B--25.05(1)(d): "Statements describing the proposed work or activity and specific reasons why the applicant feels the variance should be granted." Petitioner stated, in part, "...the reason that the permit should be granted is because applicant does not have sufficient space on property he is purchasing from A. H. Hinman to construct said building outside of the DNR Coastal Construction Control Line." The survey shows that 14 to 15 feet of the property lies landward of the Department of Natural Resources' setback line. At the time of the hearing no purchase had been made, but there is no dispute regarding the authorization of the owner to allow Petitioner to build if a variance is granted. After filing the application Petitioner consulted with the staff of the Department concerning the construction seaward of the setback line. The Chief Engineer of the permitting section of the Bureau of Beaches and Shores, who is responsible for accepting, evaluating and making recommendations for permits for construction, inspected the site of the proposed structure on October 11, 1979. He took a copy of the plans and specifications for the structure, a plot plan, and the engineering statement which accompanied the plans to review on the site. After the inspection he made a determination that the structure was appropriately designed for the hazard environment and located in such a position as to offer the least potential adverse impact to the beach in the area. Recent topographic changes, topographic data including that submitted by Petitioner, and other historical information was used to assess and evaluate the project. Thereafter, the engineer consulted with the Executive Director of the Respondent Department and gave a favorable recommendation in terms of minimal impact. The Executive Director determined that the structure was designed and located to have the minimum adverse impact on the beach, and that the structure was adequately designed to resist natural forces associated with a hundred-year storm surge (Transcript, pages 52-56). At the formal hearing the Executive Director stated that he based his recommendation for approval by the Executive Board on the precedence of previous action of the Executive Board and because he found that the Petitioner had his application in order. Petitioner Meadow has followed the guidelines of the administrative rules and submitted all required information. He has provided his reason for requesting a variance and believes the information furnished compels the Respondent Department to grant the waiver inasmuch as no modification was requested and he cannot build the structure he desires on the 14 to 15 feet of land he is authorized to use which lies landward of the 1975 setback line. The immediate area involved in this proceeding is relatively undeveloped beach property approximately one (1) mile in length at St. Joe Beach, Gulf County, Florida some twenty-nine (29) miles to Panama City and six (6) miles to Port St. Joe. The real property has been divided into fourteen (14) lots more or less similar to the lot on which Petitioner seeks to construct a duplex (Petitioner's Exhibit 2; Transcript, page 137). No structures except one multifamily dwelling have been constructed on any of the fourteen (14) lots. Most the construction along the nearby coastline was completed prior to March 21, 1975, the date the Respondent Department established a coastal setback line under the then applicable statutes and rules. Beacon Hill is a subdivision about a mile and a half from the subject area on the coastal western edge of Gulf County. The structures are close together, the majority of which were constructed prior to 1975 without a permit from the Respondent Department. Historically, the area would have had a similar topography and beach conditions to the subject area, but because of structures built on the beach vicinity the primary dune system has been eradicated, the beach is narrow in that vicinity, and there is virtually no vegetation (Transcript, pages 135-136). It has been found that any construction, particularly of a building, generally has an adverse impact on a beach dune system (Transcript, pages 149, 161). The "setback line" defined in the 1975 statutes and rules was established March 21, 1975 (Transcript, page 169). Thereafter, in 1978 the legislature amended Section 161.053, Florida Statutes, and ordered the Respondent Department to establish a "coastal construction control line" to replace the setback line, but said line has not yet been established, although at the hearing a member of Respondent's engineering staff stated that a study was in progress. Neither Petitioner Meadow nor Mr. Hinman, the owner of subject property, requested the Respondent Department to review the setback line or establish a coastal construction control line prior to filing of the application in 1979 for a variance of the 1975 setback line (transcript, page 93). "Setback line" and "coastal construction control line" are not synonymous. The setback line set a seaward line for construction, and the coastal construction control line defines the impact of a 100-year storm surge or other predictable weather condition (Transcript, page 179). An engineer on the Respondent Department's staff who qualified as an expert was of the opinion that the coastal construction control line, when established, would be landward of the setback line established in 1975 (Transcript, page 198). There have been two (2) hurricanes which have impacted the Gulf Coast since the setback line was established, one in September of 1975 and one in September of 1979. These storms had relatively little visual impact on the subject beach area except for erosion of the fore dune, but the storms substantially impacted the accretion of the coastline (Transcript, pages 189- 195). At the final hearing Ms. Sally Malone, a resident living one block from the proposed structure of Petitioner Meadow, protested the proposed construction on the beach and in general the removal of trees. The evidence shows she has a legitimate concern for the effect through erosion the construction might have on the beach near her home. Petitioner Meadow and the Respondent Department submitted proposed findings of fact and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is recommended by the Hearing Officer that the application of Theodore B. Meadow for a waiver or variance be denied without prejudice to his refiling an application after the coastal construction control line is established as required by Section 161.053, Florida Statutes, supra. DONE and ORDERED this 5th day of November, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 5th day of November, 1980. COPIES FURNISHED: Mark J. Proctor, Esquire Office of the General Counsel Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303 Cecil G. Costin, Jr., Esquire 413 Williams Street Post Office Drawer 98 Port St. Joe, Florida 32456
Findings Of Fact Background Petitioner is incorporated in the State of Florida as a not-for-profit corporation. The corporate purpose of Petitioner includes the improvement of environmental health. Petitioner's activities in this regard are especially focused upon Manatee and Sarasota Counties, including the City of Bradenton (Bradenton). Petitioner has about 2500 members. Members of Petitioner reside in Bradenton. These persons use the water and roads adjacent to Perico Island. Insubstantial evidence suggests that Petitioner, through its members, submitted oral objections to Bradenton at anytime during the planning process. Petitioner mailed a letter dated March 7, 1989, to the Department of Community Affairs (DCA) with a copy sent to Bradenton. The letter clearly constitutes written objections to the proposed plan. Bradenton initially received the March 7 letter on March 9. It is difficult to determine whether Bradenton received a copy of the March 7 letter after the issuance of the Objections, Recommendations, and Comments (ORC) by DCA. Even if Bradenton received a copy of the March 7 letter prior to the issuance of the ORC, it is impossible to determine if Bradenton received another copy of the letter with the ORC, which may contain numerous attachments consisting of the comments of other parties. The ORC was not introduced into evidence. The only indication in the record, including pleadings, of the date of the ORC is in Exhibit 2 attached to the Deposition of Robert Pennock, which itself is City Exhibit 6. Exhibit 2, which is a letter from DCA to Bradenton, mentions the ORC dated March 17, 1989. This date would be at the outside of the range for DCA to submit an ORC in response to a proposed plan transmitted, as in the present case, on November 23, 1988. 9/ By Request for Admission served November 21, 1990, Petitioner requested Bradenton to admit: "that [Petitioner] submitted written objections to [Bradenton's plan] which [Bradenton] received after it received DCA's ORC report." Bradenton's response to the request, in its entirety, states: The City has received a copy of the correspondence relating to possible "objections" to the City's Plan that were mailed directly to [DCA]. The date of that correspondence was March 7, 1989 and addressed to Robert G. Nave, Chief, Bureau of Local Planning, and was written by Attorney Thomas W. Reese. By date stamp on the copy of the correspondence in the possession of the City, it is believed that the document was received on March 9, 1989. The City does not admit that the correspondence of March 7, 1989 from Mr. Reese to Mr. Nave meets the intent of the statute for establishing standing and to the contrary, does not comply and does not establish such standing. The response ignores the portion of the request directed toward the factual question of the order in which Bradenton received the March 7 letter and the ORC. The significance of the chronology, as opposed merely to the acknowledgement of receipt of the March 7 letter, may have been lost upon Petitioner's counsel, who inexplicably asserted in opening statement that the ORC was issued on December 19, 1988. Transcript, page 57. Given the probable chronology of events recited in the preceding footnote, one of the few certainties concerning this matter is that the ORC was not issued on December 19, 1988. Intervenor is a Delaware corporation that owns property in Bradenton. Intervenor owns the western peninsula of Perico Island, which is described in detail below. Intervenor submitted oral or written objections to Bradenton not later than the transmittal hearing on November 23, 1988. Prior to transmitting the proposed plan to DCA, Bradenton removed the coastal high hazard designation from much of the western peninsula of Perico Island and changed the designation of the affected land to ten units per acre. Bradenton is a municipality located in western Manatee County. The city, which straddles the mouth of the Braden River to the east, generally lies along the southern bank of the Manatee River less than three miles upstream from where it empties into lower Tampa Bay. Wares Creek runs from south to north through the center of Bradenton and empties into the Manatee River. Palma Sola Bay divides the majority of the city from Perico Island. The southern half of Perico Island, which consists of eastern and western peninsulas, is within the city limits. Perico Island, which is generally bounded on the west by Anna Maria Sound and Sarasota Pass, is located between Tampa Bay to the north and Sarasota Bay to the south. Barrier islands to the west, most notably Anna Maria Island, tend to protect Bradenton from direct Gulf waves. On August 1, 1989, Bradenton adopted its comprehensive plan (Plan). As Bradenton noted accurately in its cover letter to DCA, no DCA representative attended the final adoption hearing on July 26, 1989, although Bradenton had requested that DCA send a representative to the hearing. 10/ On September 16, 1991, DCA issued a notice of intent to find the Plan in compliance. Designation of Coastal High Hazard Area Data and Analysis The Data and Analysis 11/ contains a Coastal Area Map, which is on page 150 of the Plan. The map depicts those areas below two feet elevation as the Coastal High Hazard Area. The map shows that the Coastal High Hazard Area includes about one-half of the western peninsula of Perico Island and relatively thin strips along the south and east borders of the eastern peninsula of Perico Island. The only other portions of Bradenton designated as Coastal High Hazard Area are parts of islands in the Braden River and two small parcels on the west bank of the Braden River. The Data and Analysis does not further address the Coastal High Hazard Area. In particular, the Data and Analysis fails to explain why the two-foot elevation was selected to define the Coastal High Hazard Area. The Data and Analysis does not mention the location of the Federal Emergency Management Agency velocity zone (V-zone) or the Department of Natural Resources Coastal Construction Control Line. The portion of Perico Island within the city is bounded on the north by State Road 64. Immediately north of State Road 64, the remainder of Perico Island is in unincorporated Manatee County. The Manatee County comprehensive plan designates the entire island north of the road as coastal high hazard area. However, the county plan notes extends the coastal high hazard area to the five- foot contour. The county plan also divides the coastal high hazard area into two areas: the more critical area, which corresponds to the V-zone, that is subject to wave action and the less critical area that is subject to storm- induced damage. Some testimony suggests that the Manatee County plan has more stringent land use constraints for land uses within the V-zone than for land uses elsewhere within the county's coastal high hazard area. Nothing in the record indicates the extent of the V-zone over any part of Perico Island. Early in the consideration by the City Council of the proposed plan, the coastal high hazard area included all land seaward of four feet elevation. The four-foot contour had been selected because of data suggesting that the "spring high tide" runs to an elevation of 3.62 feet, which was rounded up because Bradenton had only one-foot contour maps. By letter dated November 16, 1988, a representative of Intervenor complained that the four-foot contour was "scientifically unjustified and legally unsupportable." The letter states: Only a portion of the westerly peninsula is in the [V-zone] and even that portion of the property could be partially used with proper construction safeguards. The staff position of four feet seems to be based upon the fact that spring high tide occurs at elevation 3.56 feet but no one knows where that elevation occurs on this property nor does anyone know where the elevation 4.0 feet occurs on this property. The relationship between spring high tide and coastal high hazard is likewise unestablished. Bradenton's Chief of Planning and Zoning, Margaret Swanson, testified that the two-foot contour line "definitely" includes the entire V-zone. Deposition of Margaret Swanson, page 48. Jerry West, Bradenton Planning and Development Director and Ms. Swanson's supervisor, testified likewise at the hearing. Transcript, page 90. Petitioner produced no contrary evidence as to the location of the V- zone or the Coastal Construction Control Line. Likewise, there is no evidence that either peninsula has historically experienced destruction or severe damage from storm surge, waves, erosion, or other manifestations of rapidly moving or storm driven water. The spring high tide appears to be an unusual event, perhaps even occurring less often than annually. The evidence fails to link the spring high tide with destruction or severe damage from rapidly moving or storm driven water anywhere in Bradenton. Plan Provisions Coastal Management/Conservation Element (Coastal) Goal 5 states: Use of coastal areas in a way which preserves natural systems, provides for public access, and minimizes storm and flood hazards to population and property, including public facilities. Objective 1: Severely limit development in low lying coastal areas. Policy 1: A coastal high-hazard area shall be established through the Land Use and Development Regulations to include all coastal lands along the Braden and Manatee Rivers and Palma Sola Bay which are below 2 feet in elevation. Policy 2: Establish a conservation zone including all conservation lands as shown on the Future Land Use Map and all undeveloped areas below the Coastal High Hazard Line (2-foot contour line) and prohibit construction of building, roadways and parking areas in that zone except to provide shoreline access points as determined necessary or of overriding public interest by City Council. . . . Policy 3: Prohibit the filling of coastal areas below the 2-foot contour line except in cases where such lands are completely separated from the shoreline by land of higher elevation or where determined necessary or of overriding public interest by City Council. Policy 4: The City shall not locate infrastructure in the Coastal High Hazard Area (below the 2-foot contour line) except as determined necessary or of overriding public interest by City Council. * * * Objective 5: Keep population and investment low in areas vulnerable to coastal flooding. Policy 1: Designate undeveloped coastal acreage with areas below the 8-foot elevation contour line as PDP (planned development project) and limit residential development to low density below the 8-foot contour. Limit non-residential development below the 8-foot contour line to water dependent uses. Policy 2: Locate all public facilities outside of the coastal high hazard area. * * * Policy 4: Discourage the location of high density residential projects, public housing, housing for the elderly, mobile homes and group homes in high priority hurricane evacuation zones through the Land Use and Development Regulations. The Future Land Use Map (FLUM) designates as Conservation all of the land on Perico Island below the two-foot contour. According to Policy 1 under Objective 1 of the Future Land Use Element (FLUE), the "Recreational/Conservation" designation is for "[p]arks, designated open areas and conservation." No residential uses are permitted in the Recreation/Conservation category. The only FLUE goal is: A land use pattern which promotes the well being of the community in regard to compatibility of adjacent uses, building types and residential densities, efficiency of utilities and roadways, harmony with the natural environment and protection from natural hazards. Objective 1: Location of new development and redevelopment in a manner conducive to compatibility of land uses, sensitive to natural resources and natural hazards and consistent with the availability of public facilities. * * * Housing Element (Housing) Policy 1 under Objective 1 is: Designate vacant tracts of land for residential use on the future land use map except where unsuitable for that use because of incompatible adjacent existing uses, inappropriate elevation or drainage conditions or other safety hazard. State Plan Provisions There are no relevant provisions of the State Plan with which the Coastal High Hazard Area is arguably inconsistent. Designation of Ten Units Per Acre on Western Peninsula of Perico Island Data and Analysis The Data and Analysis identifies Perico Island and the islands of the Braden River as the two areas of major environmental concern in Bradenton. The Data and Analysis states: The value of these lands is that they are coastal lands with abundant sea life and habitat. In an urbanized area where much of the natural shoreline has been destroyed, these remaining lands should be protected because of their intrinsic value as well as because of their dwindling supply. Plan, page 157. The Data and Analysis notes that Perico Island is entirely within the 100-year flood zone and is less than five feet above sea level with "large areas" below the mean high water line. The western peninsula of Perico Island is lower than the eastern peninsula. The highest elevation on the western peninsula is five feet, which is within 100 feet of State Road 64. The elevation of most of the upland beyond 100 feet of the road is less than three feet. The elevation of much of the interior of the eastern peninsula is 3-4 feet. Although Perico Island contains Australian Pine and Brazilian Pepper, which are nuisance exotics, the Data and Analysis explains that valuable natural habitat remains: A great diversity of animal and plant life is found on the island[, including roseate spoonbills, brown pelicans, osprey, and an occasional bald eagle]. The mangrove swamps, mud flats, and marine grass flats fringing Perico Island support a variety of marine life including commercial and game fishing species such as mullet, trout, redfish, and snook, as well as shellfish. Plan, page 158. The habitat of the endangered West Indian Manatee includes the coastal areas in question. In addition to the above-noted animal species that are listed as endangered, threatened, or of special concern, the threatened butterfly orchid is also found on Perico Island. The Data and Analysis reports that Palma Sola Bay is a Class II waterbody, which means that it is suitable for shellfishing. Although it has not been approved for such purpose, its waters regularly satisfy Class II standards with only an occasional violation of the Class II bacteriological standards. According to the Data and Analysis, Palma Sola Bay has been designated as part of the Sarasota Bay Estuary of National Significance. Plan, page 98. Both Anna Maria Sound and Palma Sola Bay are part of the Sarasota Bay estuarine system and, as such, are Outstanding Florida Waters. 12/ Concluding its discussion of the two areas of major environmental concern to Bradenton, the Data and Analysis states: As with Perico Island, the Braden River and its wetlands are an invaluable natural resource. Such tidal wetlands not only reduce water pollution by filtering pollutant-laden runoff, but also influence water quantity by retaining water during dry periods and absorbing it during flooding. Wetlands also stabilize the shoreline and act as a hurricane buffer. They provide essential breeding, nesting, resting areas for myriad fish and bird species and support a diverse food web extending to terrestrial animals as well. ... Plan, page 159. The Coastal Vegetation map shows that the portion of the western peninsula corresponding roughly with the Coastal High Hazard Area is vegetated by coastal wetlands with considerable mangrove growth. Plan, page 151. Perico Island is one of "three areas where future development will impact the coastal area." Plan, page 160a. The Data and Analysis notes that an historic shell mound on the western peninsula must be "protect[ed from r]esidential development." However, the designation of the western peninsula at ten units per acre, as necessarily conceded by Mr. West, is not a low density. The Data and Analysis surmises that the impact of future development on at least the eastern peninsula of Perico Island is largely unavoidable: Because of a Development Order issued on a 1975 Development of Regional Impact application, the conditions of development are established and little can be done to modify them to meet the policies of this plan. Id. The Data and Analysis describes the 1975 development order as: authoriz[ing] 1512 dwelling units and a neighborhood commercial center and call[ing] for the preservation of lands below the 1.5 foot elevation and in an historic shell mound on the western peninsula of the site. Development of the western peninsula was prohibited by the approval stipulations. Plan, page 158. At the time of the application for what is known as the Spoonhill Bay DRI, Intervenor or an affiliate of Intervenor owned both peninsulas. After obtaining the development order, Intervenor sold all or part of the eastern peninsula to developers, but retained the western peninsula. The application for development approval was for a total of 1776 units on 102.6 acres. The entire land area was about 546 acres with 171 acres of mangroves conservation, 200 acres of marine conservation, 10 acres of historic preservation, almost 2 acres of neighborhood commercial, 26 acres of lakes, and 35 acres of other open space and recreation. The map accompanying the application shows two sites for historic conservation, both evidently above the two-foot contour line. According to the DRI application, both peninsulas of Perico Island contain about 184 acres above the 1.5-foot contour. The western peninsula encompasses 114 acres with about 10-16 acres higher than 1.5 to 2 feet in elevation. According to the application, the dwelling units per gross acre would be 3.2 and the dwelling units per net acre would be 9.7. The gross acreage density is based on total acres, including mangroves, lakes, and marine conservation. The net acreage density is impossible to calculate from the information provided. 13/ The development order, which was approved May 28, 1975, by the Bradenton City Council, approves the development subject to the following conditions: The developer shall initiate a positive program for the long run protection of the ecologically important undeveloped areas of the site. . . . * * * 3. The applicant shall work in consultation with the State Division of Archives, History and Records Management to insure the protection and preservation of the two sites of historical and archaeological significance found on the project site. Protection of the Indian Mound area shall be by deed, dedication, or other appropriate legal instrument to insure that such sites are preserved in perpetuity. * * * 5. With respect to responsibility for roadway improvements outlined in the transportation section of the DRI report: * * * (d) To further reduce traffic impact of the project, no residential development as originally proposed by the developer will be carried out on the westerly peninsula of the developer's property. ... Total number of residential units as proposed shall be reduced by 15% from 1,778 units to 1,512 units, all to be located on the easterly peninsula. * * * 7. Developer shall furnish at no cost to City not less than one acre site to accommodate governmental services that will be generated by the development, e.g., fire, police, etc. Site location shall be subject to approval of both parties. The Data and Analysis includes among "acreage not presently slated for development . . . 10 acres, western peninsula, Perico Island[,] includes Mangrove areas, low-lying areas and an Indian shell mound." Plan, page 12. However, the Data and Analysis determines that this area is "suitable for development," which means that the land is "above mean high water line and is served by public facilities." Plan, page 14. The soils map shows that the entire western peninsula, as well as the western half of the eastern peninsula, is characterized by nearly level, very poorly drained sandy and organic soils in tidal mangrove swamps. Plan, page 13. The soils of the western peninsula and western half of the eastern peninsula of Perico Island, as well as the soils of the Braden River islands, are the only soils in Bradenton that are generally "very poorly drained" and account for very little of the land area of the city. Both peninsulas of Perico Island are identified as Neighborhood 12.04 in the Plan. In the discussion of Neighborhood 12.04, the Data and Analysis states that a condition of the development order "was that the smaller of the two peninsulas is not to be developed because of environmentally sensitive and historically significant areas as well as traffic impacts." Plan, page 97. The Data and Analysis notes that the two shell middens, which date from "prehistoric times," have been damaged by erosion and amateur excavation. But the Data and Analysis recommends that the Indian mounds be professionally excavated or protected "because of their potential value in adding to the small amount of information available about prehistoric settlements in this area." Plan, page 97. The Data and Analysis notes that approved development has provided 600 units through 1986 at a density of 6.3 units per acre. As of that time, 116 acres were in residential use, one acre in commercial use, and 70 acres were vacant. The Data and Analysis projects that 800 units will have been constructed by 1990. In discussing Neighborhood 12.04, the Data and Analysis reports that no public recreation areas are proposed for the development, which will be served exclusively by private recreation areas. In addition, State Road 64 is the hurricane evacuation route for Perico Island as well as Anna Maria Island, which is also served by another escape route. The discussion of Neighborhood 12.04 concludes with several recommendations. Among them are the following: Require the preservation of and protection of the historic shell middens on the western peninsula if the peninsula is ever developed. Strictly enforce the flood protection ordinance for development of the island. Require mangrove and water quality protection as part of development approvals. Hurricane evacuation and traffic impacts on State Road 64 shall be considered as an important issue in review of applications for development approval. Any applications by property owners to increase the density of development in the neighborhood shall be denied. Participate in the studies of Sarasota and Palma Sola Bays under the National Estuary Program and utilize the recommendations coming forth from that program to the extent possible. Nothing in this Plan shall limit or modify the rights of any person to complete any development that has been authorized as a development of regional impact pursuant to Chapter 380 or who has been issued a final local development order, and development has commenced and is continuing in good faith. Any amendments to the development order for the Development of Regional Impact shall comply with or require compliance with all of the policies of this plan particularly those concerning protection of environmentally and historically sensitive lands, the coastal high hazard area and hurricane vulnerability zone. Plan, pages 98-99. The Evacuation Map shows that all of Perico Island is in Evacuation Zone A. Plan, page 153. This is the highest priority evacuation zone in Bradenton. This zone also encompasses bands of land along the Manatee River and both shorelines of the Braden River. Additional data and analysis are included in the Surface Water Improvement and Management Program for Tampa Bay published on August 30, 1988 (SWIM Plan). The SWIM Plan notes that the Tampa Bay estuary, of which Anna Maria Sound, Palma Sola Bay, and the Manatee and Braden Rivers are a part, suffers from interconnected problems, including habitat destruction (e.g., dredging, filling, hardened shorelines); water quality inclusive of eutrophication (e.g., point and non-point stormwater runoff, municipal and industrial effluents, septage); [and] altered freshwater inputs (e.g., dams, withdrawals). SWIM Plan, page 1. Addressing the functions of area wetlands, the SWIM Plan states: In addition to their contributions to the biology of the marine ecosystems, coastal and estuarine wetlands play an important role in modifying the geologic and hydrographic characteristics of the area. Acting as baffles, roots and leaves reduce the velocity of water over the bottom causing suspended particles to settle out and become trapped at the base of the plants. In this way mangroves, marshes, and seagrasses reduce turbidity, increase sedimentation rates, stabilize sediments, and attenuate wave action on adjacent shorelines. The binding and stabilization characteristics of these habitats are documented by reports of some coastal marshes and seagrass meadows surviving the destructive scouring forces of coastal storms and hurricanes in the Gulf states. SWIM Plan, page 23. However, these wetland systems "face increasing pressure from development of all types," notwithstanding the Warren S. Henderson Wetlands Protection Act of 1984. SWIM Plan, page 27. The water quality is directly threatened by the nutrients introduced into the water by, among other things, untreated stormwater runoff and the "extensive transformation of rural uplands to urban uses." SWIM Plan, pages 26-27. Plan Provisions The FLUM contains only two residential categories. All of Perico Island above the Coastal High Hazard Area is designated "Residential--maximum 10 units per acre." The other category permits up to 15 units per acre. FLUE Policy 1 under Objective 1 describes the Residential categories as follows: Residential with densities limited to 15 units per acre in the high density area and 10 units per acre in the moderate density area and limited by recommendations by neighborhood in this plan. . . . Neighborhood commercial uses permitted as part of the residential development plan. .. . FLUE Policy 2 under Objective 1 is: The recommendations for each neighborhood contained in this plan are hereby adopted as part of this plan and are to be adhered to in all land use decisions to be made by the City. FLUE Policy 3 under Objective 1 states: The future land use map, neighborhood recommendations and all other relevant policies under this plan are to be used as a basis for the revision of the land use and development regulations, including the zoning atlas. FLUE Objective 3 provides: Management of future development through adoption and enforcement of regulations which promote the use of land in a manner sensitive to public health and safety and to soils and topography. FLUE Objective 4 and relevant policies are: Objective 4: Limitation of population in first priority hurricane evacuation zones identified in the local and regional hurricane evacuation plan. Policy 1: Deny requests for increases in density on property approved for development if the property is located in the first priority regional hurricane evacuation zone. Policy 2: On the Braden River islands, designate as conservation area all lands below the 2 ft. contour line, and allow only recreational/open space or residential use at a gross density maximum of 3 units per acre on the uplands. Coastal Goal 2 is "[i]mprovement of surface water quality." Objective 1 is: "Preservation of water quality cleansing and erosion control capabilities of natural, vegetated shorelines." Policy 4 is to "[r]equire by ordinance by December 1, 1989 best management practices for erosion control during and after land alteration projects." Coastal Objective 2 under Goal 2 is: "Reduction of pollutant loads reaching waterways from urban stormwater." Policy 2 defers to land development regulations the job of establishing standards for new developments to "provide on-site detention and filtration of stormwater runoff to remove oils, silt, sediment, nutrients, and heavy metals, and [to] require erosion control during construction." Coastal Goal 4 provides: "Protection and enhancement of wildlife habitat and vegetation." Objective 1 deals with the Braden River estuary and islands and includes policies restricting development to uplands, generally prohibiting the removal of wetlands vegetation, and requiring that development proceed as a planned development project "to ensure site-sensitive planning and review." No similar provisions apply to Perico Island. Coastal Objective 2 under Goal 4 is: "Preservation of wetlands, including coastal wetlands vegetation, living marine resources and wildlife habitat." Policy 1 states: "[b]y December 1, 1989 adopt regulations to prohibit the removal of wetland vegetation except for limited access points." Policy 2 is, "[b]y December 1, 1989 require that development approvals for land with wetland area stipulate wetland protection measures to ensure that upland construction and land use do no affect the wetlands." Policy 3 states: "[b]y December 1, 1989 adopt regulations to require the identification of wildlife habitats as part of planned development project applications and . . . provide mechanisms to require protection of valuable habitat." Policy 5 provides: "[b]y December 1, 1989 adopt regulations to limit disturbance of seagrass beds by prohibiting development and land uses in seagrass areas and where they will result in an increase in boating in seagrass areas except where necessary to maintain existing facilities." Policy 7 is to develop with Manatee County a management plan for the Braden River estuary, Manatee River, and Palma Sola Bay. Policy 8 is to adopt by ordinance, within six months of their issuance, the recommendations of the Sarasota Bay National Estuary Program. Coastal Goal 6 is: "Fast evacuation prior to natural disasters such as hurricanes." Objective 1 is a "workable evacuation plan, geared toward maintaining present evacuation times." Goal 4 of the Public Facilities Element (PFE) provides: "Prevention of flood damage and improvement of surface water quality." PFE Objective 1 under Goal 4 sets forth the following provisions concerning drainage level of service standards. Policy 1a. The peak discharge rate from new development shall be equal to or less than the peak discharge rate that existed prior to development based on a 25-year frequency, 24-hour duration storm event. * * * Policy 1c. Internal or on-site drainage facilities of developments shall be designed to accommodate the stormwater resulting from a design storm of 10-year frequency, critical duration, based on the project site's time of concentration. Policy 2: The applicability of the level of service standards to various types and sizes of private development shall be set forth in the land use and development regulations adopted by December 1, 1989. PFE Objective 4 under Goal 4 is: "Nondegradation of capacity of natural drainage features." Policy 1 states: All new developments shall be required by land use regulations adopted by December 1, 1989 to provide stormwater retention and drainage facilities to curb increased runoff to natural drainage features. PFE Objective 5 under Goal 4 is: "Upgrading of existing drainage facilities to meet future needs." Policy 1 states: Stormwater facility improvements as proposed in the Comprehensive Stormwater Management Study, 1981 and subsequent updates shall be scheduled into the Capital Improvements program. 14/ State Plan Provisions The relevant provisions of the State Plan are set forth in Findings of Fact Paragraphs 74 et seq. Stormwater Provisions Plan Provisions Already cited above, PFE Goal 4; PFE Objectives 1, 4, and 5, as well as various policies under these objectives; Coastal Goal 2, Objective 2 under Goal 2, Policy 2 under Objective 2; and Housing Policy 1 under Objective 1 address stormwater and drainage. PFE Goal 1 is: Provision of public facilities in a manner which protects investments in existing facilities, promotes orderly, compact urban growth, and promotes the quality of natural resources, particularly surface waters. PFE Objective 1 and Policy 1 under Goal 1 are to maintain the applicable level of service standards for public facilities and not to issue development orders if the issuance would result in a violation of a level of service standard. PFE Objective 2 under Goal 4 is: "Correction of existing stormwater facility deficiencies by the year 2010." Policy 1 is: Stormwater facility improvements as proposed in the Comprehensive Stormwater Management Study 1981 hereby adopted as an appendix to this plan and subsequent updates shall be scheduled into the Capital Improvements program. PFE Objective 3 under Goal 4 is: "Water conservation through use of stormwater runoff for irrigation." SWIM Plan Provisions The SWIM Plan provides as follows with respect to water quality: Initiative 1. Reduce point and non-point source pollutant loadings to attain water quality necessary to restore and maintain healthy and productive natural systems, protect human health, and . . . attain the highest possible water use classification. * * * 1.c. Urban Stormwater Management Strategies: --Reduce the levels of nutrients and other contaminants in urban stormwater runoff by requiring, if feasible, that the quality of stormwater discharges be no worse than the State water quality criteria or the existing quality of the receiving water body, whichever is better. The feasibility of implementing this objective will be examined through a review of federal, state, District, and local rules pertaining to stormwater management. * * * --For all new upland development or redevelopment within the Tampa Bay watershed, runoff rates should not exceed those of natural, undisturbed conditions. The feasibility of implementing this objective will be examined through a review of federal, state, District, and local rules pertaining to stormwater management. Perico Island, Anna Maria Sound, and Palma Sola Bay, as well as the Manatee and Braden Rivers, are within the jurisdiction of the Southwest Florida Water Management District's SWIM program for Tampa Bay. State Plan Provisions Section 187.201(8) addresses water resources. The goal is to "maintain the functions of natural systems and the overall present level of surface and ground water quality." Policy 8 is to "[e]ncourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands and other natural floodplain features." Policy 12 is to "[e]liminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state." Section 187.201(9) addresses coastal and marine resources. The goal includes ensuring that development does not "endanger . . . important natural resources." Policy 4 is to "[p]rotect coastal resources [and] marine resources from the adverse effects of development." Policy 6 is to "[e]ncourage land and water uses which are compatible with the protection of sensitive coastal resources." Policy 7 is to "[p]rotect and restore long-term productivity of marine fisheries habitat and other aquatic resources." Section 187.201(16) addresses land use. The goal is to direct development to those areas that have, among other things, the "land and water resources . . . to accommodate growth in an environmentally sensitive manner." Policy 6 is to "[c]onsider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding." Section 187.201(22) addresses the economy. The goal is to "promote an economic climate which provides economic stability, maximizes job opportunities, and increase per capita income for its residents." Policy 3 is to "[m]aintain, as one of the state's primary economic assets, the environment, including clean air and water, beaches, forests, historic landmarks, and agricultural and natural resources." Historic Provisions Data and Analysis The Data and Analysis discloses that 85 structures in Bradenton were added to the Florida Master Site File following an historic survey in 1980. As a result of the survey, two historic districts were established: Downtown Bradenton and Old Manatee. The Data and Analysis reports that the Braden Castle ruins and Braden Castle Tourist Camp are included on the National Register of Historic Places. Plan Provisions The sole goal of the Historic Preservation Element (Historic) is: "To preserve Bradenton's architectural heritage as part of the effort to redevelop the old portions of the City." Historic Objective 1 is: "Disseminate information on the historic-architectural resources of the community and of the incentives for preservation and restoration of these resources." Historic Objective 2 is: "Restoration of historic structures and sites." Historic Objective 3 is: "Encourage other governmental agencies to consider historic and architectural value when taking actions affecting such properties in Bradenton and to modify their actions as to enhance rather than detract from these resources." Historic Policies include the dissemination of information pertinent to historic preservation, allowance of exemptions from the building code for certain historic rehabilitation, and cooperation with other governmental agencies in historic preservation efforts. Miscellaneous Provisions Plan Provisions Regarding Level of Service Standard for Recreational Facilities Recreation Element (Recreation) Objective 3 is: Provision of neighborhood parks located within walking distance of population served and having adequate acreage and facilities to serve the size and type of population served. Recreation Policies under Objective 3 include: Policy 1: One acre of neighborhood park per 500 people shall be the level of service standard for recreation. Policy 2: A neighborhood park shall be defined as a parcel of land of a half-acre or more located within a half-mile of the population served and having the following minimum improvements: benches, trees, open or grassy areas and play or exercise equipment facilities geared to the type of population served. Policy 3: Land use and development regulations adopted pursuant to this plan will require new residential development to provide recreation areas which meet the needs of that development based upon the adopted level of service standard for neighborhood parks. Such recreations shall serve in lieu of public neighborhood parks for new development. Plan Provisions Regarding Scheduling of Capital Improvements Necessary to Attain Level of Service D for Roads There are no roads identified in the Traffic Circulation Element (Traffic) for which Bradenton has jurisdiction that are projected not to achieve a level of service of D or better. The Data and Analysis states that seven road segments in Bradenton will attain a level of service standard worse than D during the planning timeframe. Plan, pages 125-27. However, the Data and Analysis indicates that the federal, state, or county has jurisdiction over each of these segments. Plan, page 114. Ultimate Findings of Fact Designation of Coastal High Hazard Area Petitioner has failed to prove to the exclusion of fair debate that the designation of the Coastal High Hazard Area is inconsistent with the criterion of supporting data and analysis. The Data and Analysis fails to indicate whether the Coastal High Hazard Area encompasses at least the V-zone or the land seaward of the Coastal Construction Control Line. However, Petitioner has failed to prove that the Coastal High Hazard Area excludes any part of the V-zone or the land seaward of the Coastal Construction Control Line. Testimony suggests that the Coastal High Hazard Area includes at least the V-zone. Petitioner has failed to prove to the exclusion of fair debate that the designation of the Coastal High Hazard Area is inconsistent with the criterion of the use of available appropriate data concerning historic damage and scientifically predicted damage of moving or storm driven water. The record contains no substantial evidence as to qualifying damage or destruction to areas outside the V-zone or landward of the Coastal Construction Control Line. Petitioner has failed to prove that the designation of the Coastal High Hazard Area is inconsistent with Plan provisions to protect coastal resources, protect the public from natural disasters, and maintain and hurricane evacuation times. Likewise, Petitioner has failed to prove that the designation of the Coastal High Hazard Area is inconsistent with provisions of the State Plan concerning housing, public safety, water resources, natural systems and recreational lands, land use, and governmental efficiency. As noted above, Petitioner failed to prove that the designation of the Coastal High Hazard Area is unsupported by data and analysis. Without proof that the designation of the Coastal High Hazard Area is incorrect, Petitioner is unable to prove the inconsistencies identified in the preceding Paragraph. Designation of Ten Units Per Acre on Western Peninsula of Perico Island Petitioner has proved to the exclusion of fair debate that the designation of up 10 units per acre is inconsistent with the criterion of supporting data and analysis, including a land use suitability analysis. The density of ten units per acre is, to the exclusion of fair debate, excessive under the circumstances. The soils are very poorly drained. The land above the Coastal High Hazard Area is very low. Except for 100 feet of frontage along the road, the entire upland will be flooded with the spring tide, which occurs with some regularity if not annually, as well as by flooding associated with hurricanes and tropical storms, even if the water is not storm driven. In the absence of an entirely elevated community, the spring tide and other coastal flooding will render inaccessible any interior residences, as well as inundate interior public facilities, unless natural drainage features and the mangrove fringes of the western island are significantly altered. The low elevation and very poorly drained soils increase the difficulty of effective stormwater management. At the same time, stormwater management is more critical on the island, which is surrounded by Outstanding Florida Waters and, in the case of Palma Sola Bay, Class II waters. The Spoonbill Bay DRI Development Order, which also serves as data and analysis, does not support the designation of ten units per acre for the western peninsula of Perico Island. The Development Order does not expressly transfer development rights from the western to the eastern peninsula. However, the Development Order rejects a request to develop the western peninsula at a density approximately equal to that accorded the western peninsula by the Plan. The Development Order expressly bases the denial upon transportation considerations. In light of other evidence, including quoted portions of the Data and Analysis, the cited transportation considerations probably included concerns as to the impact of transportation, including attendant stormwater runoff, upon the island's natural resources. In any event, Bradenton chose merely to designate up to ten units per acre on the western peninsula without addressing the bases for its denial, 15 years earlier, of approval to develop any portion of the western peninsula. Petitioner has proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with Coastal Goal 5, Objective 1 under Goal 5, Objective 5 under Goal 5, and Policies 1 and 4 under Objective 5. Goal 5 is to use coastal areas so as to preserve natural systems and minimize storm and flood hazards, among other things. Objective 1 is to limit development severely in low lying coastal areas. Objective 5 under Goal 5 is to keep population and investment low in areas vulnerable to coastal flooding. Policy 1 under Objective 5 is to limit residential development to low density below the eight-foot contour. Policy 4 is to discourage the location of high density residential projects in high priority hurricane evacuation zones, of which Perico Island is one. The Plan provisions set forth in the preceding paragraph preclude the designation of ten units per acre on the western peninsula. It is irrelevant whether the Plan's density designation is gross, so as to include some combination of Coastal High Hazard Area, mangrove fringe, wetlands, lakes, and Indian mounds, or net, so as to exclude all of such nonbuildable features of the land and waterscape characterizing the western peninsula. Even ten units per net acre is inconsistent with and repugnant to each of the provisions described above. 15/ Petitioner has proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with FLUE Objective 1; FLUE Objective 4; and Housing Policy 1 under Objective 1. Petitioner has not proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with FLUE Objective 3 or FLUE Policy 6 under Objective 1, which incorporates into the operative provisions of the plan Recommendation 6 for Neighborhood 12.04. FLUE Objective 1 is to locate new development in a manner sensitive to natural resources and natural hazards. FLUE Objective 4 is to limit population in the first priority hurricane evacuation zones. Housing Policy 1 under Objective 1 is to designate residential tracts except where unsuitable due to inappropriate elevation or drainage or other safety hazard. The designation of ten units per acre, even on a net acreage basis, is inconsistent with FLUE Objective 1 because the new development is not located in a manner sensitive to natural hazards and natural resources. The density designation is also inconsistent with FLUE Objective 4 to limit population in the first priority hurricane evacuation zones. There is no difference whatsoever between the density accorded the western peninsula, which is in Hurricane Evacuation Zone A, and the density accorded large areas of Bradenton, especially just east of Palma Sola Bay, although the latter areas are excluded on the Evacuation Map from any priority evacuation zone. The density designation is also inconsistent with Housing Policy 1 under Objective 1 due to the low elevation and poor drainage associated with the western peninsula. Policy 6 under FLUE Objective 1 incorporates the Recommendations for Neighborhood 12.04, which covers Perico Island. Recommendation 6 is to deny applications to increase the density of development in the neighborhood. FLUE Objective 3 is to manage future development through the adoption and enforcement of regulations to promote the use of land in a manner sensitive to the public health and safety and to soils and topography. Based on the Spoonbill Bay DRI Development Order, the density for the western peninsula may be viewed as zero. No evidence suggests what density the western peninsula may have arguably been accorded by a former comprehensive plan or zoning. However, it is possible to read Recommendation 6 as intending to incorporate the density given the western peninsula by the Plan, so Petitioner has not proved to the exclusion of fair debate that the density designation is inconsistent with Recommendation 6. Petitioner has failed to prove that the density designation is inconsistent with FLUE Objective 3 because of the latter's ineffectiveness. FLUE Objective 3 defers meaningful action to land development regulations and provides no upon real objective upon which an inconsistency determination could be based. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to coordinate coastal densities with the local hurricane evacuation plan. FLUE Objective 4 and Policy 1 under Objective 4 address this criterion. Petitioner has proved to the exclusion of fair debate that the Plan does not coordinate with the Spoonbill Bay DRI Development Order. As noted above, the density designation is consistent with Recommendation 6 of Neighborhood 12.04 only because it is assumed that the increased densities prohibited by Recommendation 6 are measured from the point of view of a former plan or former zoning, rather than the zero density accorded the western peninsula by the Development Order. In such a case, Recommendation 6 fails to coordinate with the Development Order. As noted above, the Data and Analysis fails to discuss why the Plan designates ten units per acre for the western peninsula when the Development Order prohibited any development. In effect, the Plan ignores the Development Order, and the resulting inconsistency is material in light of the impact of such a high density upon the natural resources of the peninsula and the public safety of future residents. However, the preceding two paragraphs are relevant only to consideration of the issue whether the density designation is supported by data and analysis. For reasons set forth in Conclusions of Law Paragraph 55, Rule 9J-5.006(3)(b)6., on which Petitioner relies, does not require an objective to coordinate with an DRI. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criteria of a policy to protect environmentally sensitive land and an objective to protect, conserve, or enhance remaining coastal wetlands, living marine resources, coastal barriers, and wildlife habitat. These criteria are addressed by Coastal Goals 2, 4, and 5 and their objectives, as well as PFE Goal 4, which is to "[p]revent. . . flood damage and improve. . . surface water quality." Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to direct population concentrations away from accurately defined coastal high hazard areas. For the reasons noted above, Petitioner has failed to prove that the Plan inaccurately defines the Coastal High Hazard Area for Bradenton, In the absence of such evidence, the Recreational/Conservation designation effectively addresses this criterion. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criteria of an objective to encourage land uses that are consistent with the community's character and future land use and a policy to provide for the compatibility of adjacent land uses. The FLUE Goal, FLUE Objective 1, and Housing Policy 1 under Objective 1 address these criteria. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to maintain or reduce hurricane evacuation times between the barrier island and mainland. Coastal Goal 6 and Objective 1 address this criterion, as do FLUE Objective 4 and Coastal Goals 1 and 6, although less directly. Petitioner has proved to the exclusion of fair debate that the Plan is inconsistent with the provisions of the State Plan, construed as a whole. The density designation given the western peninsula of Perico Island conflicts with various provisions of the State Plan designed to protect water, coastal and marine resources, and to promote efficient land uses compatible with land and water resources. Stormwater Provisions Petitioner has proved to the exclusion of fair debate that the stormwater provisions of the Plan are internally inconsistent with Plan provisions concerning water quality protection and improvement. Coastal Goals 2 and 5 protect water quality. Goal 2 is to improve surface water quality. Objective 2 under Goal 2 is to reduce pollutant loads reaching waterways from urban stormwater. Goal 5 is to use coastal areas so as to preserve natural systems. The stormwater provisions are inconsistent with the above-cited provisions protecting water quality because the level of service standard contains a serious loophole. PFE Goal 4, Objective 1, Policy 2 completely undermines the drainage level of service standard by providing that its applicability to "various types and sizes of private development" shall be as set forth in land development regulations adopted by December 1, 1989. For the reasons set forth in Footnote 15 above, relegating to land development regulations substantial provisions required by law to included in a plan is ineffective for reasons involving public participation and notice, compliance review, and enforceability. In effect, the applicability of the drainage level of service standard is subject to land development regulations. The evidence is insufficient to prove to the exclusion of fair debate the inefficacy of the stormwater provisions based on stormwater projects included in the Capital Improvements Schedule. The Data and Analysis discloses that Wares Creek has suffered most extensively from untreated stormwater runoff. However, Table 4 in the Capital Improvements Element discloses that most, if not all, of the scheduled stormwater projects will affect the Wares Creek drainage basin, as defined in the map of Storm Drainage Areas on page 208 of the Plan. 16/ For the reasons set forth in the preceding paragraph, Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of including in the Capital Improvements Schedule projects necessary to achieve treatment of stormwater sufficient to meet relevant water quality standards. Petitioner has proved to the exclusion of fair debate that the Plan is inconsistent with the criterion of a policy demonstrating how the local government will coordinate with the SWIM Plan, especially as to the latter's requirement that all stormwater discharge comply with relevant water quality standards. The Plan's drainage level of service standard, which is seriously undermined in the manner set forth above, is further hampered by the failure of the standard to include post- development water quality standards. As noted in the SWIM Plan data and analysis, the water quality of stormwater runoff is a key factor in preserving the health of the Outstanding Florida Waters that surround Perico Island and in restoring the health of other nearby waters. Due to the failure of the Plan submitted into evidence to contain as an appendix the Comprehensive Stormwater Management Study, 1981, Petitioner has failed to prove to the exclusion of fair debate that the scheduled capital improvements concerning stormwater projects fail to implement the SWIM Plan. In addition, the SWIM Plan does not generally impose project deadlines for various capital improvements. Petitioner has proved to the exclusion of fair debate that the stormwater provisions of the Plan are inconsistent with the provisions of the State Plan, construed as a whole. The failure to incorporate into the Plan an effective level of service standard for post-development runoff rate for all developments and the failure to incorporate any level of service standard for post-development runoff water quality are inconsistent with the above-cited provisions of the State Plan. Historic Provisions Petitioner has failed to prove to the exclusion of fair debate that the Historic Element is inconsistent with the criterion of supporting data and analysis; the Historic goal is internally inconsistent with the Historic objectives and policies; or the Historic provisions are inconsistent with the criteria that objectives be measurable and policies describe how programs and activities will achieve the goals. None of the Historic provisions contradicts any of the Data and Analysis concerning historic resources. The Historic objectives and policies are in no way inconsistent with the Historic goal of preservation. The Historic objectives are measurable, and the policies describe how programs and activities will achieve the goals. Miscellaneous Provisions Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of establishing a level of service standard for recreational facilities. Recreation Objective 3 and Policy 1 establish a level of service standard for recreation by acreage. Policy 2 addresses the facilities that must be constructed for each park used to satisfy the recreational level of service standard. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of including in the Schedule of Capital Improvements projects necessary to achieve a level of service D for roads. No roads for which Bradenton is fiscally responsible are predicted to attain a level of service standard more congested than D during the planning timeframe.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs submit the Recommended Order to the Administration Commission for entry of a final order determining that Bradenton's plan is not in compliance for the reasons set forth above. ENTERED this 13th day of February, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1992.
The Issue The issue to be determined in these consolidated cases is whether the U.S. Army Corps of Engineers (“Corps”) and the City of Sarasota (“City”) (sometimes referred to as “the Applicants”) are entitled to the proposed joint coastal permit, public easement, and sovereign submerged lands use authorization (referred to collectively as “the Permit”) from the Department of Environmental Protection (“DEP”) and the Trustees of the Internal Improvement Trust Fund to dredge sand from Big Sarasota Pass and its ebb shoal and place the sand on the shoreline of Lido Key.
Findings Of Fact The Parties Petitioner Siesta Key Association, Inc. is a Florida Not for Profit Corporation, with its principal place of business in Sarasota. The organization has approximately 1,425 members and represents the interests of those who use and enjoy Siesta Key’s beach and waters. A substantial number of its members have substantial interests in the use of the beach and adjacent waters. Petitioner Michael S. Holderness is a resident and property owner on Siesta Key. Mr. Holderness has substantial interests in the protection of his property and the use of the beach at Siesta Key and adjacent waters. Petitioner Save Our Siesta Sands 2, Inc. is a Florida Not For Profit Corporation, with its principal place of business in Sarasota. The organization has over 700 members and was formed in opposition to the current dredging proposal. A substantial number of its members have substantial interests in the use of the beach at Siesta Key and adjacent waters. Petitioners Peter van Roekens and Diane Erne are residents and property owners on Siesta Key. They have substantial interests in the protection of their properties and the use of the beach at Siesta Key and adjacent waters. Respondent City of Sarasota is an incorporated municipality in Sarasota County. It is a co-applicant for the Permit. Respondent Corps is the federal agency responsible for the Lido Key Hurricane and Storm Damage Reduction Project first authorized by Congress in 1970. Under this Project, the Corps has conducted periodic maintenance, inlet dredging, surveys, and bypassing to protect Lido Key’s shoreline. The Corps is a co-applicant for the Permit. Respondent DEP is the Florida agency having the power and duty to protect Florida’s air and water resources and to administer and enforce the provisions of chapters 161, 373, and 403, Florida Statutes, and rules promulgated thereunder in Titles 62 and 62B of the Florida Administrative Code, which pertain to the permitting of construction activities in the coastal zone and in surface waters of the state. DEP acts as staff to the Board of Trustees of the Internal Improvement Trust Fund. Intervenor Lido Key Residents Association is a Florida Not for Profit Corporation incorporated in 1980 and with its principal place of business in Sarasota. The organization represents the interests of regular users of Lido Key Beach. A substantial number of its members have substantial interests in the use of the beach at Lido Key and adjacent waters. The Project Area Lido Key is a 2.6-mile-long, manmade barrier island constructed in the 1920s, located on the Gulf of Mexico and within the City of Sarasota. North of Lido Key is New Pass, a navigation channel that separates Lido Key from Longboat Key. South of Lido Key is Big Sarasota Pass and the ebb shoal of the pass. Further south is Siesta Key, a natural barrier island. Sediment Transport In the project area, sand generally drifts along the various shorelines from north to south. There can be sand drift to the north during some storm events, currents, and tides, but the net sand drift is to the south. It is sometimes called “downdrift.” Whatever downdrift conditions existed 100 years ago, they were substantially modified by the creation of Lido Key. For decades, the shoreline of Lido Key has been eroding. Since 1964, the Corps has periodically dredged New Pass to renourish the shoreline of Lido Key. The City has also used offshore sand to renourish Lido Key. These renourishment projects have not prevented relatively rapid erosion of the shoreline. A 2.4-mile-long segment of the shoreline of Lido Key has been designated by DEP as “critically eroded.” The Big Sarasota Pass ebb shoal has been growing and now has a volume of about 23 million cubic yards (“cy”) of sand. The growth of the ebb shoal is attributable to the renourishment projects that have placed over a million cy of sand on Lido Key and Longboat Key. The growth of the ebb shoal has likely been a factor in the southward migration of the main ebb channel of Big Sarasota Pass, closer to the northern shoreline of Siesta Key. Most of the west-facing shoreline at Siesta Key has experienced significant accretion. It is unusually wide for a Florida beach. It was named the best (“#1”) beach in the United States by “Dr. Beach,” Dr. Steven Leatherman, for 2011 and 2017. The Project The federally-authorized Lido Key Hurricane and Storm Damage Reduction Project includes the use of New Pass as a supplemental sand source for renourishing Lido Key. However, the use of New Pass is the subject of separate DEP permitting. The project at issue in this proceeding only involves the renourishment of Lido Key and is named “Lido Key Beach Renourishment and Groins.” The Applicants conducted a study of the ebb shoal to determine whether it could be used as a permanent sand source to renourish Lido Key. The study consisted of an environmental feasibility study and an inlet management program for Big Sarasota Pass and New Pass with alternative solutions. The application for the Permit was a response to this study. The proposed sand source or borrow areas are three dredge “cuts.” Cuts B and D are within the ebb shoal. Cut C extends through the ebb shoal and partly into Big Sarasota Pass. Cut C generally follows an existing “flood marginal channel.” The sand from the cuts would be placed along the central and southern 1.6 miles of Lido Key to fill a beach “template.” The design width of the renourished beach would be 80 feet. The initial placement would be wider than 80 feet to account for erosion. The Permit would have a duration of 15 years. The Applicants’ intent is to initially place 950,000 cy of sand on Lido Key. After the initial renourishment, sand would be dredged from one or more of the three designated cuts about every five years to replace the sand that eroded away, and would probably be on the scale of about 500,000 cy. The numerical modeling of the proposed project assumed the removal of up to 1.3 million cy of sand from the three cuts. One of DEP’s witnesses testified that the Permit authorizes the removal of up to 1.732 million cy of sand. The record does not support that testimony. The Applicants did not model the effects of dredging 1.732 million cy of sand from the ebb shoal and pass. There is insufficient evidence in the record to support an authorization to remove more than 1.3 million cy of sand. Although the total volume of sand in the three cuts is 1.732 million cy, it is reasonable for the dimensions of the cuts and the proposed easement that is based on these dimensions to contain more material than is authorized to be removed, so as to provide a margin to account for less-than-perfect dredging operations. Therefore, it is found that the Permit authorizes up to 1.3 million cy of sand to be removed from the designated borrow areas. The findings of fact and conclusions of law in this Recommended Order that address the expected impacts of the proposed project are based on this finding. The Permit also authorizes the construction of two rubble mound groins at the southern end of Lido Key to stabilize the beach and lengthen the time between renourishment events. The groins are designed to be semi-permeable so that they “leak” sand. There are no seagrasses in the renourishment area and mostly scattered and thin patches of seagrass near the dredge cuts. The Permit requires mitigation for the potential direct impacts to 1.68 acres of seagrasses. To offset these impacts, the Applicants propose to create 2.9 acres of seagrass habitat. The seagrass habitat would be established at the Rookery at Perico Seagrass Mitigation Basin in Manatee County, about 16 miles north of Big Sarasota Pass. The Permit incorporates the recommendations of the Florida Fish and Wildlife Conservation Commission regarding protections for turtles, nesting shorebirds, and manatees. The Permit requires regular monitoring to assess the effects of the project, and requires appropriate modifications if the project does not meet performance expectations. Project Engineering The Corps’ engineering analysis involved three elements: evaluating the historical context and the human influences on the regional system, developing a sediment budget, and using numerical modeling to analyze erosion and accretion trends near the project site. A principal objective of the engineering design for the borrow areas, sand placement, and groins was to avoid adverse effects on downdrift, especially downdrift to Siesta Key. The Corps developed a sediment budget for the “no action” and post-project scenarios. A sediment budget is a tool used to account for the sediment entering and leaving a geographic study area. The sediment budgets developed by the Corps are based on sound science and they are reliable for the purposes for which they were used. The post-project sediment budget shows there would be minimal or no loss of sediment transport to Siesta Key. Petitioners did not prepare a sediment budget to support their theory of adverse impact to Siesta Key. Petitioners object to the engineering materials in the Permit application because they were not certified by a Florida registered professional engineer. DEP does not require a Florida professional engineer’s certification for engineering work submitted by the Corps. As explained in the Conclusions of Law, Florida cannot impose licensing conditions on federal engineers. Ebb Shoal Equilibrium Petitioners’ witness, Dr. Walton, developed a formula to estimate ebb shoal volume equilibrium, or the size that an ebb shoal will tend to reach and maintain, taking into account bathymetry, wave energy, tides, adjacent shorelines, and related factors. In an article entitled “Use of Outer Bars of Inlets as Sources of Beach Nourishment Material,” Dr. Walton calculated the ebb shoal equilibrium volume for the Big Sarasota Pass ebb shoal as between 6 and 10 million cy of sand. The ebb shoal has been growing and is now about 23 million cy of sand, which is well in excess of its probable equilibrium volume. The volume of sand proposed to be removed from the ebb shoal is only about six percent of the overall ebb shoal volume. Dr. Walton’s study of the use of ebb shoals as sand sources for renourishment projects supports the efficacy of the proposed project. Modeling Morphological Trends The Corps used a combined hydrodynamic and sediment transport computer model called the Coastal Modeling System, Version 4 (“CMS”) to analyze the probable effects of the proposed project. The CMS model was specifically developed to represent tidal inlet processes. It has been used by the Corps to analyze a number of coastal projects. Dr. Walton opined that the CMS model was inappropriate for analyzing this project because it is a two-dimensional model that is incapable of accounting for all types of currents and waves. However, a two-dimensional model is appropriate for a shallow and well-mixed system like Big Sarasota Pass. Dr. Walton’s lack of experience with the CMS model and with any three-dimensional sediment transport model reduced the weight of his testimony on this point. Petitioners contend that the CMS model was not properly calibrated or verified. Calibration involves adjustments to a model so that its predictions are in line with known conditions. Verification is the test of a model’s ability to predict a different set of known conditions. For calibrating the hydrodynamic portion of the model, the Corps used measurements of water levels and currents collected in 2006. The model showed a 90-percent correlation with water surface elevation and 87-percent correlation to velocity. Dr. Walton believes a model should exhibit a 95-percent correlation for calibration. However, that opinion is not generally accepted in the modeling community. Model verification, as described by Dr. Walton, is generally desirable for all types of modeling, but not always practical for some types of modeling. A second set of field data is not always available or practical to produce for a verification step. In this case, there was only one set of sea floor elevations available for verification of the CMS model. It is the practice of DEP in the permitting process to accept and consider sediment transport modeling results that have not been verified in the manner described by Dr. Walton. The Corps described a second calibration of the CMS model, or “test of model skill,” as an evaluation of how well the CMS model’s sediment transport predictions (morphological changes) compared to Light Detection and Ranging (“LIDAR”) data collected in 2004. The CMS model successfully reproduced the patterns of erosion and sediment deposition within the area of focus. Petitioners’ expert, Dr. Luther, testified that, over the model domain, the CMS model predictions differed substantially from LIDAR data and believes the discrepancies between the model’s predictions and the LIDAR data make the model’s predictions unreliable. Modeling sediment transport is a relatively new tool for evaluating the potential impacts of a beach renourishment project. Renourishment projects have been planned, permitted, and carried out for decades without the use of sediment transport models. Now, modeling is being used to add information to the decision-making process. The modeling does not replace other information, such as historical data, surveys, and sediment budgets, which were heretofore used without modeling to make permit decisions. Sediment transport is a complex process involving many highly variable influences. It is difficult to predict where all the grains of sand will go. Sediment transport modeling has not advanced to the point which allows it to predict with precision the topography of the sea floor at thousands of LIDAR points. However, the CMS model is still useful to coastal engineers for describing expected trends of accretion and erosion in areas of interest. This was demonstrated by the model’s accurate replication of known features of the Big Sarasota Pass and ebb shoal, such as the flood marginal channels and the bypassing bars. The CMS model’s ability to predict morphological trends assisted the Applicants and DEP to compare the expected impacts associated with alternative borrow locations on the ebb shoal and pass, wave characteristics, and sediment transport pathways. Together with other data and analyses, the results of the CMS model support a finding that the proposed dredging and renourishment would not cause significant adverse impacts. The Applicants extensively analyzed sediment transport pathways and the effects of alternative borrow areas on sediment transport to Siesta Key. Petitioners’ hypothesis is not supported by engineering studies of equivalent weight. The more persuasive evidence indicates that sediment transport to downdrift beaches would not be reduced and might even be increased because sediment now locked in the ebb shoal would reenter the sediment transport pathways. In addition, the proposed dredging may halt the southward migration of the main ebb channel of Big Sarasota Pass, and thereby reduce erosive forces on the interior shoreline of north Siesta Key. Wave Energy Petitioners assert that the proposed dredging would result in increased wave energy on Siesta Key because the diminished ebb shoal would no longer serve as a natural buffer against wave energy from storms. They conducted no studies or calculations to support this assertion. Because the proposed dredging would remove a small percentage of the total ebb shoal volume, the ebb shoal would remain a protective barrier for Siesta Key. Wave energy reaching the shorelines along Big Sarasota Pass or within Sarasota Bay would continue to be substantially reduced by the ebb shoal. The predicted increase in wave energy that would occur as a result of the project could increase the choppiness of waters, but would not materially increase the potential for wave-related erosion. Petitioners conducted no studies and made no calculations of their own to support their allegation that the project would significantly increase the potential for damage to property or structures on Siesta Key due to increased wave energy. To the extent that Petitioners’ expert coastal engineer opined otherwise, it was an educated guess and insufficient to rebut the Applicants’ prima facie case on the subject of wave energy. Groins Petitioners contend that the two proposed groins would adversely impact the beaches of Siesta Key because the groins would capture sand that would otherwise drift south and benefit Siesta Key. However, the preponderance of the evidence shows the groins would not extend into or obstruct the sand “stream” waterward of the renourished beach. The historic use of groins to capture downdrift resulted in adverse impacts to adjacent beaches. However, the use of groins in conjunction with beach renourishment to stabilize a renourished beach and without obstructing downdrift is an accepted practice in coastal engineering. The proposed groins would not obstruct longshore sediment transport and, therefore, would not interfere with downdrift to Siesta Key. Public Interest - General Section 373.414(1) requires an applicant to provide reasonable assurance that state water quality standards will not be violated, and reasonable assurance that a proposed activity is not contrary to the public interest. However, if the proposed activity significantly degrades or is within an Outstanding Florida Water (“OFW”), the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest. Sarasota Bay, including Big Sarasota Pass and portions of Lido Key, have been designated as an OFW. Therefore, the Applicants must demonstrate that the proposed project is clearly in the public interest. In determining whether an activity is clearly in the public interest, section 373.414(1)(a) requires DEP to consider and balance seven factors: 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 section 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. DEP determined that the project is clearly in the public interest because it would improve public safety by providing protection to Lido Key upland structures from storm damage and flooding, protect and enhance wildlife habitat, and provide beach-related recreational opportunities; and it would create these public benefits without causing adverse impacts. Public Interest - Safety Petitioners contend that the proposed project would adversely affect public health, safety, welfare, or the property of others because it would interrupt downdrift and substantially reduce the storm protection provided by the ebb shoal. As found above, the preponderance of the evidence does not support this contention. Public Interest - Conservation of Fish and Wildlife Petitioners contend that the proposed project would adversely affect the conservation of fish and wildlife, including endangered or threatened species. The Permit application materials provided evidence that the proposed project would have no effects, or only minimal temporary effects, on water quality, temperature, salinity, nutrients, turbidity, habitat, and other environmental factors. That was sufficient as a prima facie showing that the project would not adversely affect the conservation of fish and wildlife because, if environmental factors are not changed, it logically follows that there should be no adverse impacts to fish and wildlife. Therefore, as explained in the Conclusions of Law, the burden shifted to Petitioners to present evidence to show that adverse effects to fish and wildlife would occur. It was not enough for Petitioners to simply contend that certain fish species were not adequately addressed in the application materials. With the exception of Dr. Gilmore’s field investigation related to the spotted seatrout, Petitioners conducted no studies or field work of their own to support their allegations of adverse impacts to fish and wildlife. Dr. Gilmore discovered that spotted seatrout were spawning in Big Sarasota Pass. Such spawning sites are not common, are used repeatedly, and are important to the conservation of the species. Spotted seatrout spawn from April through September. The record does not show that the Florida Fish and Wildlife Conservation Commission, the U.S. Fish and Wildlife Service, or the National Marine Fisheries Service were aware that Big Sarasota Pass was a spawning area for spotted seatrout, or considered this fact when commenting on the project. The spotted seatrout is not a threatened or endangered species, but DEP is required to consider and prevent adverse impacts to non-listed fish species, as well as recreational fishing and marine productivity. If the proposed project would destroy a spotted seatrout spawning area, that is a strong negative in the balancing of public interest factors. The Applicants do not propose mitigation for adverse impacts to spotted seatrout spawning. Seagrass sites close to the spawning area are used by post-larval spotted seatrout for refuge. The likely seagrass nursery sites for seatrout spawning in Big Sarasota Pass are depicted in SOSS2 Exhibit 77. The proposed seagrass mitigation at the Perico Rookery Seagrass Mitigation Basin, over 16 miles away, would not offset a loss of this refuge function because it is not suitable as a refuge for post-larval spotted seatrout. The spawning season for spotted seatrout occurs during the same months as turtle nesting season, and DEP argued that the turtle protection conditions in the Permit to limit lighting and prohibit nighttime work, would also prevent adverse impacts to the spotted seatrout. However, spotted seatrout spawning is also threatened by turbidity and sedimentation in the spawning area and adjacent seagrasses. The spotted seatrout spawning area is in the area where dredge Cut B is located. If Cut B were dredged during the spawning season, it would likely disrupt or destroy the spawning site. Reasonable assurance that the proposed project would not disrupt or destroy the spawning site requires that Cut B not be dredged during the spawning season. Seagrasses that are likely to provide refuge to post- larval seatrout are near the most eastern 1,200 feet of Cut C. Reasonable assurance that the proposed project would not disrupt or destroy the refuge function requires that the most eastern 1,200 feet of cut C not be dredged during the spawning season. In summary, the proposed project would adversely affect the conservation of fish and wildlife unless dredging was restricted during the spotted seatrout spawning season, as described above. Public Interest – Navigation, Flow of Water, and Erosion Petitioners contend that the proposed project would adversely affect navigation, the flow of water, and would cause harmful erosion to Siesta Key, but Petitioners conducted no studies or calculations to support this assertion. The preponderance of the evidence shows that no such adverse impacts would occur. Public Interest – Recreational Values Petitioners contend that the proposed project would adversely affect fisheries and associated recreation because of harm to spotted seatrout and other fish species. As found above, the preponderance of the evidence shows the project would adversely affect the spotted seatrout, an important recreational fish species, unless dredging was restricted during the spawning season. Public Interest - Value of Functions Petitioners contend that the proposed project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed project because dynamic inlet system would be disrupted. As found above, the preponderance of the evidence shows the project would not adversely affect the coastal system. However, it would adversely affect the spotted seatrout spawning and refuge functions provided by Big Sarasota Pass unless dredging was restricted during the spawning season. Mitigation If a balancing of the public interest factors in section 373.414(1)(a) results in a determination that a proposed project is not in the public interest, section 373.414(1)(b) provides that DEP must consider mitigation offered to offset the adverse impacts. Although the Perico Rookery at Seagrass Mitigation Basin is within the OFW and the same drainage basin, it does not fully offset the adverse impacts likely to be caused by the proposed project. The mitigation would not offset the loss of spotted seatrout spawning and refuge functions. The mitigation for the loss of spotted seatrout spawning and refuge functions is unnecessary if the impacts are avoided by restricting dredging during the spawning season as described above. Design Modifications Petitioners contend that the Applicants did not evaluate the alternative of taking sand from offshore borrow areas for the renourishment. The record shows otherwise. Furthermore, as explained in the Conclusions of Law, the Applicants were not required to address design modifications other than alternative locations for taking sand from the ebb shoal and Big Sarasota Pass. Consistency with the Coastal Zone Management Program Petitioners contend that DEP failed to properly review the Permit for consistency with the Florida Coastal Zone Management Program (“FCZMP”), because DEP failed to obtain an affirmative statement from Sarasota County that the proposed project is consistent with the Sarasota County Comprehensive Plan. The State Clearinghouse is an office within DEP that coordinates the review of coastal permit applications by numerous agencies for consistency with the FCZMP. It is the practice of the State Clearinghouse to treat a lack of comment by an agency as a determination of consistency by the agency. With respect to this particular project, the State Clearinghouse provided a copy of the joint coastal permit application to the Southwest Florida Regional Planning Council (“SWFRPC”) for comments regarding consistency with local government comprehensive plans. SWFRPC submitted no comments. In a letter dated June 26, 2015, the State Clearinghouse reported to the Corps that “at this stage, the proposed federal action is consistent with the [FCZMP].” In a written “peer review” of the proposed project produced by the Sarasota Environmental Planning Department in October 2015, some concerns were expressed, but no mention was made of inconsistency with the Sarasota County Comprehensive Plan. Sarasota County sent a letter to DEP, dated August 24, 2016, in which it requested that the Corps prepare an Environmental Impact Statement (“EIS”) for the project. Sarasota County did not indicate in its letter to DEP that the proposed project is inconsistent with any policy of the Sarasota County Comprehensive Plan. Petitioners assert that the proposed project would be inconsistent with an environmental policy of the Sarasota County Comprehensive Plan that Petitioners interpret as prohibiting the proposed dredging. The record contains no evidence that Sarasota County believes the proposed project is inconsistent with this particular policy or any other policy of its comprehensive plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP issue a final order approving the proposed agency actions, but only if the joint coastal permit is modified to prohibit dredging operations in Cut B and the most eastern 1,200 feet of Cut C during April through September. If this modification is not made, it is recommended that the proposed agency actions be DENIED; and The joint coastal permit be modified to clarify that it authorizes the removal of up to 1.3 million cy of sand. DONE AND ENTERED this 8th day of May, 2018, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2018. COPIES FURNISHED: Kirk Sanders White, Esquire Florida Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Alexandrea Davis Shaw, Esquire City of Sarasota Room 100A 1565 1st Street Sarasota, Florida 34236 John R. Herin, Jr., Esquire Gray Robinson, P.A. Suite 1000 401 East Las Olas Boulevard Fort Lauderdale, Florida 33301 (eServed) Eric P. Summa U.S. Army Corps of Engineers Post Office Box 4970 Jacksonville, Florida 32232 Martha Collins, Esquire Collins Law Group 1110 North Florida Avenue Tampa, Florida 33602 (eServed) Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 (eServed) Richard Green, Esquire Lewis, Longman & Walker, P.A. Suite 501-S 100 Second Avenue South St. Petersburg, Florida 33701 (eServed) Kevin S. Hennessy, Esquire Lewis, Longman & Walker, P.A. Suite 501-S 100 Second Avenue South St. Petersburg, Florida 33701 (eServed) Christopher Lambert, Esquire United States Army Corps of Engineers 701 San Marco Boulevard Jacksonville, Florida 32207 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
The Issue At issue is whether a moratorium, adopted by the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees), constitutes an invalid rule. If the moratorium on authorizations for use of sovereignty, submerged land in connection with development of current unbridged, undeveloped coastal islands is determined to constitute a rule, the secondary issue to be resolved is whether the rule is an invalid exercise by the Board of Trustees of delegated legislative authority.
Findings Of Fact The parties stipulated at the final hearing to the facts set forth in paragraphs 1-10, below. Stipulated Facts The parties do not object to the standing of Petitioners and Intervenors for the limited purposes of this proceeding only and any subsequent appeal. On August 22, 1989, the Board of Trustees accepted a staff report on policy and programs affecting Florida's coastal islands. The Board of Trustees also approved a temporary moratorium on authorizations for use of sovereignty, submerged land that would facilitate development of currently unbridged, undeveloped coastal islands until such time as the Division of State Lands of the Department of Natural Resources (Division) could adopt a policy for such requests. On December 19, 1989, the Board of Trustees deferred consideration of an interim policy governing the use of sovereignty, submerged lands adjacent to unbridged coastal islands. On February 6, 1990, the Board of Trustees voted to again defer consideration of an interim policy governing the use of sovereignty, submerged lands adjacent to unbridged coastal islands until after the issue was reviewed at a Cabinet workshop. On May 8, 1990, the Board of Trustees extended the temporary moratorium announced on August 22, 1989, and directed staff to begin rule making on a rule to serve as interim policy until a comprehensive policy and rule governing coastal islands could be adopted. On June 12, 1990, the Board of Trustees approved a draft of proposed rules relating to the leasing of state-owned lands adjacent to undeveloped coastal islands and directed staff to notice the rules for adoption, hold a series of public hearings and return to the Board of Trustees for final action by September. The proposed rules (Rules 18-21.003 and 18-21.004, Florida Administrative Code) were noticed in the Florida Administrative Weekly on August 10, 1990, and public hearings were held in Tallahassee on September 4, 1990, Ft. Pierce on September 5, 1990, and Naples on September 6, 1990. In August, 1990, petitions were filed challenging the temporary moratorium as a nonrule rule, and the proposed rules, arguing that the Board of Trustees' actions constituted an invalid exercise of delegated legislative authority. On October 9, 1990, the Board of Trustees accepted a status report on the proposed amendments to Rules 18-21.003 and 18-21.004, Florida Administrative Code, relating to the management of unbridged coastal islands. On October 23, 1990, the Board of Trustees considered amendments to the proposed rule based on comments made at the public hearing and written comments submitted to the agency. However, prior to accepting the proposed changes the Board of Trustees approved a request by the Governor's Interagency Management Committee (IMC) for additional time to review the proposed rule amendments. The IMC considered the proposed amended rule on November 29, 1990. Public comments were taken at that meeting which resulted in the IMC recommending that further changes be made to the proposed amended rule. On December 18, 1990, the Board of Trustees approved the withdrawal of the original rule concerning development of coastal islands, authorized changes to the proposed rules and directed staff to notice for adoption the proposed rules as amended. In addition, the Board of Trustees voted to continue the temporary moratorium until the adoption of a coastal barrier island rule. Other Facts The initial moratorium applied to those coastal islands subject to direct or indirect wave, tidal and wind energies and which provide primary or secondary protection to the mainland. Further, islands were to be considered undeveloped if unbridged (not connected via bridge to another upland) and either had no docking facilities authorized by the Trustees, or overall development density consisted of less than one permanent structure per five acres of upland. On May 8, 1990, the Trustees extended and modified the prior moratorium. The effective date of the moratorium remained August 22, 1989, and the following exceptions were created: Notwithstanding the moratorium, the Board shall allow the repair or maintenance of existing utility lines that cross sovereignty submerged land, so long as such maintenance and repair do not provide for an upgrade in capacity to serve additional customers, except to maintain public safety or as ordered by the Public Service Commission. The moratorium shall not prohibit the construction of two- slip private residential docks meeting the requirements of Chapter 18-20.004(5)(b), F.A.C. Notice of the moratorium was not provided and an economic impact statement was not prepared as required by Section 120.54, Florida Statutes. Affected persons were not given a point of entry to challenge the moratorium before it became effective. The moratorium affects sovereignty submerged lands statewide and affects all applicants who seek use of such land to facilitate development of undeveloped, unbridged coastal islands. The moratorium is an agency policy statement of general applicability, which is applied and is intended to be applied with the force and effect of a rule of law. The moratorium continues in effect at the present time with general applicability to a statewide class of persons seeking use of state-owned submerged lands adjacent to unbridged, undeveloped coastal islands as defined in paragraphs 11. and 12., above.
The Issue Whether Petitioners' application for a permit to construct a dwelling in Walton County, Florida, should be approved, pursuant to Chapter 161, Florida Statutes. In January of 1984, Respondent Department of Natural Resources provisionally denied Petitioners' application for a permit pursuant to Chapter 161, Florida Statutes, to construct a dwelling on their property in Walton County seaward of the existing coastal construction control line. Petitioners requested a hearing pursuant to Section 120.57(1), alleging that the denial of their application was unlawful on constitutional grounds and that it exceeded Respondent's discretionary powers under Chapter 161. The request for hearing was referred by Respondent to the Division of Administrative Hearings, Case No. 84-0508. Thereafter, Respondent's motion to strike those aspects of the petition alleging the unconstitutionality of the proposed denial was denied on the basis that Petitioners properly may preserve such matters for any appellate review. Thereafter, Petitioners sought to amend their petition to allege the invalidity of certain of Respondent's rules and, although such petition was granted, Petitioners were informed that any administrative determination of the invalidity of rules must be made the subject of a separate petition filed with the Director of the Division of Administrative Hearings. On June 11, 1984, Petitioners filed a petition with the Division challenging the validity of certain of Respondent's rules which were cited by Respondent as the basis for the proposed denial of Petitioners' application for a permit. The petition alleged that said rules were not appropriate to the ends specified in Section 161.053, Florida Statutes, that the effect of the rules was to establish a class of property owners who could be excluded from receiving permits to construct dwellings seaward of the coastal construction control line merely because their lots or parcels of land are larger than their neighbors or other adjacent owners, and that such rules are arbitrary and capricious as they relate to the petitioners because other property owners in Walton County had been permitted by Respondent to construct dwellings similar to hat proposed by the Petitioners beyond the coastal construction control line. DOAH Case No. 84-0508 and the case involving the rule challenge, DOAH Case No. 84-2053R, were consolidated for purposes of hearing. At the hearing, Petitioners presented the testimony of Brett Moore, a coastal engineer employed by the DNR Division of Beaches and Shores, Dennis Evans, an architect, and Petitioner Edward S. Coley. Petitioner submitted ten exhibits in evidence Respondent presented the testimony of Brett Moore, Deborah Flack, Director of the Division of Beaches and Shores, and Ralph Clark, Chief of the Bureau of Coastal Engineering and Regulation. Respondent submitted 21 exhibits in evidence. Posthearing submissions submitted by the parties in the form of Proposed Recommended Orders have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact In 1981 Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley, Petitioners' Exhibit 1, Respondent's Exhibit 1). At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach. Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20). On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984, that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows: The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line. The recommended 25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area. . . . * * * Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line. By letter of September 29, 1983, Respondent had advised Petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line. Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16). The height of the dune line on Petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under dead covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to come extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8). Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21). Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10). Although conflicting evidence was received as to whether or not the existing structures east of petitioners' lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioners' Exhibit 1). Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2). The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4).
The Issue The issue is whether to approve Steven A. Walker's application for a coastal construction control line (CCCL) permit authorizing him to conduct certain construction activities at 100 Park Avenue, Anna Maria, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: History of the Proceeding Since 2005, Petitioner has owned property at 104 Park Avenue, Anna Maria, Sarasota County, Florida. The parcel fronts on the Gulf of Mexico and is adjacent to property owned by the Stephen A. Walker Land Trust (Land Trust) located at 100 Park Avenue. The Trustee of the Land Trust is Stephen A. Walker, who is the applicant in this proceeding. On March 5, 2009, Mr. Walker filed an application with the Department for a permit authorizing the construction of "a new single family residence with a pool, driveway and multiple structures" seaward of the CCCL on his parcel. See Joint Exhibit 11. The application was accompanied by a letter from the City Planner, B. Alan Garrett, indicating that the proposed activity "does not contravene the City of Anna Maria local setback and pervious coverage requirements of the zoning code provisions." See Joint Exhibit 3. On June 26, 2009, the Department, through its Bureau of Beaches and Coastal Systems, issued a Final Order granting the application subject to certain general and special conditions. See Joint Exhibit 47. A Notice to Proceed with the construction was issued the same date. See Joint Exhibit 46. Separate written notice of the Department's proposed action was also served on both Petitioner and his attorney. See Joint Exhibits 49 and 50. On July 22, 2009, Petitioner filed his Petition with the Department contesting the proposed agency action. See Joint Exhibit 51. As grounds, Petitioner contended generally that the environmental permitting requirements under Florida Administrative Code Rule 62B-33.0052 had not been met, and that the proposed activity violated both the City's Plan and the zoning code. Id. Evidence regarding the latter allegations was later excluded as being irrelevant. See Order dated March 12, 2010. At hearing, counsel for Petitioner represented that he was no longer alleging that the application did not qualify for a permit under the environmental permitting requirements of the rule. However, he continued to assert that the proposed construction will violate the City's Plan and zoning code. A suit in circuit court has been filed seeking an adjudication of those claims and apparently is still pending. See Friday v. City of Anna Maria, Case No. 2010-CA2369 (12th Cir., Manatee Cty Fla.). Permitting Criteria The general permitting requirements for issuance of a CCCL permit are found in Rule 62B-33.005. There is no dispute that these criteria have been satisfied. Rule 62B-33.008 contains the permit application requirements and procedures. Paragraph (3)(d) of the rule provides that an application for a CCCL permit shall contain the following information: Written evidence, provided by the local governmental entity having jurisdiction over the activity, that the proposed activity, as submitted to the Bureau, does not contravene local setback requirements or zoning codes. Joint Exhibit 3 is a letter dated February 2009 authored by B. Alan Garrett, City Planner, who states that he had reviewed the application and plans filed with him on February 2, 2009, and that the proposed construction "does not contravene the City of Anna Maria local setback and pervious coverage requirements of the zoning code provisions." This letter satisfies the requirement of the rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application of Stephen A. Walker, Trustee, for a coastal construction control line permit authorizing certain activities seaward of the CCCL at his property in Anna Maria, Florida. DONE AND ENTERED this 24th day of May, 2010, in Tallahassee, Leon County, Florida. S D. 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 24th day of May, 2010.
