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.
Findings Of Fact Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application numbers SJ 220, SJ 221 and SJ 222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
Findings Of Fact In keeping with the terms of Subsection 120.60(6), Florida Statutes, the Petitioner, by certified mail, return receipt requested, notified the Respondent of its intentions to modify or revoke the Respondent's license as a "home health agency." This notification occurred on June 12, 1980. A copy of that notification may be found as Respondent's Exhibit A-30. Through the Notice, the Petitioner alleged that the Respondent was operating a "subunit" in Pasco County, Florida, at a time when the "parent agency" was located in Pinellas County, Florida. Under the circumstances, the Petitioner was out of the persuasion that a separate license for the Pasco County office must be procured and that in fact Gulf Coast did not have the necessary license and had been operating as a "subunit" in violation of Section 10D-68.04(2), Florida Administrative Code. Petitioner afforded Gulf Coast an opportunity pursuant to the Notice to demonstrate that he had complied with all lawful requirements related to the Pasco County operations of the Respondent and to give reason why the State of Florida should not institute administrative proceedings against the Respondent. On June 20, 1980, through correspondence which may be found as Petitioner's Exhibit VII, Gulf Coast made written explanation concerning its activities in Pasco County, particularly as related to the office in Pasco County and this item of explanation was reviewed by the Department. The explanation was not found to be sufficient and on October 3, 1980, a Notice of Intent to Enter Final Order was filed by the State of Florida and served on the Respondent by certified mail. Although this charging document was framed in terms of a "cease and terminate" claim as stated in the prior footnote, the claim was subsequently amended to be an action for modification or revocation of the Respondent's Pasco County activities in the New Port Richey office. The basis of the claim was to the effect that the Respondent was operating in its New Port Richey office without benefit of license, in violation of Section 10D.68.04(2), Florida Administrative Code, related to the requirement for licensure of "subunits." On October 20, 1980, Gulf Coast submitted a timely answer and affirmative defenses to the allegations as set forth in the Administrative Complaint. Those affirmative defenses were responded to on October 27, 1980, in a timely fashion, and the matter was forwarded to the State of Florida, Division of Administrative Hearings for consideration in keeping with the terms of Subsection 120.57(1), Florida Statutes. Following a continuance, the matter was set for final hearing on April 24, 1981, and a hearing de novo was conducted. This Recommended Order is being entered after receipt of the transcript of the record of the hearing and following review of memoranda in argument and a review of the proposed facts, conclusions of law and recommended dispositions filed by counsel for the parties. To the extent that the proposals, conclusions and recommendations are consistent with the findings herein, they have been utilized. To the extent that the proposed findings, conclusions and recommendations are inconsistent with the findings herein, they are hereby rejected. Fact Determinations Gulf Coast Home Health Services, Inc., is a nonprofit corporation in the business of providing "home health care" services in Pinellas, Pasco, Hernando and Hillsborough Counties, State of Florida. To conduct these activities, the Respondent has been licensed by the State of Florida, Department of Health and Rehabilitative Services, in keeping with Chapter 400, Part III, Florida Statutes, requiring the licensure of "home health agencies." Petitioner, State of Florida, Department of Health and Rehabilitative Services, is an agency of State government which has, among other responsibilities, the licensure and regulation of "home health agencies", to include the Respondent. The "parent agency" of Gulf Coast is located in St. Petersburg, Pinellas County, Florida. The Respondent has other offices in Clearwater, Pinellas County, Florida; Brooksville, Hernando County, Florida; and New Port Richey, Pasco County, Florida. The New Port Richey office, which is the primary focus of this inquiry, was opened on June 27, 1975, and an office in that community has been in operation since that time. There has been one move to a larger facility. Notification to the Petitioner of the existence of the New Port Richey office occurred on June 30, 1975, by correspondence from the Administrator of the Respondent to the Program Coordinator for Home Health Services, Division of Health, Department of Health and Rehabilitation Services. This may be seen through a copy of correspondence which may be found as Respondent's Exhibit A-1. There have been other indications of the existence of this office which have occurred over a period of time beyond the original notification and the instances may be seen in a review of the Respondent's Composite Exhibit A. Gulf Coast Home Health Services, Inc., received its initial license to operate as "home health agency" from a "parent office" in St. Petersburg, Pinellas County, Florida, on April 14, 1977. For each year subsequent to that time, to include April 1, 1981, through March 31, 1982, the Petitioner has continued to license the Respondent as a "home health agency". The area of responsibility for this "home health agency" has included Pasco County, Florida. The Respondent has never applied for any form of license for its office in New Port Richey. Consequently, a separate license has not been issued for the benefit of that facility. The first indication given by the State of Florida, Department of Health and Rehabilitative Services that a license would be required for the New Port Richey office came on June 12, 1980, in the form of the investigation letter referred to in the case history. The New Port Richey office of the Respondent is located approximately forty (40) miles from the "parent agency" in St. Petersburg, Florida. This distance has remained relatively constant since the inception of the New Port Richey in 1975. The New Port Richey office covers an area of 3,925 square feet, floor coverage. It can be seen in examining the graphs found in the Respondent's Composite Exhibit E, that a substantial percentage of the services rendered by the Respondent, in terms of home visits, are made by the New Port Richey branch office. Petitioner's Exhibit III, lists the employees in that office, to include the Associate Director of Nursing, depicted in the table of organization, Petitioner's Exhibit I. By job description, Petitioner's Exhibit III, she has the duty of coordination and administrative responsibility related to personnel in the New Port Richey office, with particular emphasis on nursing services. Some of the personnel in the New Port Richey staff area as follows: registered nurses, paramedical supervisor, registered nurse supervisor, physical therapist, home health aide, home health aide secretary, field supervisor, office manager, medical records secretary, weekend office supervisor, log clerk, and transcriber, among others. These persons are involved in providing daily "home health care services" from the New Port Richey office and files are maintained in the office related to clients serviced by the office. The New Port Richey office also provides support services to the Respondent's Brooksville and Clearwater offices, in instances where those other offices are short on staff or supervisory capacities. This arrangement is an addition to supervisors who might be provided from the St. Petersburg office. The New Port Richey office of the Respondent provides transcription services for patients' progress notes for the benefit of the Brooksville and Clearwater offices, as well as providing those services for the New Port Richey office. The Petitioner conducts annual surveys on the health care provider by the "home health care agency" and in the course of those surveys, the materials to be surveyed which are gathered from the individual offices, to include New Port Richey, are separated for consideration in the survey process. When the surveys are concluded, the materials related to the survey process are returned to the individual offices of the Respondent, to include New Port Richey. Appearance at the surveys is by the Director of Medical Services, an employee housed in the St. Petersburg office. The Administrator for Gulf Coast Home Health Services, Inc., in testifying about the responsibility of certain personnel in the New Port Richey office, namely clerical and secretarial positions was of the opinion that those personnel are not involved in the determination of eligibility for service or involved in the billing process for services rendered. Notwithstanding this testimony, the job description of the New Port Richey personnel would indicate the participation of those personnel in the determination of eligibility and in the billing process, and leads to the conclusions that the New Port Richey personnel do have those responsibilities. Financial service employees of the Respondent who operate from the St. Petersburg office are ultimately responsible for payroll functions, accounts payable functions and billing of medicare and private patients. The New Port Richey office is not involved in staff education and does not have an Advisory Board and Medical Director assigned solely to that concern. In addition, some supervision for the New Port Richey office is provided from St. Petersburg. In summary, the New Port Richey office is subject to the controls and policies established at the St. Petersburg "parent agency" and relies to a certain degree on logistical support from the parent organization; however, in terms of day-to-day decisions and the delivery of "home health service," the New Port Richey office has a substantial degree of autonomy. This fact was recognized by its Administrator in correspondence of October 20, 1978, addressed to Joseph D. Dowless, Jr., Director of Licensure and Certification, Department of Health and Rehabilitative Services, a copy which may be found as Respondent's Exhibit A-18. In that correspondence, the Administrator states that, "our Pasco office is a fully equipped well organized Agency, larger in size then [sic] the majority of agencies in the State. From here we have been able to provide high quality services to our Hernando patients." (This letter was written in response to correspondence from the Department on the subject of establishment of an office in Hernando County.) The New Port Richey office of the Respondent is a semi-autonomous agency servicing persons in Pasco County at a time when the "parent agency" is located in Pinellas County. As the organization is now constituted, it is capable of sharing administration, supervision and services on a daily basis with the "parent agency".
Recommendation Based upon a full consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Respondent, Gulf Coast Home Health Services, Inc., have its operations being conducted from the New Port Richey, Pasco County, Florida, office suspended, subject to proper licensure of that "subunit." DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of June, 1981. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1981.
The Issue All Three Cases Whether the Petitioners have standing to bring their respective challenges pursuant to Section 120.56(4), Florida Statutes? Case No. 10-5348RU Whether either or both Original Specific Condition 1 and the Department ECL Position constitute a rule? Case Nos. 10-6205 and 10-8197 Whether Specific Condition 5 constitutes a rule? Attorney's Fees Whether an order should be entered against the Department for costs and attorney's fees under Section 120.595(4), Florida Statutes?
Findings Of Fact The Draft Permit The Draft Permit (and its revisions) authorizes the County "to construct the work outlined in the activity description and activity location of this permit and shown on the approved permit drawings, plans and other documents attached hereto." Joint Exhibit, Vol. III, Tab 9, page 3 of 26. The "activity description" and the "activity location" are detailed on the first page of the Draft Permit. See Joint Exhibit, Vol. III, Tab 9 (first page of 26). The drawings, plans and other documents attached to the Draft Permit are contained under Tab 10 of Volume III of the Joint Exhibit. The Parties Petitioner Guidry is co-trustee of the Guidry Living Trust (the "Guidry Living Trust"). He has independent authority to protect, conserve, sell, lease, encumber or otherwise dispose of trust assets. Those assets include a condominium unit in the Oceania Condominium. The condominium unit owned by the Guidry Living Trust includes an undivided interest held with all other unit owners in the common property at the Oceania Condominium. The common property includes real property that fronts the Gulf of Mexico located at 720 Gulf Shore Drive in the City of Destin, Florida. The real property has the MHWL of the Gulf of Mexico as its southern boundary. Petitioner Oceania is a condominium association established pursuant to Florida's Condominium Act, Chapter 718, Florida Statutes. It does not own any real property. Mr. Guidry testified that he is authorized in his capacity as president of the Association to initiate and pursue this administrative proceeding on its behalf. No documents were entered in evidence reflecting that Oceania's Board of Directors approved the filing of the petition. The owners of condominium units at the Oceania Condominium, including the Guidry Trust, comprise the membership of Oceania. The unit owners all own undivided shares in the Oceania Condominium common property including the real estate that extends at its southern boundary to the MHWL of the Gulf of Mexico. The owners did not vote on whether to file the petition in Case No. 10-05348RU. Petitioners David and Rebecca Sherry are leaseholders of real property where they reside. Located at 554 Coral Court, Number 511, Fort Walton Beach, Florida 32548, the property is in an area in Okaloosa County on Santa Rosa Island that is known as Okaloosa Island. The property leased by the Sherrys is not within the Western Destin Project. Petitioner John Donovan is a leaseholder of real property located at 909 Santa Rosa Boulevard, Numbers 131-132, El Matador Condominium, Fort Walton Beach, Florida 32548, in the same area as the Sherry's residence. Petitioner MACLA II, Ltd., is a Texas Limited Partnership. Louise Brooker is its president. It owns real property which fronts the Gulf of Mexico located at 620 Gulf Shore Drive, Destin, Florida. The southern boundary of the property is the MHWL of the Gulf of Mexico. The MACLA property is located adjacent to the shoreline that is the subject of the Western Destin Project. The Betty Price Hughes Qualified Vacation Residence Trust (the "Hughes Trust") owns real property at 612 Gulf Shore Drive. Its southern boundary is deeded the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Petitioner H. Joseph Hughes is a trustee of the Hughes Trust. Petitioner Kershaw Manufacturing Company, Inc., an Alabama corporation, is the owner of real property located at 634 Gulf Shore Drive, Destin, Florida. Its southern boundary the property is the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Royce Kershaw is the president of the Kershaw Manufacturing Company. He testified that as president of the company, he has the authority to act on behalf of the company and has the power to bind the corporate entity. The Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Board of Trustees of the Internal Improvement Fund is responsible for stewardship of its public trust properties under Chapter 253, Florida Statutes. Included among those properties is the sovereignty submerged lands along the coast of the Gulf of Mexico. The ECL and the MHWL In the context of the Beach and Shore Preservation Act, the MHWL and the ECL were discussed by the Florida Supreme Court in Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008) (the "Walton County Supreme Court Case"): Pursuant to section 161.141, when a local government applies for funding for beach restoration, a survey of the shoreline is conducted to determine the MHWL for the area. Once established, any additions to the upland property landward of the MHWL that result from the restoration project remain the property of the upland owner subject to all governmental regulations, including a public easement for traditional uses of the beach. § 161.141. After the MHWL is established, section 161.161(3) provides that the Board must determine the area to be protected by the project and locate an ECL. In locating the ECL, the Board "is guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible." § 161.161(5). Pursuant to section 161.191(1), this ECL becomes the new fixed property boundary between public lands and upland property after the ECL is recorded. And, under section 161.191(2), once the ECL has been established, the common law no longer operates "to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process." Walton County, at 1108. The Pre-project MHWL in This Case and the ECL The Pre-project MHWL called for by Original Specific Condition 1 was never established. No evidence was introduced as to where the Pre-project MHWL would have been located had it been set and in particular, where it would have been located in relation to an ECL. Rod Maddox is a long-time surveyor with the Department's Division of State Land in the Bureau of Survey & Mapping. See P-244. Mr. Maddox testified about his experience with pre-project MHWLs and where they are located in relation to ECLs. Familiar with the term "pre-project mean high water line," Mr. Maddox defined it as the mean high water line prior to the placement of fill used in a beach restoration project. See id. at 29. He testified that pre-project MHWLs have been required in the many beach restoration cases with which he is familiar. He testified further that when it comes to location, there is no difference between a pre-project MHWL and an ECL. The denominations may be different but Mr. Maddox testified "as to how . . . established, I see them as one and the same." Id. at 30. Original Special Condition 1: the Pre-project MHWL On December 31, 2009, the Department issued the NOI. Attached to it was the Draft Permit. The Draft Permit contained the following paragraph as Special Condition 1: Prior to construction of the beach restoration project, the Permittee must record in the official records of Okaloosa County a Certificate, approved by the Department, which describes all upland properties (including their owners of record) along the entire shoreline of the permitted project, with an attached completed survey of the pre-project Mean High Water Line ("Mean High Water Line Survey") conducted along the entire permitted project shoreline length. The Mean High Water Line Survey must have been completed in a manner complying with Chapter 177, Florida Statutes, as determined by the Department. No construction work pursuant to this joint coastal permit shall commence until the Certificate and attached Mean High Water Line Survey have been approved and archived by the Department's Bureau of Survey and Mapping, and the Department has received proof of recording of such documents (see Specific Condition No. 4.c.). The approved Certificate and attached Mean High Water Line survey shall be attached to, and kept as part of this joint coastal permit and authorization to use sovereign submerged lands. If in the future the Permittee seeks reimbursement from the State for costs expended to undertake (construct) the permitted project, then, prior to, and as a condition of receipt of any authorized and approved reimbursement, the Board of Trustees will establish an ECL consistent with the provisions of Chapter 161, Florida Statutes. The Permittee shall be required to record such a line in the Okaloosa County official records. Joint Exhibit, Vol. III, No. 9. The Oceania Petitioners, as landowners within the Project area, challenged the issuance of the Draft Permit on January 14, 2010. See Case No. 10-0516. Among the bases for the challenge was that the Department lacked authority to implement Original Special Condition 1 and, in particular, its requirement that the County record a completed survey of the pre-project MHWL in lieu of the establishment of an ECL. On July 26, 2010, the Department revised the Draft Permit to eliminate from the Project the common property owned by the unit owners of the Oceania Condominium. The change was supported by a letter from Michael Trudnak, P.E., of Taylor Engineering, Inc., on behalf of the County which stated: "On behalf of Okaloosa County, Taylor Engineering submits this request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project [file nos. excluded]. The applicant has decided to remove the Oceania Condominium property from the beach fill placement area." Joint Exhibit, Vol. III, Tab 15, Exhibit A. The revised project, as described in permit drawings enclosed with Mr. Trudnak's letter includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R22.6) and Reach 2 extends from approximately 200 ft east of R-23 (R-23.2) to R-25.5. The Oceania Condominium property is in the gap between the two beaches. Additionally, the letter requested that the Department modify Specific Condition 1 of the Draft Permit to reflect the modified project area so that the MHWL Survey requirement of Specific Condition 1 would exclude the Oceania Condominium property. In accord with the request, Special Condition 1 was amended to add the following language: "With respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc., members' common elements property, neither a pre-project Mean High Water Line survey, nor a Certificate with a description of the pre-project Mean High Water Line shall be recorded in conjunction with this coastal permit." Joint Exhibit, Vol. III, Tab 15, the First Revised Draft Permit, Page 5 of 26. On August 4, 2010, as the Department neared the end of its case in the third day of the hearing, it announced that the Revised Draft Permit would "be revised [again, this time] to require the establishment of an ECL under the applicable statute." Tr. 621. The draft permit, accordingly, was revised for a second time (the "Second Revised Draft Permit"). The Department carried out the second revision in a notice filed at the Division of Administrative Hearings on August 18, 2010 (the August 18, 2010, Notice). The August 18, 2010, Notice contains two changes to the First Revised Draft Joint Permit. The first change deletes the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5348RU) in its entirety. It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. The second change is made with respect to Specific Condition No. 4(c) of the First Revised Draft Permit, one of a list of items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed by the Department. The existing language is deleted in its entirety and the following language is substituted: Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Id. The Department ECL Position Chapter 161: Beach and Shore Preservation Chapter 161, Florida Statutes, governs "Beach and Shore Preservation." "Parts I and II of this chapter may be known and cited as the 'Beach and Shore Preservation Act.'" § 161.011, Fla. Stat. Part I governs "Regulation of Construction, Reconstruction, and Other Physical Activity." Sections 161.011 through 161.241 comprise Part I. The Department developed its position on ECLs claimed by Petitioners to be an Unadopted Rule by considering Part I, in particular Sections 161.088 (which declares the public policy to properly manage and protect Florida's beaches) through 161.211. At some point in 2009, the Department saw a distinction related to ECLs in Sections 161.088-161.211 between beach restoration projects where state funding was used for construction and projects where no state funds were used. The former seemed to require ECLs, the latter not. Several statutory provisions were viewed as particularly relevant. For example, Section 161.141, Florida Statutes, declares that it is the public policy of the state "to cause to be fixed and determined, pursuant to beach restoration . . . projects, the boundary line between sovereignty lands . . . and the upland properties adjacent thereto " The section that mainly governs ECLs is Section 161.161. It provides the procedure for approval of projects for the restoration and maintenance of critically eroded beaches, subject to a beach management plan which is funded, in part, by the state. With regard to ECLs, the statute provides: Once a project [for the restoration and maintenance of a critically eroded beach] is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to establish the area of beach to be protected by the project and locate an erosion control line. * * * Upon completion of the survey depicting the area of the beach erosion control project and the proposed location of the erosion control line, the board of trustees shall give notice of the survey and the date on which the board of trustees will hold a public hearing for purpose of receiving evidence on the merits of the proposed erosion control line and, if approval is granted, of locating and establishing such requested erosion control line in order that any persons who have an interest in the location of such requested erosion control line can be present at such hearing to submit their views concerning the precise location of the proposed erosion control line. * * * The board of trustees shall approve or disapprove the erosion control line for a beach restoration project. In locating said line, the board of trustees shall be guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which the erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible. § 161.161, Fla. Stat. Development of the Department's Position on ECLs Prior to 2009, the Department's established ECLs for beach restoration projects whether the project's construction was supported by state funding or not. There was an exception: when the property landward of the MHWL was owned by the state. In such a case, the Department saw no need to set an ECL since both the sovereignty lands and the adjacent uplands property are owned by the state. This position held at least through January 15, 2009, when the Department held a workshop and hearing pursuant to Section 161.161, Florida Statutes, in Okaloosa County to establish an ECL for the Western Destin Project. The hearing officer who conducted the ECL hearing was West Gregory, Department Assistant General Counsel. While consideration of where the ECL should be established for the Western Destin Project was underway, there were ongoing discussions by e-mail and in briefings of whether the statute required an ECL. The discussion was prompted when Mr. Gregory, as Department Assistant General Counsel, drafted a memorandum (the "Draft Memorandum") to Michael Barnett, Chief of the Bureau of Beaches and Coastal Systems (the Bureau) to be sent through Paden Woodruff, an Environmental Administrator. The memorandum related to another beach restoration project in Okaloosa County: a project involving Eglin Air Force Base. The Draft Memorandum shows a date of January "XX", 2009, and is stamped "DRAFT." P-119. It presents the question "Should . . . [the Department] require the United States Air Force (USAF) to establish an erosion control line (ECL) for the beach restoration project located on Eglin AFB?" Id. The Draft Memorandum provides a brief answer: "No, . . . because the beach . . . is not critically eroded." Id. The memorandum recognizes the public policy of the state to fix the boundary between public and private lands for beach restoration projects in Section 161.141, Florida Statutes, and a requirement that the Board of Trustees "must establish the line of mean high water prior to the commencement of a beach restoration project," id., leading to the suggestion that each and every beach restoration project must establish an ECL. The Draft Memorandum, however, construes Section 161.141, Florida Statutes, with Section 161.161, Florida Statutes, and draws support from an Attorney General Opinion and the Walton County Florida Supreme Court case to conclude that it is only when a project is undertaken with state funding that an ECL must be established. In the case of the Eglin AFB beach restoration projects, the Draft Memorandum concludes: Id. This determination not to establish an ECL on the Eglin AFB beach restoration project would not preclude the USAF from obtaining a JCP permit. Rather, it precludes the USAF from receiving state funding assistance. The Draft Memorandum was not sent to the intended recipients. It was submitted to two other lawyers in the Department. Mr. Gregory did not receive comments from them. Although no comments were made to Mr. Gregory after the draft of the memorandum was sent to other members of the legal staff, the subject remained under discussion in the Department in early 2009. Sometime in early 2009, based on a legal analysis of Department attorneys, the Department took the position that an ECL is required to be set when state funds are used for the construction of a project. The converse of this position, that an ECL is not required to be set when no state funds are involved, is the statement alleged to be an unadopted rule. Two permits were issued that did not require an ECL: one for the Eglin AFB beach restoration project in March of 2009, and another that was an emergency permit for Holiday Isle. As with Specific Condition 1 in the Western Destin Project, the determination to not require an ECL was because of the lack of state funding. As Mr. Barnett testified about the two permits, there "is no State cost share for construction . . . [and] that's the reason [the Department] didn't require establishment of an ECL." Tr. 1279. Mr. Gregory's Draft Memorandum was never finalized. The Department issued three permits or draft permits (including for the Western Destin Project) with specific conditions that required pre-project MHWLs and that did not require ECLs. Otherwise, the Department has not committed the Department ECL Position to writing. Nonetheless, the Department ECL Position was stated in a deposition taken in this case on July 26, 2010. On July 26, 2010, the deposition of Janet Llewellyn, the Director of Water Resources Management was taken by Petitioners. Director Llewellyn is "responsible ultimately for all the projects that are processed and actions taken out of [the] division." P-223 at 10. These include permits issued by the Bureau and in particular, the Draft Permit, First Revised Draft Permit and the Second Draft Permit for the Project. When asked about the Department's statement that an ECL is not required when there is not state funding, Ms. Llewellyn preferred to rephrase the Department position as to when an ECL is required rather than when it is not required. She then testified that an ECL is required when there is "state funding involved through [the Department's] funding program." Id. at 13. Ms. Llewellyn was unable to pinpoint the moment the Department reached such a position other than: [t]he question came up sometime in the last year or two -- I couldn't tell you when -- about what the statute actually required in terms of when it was proper to set an erosion control line or required. And our attorneys did a legal analysis, again, of the statute, and that was their legal opinion of what the statute required. Tr. 14. Whatever the date that such a position was precisely firmed up, Ms. Llewellyn was able to testify on July 26, 2010, "that if state funding is going to a project, than an ECL needs to be set. That's what the statute requires." Id. This statement was based on the opinions of Department attorneys prior to their use in connection with the issuance of beach restoration permits in Okaloosa County. The Department has not initiated rule-making with respect to its ECL Position. Whether rule-making would be initiated was not known by the Bureau Chief on August 24, 2010, during his testimony in the final hearing. Change of Position The Department modified its position on ECLs that it appeared to have at the time of Ms. Llewellyn's deposition on August 4, 2010. As detailed above, it announced that an ECL would be required for the Western Destin Project, after all. The modification was formalized with the filing of the Second Revised Draft Permit on August 18, 2010. Specific Condition 5 Before the challenged language in Specific Condition 5 was added by the First Revised Draft Permit, the Department had relied on General Condition 6 to give notice to permittees that the permit did not allow trespass: This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of the permit does not convey any vested rights or any exclusive privileges. Joint Ex. 9. Based on the petitions in the Permit Challenge Cases, the Department proposed in the First Revised Draft Permit to add to Specific Condition 5 the language that is underscored in the following: The Permittee is advised that no work shall be performed on private upland property until and unless the required authorizations are obtained. Sufficient authorizations shall included: (1) written evidence of ownership of any property which will be used in carrying out the project; (2) authorization for such use from the property owner which upland of mean high-water; (3) construction and management easements from upland property owners; or (4) a judgment from a court of competent jurisdiction which reflects that such authorization, in whole or in part, is not required. The Permittee is also advised to schedule the pre-construction conference at least a week prior to the intended commencement date. At least seven (7) days in advance of a pre-construction conference, the Permittee shall provide the written authorizations for the portion of the project for which construction is about to commence, as required above, written notification, advising the participants (listed above) of the agreed-upon date, time and location of the meeting, and also provide a meeting agenda and a teleconference number. Joint Exhibit, Volume III, Tab 15, the First Revised Draft Permit, Page 7 of 26. There was no evidence that the language added to Specific Condition 5 by the First Revised Draft Permit had been in any other permits or that the Department intended to use the language in any other beach restoration permits. Other than whatever might be gleaned from the Draft Permit, itself (and its revisions), there was no evidence offered that the property of any of the petitioners, in fact, would be used in the Western Destin Beach Project.
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.
Findings Of Fact Based upon the record evidence and the stipulations of the parties, the following Findings of Fact are made: City of Miami Beach The City of Miami Beach is an incorporated municipality located within the jurisdictional boundaries of Dade County, Florida. It is governed by a seven member City Commission. The City consists of a main island and a number of smaller natural and man-made islands Approximately 100,000 permanent residents live on the City's seven square miles of land area. In addition, the City has a sizable seasonal population. The City is separated from the Dade County mainland, which lies to its west, by Biscayne Bay. There are four east-west causeways connecting the City with the mainland: MacArthur Causeway; Venetian Causeway; the Julia Tuttle Causeway; and 79th Street (North Bay) Causeway. All four of these causeways serve as hurricane evacuation routes for the City's population. Venetian Causeway The Venetian Causeway, which was completed in 1926, is the oldest of these causeways. It is approximately two and one half miles in length and consists of twelve lowrise bridges. These bridges feature low guardrails of a pierced geometric design which allow a virtually unobstructed view of the bay from anywhere on the roadway. Among its twelve bridges are two drawbridges, which are in relatively poor operating condition and are unable to bear exceptionally heavy loads. Inasmuch as the causeway is classified as a county minor arterial roadway, Dade County is responsible for its maintenance and repair. The causeway has one westbound lane of traffic and one eastbound lane of traffic. Its two lanes of traffic are not divided. As a two-lane, two-way undivided arterial, the causeway has a peak hour capacity of 1570 vehicles. Based upon 1987 statistics compiled by the Dade County Department of Public Works, the causeway's actual peak hour volume is 641 vehicles. Its volume to capacity ratio is therefore .41 and, as a result, its peak hour level of service (LOS) is "A," which is characterized by free flowing, optimum traffic conditions. There are five other service levels used by traffic planners to describe a roadway's traffic operations: LOS "B" (stable); LOS "C" (uncongested); LOS "D" (congested); LOS "E" (very congested); and LOS "F" (extremely congested). While traffic is free flowing most of the time on the causeway, there are occasions when there is congestion. Motorists may encounter such congestion when there is an accident, when there is flooding due to a heavy rain event, 1/ when traffic must stop to allow a truck with a heavy load to cross one of the causeway's drawbridges and when one of the drawbridges is stuck in the up position. Furthermore, when the drawbridge on the MacArthur Causeway is stuck in the up position, which happens not infrequently, a number of motorists who ordinarily travel on the MacArthur will use the Venetian as an alternative route, resulting in heavier than usual traffic on the Venetian. Motorists using the Venetian Causeway must stop at a toll booth located at the western terminus of the causeway to either pay a 50_ toll or show the attendant a plate reflecting that the toll has been prepaid. Rumble strips have been placed on the pavement to warn motorists to slow down before they reach the toll booth. As it traverses the bay from the mainland to the City's main island, the causeway crosses six islands, collectively known as the Venetian Islands, that are marked by residential development. From west to east, these islands are: Biscayne Island; San Marco Island; San Marino Island; Di Lido Island; Rivo Alto Island; and Belle Isle. Biscayne and San Marco Islands are within the jurisdictional boundaries of the City of Miami. San Marino, Di Lido, and Rivo Alto Islands and Belle Isle are within the jurisdictional boundaries of the City of Miami Beach. The Venetian Causeway is the only roadway linking the six Venetian Islands to the mainland. In addition to an eastbound lane and a westbound lane, the causeway has a turn lane on each of the Venetian Islands. At its July 19, 1988, meeting, the Dade County Commission passed the following resolution concerning the Venetian Causeway: WHEREAS, the Venetian Causeway, completed in 1926, was an integral part of the master plan for the residential Venetian Islands in Dade County; and WHEREAS, the Venetian Causeway is the oldest causeway remaining in its original form, linking the mainland of Miami to the island of Miami Beach; and WHEREAS, it is believed that preservation of the unique and historic Venetian Causeway as a historic site will be highly beneficial to the residents of the Venetian Islands, the citizens of Miami, Miami Beach, Dade County and the United States of America; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, FLORIDA, that the County Manager is directed to work with appropriate Local, State and Federal officials to secure funding for its replacement and the Causeway's designation as a State Scenic Highway and its listing as a historic place in the National Register while preserving its character and appearance. On July 27, 1988, the Miami Beach City Commission passed a similar resolution, which provided as follows: WHEREAS, the Venetian Causeway has historic significance in the development of the City of Miami Beach; and, WHEREAS, the Venetian Causeway has unique character by virtue of its scale, bridge profiles, and railing design; and, WHEREAS, the existing Venetian Causeway positively contributes to the appearance and character of the Venetian Islands and the City of Miami Beach. NOW, THEREFORE, BE IT DULY RESOLVED THAT THE CITY COMMISSION OF THE CITY OF MIAMI BEACH FLORIDA, supports the nomination of the Venetian Causeway to the National Register of Historic Places and the designation of the Venetian Causeway as a State of Florida Scenic Highway. On April 5, 1989, the Miami Beach City Commission adopted Ordinance No. 89-2637, which designated "[t]he public right-of-way of that portion of the Venetian Causeway within the corporate limits of the City of Miami Beach" as a historic preservation site, effective April 15, 1989. The Venetian Causeway was officially placed on the National Register of Historic Places effective July 13, 1989. Widening the causeway and adding lanes will change its unique character and appearance and adversely impact its value as a historic resource. Belle Isle Belle Isle is the Venetian Island closest to the City's main island and furthest from the mainland. Both of the Venetian Causeway's drawbridges lie to its west. To the south of the causeway on Belle Isle is a three acre City park and a crescent shaped, fifteen-acre area that is developed with highrise condominium apartment buildings. There are six such buildings. They range in height from ten to twenty- two stories and contain a total of approximately 1050 units. There is also a large vacant lot on the south end of the island. There are 9.17 acres of land to the north of the causeway on Belle Isle. The land is divided into six parcels. From west to east, these parcels are: the Cellazet parcel; Century Lane parcel; Lido Spa parcel; Farrey Lane parcel; Edelstein parcel; and Stortford parcel. The largest of these parcels is the Stortford parcel, which is 3.50 acres. The smallest of these parcels is the Edelstein parcel, which is .60 of an acre. The remaining parcels range in size from .69 of an acre (Century Lane) to 2.21 acres (Lido Spa). Of these six parcels on the north end of Belle Isle, only one, the Cellazet parcel, is vacant. Lowrise, older buildings, none exceeding five stories in height, are found on the other parcels. These buildings contain approximately 270 residential units. There has not been any recent development on the north end of Belle Isle. The units that are furthest south on Belle Isle are only 300 feet from the southernmost point of the 9.17 acres of land that lie to the north of the causeway on the island. Stortford Parcel Intervenor Stortford N.V. purchased the Stortford parcel in 1980 for approximately five million dollars with the intention of replacing the 120 lowrise rental apartment units on the site with highrise condominium apartment units. Shortly after it purchased the property, the market for highrise condominium apartment units in the area weakened and, as a result, Stortford N.V. delayed its plans to redevelop the property. By 1981, market conditions had improved. The improvement rekindled Stortford N.V.'s interest in pursuing its original redevelopment plans. It consulted an architect and investigated the economic feasibility of such a project. It determined after such an investigation that it would be imprudent to go forward with the project under the circumstances as they then existed. Accordingly, it again put its redevelopment plans on hold, but not before it had spent $50,000.00 on the project. Stortford N.V. next took action in furtherance of the project in the late 1980's. It had a building designed for the site and hired a general contractor, L. Milton Construction Company (Milton), to oversee the building's construction. The building was to be 27 stories tall and contain almost 300 apartment units ranging in area from 900 square feet (one-bedroom unit) to 1400 square feet (three-bedroom unit). Four of the building's 27 stories were to used as a multi-tiered parking garage with 494 spaces. On February 22, 1989, Milton applied to the City's Building Department for a building permit to construct the building. The permit for the Stortford project was approved on January 31, 1990, subject to the following conditions: This permit is issued subject to Biscayne Bay Shore Line Development Review Committee Approval. If Biscayne Bay Shore Line Development Review Committee approval is not granted, this permit is null and void and all fees will be refunded (except up front fee). [The applicant] shall incur no costs and construction shall not begin until Biscayne Bay Shore Line Development Review Committee Approval is granted. The permit had an expiration date of July 30, 1990. No other building permit has been issued in recent years for construction anywhere on the north end of Belle Isle. In fact, only one other such permit - for construction on the Callazet parcel - has been sought. On May 17, 1990, the Biscayne Bay Shore Line Development Review Committee (Committee) met to consider the Stortford project. The Committee rejected the project because it was not set back a sufficient distance from the shoreline. The building permit issued for the Stortford project on January 31, 1990, is now void. No actual construction work has yet been done in connection with the project. Stortford N.V. has spent approximately $365,000.00 on the project since the project's revival in the late 1980's. Prior Zoning/Land Use Designations of Belle Isle Property From 1930 until 1951, the south end of Belle Isle was zoned for single family estates (RC) 2/ and the north end of Belle Isle was zoned for multifamily apartments and hotel units (RE). In 1951, the zoning classification of the south end of Belle Isle was changed to RE. No change was made to the zoning classification of the north end of Belle Isle. In 1961, height restrictions were placed on the buildings on both the south and north ends of Belle Isle. Under these restrictions no building could exceed 14 stories or 160 feet. Both the south and north ends of Belle Isle retained their RE zoning classifications until 1971, when the City passed a new zoning ordinance, Ordinance No. 1891, which contained different classifications. Under the new ordinance, both the south and north ends of Belle Isle were classified RM-100, a classification which permitted a maximum of 100 dwellings units per acre and carried no height restrictions. The south and north ends of the island remained so classified until October 1, 1989, when the City's Year 2000 Comprehensive Plan became effective. Petitioners Petitioners Benson, Durchslag, Kreitman, Shiff, Cushing and Kohn are now, and have been at all times material hereto, residents of the City of Miami Beach. Petitioners Durchslag, Kreitman, Shiff and Kohn live in highrise condominium apartment buildings on the south end of Belle Isle. They each own the apartments in which they live. Petitioner Benson resides in a single-family house that she owns on Di Lido Island. Petitioner Cushing lives in a single-family dwelling that he owns on Rivo Alto Island. The Venetian Islands Improvement Association, Inc. is an organization of owners of single-family residences located on the Venetian Islands. It was founded in 1938 and now has approximately 435 members. Its primary purpose is to advance and protect the collective interests of its homeowner members. Adoption of the City's Comprehensive Plan The City Commission considered the matter of the adoption of the City's Year 2000 Comprehensive Plan at public hearings held on September 7, 1989, and September 21, 1989. All notices of these adoption proceedings were published in the "Beaches Neighbors" section of the Miami Herald. 3/ The "Beaches Neighbors" section of the Miami Herald is circulated twice a week along with the main portion of the Herald in the following towns and municipalities in Dade County: Miami Beach; Bal Harbour; Surfside; Bay Harbor Islands; Golden Beach; North Bay Village; Sunny Isles; and Indian Creek Village. The "Beaches Neighbors" section of the Miami Herald is: (a) published at least on a weekly basis; (b) printed in the language most commonly spoken in the area within which it circulates; (c) not a newspaper intended primarily for members of a particular professional or occupational group; (d) not a newspaper whose primary function is to carry legal notices; and (e) not given away primarily to distribute advertising. At the close of the public hearing held on September 21, 1989, the City Commission, over the objections of Petitioners, unanimously passed Ordinance No. 89-2664 adopting the City's Year 2000 Comprehensive Plan. The objections submitted by Petitioners during the adoption proceedings were directed to the land use designation of the north end of Belle Isle. Although they had the opportunity to do so, they did not contend at any time during the adoption proceedings that the City had given inadequate notice to the public of these proceedings. While Petitioners may not have known at the time of the adoption proceedings that notice of these proceedings had been published only in the "Beaches Neighbors" section of the Miami Herald, they could have obtained such information in advance of the proceedings by reviewing the files maintained by the City Clerk. They did not conduct such a review, however. Contents of the Plan and Supporting Data and Analysis The City's Year 2000 Comprehensive Plan contains a future land use element. An integral part of this element is the future land use map (FLUM). It shows the proposed distribution, extent and location of land uses for the entire land area of the City. The FLUM was based upon surveys, studies and data regarding the City as a whole, including, among other things: the City's projected population; the land needed to accommodate the projected population; the character of the remaining vacant land in the City; 4/ the availability of public facilities and services; and the need for redevelopment, including the renewal of blighted areas and the elimination of inconsistent and incompatible land uses. Neighborhood studies were also used to develop the FLUM. Census data and existing land uses were examined on a neighborhood-by-neighborhood basis to obtain a detailed inventory of existing conditions in the City. Belle Isle is part of the West Avenue Neighborhood Study Area. 5/ The plan's supporting documents contain the following narrative statement concerning this area: West Avenue is predominantly developed as a high density/high intensity bayfront multifamily residential area. (It includes Belle Isle). Several large vacant parcels and a few existing enclaves of single family homes and older, lower density apartment buildings offer future development opportunities for townhouse construction. Both the south and north ends of Belle Isle are designated RM-2 on the FLUM. RM-2 is a medium intensity, multifamily residential land use designation. The plan regulates the intensity of residential uses by utilizing the concept of floor area ratio (FAR). Floor area ratio is the floor area of a building or buildings on a lot divided by the area of a lot. Under the plan, land designated RM-2 is assigned a maximum FAR range of 1.25 to 3.0. 6/ Where within this range a particular development falls depends upon the features of the development. The more desirable features and amenities a development has, the higher its maximum FAR will be pursuant to the performance bonus provisions of the plan. The RM-2 designation is similar, but not identical, to the RM-100 classification that had existed under Ordinance No. 1891 inasmuch as it does not necessarily bar residential development in excess of 100 dwelling units as did the RM-100 classification. Initially, the City's Planning and Zoning Department staff members had recommended that the north end of Belle Isle be designated on the FLUM for townhouse use. They subsequently changed their recommendation to RM-2. The change was prompted by concerns that a townhouse designation might unlawfully deprive north end property owners, who had invested in their property in reliance upon prior land use regulations that permitted more intensive use of their land, a fair return on their investment. An alternative designation was therefore sought. RM-2 was selected because of its similarity to the RM-100 classification that had been in effect on the north end of Belle Isle since 1971 and because of its compatibility with the existing development on the south end of the island. 7/ Reliance upon these factors in selecting a land use designation was in accordance with sound land use planning techniques. While the north end of Belle Isle, in terms of its character, is suitable for townhouse development, it is also suitable for highrise residential development of the type permitted by its RM-2 designation. The comprehensive plan adopted by the City contains other maps, in addition to the FLUM, that depict future conditions. Among these other maps are those that relate to traffic circulation in the City. These maps reflect that the Venetian Causeway is anticipated to remain a two-lane roadway classified as a County minor arterial. In the City's adopted comprehensive plan, all minor arterials in the City, including the Venetian Causeway, are assigned a peak hour level of service standard of "D." This is the same peak hour level of service standard that the causeway is assigned in Dade County's and the City of Miami's respective comprehensive plans. The City of Miami Beach's Year 2000 Comprehensive Plan provides that no development order or permit may be issued which would "result in a reduction of the level of services for the affected public facilities below the level of service standards adopted in this Comprehensive Plan." Accordingly, any development or redevelopment on the north end of Belle Isle that will lower the Venetian Causeway's peak hour level of service below "D" is prohibited by the plan. The additional traffic that would be generated by the development and redevelopment of the various properties on the north end of Belle Isle at the maximum intensity of use permitted by their RM-2 designation, however, is not expected, in and of itself, to cause the Venetian Causeway's peak hour level of service to deteriorate to such a point that the standard set for it in the City's plan would not be met. 8/ Among the other elements of the City's Year 2000 Comprehensive Plan is a historic preservation element. It contains the following goal: Secure for future generations the opportunity to share in the unique heritage of Miami Beach and promote sound economic development through the purposeful retention, protection, and continued use of buildings, structures, and districts which are associated with important events in the City's history or exhibit significant architectural qualities. As Policy 2.1 of this element makes clear, the City intends to take "a realistic and balanced approach to economic development and historic preservation." The City's plan also has a conservation/coastal zone management element. It contains the following objectives and policies dealing with hurricane evacuation and hazard mitigation: OBJECTIVE 4 The existing time period required to complete the evacuation of people from Miami Beach prior to the arrival of sustained gale force winds shall be maintained or lowered by 1995. 9/ Policy 4.1 All future improvements to evacuation routes shall include remedies for flooding problems and the anticipated increase in the level of the water of Biscayne Bay. Policy 4.2 The Miami Beach Hurricane Handbook will be distributed to the general public with detailed emergency operation instructions and hurricane evacuation pick-up sites. Policy 4.3 The City will work with the Metro-Dade Public Works Department to rate all local bridges for structural and operational sufficiency. Local bridges with unsatisfactory sufficiency ratings shall be programmed for improvements or replacement. Policy 4.4 All trees susceptible to damage by gale force winds shall be removed from the right-of-way evacuation routes and replaced with suitable species. Policy 4.5 The City will coordinate 10/ with Metro-Dade Transportation Administration to ensure adequate buses are available to safely evacuate neighborhoods with large concentrations of households within Miami Beach without private transportation. Policy 4.6 The City of Miami Beach Fire Department shall maintain and annually update the list of people who may need assistance due to physical or medical limitations in the event of an evacuation to ensure their safe mobilization. Policy 4.7 The City of Miami Beach Fire Department shall maintain and annually update the Miami Beach Hurricane Evacuation Plan 11/ and maintain and enhance the resources and capabilities of the plan to provide effective implementation of evacuation procedures to ensure that evacuation times are maintained or reduced. Policy 4.8 Procedures for boat owners during hurricane operations shall be added to the Miami Beach Hurricane Handbook with instructions for safe harbor operations. Policy 4.9 Between 1989 and 1993, coastal area population densities shall be coordinated with the Metropolitan Dade County Hurricane Procedure, which is the local hurricane evacuation plan for Miami Beach, and the lower Southeast Florida Hurricane Evacuation Plan, the regional hurricane evacuation plan. Policy 4.10 Coastal area population densities in Dade County, including the City of Miami Beach, shall be updated in the lower Southeast Florida Hurricane Evacuation Study currently being revised by the US Army Corps of Engineers and the National Hurricane Center. Policy 4.11 By 1993, changes in coastal area population densities identified in the amended lower Southeast Florida Hurricane Evacuation Study shall be used by the Metropolitan Dade County Office of Emergency Management, the overall coordinating authority for local hurricane planning, to update the Dade County Hurricane Procedure. OBJECTIVE 5 Reduce the exposure of life and property in Miami Beach to hurricanes through the implementation of hazard mitigation measures, by adopting the following policies: Policy 5.1 Public expenditures that subsidize additional development in the Coastal High Hazard Zone, (the Federal Flood Insurance Rate Map 'V' Zone), shall be prohibited. Public facilities shall not be built except for public beach or shoreline access and resource restoration. (See Coastal Zone Management.) Policy 5.2 The City will coordinate with Metro-Dade County and the South Florida Planning Council to develop a comprehensive marine hurricane contingency plan. Policy 5.3 New private use facilities along the Coastal High Hazard Zone shall conform to strict setback, open space and accessory use requirements. Policy 5.4 Structures which suffer repeated damage to pilings, foundations or load bearing walls and/or incur damage exceeding 50% of their assessed value shall rebuild to the requirements of all current development regulations, and shall not be located east of the coastal construction control line. No redevelopment shall be permitted in areas of repeated damage unless it is determined by the City of Miami Beach Officials to be in the public interest. Policy 5.5. During post-disaster redevelopment the Building Department will distinguish between those actions needed to protect public health and safety with immediate repair/cleanup and long term repair activities and redevelopment areas. Removal or relocation of damaged infrastructure and unsafe structures shall be by the Miami Beach Public Services Department in accordance with local procedures and those agencies and practices specified in the Metro-Dade County Hurricane Procedure. Policy 5.6 During post-disaster recovery periods, after damaged areas and infrastructure requiring rehabilitation or redevelopment have been identified, appropriate City departments will coordinate to: prepare a redevelopment plan which reduces or eliminates the future exposure of life and property to hurricanes; incorporate recommendations of intragency hazard mitigation reports; analyze and recommend to the City Commission hazard mitigation options for damaged public facilities; and recommend amendments, if required, to the City's Comprehensive Plan. Policy 5.7 Unsafe conditions and inappropriate uses identified in the post-disaster recovery phase will be eliminated as opportunities arise. Even if the City's population increases as projected 12/ and the Venetian Causeway remains a two-lane roadway as contemplated by the plan, it will be possible for the City to accomplish the end, identified in Objective 4 of the conservation/coastal zone management element, of reducing or maintaining the time it takes to complete an evacuation of the City prior to the arrival of sustained gale force winds. The City will be able to do so through the implementation of the strategies described in Policies 4.1 through 4.11 of this element. Likewise, an increase in the City's population will not necessarily prevent the City from attaining the end specified in Objective 5 of the conservation/coastal zone management element. The City will be able to realize this end, notwithstanding such growth, by taking those measures described in Policies 5.1 through 5.7 of this element. Accordingly, to the extent that the RM-2 designation of the north end of Belle Isle will have the effect of increasing the population of the City, it is not in irreconcilable conflict with Objective 4 and Objective 5 of the conservation/coastal zone management element inasmuch as these objectives can be met despite any population increase attributable to such a designation. 13/ Furthermore, because they can be met, despite such an increase in population, without the necessity of widening the Venetian Causeway 14/ and thereby threatening its value as a historic resource, neither is there any irreconcilable conflict with the above-described goal statement found in the historic preservation element of the City's plan. As noted above, the future traffic circulation maps adopted as part of the City's Year 2000 Comprehensive Plan reflect that the Venetian Causeway will remain a two-lane, minor county arterial. No other part or provision of the plan, including the FLUM's RM-2 designation of the north end of Belle Isle, suggests or requires otherwise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Community Affairs issue a final order in the instant case declining to find the City of Miami Beach's Year 2000 Comprehensive Plan not "in compliance" on the grounds urged by Petitioners. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of September, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1990.
