Findings Of Fact C. R. Higginson (hereafter Respondent) is a licensed barber and barbershop owner, holding Florida licenses BB 11355 and BS 8886. Respondent owns and operates the Bonita Springs Barber Shop, located at 26671 Old U.S. 41 S.E., Bonita Springs, Florida 33923. On April 25, 1991, Frank Paolella, an inspector for the Department of Professional Regulation, entered the Respondent's barbershop and performed a routine inspection of the premises for compliance with the rules of the Barber's Board. The Respondent was not present during the inspection. At the time of the inspection, there were a number of persons in and around the premises, however, the inspector observed no one sitting in the barber's stations chairs or having their hair cut. The inspector noted several violations of the Board of Barbers requirements. Three barbers stations contained equipment which was not sanitized and was covered with hair. 5 Five stations contained equipment which had been cleaned and sanitized but which was not stored in a clean cabinet. Six garbage pails located at barber stations were uncovered and contained hair and trash. One barber's license was not displayed. Prior to the inspector's departure, the barber located the license behind his sterilizer cabinet and displayed the document. The testimony of the Respondent's witness, one of the barber's present at the time of the inspection, directly contradicted the testimony of the Petitioner's inspector. The testimony of the Petitioner's inspector is credited and such conflicts have been resolved in Petitioner's favor.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Board of Barbers' enter a Final Order imposing an administrative fine of $350.00 against the Respondent. DONE and RECOMMENDED this 14th day of January, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1992.
The Issue The issue in this case is the amount of attorney's fees and costs Petitioner, Florida Cities Water Company, should be awarded pursuant to Section 120.595(5), Florida Statutes (Supp. 1996).
Findings Of Fact The Parties. Petitioner, Florida Cities Water Company (hereinafter referred to as "Florida Cities"), is a utility providing water and wastewater service to two communities in Florida. Respondent, the Florida Public Service Commission (hereinafter referred to as the "PSC"), has exclusive jurisdiction over water and wastewater service utility providers in Florida, including the determination of rates that utility providers may charge for their services. Section 367.011, Florida Statutes (1995). Florida Cities' 1992 Approved Rate. In arriving at an allowable rate which a water and wastewater service utility may charge, the PSC must determine, among other things, the amount of a utility's plant that is considered "used and useful." Section 367.081(2)(a), Florida Statutes (1995). In determining the amount of Florida Cities' plant that was considered "used and useful" in 1992, the PSC determined the amount of investment costs in its North Fort Myers, Florida, plant which was potentially recoverable. Recoverable costs are limited to those expenditures which are considered to be for the public benefit. Florida Cities' recoverable costs as of 1992 were determined to total $6,343,868.00. The amount of Florida Cities' recoverable costs was then multiplied by a fraction, the numerator of which was the average daily flow of the plant (calculated on a peak month basis) and the denominator of which was the capacity of the plant (this fraction is hereinafter referred to as the "Capacity Ratio"). In 1992, the average daily flow of the plant on a peak month basis was determined to be in excess of 1.0 million gallons per day (hereinafter referred to as "MGD"), and the capacity of the plant was determined to be 1.0 MGD. Therefore, the Capacity Ratio was determined to be 100 percent and Florida Cities' recoverable costs of $6,343,868.00 was determined to be 100 percent "used and useful." Florida Cities' "rate base" for 1992 was, therefore, determined to be $6,343,868.00. Florida Cities' 1995 Application for Rate Increase and the PSC's Reduction of Rate Base. Subsequent to the determination of Florida Cities' rate base and its approved utility rates in 1992, Florida Cities was required by the Florida Department of Environmental Protection (then known as the Florida Department of Environmental Regulation)(hereinafter referred to as "DEP"), to expand its North Fort Myers plant. As a result of DEP's action, Florida Cities incurred additional plant costs of approximately 1.6 million dollars. As a consequence of having incurred additional plant costs, Florida Cities requested that the PSC treat the additional costs, plus other costs incurred by Florida Cities since 1992, as recoverable costs and as an addition to its rate base. Florida Cities' application was filed in 1995. After consideration of Florida Cities' application for rate increase, the PSC issued a Notice of Proposed Agency Action Order Granting Final Rates and Charges on November 2, 1995. In this order the PSC essentially determined that all additional plant expansion costs incurred by Florida Cities constituted recoverable costs. The PSC also determined that Florida Cities' Capacity Ratio was 100 percent and, therefore, all of its recoverable costs was treated as "used and useful." The decision of the PSC resulted in an increase of Florida Cities' utility rate of approximately 17.89 percent. The proposed decision of the PSC was, however, challenged and proceeded to hearing before the PSC. On September 10, 1996, the PSC entered a Final Order Denying Application for Increased Wastewater Rates, Reducing Rates, Requiring Refund and Requiring Reports (hereinafter referred to as the "PSC Final Order"). In the PSC Final Order, the PSC treated all of the 1.6 million dollars in costs associated with the expansion of the plant required by the DEP as recoverable costs. The PSC, however, reduced the Capacity Formula to 65.9 percent. This resulted in a reduction in Florida Cities' rate base of approximately 2.4 million dollars. The reduction in the Capacity Formula to 65.9 percent was caused, in part, by the manner in which the PSC determined the numerator of the Capacity Formula. The PSC modified the manner in which it calculated the numerator of the Capacity Formula: Instead of using the average daily flow calculated on a peak month basis, it used the average daily flow calculted on an annual basis (to which it added a "reserve" of 4.58 percent) . . . . The reduction in the Capacity Formula from 1992 to 1995 was also caused by the plant capacity figure used by the PSC. The PSC used a permitted capacity of 1.5 MGD instead of the actually designed and built capacity of 1.25 MGD. Florida Cities had urged use of the 1.25 MGD actual capacity figure. As a result of the PSC's conclusion that only 65.9 percent of the amount of recoverable costs was used and useful, Florida Cities' rate base was reduced to $5,525,915.00, a decrease of Florida Cities' used and useful plant as determined in 1992 of over $800,000.00. Although the PSC included the additional costs incurred by Florida Cities in order to comply with DEP regulations, the PSC's use of a Capacity Ratio of 65.9 percent to determine the amount of the recoverable costs considered used and useful had a net effect of disallowing approximately 2.4 million dollars in proposed rate base (1.6 million dollars incurred to meet DEP regulations plus the $800,000.00 reduction of 1992 rate base). Florida Cities' Appeal of the PSC's Final Order. Florida Cities appealed the PSC Final Order to the District Court of Appeal, First District (hereinafter referred to as the "First District Court"). Florida Cities Water Company v. Florida Public Service Commission, 23 Fla. L. Weekly D238 (Fla. 1st DCA January 12, 1998). On appeal, Florida Cities raised two grounds for reversal of the PSC's Final Order: The Capacity Ratio used by the PSC to determine the amount of its recoverable costs which was considered used and useful was flawed. Florida Cities urged the First District Court to increase its Capacity Ratio to 100 percent; and The PSC should have included all costs Florida Cities had incurred in order to comply with DEP regulations as part of its rate base without regard to the Capacity Ratio. Florida Cities argued that the 1.6 million dollars it had incurred to comply with DEP regulations should be included as part of its rate base without regard to what the Capacity Ratio was determined to be. Florida Cities' challenge to the Capacity Ratio used by the PSC was based upon two alleged errors: The PSC's use of permitted capacity of 1.5 MGD was improper. Florida Cities argued that the PSC should have used actual plant capacity of 1.25 MGD; and The method elected by the PSC to determine the average daily flow of the plant was a novel and unexplained deviation from past PSC policies. Florida Cities argued that the PSC should have continued to determine average daily flows based upon a peak month basis rather than an annual basis. As to the 1.6 million dollars in costs Florida Cities sought to have included in its rate base, Florida Cities' two arguments were alternative theories advanced to support the same end: 100 percent inclusion of the 1.6 million dollars it had incurred as a result of meeting DEP regulations. While the two arguments were interrelated with regard to the starting point (it had spent 1.6 million dollars on plant) and the result Florida Cities was attempting to achieve (inclusion of 1.6 million dollars in rate base), the two arguments involved different methods of reaching the desired result: (a) direct inclusion; or (b) inclusion through an increase in the Capacity Ratio. As to the remaining $800,000.00 reduction in Florida Cities' rate base, only one of the arguments raised by Florida Cities applied to this amount: the argument that the Capacity Ratio utilized by the PSC was flawed. The First District Court's Decision. The First District Court agreed with Florida Cities' contention that the Capacity Ratio used by the PSC was flawed. The First District Court found that both the calculation of the numerator and the denominator of the Capacity Ratio by the PSC was in error. With regard to the numerator, the First District Court concluded that the PSC's determination of average daily flows by using annual flows constituted a shift in agency policy which was "'unsupported by expert testimony, documentary opinion, or other evidence appropriate to the nature of the issue involved.'" The First District Court remanded the matter to the PSC to "give a reasonable explanation, if it can, supported by record evidence (which all parties must have an opportunity to address) as to why average daily flow in the peak month was ignored." With regard to the denominator, the First District Court opined that "no competent evidence of any substance supports the PSC's determination" of plant capacity. The First District Court concluded that the denominator should be 1.25 MGD. The First District Court rejected Florida Cities' contention that amounts it had expended to comply with DEP regulations should be included in its rate base without regard to the Capacity Ratio. The First District Court concluded that the 1.6 million dollars spent to comply with DEP regulations could be included in rate base "only to the extent the improvements they effect or the facilities to which they relate are 'used and useful in the public service.'" The ultimate impact of the First District Court's decision depends upon what action the PSC takes on remand with regard to determine the appropriate numerator for the Capacity Formula. The PSC issued an Order of Remand on April 14, 1998. In the Order of Remand, the PSC indicated its position that the decision of the First District Court regarding flows was "an invitation" to take additional testimony and evidence on the issue. The PSC, therefore, reopened the record and scheduled a second evidentiary hearing to determine how average daily flows should be calculated. Florida Cities filed a Motion to Stay the PSC's second evidentiary hearing, pending resolution of an appeal of the PSC Order of Remand. Until a final determination is made concerning the intent of the First District Court in remanding the matter to the PSC, it cannot be absolutely concluded what the "result obtained" in this case will be. The parties have, however, assumed for purposes of the matter that the Capacity Ratio should be approximately 98.6 percent. That is the best "result" which can be obtained by Florida Cities in this matter. Florida Cities' Motion for Attorney's Fees. As part of its appeal, Florida Cities also filed a Motion for Attorney's Fees. Florida Cities sought an award of attorney's fees pursuant to Section 120.595(5), Florida Statutes (Supp. 1996). In particular, Florida Cities requested that the First District Court: Grant attorneys [sic] fees to Appellant for this appeal; Remand this case to the Division of Administrative Hearings to determine attorneys fees; and Grant such other relief as the Court may deem appropriate. The First District Court entered the following order on Florida Cities' Motion for Attorney's Fees: The motion by appellant for attorney's fee is granted. If the parties are unable to agree on an amount of attorney's fees, the question should be referred to the Division of Administrative Hearings. The Parties' Effort to Agree. Florida Cities submitted copies of invoices to the PSC documenting the attorney's fees and costs incurred by it in connection with the appeal of the PSC's Final Order. Florida Cities proposed several findings of fact, which are hereby accepted by reference, relating to the manner in which it determined attorney's fees and costs. Those findings of fact include paragraphs 27 through and including 32. The PSC reviewed the invoice copies submitted by Florida Cities and stipulated and agreed that the number of hours and the hourly rates attributable to the appeal of the PSC Final Order were reasonable. The parties stipulated that the total amount of attorney's fees and costs incurred by Florida Cities on the appeal of the PSC Final Order amounted to $74,648.14. On March 18, 1998, the PSC and Florida Cities filed a Joint Petition for Resolution of Attorney's Fees with the Division of Administrative Hearings. The parties stipulated in the joint petition that they had negotiated in good faith but were unable to agree on the amount of attorney's fees which should be paid to Florida Cities. The parties stipulated and agreed that $74,648.14 is the appropriate lodestar figure. The parties were unable to agree, however, whether the lodestar figure should be adjusted in light of the "results obtained" by Florida Cities on appeal. Therefore, consistent with the order of remand from the First District Court, the matter was referred to the Division of Administrative Hearings for the limited purpose of determining whether the agreed upon lodestar figure of $74,648.14 should be reduced based upon the "results obtained" by Florida Cities on appeal. The "Result Obtained" on Appeal. On appeal, Florida Cities argued that it was entitled to a total increase in its rate base of approximately 2.4 million dollars: (a) the 1.6 million dollars it expended to comply with DEP regulations; and (b) the $800,000.00 reduction in rate base which resulted from the PSC's modification of the Capacity Ratio. In effect, Florida Cities argued that it should be allowed to treat 100 percent of its recoverable costs as its rate base. As a result of the First District Court's decision and assuming a Capacity Ratio of 98.6 percent will be achieved, Florida Cities was successful on appeal in increasing its rate base by approximately 2.2 million dollars. Of this amount, approximately $879,000.00 was attributable to the First District Court's conclusion that the PSC had used the incorrect plant capacity. The remaining 1.3 million dollars was attributable to the First District Court's conclusion that the methodology used by the PSC to determine average annual daily flows was a policy change which was unsupported by the record. Had Florida Cities succeeded on both issues it raised on appeal, it would not have resulted in any appreciable increase in Florida Cities' rate base over the increase in rate base allowed by the First District Court. A utility plant cannot be treated as used and useful in excess of 100 percent of its costs. The two issues Florida Cities raised on appeal, at least as to the 1.6 million dollars it was required to expend to meet DEP regulations, were alternative theories for achieving the same result: total inclusion of the 1.6 million dollars in its rate base. Florida Cities contended that the 1.6 million dollars should have been included directly in its rate base because it was required to make the expenditure by a government agency. In the alternative, it argued that the Capacity Ratio used to determine the amount of recoverable costs considered used and useful should have been increased to 100 percent. This alternative argument would also have resulted in inclusion of the 1.6 million dollars in its rate base. Regardless of which argument was accepted by the First District Court or whether the First District Court had accepted both arguments, Florida Cities could not have achieved any substantially greater result than it did. As to the remaining $800,000.00 reduction in 1992 rate base, Florida Cities' argument concerning the direct inclusion of amounts required to be expended to comply with DEP regulations did not relate to this amount. Only Florida Cities' two-pronged argument concerning the Capacity Ratio supported Florida Cities' argument that its rate base should be increased by this amount. Florida Cities' arguments concerning this amount was successful. I. The Consequences of Florida Cities' Failure to Prevail on All Issues. Had Florida Cities prevailed in its contention that costs incurred as the result of meeting government requirements should be included directly in rate base, such a decision would have had significant consequences to most, if not all, utilities in Florida. Such a decision would also have probably had an impact on future rates approved for Florida Cities. Having failed to prevail on this issue, however, prevented the application of this theory by other utilities in Florida to the determination of their rate bases and to the determination of the appropriate rate base for Florida Cities in the future. The loss of the benefit to other utilities and Florida Cities in future rate cases, which would have occurred had Florida Cities prevailed, did not have any impact on the "results obtained" by Florida Cities in the immediate proceedings. While the failure of the argument and the avoidance of the impact on rate-making, which would have resulted had Florida Cities prevailed, was of great consequence to the PSC, the rejection of the argument by the First District Court did not reduce the result Florida Cities hoped to have obtained on appeal. J. Attorney's Fees and Costs of Proceedings Before the Division of Administrative Hearings. Florida Cities incurred attorney's fees and costs in the instant proceeding before the Division of Administrative Hearings. Florida Cities has sought recovery of those fees and costs. The parties have not agreed upon the appropriateness of the inclusion of such fees and costs. Mr. Schiefelbein acted as lead counsel during the attorney's fees phase of this matter. As of April 23, 1998, four days before the hearing before the Division of Administrative Hearings, Florida Cities had incurred the following attorney's fees during the attorney's fees phase of this matter: Attorney Hourly Rate Total Fees Mr. Schiefelbein $150.00 $6,135.00 Mr. Gatlin $175.00 490.00 Ms. Cowdery $150.00 37.50 Total $6,662.50 It was estimated that an additional 22 hours of Mr. Shiefelbein's time would result in an additional $3,300.00 of fees attributable to completion of the attorney's fees phase of this proceeding "through a Final Order of the Administrative Law Judge." This estimate was based upon 4 hours for witness preparation, 4 hours for other hearing preparation, 4 hours to attend the hearing, and 10 hours for review of the hearing transcript and submittal of a proposed order. The hourly rate charged by counsel for Florida Cities for the attorney's fees phase of this proceeding was reasonable and a combined total of 66 hours to complete this phase of the proceeding was a reasonable number of hours to pursue this matter. Mr. Melson, an expert witness for Florida Cities in this proceeding, charged $220.00 per hour for his preparation for and attendance at the hearing before the Division of Administrative Hearings. Mr. Melson spent 2.6 hours preparing for the hearing and 2.5 hours attending the hearing. Mr. Melson's fee amounted to $1,122.00. Mr. Seidman, another expert witness for Florida Cities, charged an hourly rate of $90.00 and spent 20.75 hours in preparing for and attending the hearing. It was stipulated that Mr. Seidman's total fee of $1,867.50 was reasonable. Although Florida Cities did not argue that all fees and costs incurred by it during the attorney's fees phase of this proceeding should be recovered, it did seek recovery of the foregoing fees and costs. Those fees and costs totaled $12,952.00.
The Issue Whether the proposed Florida Administrative Code Rules 28-20.110, 28-20.120, and 28-18.210 are invalid exercises of delegated legislative authority.
Findings Of Fact Parties Petitioner, Florida Keys Citizens Coalition, Inc. ("FKCC"), is a non-profit Florida corporation whose address is 10800 Overseas Highway, Marathon, Florida 33050. The primary purpose of FKCC is to "protect the quality of life of the citizens of the Florida Keys." The primary emphasis of the organization involves issues related to the carrying capacity, the limits of the infrastructure, and the environmental qualities of the Florida Keys. Consistent with its purpose, FKCC opposes regulations which it believes will diminish the quality of the natural habitat in Monroe County and the City of Marathon and hinder safe and efficient emergency evacuation. FKCC has been involved in previous Monroe County litigation, including participating as a party to at least two formal administrative challenges to the 2010 Monroe County Comprehensive Plan (Monroe County Comprehensive Plan). Petitioner, Last Stand, Inc., is a non-profit Florida corporation whose address is Post Office Box 146, Key West, Florida 33041-0146. The primary purpose of Last Stand is to preserve and protect the quality of life in the City of Key West, the Florida Keys, and their environs, with particular emphasis on the natural environment. To that end, Last Stand opposes regulations that it believes diminishes the quality of the natural habitat in the Florida Keys and regulations that hinder safe and efficient emergency evacuation in the Florida Keys. Last Stand is an organizational member of FKCC. Moreover, many individual members of Last Stand are also members of FKCC. A substantial number of members of both FKCC and Last Stand live, work, and/or engage in various recreational activities in the City of Marathon or in nearby areas. For example, a substantial number of members of both of those organizations regularly use and enjoy the nearshore waters of Monroe County for recreational water activities, such as boating, diving, snorkeling, and/or swimming.3 A substantial number of members of both organizations also regularly use and enjoy terrestrial habitats in Monroe County, including the City of Marathon, for recreational activities such as hiking and bird-watching. A substantial number of the members of both FKCC and Last Stand may be adversely affected or impacted by the issues which are in dispute in this proceeding. Moreover, the issues in this proceeding are germane to the purposes of both FKCC and Last Stand. Also, both FKCC and Last Stand regularly represent their members' interests in formal administrative hearings and local commission meetings relative to environmental and growth management issues. Respondent, Administration Commission, consists of the Governor and Cabinet and is empowered to adopt, by rule, any enactment, amendment, or rescission of a land development regulation or element of a local comprehensive plan in the Florida Keys area. Respondent, Monroe County, is a local county government within the Florida Keys Area of Critical State Concern ("ACSC"). Respondent, City of Marathon, is a municipality within the Florida Keys ACSC. Intervenor, the DCA, is the state land planning agency responsible for the general supervision of the administration and enforcement of the ACSC program. As the state planning agency, the DCA is authorized to propose changes to local comprehensive plans and land development regulations within an ACSC for adoption by the Administration Commission. Economic Base of Florida Keys Tourism is the economic base of the Florida Keys. Moreover, the basis for the Florida Keys' tourism is a healthy natural environment that supports fishing, diving, water sports, boating, bird-watching habitat, visiting endangered species habitat, and other related activities. History of the Florida Keys ACSC The Florida Keys area is designated as an ACSC and consists of, unincorporated, Monroe County, the City of Layton, the City of Key Colony Beach, the Village of Islamorada, and the City of Marathon. See § 380.0552(3), Fla. Stat. (2004).4 The City of Key West has been separately designated as an ACSC pursuant to Florida Administrative Code Rule Chapter 28-36. The Florida Keys were originally designated by the Administration Commission in 1975 and re-designated by the Legislature in 1986. The legislative intent section and the Principles for Guiding Development, as set forth in Subsections 380.0552(2) and (7), Florida Statutes, together require an effective land use management system that protects the natural environment and character of the Florida Keys, maintains acceptable water quality conditions, ensures adequate public facility capacity and services, provides adequate affordable housing, supports a sound economic base, protects constitutional property rights, and requires adequate emergency and post- disaster planning to ensure public safety. During the past 20 years, the growth management process has been implemented in essentially two phases. The first phase involved developing, adopting, and implementing the first comprehensive plans and regulations under the new designation. These plans and regulations were adopted by the county and cities in the mid-1980s. The 1986 plan established a growth management system that substantially increased protection of natural resources and began to reduce the over-allocation of density in the Florida Keys. It also achieved the long-term protection of North Key Largo. However, several major problems were not adequately addressed by the 1986 plan, including maintaining evacuation capability, water quality protection, sewage treatment, stormwater treatment, and community character. In addition, although the plan required a focal point plan for Big Pine Key, this planning process did not result in a viable plan that adequately protected the Florida Keys deer. The required open space ratios proved difficult to maintain within habitats once development occurred, resulting in fragmentation of habitat. The second phase involved the planning process undertaken in the early 1990s to meet the requirements of the Growth Management Act and to update the plan based on lessons learned in implementing the 1986 plan. In developing, reviewing, and litigating the Monroe County Comprehensive Plan, the following critical issues emerged involving how to: maintain acceptable hurricane evacuation capability; retrofit existing development and provide new development with adequate wastewater and storm water facilities, including, where appropriate, upgrading of on-site systems; determine the carrying capacity of the Keys to withstand the impacts of additional land development and modify state and local plans, regulations and programs so that the carrying capacity is not exceeded; provide an adequate supply of affordable housing while maintaining acceptable hurricane evacuation and protecting the environment. In 1996, the Administration Commission adopted a rule which included a cap of 255 residential units per year for Monroe County. The rule also adopted a five-year Work Program into the Monroe County Comprehensive Plan with the local governments to construct sewage treatment facilities, replace cesspits, and purchase land to protect natural habitat. Monroe County, the City of Marathon, and the DCA were required to submit reports to the Administration Commission each year "documenting the degree to which the Work Program objectives for that year [had] been achieved." The rule contemplated that if the local governments did not make "substantial progress" towards accomplishing the tasks of the Work Program, the unit cap for new residential permits would be reduced by at least 20 percent for the following year. The Administration Commission found a lack of "substantial progress" in 1999 and adopted a rule which reduced the annual allocation of residential permits by 20 percent and extended the five-year Work Program to seven years. The Administration Commission found "substantial progress" had been accomplished in 2001 and began rulemaking to restore the permit allocation. However, the rule was challenged, and since the Administration Commission found a lack of "substantial progress" in 2002, the Commission adopted a revised rule which did not restore permits. The Carrying Capacity Study The 1996 Administration Commission rule amended the Monroe County Comprehensive Plan to require the completion of a carrying capacity analysis. The carrying capacity analysis shall be designed to determine the ability of the Florida Keys ecosystem, and the various segments thereof, to withstand all impacts of additional land development activities. The analysis shall be based upon the findings adopted by the Administration Commission on December 12, 1995, or more recent data that may become available in the course of the study, and shall be based upon the benchmarks of, and all adverse impacts to, the Keys land and water natural systems, in addition to the impact of nutrients on marine resources. The carrying capacity analysis shall consider aesthetic, socioeconomic (including sustainable tourism), quality of life and community character issues, including the concentration of population, the amount of open space, diversity of habitats, and species richness. The analysis shall reflect the interconnected nature of the Florida Keys' natural systems, but may consider and analyze the carrying capacity of specific islands or groups of islands and specific ecosystems or habitats, including distinct parts of the Keys' marine system. (Ref. 1991 Stip. Settlement Agreement). Agencies: County, DCA, DEP, DOH, DOT, GFC, SFWMD, NMS, SFRPC, EPA, USFWS, Army COE, and other interested parties to include representatives of environmental organizations and development interests. The Florida Keys Carrying Capacity Study ("FKCCS") was completed over a period of six years. Six million dollars was allocated by the DCA and the United States Army Corps of Engineers to produce the Monroe County Sanitary Wastewater Master Plan, the Stormwater Management Plan, and the FKCCS. The contractor, URS Corporation, completed the FKCCS and the Carrying Capacity/Impact Assessment Model ("CCIAM"), a separate component to be used in forecasting land use scenarios. A panel of external experts was used to peer review the scope of work. In September 2002, the study was completed. The National Research Council of the National Academy of Sciences ("Council") reviewed the CCIAM and FKCCS and, as a result of its review, adjustments were made to the CCIAM. The Council's review concluded that overall, due to data constraints and other issues in certain portions of the CCIAM, the model proved insufficient to develop a comprehensive carrying capacity framework that would allow for undisputable determinations of whether future development scenarios fall within the carrying capacity of the Florida Keys. The marine module, the most data- deficient, was subsequently removed from the CCIAM. The FKCCS recommended four main guidelines for future development in the Florida Keys: Prevent encroachment into native habitat. A wealth of evidence shows that terrestrial habitats and species have been severely affected by development and further impacts would only exacerbate an already untenable condition. Continue and intensify existing programs. Many initiatives to improve environmental conditions and quality of life exist in the Florida Keys. They include land acquisition programs, the wastewater and stormwater master plans, ongoing research and management activities in the Florida Keys National Marine Sanctuary, and restoration efforts throughout the Florida Keys. If further development is to occur, focus on redevelopment and infill. Opportunities for additional growth with small, potentially acceptable, additional environmental impacts may occur in areas ripe for redevelopment or already disturbed. Increase efforts to manage the resources. Habitat management efforts in the Keys could increase to effectively preserve and improve the ecological values of remaining terrestrial ecosystems. Partnership Agreement While preparing the Assessment Report for 2003, the DCA Secretary concluded that the existing policy direction, consisting of imposition of the Work Program by the Administration Commission and reduction of residential permits, due to lack of substantial progress, was not sufficient to solve the problems facing the Florida Keys. The Assessment Report described difficulties and delays in implementing the Work Program. Most of the sewage treatment facilities contemplated by the Work Program were not constructed and valuable upland habitat continued to be developed. On December 16, 2003, the Administration Commission concluded that Monroe County had not made substantial progress and directed the DCA "to determine changes that would be necessary to the comprehensive plan to fully implement the requirements of the Work Program[,] as well as habitat protection provisions." The Administration Commission also accepted the staff recommendation that it "determine substantial progress has been made for the City of Marathon, and that some permits will be provided back to the City of Marathon," the number to be determined at the Administration Commission's January 27, 2004, meeting. The DCA approached the Florida Keys local governments and community-based organizations and proposed a Partnership Agreement to "begin implementation of the Work Program associated with the Florida Keys Protection Act." The DCA Secretary addressed the governing boards of the Florida Keys' local governments concerning the proposed Partnership Agreement. Monroe County, the City of Marathon, and the Village of Islamorada adopted resolutions supporting the partnership proposal. By letter dated February 25, 2004, the DCA Secretary requested that the Governor, as a member of the Administration Commission, authorize the Administration Commission staff to initiate rulemaking to amend the Comprehensive Plans of Monroe County and the City of Marathon. According to the letter, this action was requested based upon a series of significant commitments made by each of these local governments which addressed issues related to habitat protection, affordable housing, wastewater and stormwater management projects, land acquisition, and nutrient credits. The letter also noted the following: A complete follow-through on these commitments would mean over $410 million would be spent in the coming years to address these issues in the Florida Keys. Habitat protection will be increased, environmentally-sensitive hammock and pinelands would be purchased, new wastewater and stormwater management projects would be initiated, and 230 units of affordable housing would be made available for residents of the Florida Keys. * * * In essence, we have developed proposals that allow additional units primarily for affordable housing in the Florida Keys, but also would ensure the most pressing issues will be jointly addressed by local and state government. Consistent with the February 25, 2004, letter, the Partnership Agreement consists of commitments by the Florida Keys' local governments and several state agencies to address habitat protection, wastewater and stormwater treatment, affordable housing, and hurricane evacuation. At its March 9, 2004, meeting, the Administration Commission accepted the DCA's recommendation to initiate rulemaking to implement the Partnership Agreement. The Proposed Rules 29. Proposed Rules 28-18.210, 28-20.110, and 28-20.120 were published in the Florida Administrative Weekly on July 16, 2004.5 According to the published notice, the purpose of Proposed Rule 28-18.210 is to amend Policy 101.2.14 of the Marathon Comprehensive Plan to address building permit allocations by increasing the annual residential permitting cap and specifying allocations authorized for market rate and affordable housing, restoring certain allocations authorized for market rate and affordable housing, authorizing certain unused rate of growth ordinance allocations to roll forward, and deleting the requirement for nutrient credits upon a date certain. The notice also provides that the Proposed Rule amends the Work Program set forth in Policy 101.2.14 of the Marathon Comprehensive Plan to establish Year Eight and Year Nine to address tasks not yet completed in the original Work Program. The published notice states that the purpose of Proposed Rules 28-20.110 and 28-20.120 is to amend Policy 101.2.13 of the Monroe County Comprehensive Plan to address building permit allocations by increasing the annual residential permitting cap and specifying allocations authorized for market rate and affordable housing, restoring certain allocations previously reduced to be targeted for affordable housing, authorizing certain unused rate of growth ordinance allocations to roll forward, and deleting the requirement for nutrient reduction credits upon a date certain. The notice also provides that the proposed rules amend the Work Program in Policy 101.2.13 of the Monroe County Comprehensive Plan to establish Work Program provisions for Year Eight, Year Nine, and Year Ten to address tasks not yet completed in the original Work Program. Finally, the notice states that the Proposed Rule amendments address the adoption of necessary land development regulations. The published notice cites Subsection 380.0552(9), Florida Statutes, as the specific authority for the Administration Commission's promulgating the Proposed Rules and Section 380.0552, Florida Statutes, as the law implemented. Petitioners challenge portions of Proposed Rule 28-18.210, which will amend the Marathon Comprehensive Plan and portions of Proposed Rules 28-20.110 and 28-20.120,6 which will amend the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations on the basis that they constituted invalid exercises of delegated legislative authority. Petitioners contend that the proposed rules should comply with Section 380.0552 and Chapters 163 and 380, Florida Statutes, and, therefore, should be analyzed for such compliance in this proceeding. Notwithstanding Petitioners contention to the contrary, for the reason stated in paragraph 199 below, Proposed Rules 28-18.210, 28-20.110, and 28-20.120 will be analyzed based on their consistency with Section 380.0552, Florida Statutes, because that is the provision which the proposed rules explicitly purport to implement. The published notice does not specify the subsection of Section 380.0552, Florida Statutes, that the proposed rules implement. However, the parties agree that the proposed rules must be consistent with Subsection 380.0552(7), Florida Statutes, which set forth the Principles for Guiding Development. Restoration/Increase of ROGO Allocations The Comprehensive Plans for Monroe County and the City of Marathon include a Permit Allocation System, under which Monroe County was originally allocated 255 permits per year for new residential units. As noted in paragraph 18 above, in 1999, the Administration Commission determined that substantial progress on the Work Program had not been accomplished and adopted a rule reducing the annual allocation of permits by 20 percent. After the incorporation of the Village of Islamorada and Marathon, and a voluntary reduction by the Village of Islamorada, the current annual allocation of residential development permits is 158 for Monroe County, 24 for Marathon, and 14 for the Village of Islamorada. Proposed Rule 28-20.110(1) amends Policy 101.2.13 of the Monroe County Comprehensive Plan by increasing the annual unit cap of 158 to 197, thereby restoring the original level of permits issued for new residential development under the Rate of Growth Ordinance ("ROGO"). The proposed rule requires that "[e]ach year's ROGO allocation of 197 new units shall be split with a minimum of 71 units allocated for affordable housing in perpetuity and market rate allocations not to exceed 126 new units per year." Proposed Rule 28-18.210 amends Policy 101.2.14 of the Marathon Comprehensive Plan by increasing the maximum number of permits for new residential units from 24 to 30 per year, thereby, restoring the original level of permits per year for new residential development under ROGO. The proposed rule requires that "[e]ach year's ROGO allocation of 30 units shall consist of 24 market rate and 6 affordable units" and that the affordable housing "remain as affordable housing in perpetuity." In addition to restoring the number of permits for new development to the original levels, Proposed Rule 28-20.110 amends the Comprehensive Plans of Monroe County and Marathon to restore available permit allocations that were unused in previous years and to allow unused ROGO allocations to be allocated in subsequent years. Proposed Rule 28-20.110 adds a new provision to the Monroe County Comprehensive Plan, providing that "effective July 12, 2004, 140 ROGO allocations, which represent unused reductions for ROGO Years Nine through 12, and 25 units lost in Year Ten due to lack of nutrient credits, are reallocated to the County exclusively for affordable housing purposes." Proposed Rule 28-18.210 adds a provision to the Marathon Comprehensive Plan that "effective July 12, 2004, 65 ROGO allocations, which represent unused ROGO allocations for ROGO Years 9 through 12, are to be reallocated to the City exclusively for affordable housing." Advancing/Borrowing Nutrient Credits The existing Comprehensive Plans of Monroe County and the City of Marathon include a nutrient credit system. According to the Monroe County Comprehensive Plan, nutrient reduction credits are earned when existing treatment systems are upgraded. The amount of nutrient reduction credits earned correlate to the type of treatment system to which an old system is upgraded. Thus, if a treatment system is upgraded to the "best centralized system" or the "advanced wastewater treatment system," Monroe County would earn the most nutrient credits possible. For example, elimination of a cesspit by connection to a centralized advanced wastewater treatment system earns 1.5 nutrient credits, and the elimination of a substandard on-site disposal system by connection to a centralized secondary treatment system earns 0.5 nutrient credits. Under the existing Comprehensive Plans of Monroe County and the City of Marathon, development permits for new residential development can only be issued if a nutrient reduction credit has been earned. The requirement that adequate nutrient credits be earned prior to issuance of permits is to mitigate for nutrient impacts of new residential development. However, Proposed Rules 28-18.210 and 28-20.110 provide that Monroe County and the City of Marathon will be permitted to "borrow" nutrient credits from the pool of nutrient credits that are anticipated from the construction and/or completing of sewage treatment facilities. The existing Comprehensive Plans of Monroe County and the City of Marathon provide that nutrient reduction credits are earned by the construction of the Little Venice system according to the schedules prescribed in the Comprehensive Plans. The schedules in the Comprehensive Plans provide that "213 of the total credits estimated to be available from the full operation of the system shall be earned when the wastewater permit is issued, the design/build contract for the system has been fully executed and construction of the system has commenced." The Comprehensive Plans also provide that all the remaining available credits shall be earned when the construction of the Little Venice System is complete, the collection system lines have been installed, and the final total of credits available from the operation of the systems has been calculated. Proposed Rules 28-20.110 and 28-18.210 amend the Comprehensive Plans of Monroe County and Marathon by allowing 213 of the total credits estimated to be available from the full operation of the Little Venice system to be earned, effective July 13, 2003. The proposed rules also provide that when the Little Venice system is completed, "[t]he total credits available shall be reduced by the 213 [credits] advanced in the year 2003." Proposed Rule 28-20.110 amends the Monroe County Comprehensive Plan by allocating 41 nutrient credits for market rate units and 193 nutrient credits for affordable housing units to Monroe County. The Proposed Rule 28-20.110 provides that the 41 nutrient credits will be subtracted from the nutrient credits subsequently earned from hookups to the Key West Resort Utilities Wastewater Facility ("Key West Resort Utilities"). The 193 nutrient credits will be subtracted from hookups to the Key West Resort Utilities, Bay Point, and Key Largo Wastewater Facilities. Repeal of Nutrient Reduction Provision As described in paragraph 42 above, the existing Comprehensive Plans of Monroe County and the City of Marathon have mandatory nutrient provisions that require nutrient credits to be earned prior to issuance of a permit for new residential units. Proposed Rules 28-20.110 and 28-18.210 amend the Comprehensive Plans of Monroe County and the City of Marathon by repealing the mandatory nutrient credit provisions. Pursuant to the proposed rules, "effective July 13, 2005, no nutrient credits shall be required if the local government has made satisfactory progress as determined by the Administration Commission in meeting the deadlines established by the Work Program as adopted by rule after March 15, 2004." Challenges to Increase/Restoration of Permits, Advancing Nutrient Credits, and Repeal of Nutrient Reduction Provision Petitioners contend that the increase in new residential permits is arbitrary and capricious and contravenes the law implemented because it will increase development even though the identified thresholds for growth in the Florida Keys--water quality, terrestrial habitat, and evacuation times-- have been exceeded and will "worsen" the water quality. Petitioners challenge the provision which allows the borrowing or awarding of nutrient credits before wastewater projects are completed as arbitrary and capricious, because it will allow a net increase in the nutrient impacts into the nearshore waters of the Florida Keys and will "worsen" the water quality. Proposed Rules 28-20.110(1) and 28-18.210 increase the number of permits for new residential units from the preceding years. However, the number of permits to be issued under the Monroe County Comprehensive Plan has not increased. Rather, the permits will be issued in a shorter time frame and without being subject to the previous conditions. Even though increased development could result in an increase in the nutrient impacts into the nearshore waters of the Florida Keys, the adverse effect of such nutrient loading is offset by the adequate treatment of wastewater and stormwater runoff. To address the problem of nutrient loading, the Proposed Rules 28-20.110 and 28-18.210 extend the years of the Work Programs and include in those programs tasks, such as construction and completion of wastewater facilities, as well as financing for those projects. Based on the commitments of Monroe County and the City of Marathon in the Partnership Agreement, there is a reasonable expectation that the projects included in the Work Program of the Proposed Rules will be completed. When completed, the wastewater treatment facilities will provide nutrient credits. In anticipation of the completion of the wastewater treatment facilities, Proposed Rules 28-20.110 and 28-18.210 restore the annual permits for new residential units to their original levels and allow previous unused ROGO allocations to be allocated. The Proposed Rules provide that the nutrient credits for these allocations will be borrowed from the pool of nutrient credits that are anticipated from the planned construction and completion of wastewater facilities. Petitioners' contention that the repeal of the mandatory nutrient reduction credit provision is arbitrary and capricious and contravenes the law implemented because such repeal allows the water quality to worsen, is inconsistent with the "no net nutrient" provision of the Comprehensive Plans and is unjustified given that the nutrient pollution has increased since the nutrient credit provisions were adopted. Petitioners also contend that the repeal of the nutrient credit provision is arbitrary and capricious because the repeal is effective on a date certain without further action and without regard for whether it is justified. Proposed Rules 28-20.110 and 28.18-210 repeal the mandatory nutrient reduction credit provisions of the Comprehensive Plans, but the condition precedent to the repeal is the Administration Commission's making a determination that Monroe County and the City of Marathon have "made satisfactory progress . . . in meeting deadlines established by the [new] Work Program." This determination must be made prior to the repeal going into effect. Presumably, the tasks in the Work Program for which satisfactory progress must be made are those relevant and reasonably related to and which result in nutrient credits. Contrary to Petitioners' assertion, the repeal of the mandatory nutrient credit provision does not automatically become effective on the date prescribed in the proposed amendments. Instead, the repeal is contingent on Monroe County's and the City of Marathon's making "satisfactory progress." The term "satisfactory" is not vague as asserted by Petitioners. In the context of Proposed Rules 28-20.110 and 28-18.210, "satisfactory" would be given its common and ordinary meaning, which is "sufficient to meet a demand or requirement."7 Annual Reporting Requirement The existing Comprehensive Plans for Monroe County and the City of Marathon provide that "beginning September 30, 2003, and each year thereafter, [the respective local government] Monroe County and the [DCA] shall report to the Administration Commission documenting the degree to which the Work Program objectives have been achieved." Proposed Rules 28-20.110 and 28-18.210, will modify the annual reporting requirements in the Monroe County and Marathon Comprehensive Plans. The proposed amended provision, which is underlined, and the existing provision are as follows: Beginning September 30, 2003, and each year of the work program thereafter, Monroe County and the Department of Community Affairs shall report to the Administration Commission documenting the degree to which the work program objectives for that year have been achieved. The report for years seven and eight shall be combined and provided to the Administration Commission by September 30, 2005. The Commission shall consider the findings and recommendations provided in those reports and shall determine whether substantial progress has been achieved toward accomplishing the tasks of the work program. Petitioners contend that the proposed rules, which delete the requirement for Monroe County and for the City of Marathon to submit the September 2004 progress report to the Administration Commission, are arbitrary and capricious. Petitioners assert that by deleting the requirement for the 2004 annual progress report, the proposed rules fail to establish an annual safeguard that is required to ensure that the environmental conditions and infrastructure limitation that the annual Work Program is designed to resolve, do not worsen. The proposed rules delete the requirement that Monroe County and Marathon submit their respective reports in September 2004 and delay submission of that report by a year. The time spent negotiating the Partnership Agreement and the proposed changes to the Monroe County Comprehensive Plans and the Land Development Regulations left little time for Monroe County and the City of Marathon to implement the new Work Programs. Moreover, the DCA and the Administration Commission would have had too short a time period in which to judge whether Monroe County and Marathon had made substantial progress. By combining the reports for Years Seven and Eight of the Work Program, the Administration Commission can expect a meaningful report on Monroe County's and the City of Marathon's progress in implementing their respective Work Programs. Monroe County Work Program Under Proposed Rules Proposed Rule 28-20.110 amends the Work Program Policy 101.2.13 of the Monroe County Comprehensive Plan by adding Years Eight, Nine, and Ten to the existing Work Program. Many of the tasks included therein address and are related to wastewater facilities, habitat protection, affordable housing, and hurricane evacuation and implement the Partnership Agreement. Year Eight of the Work Program requires that Monroe County and other designated agencies perform the specified tasks and provide, in relevant part, the following: Year Eight (July 13, 2004 through July 12, 2005) Review and revise (as necessary) the Conservation and Natural Areas Map. Initiate acquisition strategy for lands identified outside the Conservation and Natural Areas identified as worthy of protection. Begin public hearings for Conservation and Natural Areas boundaries. Conclude public hearings for the adoption of the amended Conservation and Natural Areas Boundaries. Adopt an ordinance to implement a moratorium on ROGO/NROGO applications that involves the clearing of any portion of an upland tropical hardwood hammock or pinelands habitat contained in a tropical hardwood hammock or pinelands patch of two or more acres in size located within a Conservation and Natural Area. Adopt amendments to the comprehensive plan and land development regulations to enact overlay designations, and eliminate or revise the Habitat Evaluation Index, and modify the ROGO/NROGO system to guide development away from environmentally sensitive lands. Amend land development regulations to prohibit the designation of Conservation and Natural Areas (Tier 1) as a receiver site for ROGO exempt development from sender sites; and to further limit clearing of upland native habitat that may occur in the Natural Areas (Tier I) and the Transition and Sprawl Reduction Area (Tier II) upon designation by the County. Develop Land Acquisition and Management Master Plan and address both funding and management strategies. Provide $40 million in financing secured by infrastructure tax for wastewater facilities. Begin construction of wastewater plants or laying of collection lines for Baypoint, Conch Key and Key Largo Trailer Village/Key Largo Park. Ensure the connection for up to 1,350 EDUs [equivalent development units] at Stock Island to Key West Resort Utilities. Complete the Lower Keys and Key Largo feasibility study. Complete projects identified in the Storm Water Management Master Plan. Evaluate and implement strategies to ensure that affordable housing remains affordable in perpetuity for future generations. Establish a partnership with non-profit organizations in order to construct affordable housing using additional state funds. Identify potential acquisition sites for affordable housing proposals and include in the Land Acquisition Master Plan. Provide up to $10 million in bond financing from the Tourist Impact Tax for acquisition of land for workforce housing and affordable housing sites. Complete a comprehensive analysis of hurricane evacuation issues in the Florida Keys and develop strategies to reduce actual hurricane clearance times and, thereby, reduce potential loss of life from hurricanes. As discussed below, several of the tasks in Year Eight of the Work Program implement parts of Goal 105 of the Monroe County Comprehensive Plan. Goal 105 reads: Monroe County shall undertake a comprehensive land acquisition program and smart growth initiatives in conjunction with its Livable CommuniKeys Program in a manner that recognizes the finite capacity for new development in the Florida Keys by providing economic and housing opportunities for residents without compromising the biodiversity of the natural environment and the continued ability of the natural and man-made systems to sustain livable communities in the Florida Keys for future generations. Goal 105, also referred to as the "Smart Growth Goal," provides a framework to implement the FKCCS and a 20-year land acquisition program. The initial phase of implementing Goal 105 calls for the drafting and adoption of "Tier Maps" to be used as guidance for the Monroe County's Land Acquisition Program. Pursuant to Policy 105.2.1 of the Monroe County Comprehensive Plan, the Tier maps will designate and map properties into one of the following three general categories for purposes of Monroe County's Land Acquisition Program and the smart growth initiatives: Natural Area (Tier I); Transition and Sprawl Reduction Area (Tier II); and Infill Area (Tier III). Tier I property is property where all or a significant portion of the land is characterized as environmentally sensitive by policies of the Monroe County Comprehensive Plan and applicable habitat conservation plan. Tier I is to be designated as a Natural Area. New development is to be severely restricted in Tier I. Tier II is any geographic property where scattered groups and fragments of environmentally-sensitive lands, as defined by the Comprehensive Plan, may be found and where subdivisions are not predominantly developed. New development is to be discouraged in Tier II, which is to be designated as Transition and Sprawl Area. Tier III is property where a significant portion of land is not characterized as environmentally sensitive, as defined by the Monroe County Comprehensive Plan, where existing platted subdivisions are substantially developed, served by complete infrastructure facilities, within close proximity to established commercial areas or where a concentration of non-residential uses exist. New development and re-development are to be highly encouraged in Tier III, which is to be designated as Infill Area. Petitioners contend that Task A, which requires Monroe County to "review and revise [as necessary] the Conservation and Natural Areas ["CNA"] Map, vests unbridled discretion to the County to amend the CNA map without adequate standards or criteria." Further, Petitioners assert that Task A does not identify the purpose for which the CNA map is to be used. Based on this assertion, Petitioners contend that Task A is arbitrary and capricious and contravenes law. Task A will assist in the implementation of the Comprehensive Plan by requiring Monroe County to review and revise the CNA map. In reviewing Task A, it is clear that the county must adhere to the criteria prescribed in Goal 105 of the existing Monroe County Comprehensive Plan. When Task A is read together with Goal 105 and its related policies, it is clear that the purpose of Task A is to provide guidance for the Monroe County Land Acquisition Program. As a part of the review and revision process, the Partnership Agreement, which Task A implements, provides that the Monroe County staff should prepare the CNA map utilizing Florida Marine Source Resources Institute ADID maps, the most recent aerial photographs, site visits as necessary, and obtain input from DCA and the public. Moreover, when Task A is read with Task B, and other relevant parts of the Monroe County Comprehensive Plan, it is clear that a CNA map is to be used to implement Goal 105 of the Monroe County Comprehensive Plan, which is related to land acquisition and "smart growth initiatives." Petitioners assert that Task B, which requires Monroe County to "initiate acquisition strategy for lands identified outside the [CNA] boundaries," is arbitrary and capricious and contravenes the law implemented, because it provides no standards or criteria. Task B is consistent with Policy 105.2.1 of Goal 105 of the Monroe County Comprehensive Plan. The Partnership Agreement consistent with Goal 105 provides that Monroe County will identify lands outside the CNA boundaries for acquisition and target for purchase appropriate environmentally-sensitive lands that are contained within upland habitat of two acres or more outside the CNA. Task C requires Monroe County to "begin public hearings for [CNA]." Task D requires Monroe County to conclude the public hearings for adoption of the amended [CNA] boundaries. Petitioners contend that Tasks C and D are arbitrary and capricious and contravene the law implemented, because they do not require that an end result be achieved as a result of these public meetings. When the provisions of Task C and Task D are read together, with Goal 105 and the relevant provisions of the Partnership Agreement, it is clear that the end result sought as a result of the public hearings is to receive public comment regarding the identification of lands to be included in the CNA. Furthermore, this is a reasonable meaning of Tasks C and D in light of the well-known purpose of public hearings. Petitioners challenge Task E, which requires Monroe County to "adopt an ordinance to implement a moratorium on ROGO/NROGO applications that involves the clearing of any portion of an upland tropical hardwood hammock or pinelands habitat contained in a tropical hardwood hammock or pinelands patch of two or more acres in size located within a [CNA]." The purpose of the moratorium is to prevent impacts to native habitat until Monroe County adopts permanent regulations and amendments. Petitioners contend that Task E of Year Eight of the Work Program, which requires Monroe County to "adopt an ordinance to implement a moratorium on ROGO/NROGO applications that involve the clearing of any portion of an upland hardwood hammock or pinelands habitat contained in a tropical hardwood hammock or pinelands patch of two acres or more . . . within a [CNA]," is arbitrary and capricious and contravenes the law implemented. Petitioners assert that the criteria for the interim ordinance required fails to protect all hammock and pineland, does not protect enough hammock to ensure that the carrying capacity of the Florida Keys terrestrial habitat to sustain degradation and loss is not exceeded, does not require that the interim protections last until replaced by permanent ones, and does not apply to ROGO-exempt allocations. The criteria for the interim ordinance required by Task E is reasonable and will result in strengthening habitat protection in the areas specified in that provision. The fact that Task E authorizes the adoption of an ordinance that protects less than "all" hammock and pineland, does not make the proposed rule arbitrary and capricious, nor does the proposed rule contravene the law implemented. Petitioners contend that Task F, which requires Monroe County to "[a]dopt amendments to the comprehensive plan and land development regulations to enact overlay designations, and eliminate or revise the Habitat Evaluation Index ["HEI"], and modify the ROGO/NROGO system to guide development away from environmentally sensitive lands," is arbitrary and capricious and contravenes the law implemented. Petitioners claim that the standard set forth in Task F, "to guide development away from environmentally sensitive lands," is no more specific than is statutory language. Petitioners assert that the proposed rule should specify (1) habitat types, patch sizes and other characteristics of the areas to which regulations will apply, and (2) the exact nature of the regulation (i.e. a prohibition on direct or secondary impacts, the application of negative points or open space rations, etc.) that will be relied upon to guide development away from such areas. Task F requires Monroe County to adopt amendments to the Comprehensive Plan and Land Development Regulations to enact the overlay designations requiring Monroe County to implement Policy 105.2.2 of the Monroe County Comprehensive Plan. Task F will implement Goal 105 of the Monroe County Comprehensive Plan. This task will identify areas to which future development will be directed. Also, the overlay designations will give property owners more certainty with respect to whether they can or cannot develop their property. The requirement in Task F, that the HEI be reviewed or eliminated, is reasonable in light of Goal 105 of the Monroe County Comprehensive Plan. The HEI is currently used by Monroe County to evaluate the environmental sensitivity of land and its suitability for development and acquisition. The HEI requires lot-by-lot evaluations, which fail to take into account secondary impact of development and has resulted in the loss of valuable habitat. The Tier System in Goal 105 is designed to move Monroe County away from the existing HEI. Implementation of Goal 105 requires that the existing HEI be eliminated or revised. Task G of Year Eight of the Work Program requires Monroe County to "amend land development regulations to prohibit the designation of [CNA] (Tier 1) as a receiver site for ROGO exempt development from sender sites; and to further limit clearing of upland native habitat that may occur in the [CNA] (Tier I) and the Transition and Sprawl Reduction Area (Tier II) upon designation by the County." Petitioners contend that Task G is arbitrary and capricious and contravenes the law implemented because it fails to permanently protect even that habitat which Monroe County claims is most important to protect, allows the geographic scope of the contemplated rules to be defined in the future without stated criteria or standards, and allows an unnecessary delay in the adoption of protections which the data and legal requirements demonstrate should have been adopted two years earlier. Task G is intended to strengthen protection of habitat by adopting land development regulations to prohibit development in specified areas and to further limit clearing in designated areas. Goal 105, specifically, provides guidance as to the standards that such regulations must follow in Policy 105.2.1 of the Monroe County Comprehensive Plan. Petitioners contend that Task K of Year Eight of the Work Program requiring Monroe County to ensure the connection for up to 1,350 units at Stock Island to Key West Resort Utilities, is arbitrary and capricious and contravenes the law implemented. Petitioners charge that the requirement in the proposed rule is vague and could be met by simply connecting one home to the referenced wastewater utility to remedy a documented, serious water quality problem. When the purpose of Task K is considered, the reasonable meaning of the provision is that the task requires that Monroe County connect approximately 1,350 units to the designated facility. Petitioners contend that Task M of Year Eight of the Work Program, which requires Monroe County to "complete projects identified in the Stormwater Management Master Plan," is arbitrary and capricious and contravenes the law implemented. In support of this contention, Petitioners assert that the Proposed Rule does not identify the name or number of stormwater projects that are to be completed. Petitioners argue that by referring only to "projects," without specifying the name or number of the projects to be completed, the Proposed Rule may require that only a minimum of two projects be completed. The reasonable interpretation of Task M is that Monroe County is required to complete all the remaining projects identified in the Stormwater Management Master Plan. This meaning is supported by a review of related tasks in the previous years of the Work Program. For example, Year Six of the Work Program required Monroe County and other designated agencies to "initiate construction of selected projects as identified in the Stormwater Management Master Plan." Year Seven of the Work Program required that Monroe County and other agencies "continue implementing selected projects identified in the Stormwater Management Master Plan." Petitioners contend that Task P in Year Eight of the Work Program, which requires Monroe County to "provide up to $10 million in bond financing from the Tourist Impact Tax for acquisition of land for workforce housing and affordable housing sites," is arbitrary and capricious and contravenes the law implemented. As a basis for this contention, Petitioners claim that Task P sets a vague requirement which could be met by simply providing $1.00 in bond financing to provide a need which the State and Monroe County claim is important enough to justify the permitting increase allowed by Proposed Rules 28-18.210 and 28-20.110. Contrary to Petitioners' assertions, the requirement to provide $10 million in bond financing could not be met by providing $1.00 in bond financing. The $10 million figure represents the approximate amount of bond financing that will be provided. For the reasons stated above, it is not possible to include an exact amount in this Work Program requirement. The Work Program for Year Nine provides that the following tasks be done between July 13, 2005, through July 12, 2006: In coordination with the Florida Key Aquaduct Authority and Key Largo Sewer District, initiate the process to obtain $80 million in bond financing secured by connection fees. Secure site for lower Keys and Key Largo wastewater facilities. Petitioners contend that Task A for Year Nine for the Work Program, which requires that Monroe County, "in coordination with the Florida Keys Aqueduct Authority and the Key Largo Sewer District, initiate the process to obtain $80 million in bond financing secured by connection fees," is arbitrary and capricious and contravenes the law implemented. Petitioners contend that Task A, which requires that Monroe County only "initiate" the process necessary to obtain the required bond financing, and does not require that the funds be secured and dedicated to actual improvements, delays funding to remedy a critical water quality problem. The reasonable meaning of the provision in Task A, that Monroe County will initiate the process to obtain "80 million in bond financing secured by connection fees," is that Monroe County will take all steps legally necessary to accomplish obtaining the bond financing. Petitioners contend that Task B of Year Nine of the Work Program, which requires Monroe County to "secure a site for lower Keys and Key Largo wastewater facilities," is arbitrary and capricious and contravenes the law implemented, because it delays an important remedy to a critical water quality problem. Task B reasonably requires that one of the first steps that must be taken prior to constructing any wastewater facility is to secure a site. Irrespective of the need for the wastewater facilities specified in Task B, unless a site is secured, no construction can occur. Proposed Rule 28-20.110(1), which amends Policy of the Monroe County Comprehensive Plan by adding Year Ten to the Work Program, provides the following: Year Ten (July 13, 2006 through July 12, 2007) Award Contract for design, construction, and operation of lower Keys and Key Largo wastewater facilities. Begin construction of the lower Keys and Key Largo wastewater plants. Initiate connections to lower keys and Key Largo wastewater systems. Complete construction and hookups for Bay Point, Conch Key and Key Largo Trailer Village/Key Largo Park. Obtain $80M in bond financing secured by connection fees Petitioners contend that Task A, which requires Monroe County to award a contract for design, construction, and operation of the lower Florida Keys and Key Largo wastewater facilities, is arbitrary and capricious and contravenes the law implemented, because it delays an important remedy to a critical water quality problem. Petitioners also contend that Task D, which requires that construction and hookups for specified areas be completed, and Task E, which requires Monroe County to obtain $80 million in bond financing secured by connection fees, are arbitrary and capricious and contravene the law implemented. That Tasks A, D, and E are required to be completed in Year Ten of the Work Program, between July 13, 2006, and July 12, 2007, is reasonable in view of the steps that must be taken prior to completing the responsibilities provided in those tasks. Petitioners contend that Task B, which requires Monroe County to "begin construction of the lower Florida Keys and Key Largo Trailer Village/Key Largo Park wastewater plants" between July 13, 2006, and July 12, 2007, is arbitrary and capricious and contravenes the law implemented. Petitioners assert that this portion of Proposed Rule 28-20.110 delays an important remedy to a critical water quality problem and does not require the completion of construction or the hookup and operation of the necessary facility. Task B of the Work Program, to begin construction of the lower Florida Keys and Key Largo wastewater plants, reasonably and logically follows the task in the preceding work year that required Monroe County to secure a site for the lower Florida Keys and Key Largo wastewater facilities. Given this chronology, it is reasonable that Task B does not require that the specified wastewater facilities be completed and fully operational the same year that construction begins. Petitioners contend that Task C of Year Ten of the Work Program, which requires Monroe County and Largo Sewer District to "initiate connections to lower Keys and Key Largo wastewater systems," is arbitrary and capricious and contravenes the law implemented. As a basis for this contention, Petitioners assert that Task C does not require the completion of connections and operation of the system, but requires only the undefined "initiation" of connections. Task C, which requires Monroe County to "initiate connections" to the lower Florida Keys and Key Largo wastewater facilities, is not arbitrary and capricious. Given the purpose of this task, this provision reasonably requires Monroe County to begin connecting units to the wastewater facilities. Even without a precise number, the reviewing agencies can evaluate the Work Program for Year Ten, including Task C, and determine if Monroe County has made substantial progress. City of Marathon Work Program Under Proposed Rules Proposed Rule 28-18.210 adds Year Eight and Year Nine to the existing Work Program in Policy 101.2.14 of the Marathon Comprehensive Plan. The tasks in the Work Program, many of which implement the Partnership Agreement, include tasks related to the construction of wastewater facilities, affordable housing, and hurricane evacuation. Year Eight of the Work Program of the Marathon Comprehensive Plan include, in relevant, part the following tasks: Year Eight (July 12, 2004 through July 12, 2005) Begin construction of wastewater collection lines for Little Venice Phase II by December 2004. Work with the Florida Keys Aqueduct Authority to initiate bond financing for citywide sewer facilities and to develop a schedule of events necessary to initiate process by December 2004. Develop and advertise a Request for Proposal for the design, construction, operation of Marathon Central Wastewater System by December 2004. Obtain necessary bond financing (60% of projected sewer cost) secured by connection fees by December 2004. Award contract for design, construction and operation of Marathon Central Wastewater System by December 2004. By January 2005, identify potential acquisition sites for affordable work force housing. Establish a partnership with non- profit organizations in order to construct affordable housing using additional state funds. Evaluate strategies to increase the time that affordable housing remains affordable; establish a maximum sales price for work force housing and establish a ceiling on down payments that are not subsidized by public programs; and amend comprehensive plan and/or land development regulations. * * * Develop a map or list of real estate numbers of lots containing environmentally sensitive lands in need of acquisition and submit to the Department of Community Affairs by July 2004. Assist the state in land acquisition efforts by establishing a land acquisition advisory committee to prioritize proposed acquisitions by July 2004. Complete a comprehensive analysis of hurricane evacuation issues in the Florida Keys and develop strategies to reduce actual hurricane clearance times and thereby reduce potential loss of life from hurricanes. Year Nine of the Work Program of the Marathon Comprehensive Plan includes in relevant part the following tasks: Year Nine (July 13, 2005 through July 12, 2006) Begin construction of Phase I of Marathon Central Wastewater System by January 2006. Evaluate wastewater master plan and indicate areas, if any, that will not receive central sewer. For any area that will not be served by central sewer, develop a septic tank inspection program and begin implementation of the program by September 2005. * * * E. Develop and implement a Building Permit Allocation System that discourages and limits development in environmentally sensitive areas within the proposed Marathon comprehensive plan by July 2005. Petitioners contend that Proposed Rule 28-18.210(1), which establishes the Work Program for Years Eight and Nine, is arbitrary and capricious and contravenes the law implemented, because it fails to adopt regulation and plan changes, or requires same, to protect terrestrial habitat to the extent shown necessary in the Carrying Capacity Study. The mere fact that the proposed Work Plan for Years Eight and Nine of the Marathon Comprehensive Plan does not address habitat protection, does not make those provisions arbitrary or capricious. Neither does it mean that they contravene law. In this case, it reflects that the Work Plan emphasizes other issues relevant to the City of Marathon Comprehensive Plan. Siting Utilities and Public Facilities The siting of public facilities in Monroe County is governed by existing Policy 101.12.4 in the Monroe County Comprehensive Plan. According to that policy, Monroe County requires that an "analyses be undertaken prior to finalizing plans for the siting of any new or significant expansion (greater than 25 percent) of any existing public facility," and that the analyses include "an assessment of needs, evaluation of alternative sites and design alternatives for the selected sites and assessment of direct and secondary impacts on surrounding land uses and natural resources." With regard to the assessment impacts on surrounding land uses and natural resources, existing Policy 101.12.4 provides the following: The assessment of impacts on surrounding land uses and natural resources will evaluate the extent to which the proposed public facility involves public expenditures in the coastal high hazard area and within environmentally sensitive areas, including disturbed salt marsh and buttonwood wetlands, undisturbed beach berm areas, units of the coastal barrier resources system, undisturbed uplands (particularly high quality hammock and pinelands), habitats of species considered to be threatened or endangered by the state and/or federal governments, consistent with 105.2.1 offshore islands, and Conservation Land Protection Areas. Proposed Rule 28-20.110(2) amends existing Policy 101.12.4, which deletes the term "Conservation Land Protection Areas" from the category of areas included as environmentally sensitive areas, as quoted above, and replaces it with the term, "Natural Areas (Tier I)." Proposed Rule 28-20.110(2) also adds the following provision to existing Policy 101.12.4. Except for passive recreational facilities on publicly owned land, no new public community or utility facility other than water distribution and sewer collection lines or lift stations, and the existing Key Largo Wastewater Treatment Facility, shall be allowed within the Natural Areas (Tier I) unless it can be accomplished without clearing of hammock or pinelands. Exceptions to this requirement may be made to protect the public health, safety and welfare, if all the following criteria are met: No reasonable alternatives exist to the proposed location; and The proposed location is approved by a super-majority of the Board of County Commissioners. Petitioners contend that Proposed Rule 28-20.110(2), discussed above, is arbitrary and capricious and contravenes the law implemented. Petitioners assert that the Proposed Rule allows the siting of public facilities in terrestrial habitats (CNA or Tier I) and also allows water distribution and sewer collection lines or lift stations to be built as a matter of right in a CNA or Tier I, contrary to the findings of the Carrying Capacity Study. Petitioners also contend that the provision in the Proposed Rule, discussed above, is vague, because it refers to the term "natural areas," but is intended to mean CNAs. In the recent past, a decision to site a sewage treatment facility in an environmentally sensitive hammock elicited considerable controversy. Ultimately, Monroe County and the DCA agreed that public facilities should not be located on environmentally sensitive land. The proposed change to Policy 101.12.4 strengthens the policy by requiring approval of a super majority of the Monroe County Board of County Commissioners (County Commission) for an exemption. This also adds specificity to the policy and provides more protection for natural areas and, thus, improves protection of environmentally- sensitive habitat. Contrary to Petitioners' assertion, the term "natural area" is not vague. The Monroe County Comprehensive Plan currently includes Goal 105, which describes a detailed land classification system. "Natural Area (Tier I)" represents natural areas that can be targeted for acquisition and is an updated term. On the other hand, the term "Conservation Land Protection Areas" refers to lands targeted for acquisition by federal and state agencies. ROGO Exemption for Public Facilities Both Monroe County and Marathon have a "Rate of Growth Ordinance," also known as ROGO. A site proposed for development is ranked based on the environmental sensitivity of the property and receives negative points for greater environmental sensitivity. A site proposed for development can also receive positive points for such things as providing its own water system or elevation above the minimum flood insurance elevation. Monroe County and the City of Marathon award their annual allocation of development permits to the top-scoring sites. Proposed Rule 28-20.110 will make several modifications to the ROGO point allocation system in the Monroe County Comprehensive Plan. Existing Policy 101.3.4 of the Monroe County Comprehensive Plan provides that "public facilities shall be exempted from the requirements of the Permit Allocation System for new non-residential development." The existing policy also provides that certain development activity by enumerated federally tax-exempt, not-for-profit organizations "may be exempted from the Permit Allocation System by the County Commission after review by the Planning Commission upon a finding that such activity will predominantly serve the County's non- transient population." Proposed Rule 28-20.110(3) amends existing Policy 101.3.4 by requiring that the County Commission make an additional finding as a condition of exempting certain development activity by certain federally tax-exempt not-for- profit organizations from the Permit Allocation System. Pursuant to the proposed rule, the County Commission must also find that the "development activity is not planned within an area proposed for acquisition by governmental agencies for the purpose of resource protection." Petitioners contend that the provision of Proposed Rule 28-20.110(3), discussed above, is arbitrary and capricious and contravenes the law implemented in that the development activities of the federally tax-exempt, not-for-profit organizations covered by the proposed rule allows development activity on some environmentally-sensitive areas and is inconsistent with the Carrying Capacity Study. Existing Policy 101.3.4 allows development activity by not-for-profit organizations without a permit allocation because such development does not include overnight accommodations which might impact hurricane evacuation. Since a permit allocation was not necessary, such development was not affected by the negative points awarded for development in an area proposed for acquisition for resource protection. However, some not-for- profit organizations proposed development in environmentally- sensitive areas. The proposed change will prevent ROGO-exempt development on such lands and improve the protection of environmentally-sensitive habitat. Lot Aggregation Existing Policy 101.5.4, of the Monroe County Comprehensive Plan addresses the issue of lot aggregation and provides that "points shall be assigned to Allocation Applications for proposed dwelling units, which include a voluntary reduction of density permitted as of right within subdivisions (residential units per legally platted, buildable lots) by aggregating vacant, legally platted, buildable lots." This policy sought to reduce density within subdivisions by awarding or assigning positive points to applicants who aggregated two or more contiguous, vacant, legally buildable lots. The existing policy motivated and allowed applicants to purchase any contiguous property in order to be awarded additional points and, thus, increased their chances of receiving an allocation, even if the lots were in areas targeted for public acquisition for resource protection. Proposed Rule 28-20.110(4) amends Policy 101.5.4, Subsection 3, by prohibiting the awarding of points to Allocation Applications "for lot aggregation within those areas proposed for acquisition by public agencies for the purpose of resource protection." Petitioners assert that the proposed rule is arbitrary and capricious and contravenes the law implemented because it fails to adequately protect terrestrial habitat to the extent shown necessary in the Carrying Capacity Study. The basis of Petitioners' assertion is that under Proposed Rule 28-20.110(4), an applicant can get positive points for aggregating habitat, if the area is not proposed for acquisition by public agencies for the purpose of resource protection. Proposed Rule 28-20.110(4) will direct applicants seeking to be awarded additional points for "lot aggregation away from areas proposed for acquisition by public agencies for resource protection and, thereby, improve protection of terrestrial habitat. Clearing of Native Vegetation Existing Policy 205.2.7 of the Monroe County Comprehensive Plan provides that the "clearing of native vegetation shall be limited to the immediate development area." Under the existing policy, an applicant with aggregated lots would demand to clear a portion of both lots, so that a large portion of all of the lots would be cleared. Proposed Rule 28-20.110 amends existing Policy 205.27.7 by adding the following provision relating to the clearing of vegetation areas where Allocation Applications have received points for lot aggregation: For applications that receive points for lot aggregation under the Permit Allocation System for residential development, clearing of vegetation shall be limited to the open space ratios in Policy 205.2.6 or 5,000 square feet, whichever is less. The clearing of vegetation for ROGO applications that receive points for lot aggregation is also addressed in Proposed Rules 28-20.120(4), which adds a new provision, Regulation 9.5-347(e), to the Monroe County Land Development Regulations. That new provision is as follows: Section 9.5-347 (e) Lot Aggregation and Clearing: For ROGO applications that receive points for lot aggregation under Section 9.5-122.3 (a)(3), clearing of vegetation shall be limited to the open space ratios in paragraph (b) above or five-thousand (5,000) square feet, whichever is less. Petitioners contend that Proposed Rules 28-20.110(b) and 28-20.120(4) are arbitrary and capricious and contravene the law implemented, because they do not prohibit clearing of aggregated lots and are inconsistent with the Principles Guiding Development and with the Carrying Capacity Study. Notwithstanding Petitioners' assertions, even though the proposed rules do not prohibit all clearing of native vegetation, they will limit the amount of clearing for applicants who receive a ROGO allocation based upon lot aggregation. Under Proposed Rule 28-20.120(4), the clearing will be limited to an amount necessary to construct a reasonably-sized house. Technical Coordination Letter Proposed Rule 28-20.110(5), which will add a new policy, Policy 101.5.11, to the Monroe County Comprehensive Plan, provides the following: If not listed in the document "Parcels Not Located in Threatened and Endangered Species Habitat and Not Subject to FWS Consultation", or involving minor development activity exempted by the U.S. Fish and Wildlife Service (USFWS)", any application for a ROGO or NROGO allocation shall contain a technical coordination letter from the USFWS. The County shall consider the recommendations of the USFWS's technical coordination letter in the issuance of the subject permit, except that if a low-effect habitat conservation plan is required by USFWS, the mitigation requirements of that plan shall be incorporated in the conditions of the permit. As a result of federal litigation, the U.S. Fish and Wildlife Service ("USFWS") created a list of "Parcels Not Located in Threatened and Endangered Species Habitat and Not Subject to FWS Consultation." Monroe County and the DCA have developed the practice of requiring a technical coordination letter from the USFWS for development on parcels that are not on that list or are not otherwise exempt from USFWS review. Proposed Rule 28-20.110(5) incorporates into the Monroe County Comprehensive Plan a current practice that resulted from federal litigation. Monroe County Land Development Regulation 9.5-120 Proposed Rule 28-20.120(1) adds the phrase "species of special concern" to the following terms defined in Section 9.5-120(b) of the Monroe County Land Development Regulation as shown by the underlining: (1) "Known habitat of threatened/endangered animal species or species of special concern"; (2) "Potential habitat of threatened/endangered animal species" or species of special concern; and (3) Wide-ranging threatened/endangered animal species or species of special concern. This proposed change will conform the land development regulations to the Monroe County Comprehensive Plan by expanding the list of species that result in negative points under the Permit Allocation System to include "species of special concern." Existing Regulation 9.5-120(b) includes in the definitions of "known habitat of threatened/endangered animal species" and "potential habitat of threatened/endangered species" the sentence, "The county's threatened and endangered species maps shall constitute prima facie evidence of the species unless determined otherwise by the director of environmental resources." The definition of "wide-ranging threatened/endangered animal species" includes the sentence, "The county's threatened and endangered species maps shall constitute prima facie evidence of wide-ranging threatened or endangered species unless determined otherwise by the director of environmental resources."8 Proposed Rule 28-20.120(1) amends Section 9.5-120(b) by deleting the phrase, "unless determined otherwise by the director of environmental resources" from the sentences quoted above. Proposed Rule 28-20.120(1)(a) adds the following provision to the section of Regulation 9.5-120, which defines the term "known habitat of threatened/endangered species or species of special concern": (1) . . . The county's threatened and endangered species maps shall constitute prima facie evidence of the species. Within areas designated for public acquisition for the purposes of resource protection, any threatened, endangered or species of special concern species observed on site while conducting a habitat evaluation shall be noted on the adopted Threatened and Endangered Species Maps. Such observations noted while conducting a habitat evaluation by County Staff Biologists, consultants certified by the County, conducting habitat evaluations, or state or federal agency representatives conducting field inspections shall also constitute evidence of species. Petitioners contend that the portion of Proposed Rule 28-20.120(1)(a), quoted above, is arbitrary and capricious. Petitioners assert that the Proposed Rule fails to account for potential observations of "known habitat of threatened/endangered animal species" on parcels that are not within "areas designated for public acquisition for purposes of resource protection." Also, Petitioners assert that the Proposed Rule limits observations of species required to be noted on the adopted threatened and endangered species maps to consultants or scientists on the parcel specifically to conduct an HEI analysis and fails to require field verification of the parcel. Proposed Rule 28.20.120(1)(a) will expand the circumstances in which observations of listed species will cause modification of the adopted threatened and endangered species maps. Under the present land development regulations, Monroe County modified the maps only if a county staff biologist observed a listed species and did not take into account other professional observations. Monroe County Land Development Regulation 9.5-122.3 Regulation 9.5-122.3(a)(8) of the Monroe County Land Development Regulations establishes and assigns evaluation criteria and point assignment for applications for proposed dwelling units in Monroe County. The existing regulation requires that negative points be assigned to applications that propose a dwelling unit within a "known habitat of a documented threatened/endangered species" and a "potential habitat of threatened/endangered species." Proposed Rule 28-20.120(2) adds the following language to Section 9.5-122.3.(a)(8),9 as shown by the underlined provisions: Point Assignment: Criteria: -10 An application which proposes a dwelling unit within a known habitat of a threatened/endangered species or a species of special concern. For species of special concern, negative points shall only be applied to areas designated for public acquisition for the purpose of resource protection. -5 An application which proposes a dwelling unit within a potential habitat of a threatened/endangered species or a species of special concern. For species of special concern, negative points shall only be applied to areas designated for public acquisition purposes of resource protection. Regulation 9.5-1223.(a)(8), as amended, adds "species of special concern" to the species covered by the existing regulation. Also, the amended regulation requires that negative points be assigned to applications that propose dwelling units in a habitat of a species of special concern, if the area is designated for public acquisition for purposes of resource protection. Petitioners contend that Proposed Rule 28-20.120(2), which amends Regulation 9.5-122.3(a)(8), is arbitrary and capricious. As a basis for this contention, Petitioners assert that even though the Proposed Rule increases situations where an application is awarded negative points, it decreases protection of habitat by limiting the negative point award only to habitat of special concern that have been designated for public acquisition. Proposed Rule 28-20.120(2) increases situations in which an application will be awarded negative points by adding "species of special concern" to the species covered by Regulation 9.5-122.3(a)(8). By awarding negative points as provided in the proposed rule, there is increased protection of habitat for species of special concern. Monroe County Land Development Regulation 9.5-336 Proposed Rule 28-20.120(3) amends Section 9.5-336(b) of the Monroe County Land Development Regulations as follows: (b) Review and Amendment: The existing conditions map may be refined to reflect conditions legally in existence on February 28, 1986. Such refinements shall be made pursuant to the procedures for typographical and drafting errors in section 9.5-511(e). The existing conditions map as referenced throughout this chapter is intended only to serve as a general guide to habitat types for the purpose of preliminary determination of regulatory requirements. The county biologist shall make the final determination of habitat type based upon field verification, except that existing conditions that reflect disturbed with hammock shall be classified as a low quality hammock. Unlawful conditions shall not be recognized when determining regulatory requirements. Petitioners contend that Proposed Rule 28-20.120(3) is arbitrary and capricious and contravenes the law implemented because it does not protect all habitat. The existing conditions map was prepared in the 1980s. Many of the sites designated on the map as "disturbed with hammock" have re-vegetated since then. The proposed change will protect those sites by requiring clustering away from the hammock and by controlling the amount of allowed clearing. Hurricane Evacuation Monroe County and Marathon face a unique hurricane evacuation challenge. There is only one road out of the Florida Keys, and everyone must use that road to evacuate. For a Category 3 or greater hurricane, all areas of the Florida Keys must be evacuated because of the low elevations, the vulnerability to storm surge, and the logistics of post-disaster recovery. The Monroe County Comprehensive Plan and the Marathon Comprehensive Plan currently state that each ". . . shall reduce hurricane evacuation clearance times to 24 hours by the year 2010." The 24-hour standard was adopted by the Administration Commission at the conclusion of prior litigation over the Monroe County Comprehensive Plan. The term "hurricane evacuation clearance time" refers to the time that the emergency managers must call the evacuation before the arrival of tropical storm force winds. Hurricane evacuation clearance time includes both the time for citizens to mobilize (i.e., get their affairs in order, shelter their houses, take care of their belongings), and the time to evacuate the vehicles from the roadway. Tropical storm force winds typically arrive eight to 12 hours before the eye of the storm. In order to achieve a 24-hour hurricane evacuation clearance time, emergency managers must call the evacuation 32 to 36 hours before the arrival of the eye. The DCA contracted with Miller Consulting, Inc., to create a computer model to estimate the actual hurricane evacuation clearance time for the Florida Keys. The Miller model provides the best available data and analysis for estimating the clearance time. The latest run of the Miller model performed by the DCA using 2000 Census data, supplemented with development permit data up to August 2004, provides the best estimate of clearance time. This run of the Miller model estimates a hurricane evacuation time of 23 hours and 56 minutes to reach the beginning of the Homestead Extension of the Florida Turnpike on the mainland, and 24 hours and 48 minutes to reach the hurricane shelter at Florida International University ("FIU"). The beginning of the Florida Turnpike in Florida City is the appropriate endpoint for hurricane evacuation clearance time estimates. Florida City is a point of relative safety outside of the Category 3 vulnerability zone. Florida City is also the point of dispersal for the Florida Keys, where evacuees disperse to any number of destinations, such as South Dade, the FIU shelter, or a hotel in Orlando. The Miller model estimates that if those permit allocations are restored and the annual allocation is increased as described above, the hurricane evacuation clearance time next year will be 24 hours and four minutes. This exceeds the 24-hour standard adopted by the Administration Commission. Proposed Rule 28-20.110 adds the following requirement to Year Eight of the Work Program in Policy 101.2.13 of the Monroe County Comprehensive Plan and Policy 101.2.12 of the Marathon Comprehensive Plan: "Complete a comprehensive analysis of hurricane evacuation issues in the Florida Keys and develop strategies to reduce actual hurricane clearance times and thereby reduce potential loss of life from hurricanes." The Florida Keys' local governments have begun the comprehensive analysis of hurricane evacuation issues by convening a workgroup comprised of local government-elected officials and staffed by the DCA. The hurricane workgroup is considering alternative strategies to reduce clearance times, such as constructing an additional outbound lane, using transportation system management to create a temporary outbound lane, updating the assumptions for the Miller model, reducing transient occupancy, or calling the evacuation earlier. The working group must develop a strategy that balances or accommodates development and also addresses hurricane clearance times. The hurricane workgroup must do much more than simply squeeze a few more minutes out of the Miller model. There are currently 13,000 to 14,000 vacant platted lots in the Florida Keys, which must be allowed to develop or must be purchased by government. On average, 3,000 dwelling units generates about one hour of clearance time. As an example, if 8,000 or so lots were purchased for habitat protection, then two more hours of clearance time will be needed to accommodate the remaining 5,000 or 6,000 lots. The hurricane workgroup must develop a strategy to handle the amount of development permitting that can be expected and a program to acquire the balance of the vacant lots. Affordable and Workforce Housing There is an affordable housing crisis in the Florida Keys. The geography of the Florida Keys hinders the ability of working families in the Florida Keys to find affordable housing. Unlike other expensive areas, such as Boca Raton, working families cannot find affordable housing nearby; the nearest area where housing prices are affordable is the mainland in Dade County. From 1999 to 2003, there were 693 allocations for affordable housing units in the Florida Keys. This amount includes all the allocations for affordable housing units for that time period, even those allocations for which affordable housing units were not constructed. The number of affordable housing allocations issued from 1999 to 2003 and the number being issued under the existing Comprehensive Plans of Monroe County and the City of Marathon, are not sufficient to address the need for affordable housing. The Partnership Agreements recognize and address the affordable housing shortfall by increasing the number of annual affordable housing allocations, restoring residential allocations lost in previous years, and providing funding for the acquisition of land and the construction of workforce housing. As discussed above, Proposed Rule 28-20.110 implements the provisions of the Partnership Agreement by amending the Monroe County Comprehensive Plan as follows: increasing the number of annual affordable housing allocations from 32 to 71; (2) reallocating 140 unused allocations to affordable housing; and (3) requiring that the affordable housing remain affordable in perpetuity. Additionally, as specified in paragraph 60, the Work Program in Proposed Rule 28-20.110 requires Monroe County to complete tasks which will be an improvement of the affordable housing situation in Monroe County. As discussed above, Proposed Rule 28-18.210 implements the Partnership Agreement by amending the City of Marathon Comprehensive Plan as follows: (1) increases the overall number, though not the percentage, of allocations for affordable housing to six; (2) restoring 65 unused allocations for affordable housing; and (3) requiring that the affordable housing remain affordable in perpetuity. Also, as specified in paragraph 101, Proposed Rule 28-18.210 requires the City of Marathon to complete tasks that will result in improving the affordable housing issues in the City of Marathon. Proposed Rules 28-20.110 and 28-18.210 only partially address the affordable housing shortage in the Florida Keys. Nonetheless, the proposed amendments to the Comprehensive Plans of Monroe County and the City of Marathon will improve the current affordable housing shortage by increasing the number of affordable houses and providing the financial resources to make that more likely to occur. The Principles Guiding Development Subsection 380.0552(7), Florida Statutes (2004), provides in relevant part: PRINCIPLES FOR GUIDING DEVELOPMENT.- -State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development . . . . For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the principles for guiding development and any amendments to the principles, the principles shall be construed as a whole and no specific provision shall be construed or applied in isolation from the other provisions. . . . [T]he following shall be the principles with which any plan amendments must be consistent: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost-effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. In determining whether the Proposed Rules are consistent with the principles, the principles should be considered as a whole. No specific provision should be construed or applied in isolation from other provisions. Ability to Manage Land Use and Development Principle A, set forth in Subsection 380.0552(7)(a), Florida Statutes, is "to strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation." Monroe County and the City of Marathon have evidenced a willingness and commitment to provide the funding required to meet the objectives of the Principles Guiding Development. Both local governments have included in the Proposed Rules tasks which reflect their understanding of the need to provide critical facilities, such as wastewater treatment facilities. While the need for such facilities has previously been acknowledged, the Proposed Rules provide a specific source of revenue to provide the needed facilities. Moreover, with regard to Monroe County, the proposed rules/regulations at issue in this proceeding strengthen the environmental protections measures in the Comprehensive Plans while allowing reasonable development. The proposed rules for Monroe County and the City of Marathon are consistent with Principle A. Environmental Issues Subsections 380.0552(7)(b), (c), and (e), Florida Statutes, are principles which require consideration of the impacts on the environment of the Florida Keys. Principle B is "to protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife and their habitat." Principle C is "to protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife and their habitat." Principle E is "to limit the adverse impacts of development on the water quality of water throughout the Florida Keys." Principle I is "to limit the adverse impacts of public investments on the environmental resources of the Florida Keys." The Proposed Rules of Monroe County and the City of Marathon include amendments to the Work Program which provide significant funding for sewage treatment systems that will enhance the protection of the shoreline and marine resources. The Proposed Rules of Monroe County and the City of Marathon are consistent with Principle B. The Proposed Rules of Monroe County improve protection of terrestrial habitat, limit clearing of native vegetation, and provide safeguards to ensure that parcels in threatened and endangered species habitat are protected. The proposed rules of Monroe County are consistent with Principle C. The portions of the Proposed Rules of the City of Marathon that are the subject of this proceeding do not specifically address Principle C. However, the Proposed Rules of the City of Marathon are not inconsistent with Principle C. Accordingly, the proposed rules of the City of Marathon are consistent with Principle C. The Proposed Rules of Monroe County and the City of Marathon limit the adverse impacts of development on the quality of water throughout the Florida Keys by the funding commitments that will hasten the construction of the sewage treatment facilities. The Proposed Rules of Monroe County and the City of Marathon are consistent with Principle E. The Proposed Rules do not encourage any public investment that would have an adverse impact on environmental resources. To the contrary, the Monroe County and the City of Marathon Proposed Rules provide for public investments in waste water improvements that are accelerated. Also, the Monroe County Proposed Rules prevent the construction of public facilities within a hammock area. The Proposed Rules of Monroe County and the City of Marathon are consistent with Principle I. Economic Development Principle D in Subsection 380.0552(7)(d), Florida Statutes, is "to ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. The basis of the Florida Keys' economy is tourism, which is attracted by a clean and healthy environment. The increased protection of water quality that should be achieved by the hastened construction of sewage treatment facilities and the improved protection of habitat will strengthen the economy of the Florida Keys and provide the basis for a sound economic development. Also, the Proposed Rules balance environmental protection with property rights. The Proposed Rules of Monroe County and the City of Marathon are consistent with Principle D. Historical Character and Heritage Principle F in Subsection 380.0552(7)(f), Florida Statutes, is "to enhance natural and scenic resources, promote the aesthetic benefits of the natural environment and ensure that development is compatible with the unique historic character of the Florida Keys." Principle G in Subsection 380.0552(7)(g), Florida Statutes, is "to protect the historical heritage of the Florida Keys." The Proposed Rules of Monroe County and the City of Marathon will have little or no impact on the historic character and historical heritage of the Florida Keys. Thus, the Proposed Rules do no harm to either the historic character or historical heritage of Monroe County or the City of Marathon. Public Investments Principle H in Subsection 380.0552(7)(h), Florida Statutes, is "to protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major life investments," including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. . . . The Proposed Rules of Monroe County and the City of Marathon do nothing to undermine the value, efficiency, cost- effectiveness or amortized life of existing major investments. Rather, the Proposed Rules will result in funding and timely construction of the major sewage and disposal facilities that are already contemplated by Monroe County and the City of Marathon's existing Comprehensive Plans. Affordable Housing Principle J in Subsection 380.0552(7)(j), Florida Statutes, is "to make available adequate affordable housing for all sectors of the population of the Florida Keys." The Proposed Rules include a one-time allocation of 165 permits for affordable housing in Monroe County and 65 permits for affordable housing in Marathon. The Proposed Rules will require all future affordable housing to remain as affordable in perpetuity, rather for a limited time frame. The Propose Rules are consistent with Principle J. Natural or Man-made Disaster and Post-Disaster Relief Principle K in Subsection 380.0552(7)(k), Florida Statutes, is "to provide adequate alternatives for the protection of public safety and welfare in the event of a natural disaster or man[-]made disaster and for a post[-]disaster reconstruction plan." The Proposed Rules require officials of Monroe County and the City of Marathon to participate with other Florida Keys' local governments in a comprehensive analysis of hurricane evacuation issues. The Proposed Rules are consistent with Principle K. Health, Safety, and Welfare of Citizens and Maintenance of Florida Keys as Unique Resource Principle L in Subsection 380.0552(7)(l), Florida Statutes, is "to protect the health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource." The Proposed Rules of Monroe County include provisions that increase protection of upland habitat and require a moratorium on ROGO/NROGO applications in hammocks and pinelands, revisions to the CNA maps, and amendments to the land development regulations. The Proposed Rules for Monroe County and the City of Marathon will improve the water quality by providing funding for and hastening the construction of sewage treatment facilities. The Proposed Rules of Monroe County and the City of Marathon will provide more permit allocations for affordable housing, require Monroe County to approve bond funding for the construction of affordable housing, and provide that all future affordable housing remain affordable in perpetuity. Also, the Proposed Rules require Monroe County and the City of Marathon to participate in a Florida Keys wide analysis and solution to the hurricane evacuation problem. The Proposed Rules of Monroe County and the City of Marathon further the objective of and are consistent with Principle K. The Proposed Rules of Monroe County and the City of Marathon are consistent with Principle L.
Findings Of Fact Respondents are developers of land registered with Petitioner pursuant to Chapter 498, Florida Statutes, and were so registered at all times here relevant. In 1979 Respondent Suncoast Highland Corporation, (Suncoast) developer of Shadow Run Subdivision, received numerous complaints from the Shadow Run Homeowners Association (Homeowners) regarding lack of recreation facilities promised by the developer. This led to the execution of an AGREEMENT between Suncoast and Homeowners in which the developer agreed to install certain recreational facilities. This AGREEMENT was not carried out by Suncoast and, after intervention by the Division of Florida Land Sales (Division) a CONSENT ORDER was entered on 22 April 1981. In this CONSENT ORDER Suncoast irrevocably committed itself to complete the promised recreation facilities; agreed to file monthly progress reports with the Division; and, in the event of default by Suncoast, authorized the Division to impose a civil penalty in the amount of $10,000. Suncoast did not complete the recreational facilities as promised. On 12 March 1982 an MENDED CONSENT ORDER was entered into between the Division on the one hand and Suncoast, Timber Oaks, Inc. and Kingsland, Inc. on the other, in which it was determined Suncoast had failed to construct the prescribed recreational facilities and Kingsland, Inc. had failed to provide recorded warranty deeds and title insurance policies to purchasers in their registered subdivisions. In this Amended Consent Order Suncoast reaffirmed its commitment to complete the recreational facilities promised to Homeowners no later than June 15, 1982; Timber Oaks, Inc. guaranteed the completion of recreational facilities by Suncoast; and all Respondents agreed to establish and fund on or before March 31, 1982, an Escrow Account under the supervision of the Division in the amount of $95,000 to pay for the completion of the recreational facilities, to pay the costs associated with recording deeds and title insurance, and to pay delinquent real estate taxes. The Amended Consent Order further provided that in the event of default by the developers the Division will immediately be entitled to impose a civil penalty in the amount of $10,000. Respondents have failed to fund the Escrow Account or otherwise comply with the provisions of the Amended Consent Order.
The Issue Should Petitioner fine Respondent for using contaminated spoil from the previous septic system to cover a new drainfield being installed?
Findings Of Fact Petitioner issues permits for the construction, installation, modification, or repair of onsite sewage treatment systems in accordance with Section 381.0065, Florida Statutes. Those repairs are conducted by septic tank contractors as qualified and registered by Petitioner, with the expectation that the registrants shall be subject to ethical standards of practice in their business as established by Petitioner's rules. See Section 489.553(3), Florida Statutes. Respondent, whose address is Post Office Box 390073, Deltona, Florida 32738-0073, is registered by Petitioner as a septic tank contractor. Respondent does business as Alpha Environmental Services. Respondent contracted with a customer at 1019 Pioneer Drive, Deltona, Florida to replace an onsite sewage treatment and disposal system at that address. Petitioner issued a permit for the work related to the septic system. Leila Baruch, then of the Volusia County Florida Environmental Health Agency, certified by Petitioner in inspecting septic systems, inspected the site before the work was performed. On February 18, 1999, Ms. Baruch returned to the site for the purpose of examining the "easy way" drainfield which Respondent had installed over the natural soil at the bottom of the replacement system. The easy way drainfield is a system of pipes surrounded by pieces of styrofoam. At the time of this inspection, the cover that was to be placed over the top of the drainfield had not been arranged. Ms. Baruch observed the old contaminated material that had been excavated from the failed system (the spoil) located to the side of the new drainfield. The new drainfield had been left uncovered to allow the inspector to observe its placement depth. As was the custom, the Volusia County Environmental Health Agency approved the installation of the drainfield concerning its relative depth and a call was made from Ms. Baruch to Respondent's business indicating that it would be acceptable to cover the drainfield following the more recent inspection. By this contact, it was not intended to grant permission to cover the drainfield with the spoil that had been removed from the failed system. This call to Respondent's business was made on February 18, 1999. Later on February 18, 1999, Ms. Baruch spoke with Respondent. This contact was based upon remarks that had been made to Ms. Baruch by the customer homeowner during Ms. Baruch's inspection of the site earlier on that date. The customer's remarks were to the effect that she understood that Respondent intended to use the spoil removed from the original septic system to cover the new system. In her conversation with Respondent, Ms. Baruch reminded Respondent that Respondent could not use the spoil to cover the new drainfield. In addition, Ms. Baruch read from Rule 64E-6.015(6), Florida Administrative Code, concerning the prohibition against the use of spoil material in covering the new drainfield. Ms. Baruch returned to the job site two or three days later and observed that the spoil material from the failed septic system had been used to cover the new drainfield. Respondent was responsible for the placement of the spoil material as a cover for the new drainfield. This condition in which the spoil material had been placed over the new drainfield was also observed by Scott Chambers of the Volusia County Environmental Health Agency, who is registered as a sanitarian with the Florida Environmental Health Association and certified by Petitioner for inspection of onsite sewage and disposal systems. As a consequence of the findings made by the inspectors, Petitioner cited Respondent for violation of Rule 64E-6.015(6), Florida Administrative Code, and seeks to impose a fine in accordance with Rule 64E-6.022(1)(p), Florida Administrative Code. Respondent's contention in his testimony that the spoil material was not placed immediately on the new drainfield is rejected. A substantial portion, if not all, of the new drainfield was covered by the spoil removed from the failed drainfield.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds Respondent in violation of Rule 64E-6.015(6), Florida Administrative Code, and imposes a $500.00 fine in accordance with Rule 64E-6.022(1)(p), Florida Administrative Code. DONE AND ENTERED this 17th day of November, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Michael Jedware Post Office Box 390073 Deltona, Florida 32738-0073 Angela T. Hall, Agency Clerk Department of Health Bin A02 CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1999. 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
Findings Of Fact The Petitioner is an organization composed of persons who own property bordering on Crooked Lake in Polk County, Florida. Among the members of the Petitioner is a property owner who owns land directly adjacent to the land that the Applicant proposes to fill. Crooked Lake is a navigable body of water. The applicant, John Mangham represents the owner of certain property which is adjacent to Crooked Lake. The property includes a berm, or ridge which runs approximately parallel to the present borders of Crooked Lake. The Applicant proposes to fill areas adjacent to the berm landward from the present waterline. The waters of Crooked Lake at one time flowed around the berm, and the area which the Applicant proposes to fill has from time to time been submerged, and formed a part of Crooked Lake. The Department of Environmental Regulation is the state agency charged by law with the responsibility of issuing dredge and fill permits in the navigable waters of the state, and permits for construction of stationary installations in the waters of the state. During August, 1976 the Applicant commenced a landfill project on the property which is the subject of this proceeding. More than twelve truckloads of fill material were brought into the area, and were placed on the berm, and landward of the berm. Members of the Petitioner made efforts to stop the fill project, and they contacted officials of the Department. The Department concluded that certain of the Applicant's activities violated Department rules, and the Applicant agreed to remove debris which had been placed near the lake, to re-seed a partially cleared area between the berm and the lake, and to refrain from any further activity between the berm and the lake. The Department did not require that the Applicant remove any of the fill that had been placed landward from the berm, but it did request that the Applicant apply for an "after-the-fact permit" respecting the clearing of vegetation. The Applicant thereafter applied for a permit to place additional fill material landward from the berm. The Department has approved the application and has issued a permit. The Petitioner has filed a petition demanding that the permit be set aside, and that the Applicant be required to remove the fill which has already been placed in the area. The evidence presented at the final hearing is insufficient to establish whether the land that the Applicant has filled, and the land which the Applicant proposes to fill, is above or below the ordinary high waterline of Crooked Lake. Crooked Lake is presently at its lowest elevation within the memory of any of the persons who testified at the hearing. One of the witnesses has lived on land adjacent to Crooked Lake for more than forty years. The berm which lies on the Applicant's property has apparently been at all times out of the lake. The waters of the lake at one time surrounded the berm. Within the past three years the area landward from the berm has been covered with water, and it has been possible to reach the area by boat from Crooked Lake. Biological evidence offered at the hearing confirms that areas surrounding the berm were submerged at one time. Various estimates were presented respecting the elevation of the ordinary high waterline of Crooked Lake. None of the estimates were supported by substantial competent evidence. One witness, a qualified land surveyor, called by the Petitioner, attempted to establish the elevations of points which the Applicant proposes to fill. The witness' survey was not done in an appropriate manner, and is not creditable. So long as the waters of Crooked Lake remain at their present level, the Applicant's proposed project would have no environmental effect upon the waters of the lake. None of the fill material would be placed directly in the waters of Crooked Lake, and all of the work would occur more than 100 feet landward of the present waterline. It does appear that if the lake rose to previous levels, the land which the Applicant proposes to fill would be within the waters of the lake. If the area were filled, it would be above the level of Crooked Lake, even if the lake rose to prior levels. The Department requested that the Florida Department of Natural Resources issue a statement respecting ownership of the subject property. The Department of Natural Resources responded that the ordinary high waterline elevation contour has not been established for Crooked Lake. Neither the Department of Natural Resources nor the Florida Trustees of the Internal Improvement Trust Fund have given their consent to the proposed project.
The Issue The issue in this case is whether City of Tarpon Springs Ordinance 94-29 is consistent with the City's comprehensive plan.
Findings Of Fact The City of Tarpon Springs Comprehensive Plan (the City's Plan) was adopted by City Ordinance 89-35. The Coastal Zone and Conservation Element of the Plan provides in pertinent part: IT IS THE GOAL OF THE CITY OF TARPON SPRINGS TO: Preserve, protect and enhance the natural and functional characteristics of the Coastal Management Zone; and to protect human life and limit public expenditures in areas subject to destruction by natural disasters; . . .. * * * IT IS THE OBJECTIVE OF THE CITY OF TARPON SPRINGS TO: 9J-5.012(3)(b) - Protect, conserve, or enhance remaining coastal wetlands, living marine resources, coastal barriers, and wildlife habitat: 1. Protect the natural resources of the Coastal Management Zone as identified by Schedule A of this Element; (Goal 1) . . .. * * * IT IS THE POLICY OF THE CITY OF TARPON SPRINGS TO: 9J-5.012(3)(c)1 - Limiting the specific impacts and cumulative impacts of development or redevelopment upon wetlands, water quality, water quantity, wildlife habitat, living marine resources, and beach and dune systems: Place all wetland areas in the preservation designation as shown on Schedule A, and ensure that no additional loss of wetland vegetation occurs; (Objectives 1, 2 and 11). 6/ Require a minimum 30 foot aquatic lands setback for non-water dependent uses along the City's shoreline with the exception of the historic Sponge Dock Area; (Objectives 1 and 11 7/ Require a minimum 15 foot buffer zone adjoining all wetlands; (Objectives 1 and 11 8/ ) . . .. Swimming pools and their screened enclosures are "non-water dependent uses" for purposes of Coastal Zone and Conservation Element Policy 2 (Coastal Zone Policy 2). Data and analysis adopted along with the City's Plan noted that the City would retain its ordinance providing for a 30 foot setback for aquatic lands and wetlands subject to the possibility of a variance under certain conditions on a case-by-case basis. Data and analysis also stated that areas designated for preservation would be preserved in their natural state through use of transfer of density/intensity rights and vegetative buffers and setbacks. City of Tarpon Springs Ordinance 94-29, adopted on September 20, 1994, revised Section 55.01 of the Land Development Code in pertinent part as follows: Wetland and Shoreline Buffers The following buffers shall be provided: A shoreline buffer of thirty (30) feet along the Gulf of Mexico, Anclote River, and tributary bayou shorelines. The buffer shall be measured from the mean high tide. * * * (E) Pools and their pool screened enclosures shall comply with the buffers listed above except where adequate seawalls or rip-rap stabilization exist, the setback requirement shall be 15 feet from the seawall or the landward limit of rip-rap stabilization. Pools and pool screened enclosures may be constructed within the required buffer provided a minimum setback of 8 feet is maintained from the seawall and provided that certification from an engineer registered in the State of Florida is submitted prior to issuance of a permit stating that the proposed structure will not effect [sic] the integrity or functioning of the seawall or its deadmen. The "shoreline . . . along the Gulf of Mexico, Anclote River, and tributary bayou shorelines" described in Ordinance 94-29 is included in the Schedule A "natural resources" identified in Coastal Zone Objective 1 and in the "shoreline" identified in Coastal Zone Policy 2. The bayous constitute wetlands required to be preserved under Coastal Zone Policy 1. At the same time, it is clear that the natural and functional characteristics, marine and other natural resources, and wildlife habitat of City shoreline that has been seawalled or stabilized by rip-rap have been compromised, in many cases severely. Approximately 15 percent of the City's approximately 45 miles of shoreline has been seawalled (approximately nine miles); approximately 5 percent (approximately three miles) has been stabilized by rip-rap. Much of the shoreline seawall within the City has been in place since 1924. In some cases, seawall has deteriorated to one degree or another, allowing some natural vegetation to begin to reestablish itself. In some cases, natural vegetation (e.g., mangrove) has reestablished itself along entire lot lines. Although no evidence was presented as to rip-rap, it is logical to infer that rip-rap stabilization also may be found in a similar range of conditions. The more that seawall and rip-rap has deteriorated and that natural vegetation has been reestablished, the more natural and functional characteristics, marine and other natural resources, and wildlife habitat can be expected to be restored. At some point (not specified by the evidence) in the process of the deterioration of seawall and rip-rap and the reestablishment of natural vegetation , the regulatory agencies with jurisdiction will not allow the repair and reconstruction of seawall or rip-rap. Similarly, some natural and functional characteristics, marine and other natural resources, and wildlife habitat might be expected to remain in areas of isolated segments of seawall or rip-rap stabilization. Swimming pools and their screened enclosures constructed under Ordinance 94-29 behind an area of competent seawall or rip-rap stabilization in accordance with would not be expected to have an adverse impact on water quantity or water quality. As to water quantity, water retention capacity of the pool would approximately compensate for additional run-off from loss of pervious surface. (To the extent that pool construction replaces an impervious surface, a net reduction of run-off would be expected.) Besides, construction of a swimming pool on a residential lot is exempt from surface water management regulations because of the relative insignificance of the impact on run-off. As to water quality, generally the pollutant loading of water running off a residential lot with a swimming pool probably is less than, or at least the same as and not significantly more than, the pollutant loading of water running off the same lot without a swimming pool. Generally, pool chemicals are retained in the pool whereas lawn fertilizer, pesticides and insecticides often used on residential lawns would be more likely to run off into adjacent water bodies. 9/ According to the evidence presented at final hearing, it is at least fairly debatable that the construction allowed by Ordinance 94-29 would improve the housing stock in the City, increase property values, increase the tax base, and increase and improve the mix of adequate housing. One of the goals of the housing element of the City's Plan is to provide a mix of adequate housing. 10/ The City also presented evidence that one purpose of Ordinance 94-29 was to bring the City's land development regulations (LDR's) into conformity with the LDR's of Pinellas County, which surrounds the City and even has jurisdiction over enclaves within the perimeter of the City's boundaries. However, the DCA presented evidence that the City narrowly focused on the County's zoning regulations and overlooked the County's environmental regulations. The County's environmental regulations require a 50-foot upland buffer from all wetlands other than isolated wetlands, waterways not designated for preservation, and certain County-approved retention ponds. Jeff and Laura Johnson and Lisa Mack live on lots abutting City shoreline. The Johnsons own their home; Mack does not own her residence. The Johnsons' next door neighbors are building a swimming pool and screened pool enclosure in their back yard under the authority of Ordinance 94-29. At the time of the final hearing, a building permit had been obtained, and the construction of the pool had been virtually completed; only the screen enclosure remained to be built. In addition to their general interest in Ordinance 94-29 and its impact throughout the City, the Johnsons also have more immediate and direct concerns. They are concerned first and foremost that their next door neighbors' screened pool enclosure, which will be very close to the shoreline, will block their view of Minetta Bayou, especially since the residential lots where they live are very narrow. They also are concerned about loss of privacy due to use of the swimming pool. (The pool is elevated above ground level and quite close to the Johnsons' lot and house, which itself is situated practically on the side lot line.) In addition, they are concerned that noise from the pool pump, as well as from pool users, will disturb their peace and tranquility. Finally, the grading of the ground around the pool may direct more surface water onto the Johnsons' property. 11/ Unlike the Johnsons, no pool is being built next door to Mack's residence at this time. Her concern that one might be built there under the authority of Ordinance 94-29 is more remote. She also shares with the Johnsons concern over what would happen to the City, including its shorelines, aquatic lands and water bodies if full advantage is taken of Ordinance 94-29. Much of the City's seawalled and rip-rap stabilized shoreline is in residential areas, and Ordinance 94-29 conceivably could be utilized to build swimming pools and screened enclosures within the 30 foot setback specified in Coastal Zone Policy 2 on between 500 and 1000 residential lots.
The Issue The issue is whether the application of Thomas J. White Development Company for the establishment of a uniform community development district under Chapter 190, Florida Statutes, and Rule Chapter 42-1, Florida Administrative Code, should be granted.
Findings Of Fact The facilities and services that will be provided by the St. Lucie West Services District are the financing, constriction, ownership, operation, and maintenance of the surface water management and control system for the area, and necessary bridges and culverts. The land encompassed by the proposed development district is a development of regional impact. The final revised development order for the area was issued on February 27, 1989, by the City of Port St. Lucie. Exhibit 4. The land within the proposed district is composed of approximately 4,600 contiguous acres located in the city. The proposed district is bounded on the north and south by the city. The western and eastern boundaries are Interstate 95 and the Florida Turnpike, respectively. A map showing the location of the area to be serviced by the proposed district is found in Exhibit 2; a metes and bounds legal description of the proposed district is attached to the petition as Exhibit 1. The overall development to be serviced by the district will include a variety of single family and multifamily housing units, as well as commercial, industrial, and educational uses. A portion of the future land use map for the City of Port St. Lucie was received in evidence as Exhibit 3, and shows approved land uses for the St. Lucie West area. In the proceedings leading to the issuance of the development order, the city determined that the St. Lucie West development would be consistent with all applicable state, regional, and local comprehensive plans and policies. The proposed development of the district is consistent with the City of Port St. Lucie Comprehensive Plan: 1985, as amended. Exhibit 12. Ernest R. Dike, Jr. is the director of development of Thomas J. White Development Company. He is an expert engineer experienced in the planning, construction and management of large scale communities. Mr. Dike has substantial experience as a civil engineer, and holds an advanced academic degree in planning. He served as director of public works and as city engineer for the City of Port St. Lucie for the three years preceding his employment by White. As White's director of development over the last three and a half years, Mr. Dike assisted in the preparation of the petition; he also identified and explained the exhibits which were admitted into evidence. He assisted in crafting the development order for St. Lucie West which was adopted by the City of Port St. Lucie in February, 1987 and amended on February 27, 1989. Dike has been personally involved with the sales of land from White to other developers of property within the proposed district. All the owners of the real property to be included in the district have given their written consent to the establishment of the proposed district. Since the Thomas J. White Development Company purchased the approximately 4,600 acres which became St. Lucie West, Dike has directed the permitting and approval for all aspects of the project. In the design, White Development Company has accommodated the desires of St. Lucie County to obtain a spring training facility for a professional baseball team. White Development Company agreed to give the county 100 acres of land to build a training facility for the New York Mets. A predevelopment order for the stadium was obtained, which permitted the development of certain roads, a bridge over the Florida Turnpike, and an interchange with Interstate 95 which will all provide access to St. Lucie West These transportation facilities were completed without the use of any state or federal funds. None of these expenses will be born by the proposed district. The establishment of the district would not be inconsistent with any of the elements or provisions of the state comprehensive plan, the regional plan, or the local comprehensive plan. Creation of the district would be the best alternative available for providing water management and control facilities for the land encompassed by the proposed district. The South Florida Water Management District (SFWMD) and the City of Port St. Lucie have concluded that when fully developed, the land would discharge no additional water into the city's stormwater system as compared to the contribution of stormwater by the land made before it was developed by White. Mr. Dike also testified about the debt service required to amortize the debt on any benefit bonds issued by the proposed district, and the cost of operation and maintenance of the surface water control facilities to be constructed by the proposed district. Mr. Dike prepared a spread sheet entitled "Projected Statement of Cash Flow for the Years 1990-2000". (Exhibit 18). The estimated construction costs for water management facilities in the projection are reasonable. Based on White's plans for the district, and utilizing the assumptions for absorption of the residential and commercial space to be constructed, the benefit and maintenance taxes are projected to begin at $114 per taxable unit per year. These benefit and maintenance taxes will rise to no more than $170 per taxable unit per year in 1996. These projections are consistent with the testimony of Mr. Dike and of Dr. Henry Fishkind, an economist. All assumptions made in projecting future benefit taxes are reasonable. While these projections do not bind the district, which is not yet formed, and the district's electors could ultimately decide to assume additional responsibilities, the evidence shows that the benefit and maintenance taxes projected are adequate to pay the debt to be incurred by the proposed construction of surface water management facilities. Lester L. Solin, Jr., testified as an expert in land use planning. He was a planning consultant with the City of Port St. Lucie when the development of St. Lucie West by White Development Company was first under consideration, and worked with the city to formulate the overall development plan. St. Lucie West has been integrated into the future land use map for the City of Port St. Lucie Comprehensive Plan: 1985. Mr. Solin is also familiar with the state comprehensive plan. He has reviewed the application for development approval for the St. Lucie West development of regional impact. The proposed district would be consistent with the state comprehensive plan, Chapter 187 Florida Statutes. Mr. Solin is also familiar with the City of Port St. Lucie Comprehensive Plan: 1985 (Exhibit 12). The creation of the St. Lucie West Services District would not be inconsistent with any of the goals, objectives or policies in that plan. Peter L. Pimentel is the current executive director of the Northern Palm Beach County Water Control District (NPBWD). Mr. Pimentel testified as an expert in special district management, planning, staffing, reporting, and coordination with local governments. As the director of the Northern Palm Beach County Water Control District, he oversees a staff which works with other regulatory agencies on permitting, implementation, planning, construction and operation of water management systems. He coordinates construction with contractors, and engineers, and works with lawyers in carrying out the policies established by the district board of directors. The land encompassed by the NPBWD is approximately 200,000 acres. Mr. Pimentel has substantial experience, having worked as the executive director for two large independent special taxing districts, which are similar in structure and have similar powers as the community development district which White Development Company wishes to establish. Mr. Pimentel's testimony was especially persuasive due to his experience with water control entities. The proposed district is the best alternative available for financing, constructing, owning, operating and maintaining the surface water management and control facility for the area encompassed by the proposed district. It provides a more efficient use of resources, and provides the opportunity for new growth in the district to pay for its own surface water management, rather than imposing that cost on general government. The proposed district would not be incompatible with the capacity or uses of existing local and regional community services and facilities. The area to be served by the proposed district is amenable to separate special- district government. Henry H. Fishkind, Ph.D. testified as an expert economist about the economic consequences of establishing a community development district under Chapter 190, Florida Statutes, the economic consequences of financing the surface water management and control system through the use of tax exempt bonds, and the cost of operating and maintaining those structures by a community development district. Dr. Fishkind prepared the economic impact statement for the proposed district required by Section 120.54, Florida Statutes. The costs to the Florida Land and Water Adjudicatory Commission, and to state and local agencies in reviewing the petition are minimal. The costs to the City of Port St. Lucie and to St. Lucie County have been covered by the $15,000 filing fee which White paid to each of those governments. The cost to the City of Port St. Lucie once the district is operating would be negligible. The potential debt of the proposed district will not become general obligations or debts of the city or county governments. The cost of the surface water improvements will be paid by those who benefit from them. The economic impact statement is adequate, and meets the requirements of Section 124.54(2)(b), Florida Statutes. During the first six years, the proposed district would be controlled by Thomas J. White Development Company since White still would be the largest landowner. Tax exempt benefit bonds would be issued to construct the surface water management facilities. Both White and residents of the proposed district would share the burden of amortizing these bonds through benefit taxes. According to Dr. Fishkind, whose opinion is credited, from an economic perspective: The creation of the St. Lucie West District is not inconsistent with the state and local comprehensive plan; The land to be served by the proposed district is of sufficient size, is sufficiently compact and is sufficiently contiguous to be developed as a functional interrelated community; The proposed district is the best alternative for providing surface water management for the community, since other alternatives such as municiple service taking units or homeowners' associations are more expensive or more cumbersome; The area to be served by the proposed district is amenable to separate special-district government. All factors which are required to be considered in establishing a community development district under Section 190.005(1)(e), Florida Statutes, were analyzed by the witnesses presented by the Thomas White Development Company. Their testimony was persuasive, and the application meets all requirements of Chapter 190.
Conclusions Based on the record made, it is concluded: That all statements contained in the petition are true and correct; The creation of the proposed district is not inconsistent with any applicable element of the state comprehensive plan, or the City of Port St. Lucie Comprehensive Plan; The area in the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functional, interrelated community; The district is the best alternative for delivering water management services to the area to be serviced by the district, and would be superior to the creation of a municipal service taxing unit, a homeowner's association, or to providing water management by the general county government of St. Lucie County; The community development services provided by the proposed district will not be incompatible with the capacity or uses of existing local and regional community development services and facilities; The area to be served by the proposed district is amenable to separate special district government. Accordingly it is recommended that the Florida Land and Water Adjudicatory Commission grant the petition of the Thomas J. White Development Company and adopt a rule pursuant to Section 190.005(f), Florida Statutes (1987), establishing the St. Lucie West Services District. DONE AND ENTERED this 5th day of September, 1989, in Tallahassee, Leon County, Florida. William R. Dorsey, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1989 APPENDIX A Case No. 89-0072 Witnesses Earnest R. Dike, Jr., 590 NW Peacock Loop, Port St. Lucie, Florida. Lester L. Solin, Solin and Associates, 901 Douglas Avenue, Suite 207, Altamonte Springs, Florida. Peter Pimentel, 5725 Corporate Way, Suite 203, West Palm Beach Florida. Dr. Henry H. Fishkind, 201 North New York Avenue, Suite 300 Winter Park, Florida. APPENDIX B Case No. 89-0072 List of Documentary Evidence Exhibit 1. Petition for Rulemaking filed by Thomas J. White Development Company, Inc., including seven exhibits. Exhibit 2. Location Map for the proposed St. Lucie West Services District. Exhibit 3. Future Land Use Map for the area Exhibit 4. Resolution 89-R7 of the city council of Port St. Lucie, Florida, which is the development order for the St. Lucie West Development of Regional Impact. Exhibit 5. Transmittal letter for the Petition for the establishment of the Services District to the City of Port St. Lucie and filing fee, and transmittal letter for the St. Lucie West Development District to the St. Lucie County Board of County Commissioners, and filing fee. Exhibit 6. Transmittal letter for the Petition for the establishment of St. Lucie West Services District to the Florida Land and Water Adjudicatory Commission. Exhibit 7. Letter from the staff of the Florida Land and Water Adjudicatory Commission determining that the Petition appears to satisfy the requirements of Section 190.005, Florida Statutes, and Rule 42-1.009 Florida Administrative Code. Exhibit 8. Resolution 89-R6 from the City of Port St. Lucie, Florida supporting the petition of the Thomas J. White Development Company, Inc. for the establishment of the St. Lucie West Services District. Exhibit 9. Resolution 89-41 of the Board of County Commissioners of St. Lucie County supporting the petition of Thomas J. White Development Company, Inc. for the establishment of the St. Lucie West Services District. Exhibit 10. Proof of publication in the local newspapers and in the Florida Administrative Weekly of the Notice of the Hearing on the petition for the establishment of the community development district and notices to other interested persons. Exhibit 11. Copy of the State Comprehensive Plan Chapter 187, Florida Statutes (1987) Exhibit 12. Copy of the Comprehensive Plan: 1985 of the City of Port St. Lucie, Ordinance 85-102. Exhibit 13. Resume of Ernest R. Dike, Jr., P.E. APPENDIX B CONT. Case No. 89-0072 Exhibit 14. Permit granted to Thomas J. White Development Company, Inc. by the South Florida Water Management District for the construction and operation of a water management system. Exhibit 15. The prepared testimony Lester L. Solin, Jr. Exhibit 16. The resume of Peter L. Pimentel. Exhibit 17. The prepared testimony of Henry H. Fishkind, Ph.D. Exhibit 18. The additional prepared testimony of Mr. Dike including the computer generated spread sheet. COPIES FURNISHED: E. Lee Worsham, Esquire HONIGAMAN MILLER SCHWARTZ and COHN 1655 Palm Beach Lakes Boulevard Suite 600 West Palm Beach, Florida 33401 James C. Vaughn Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32399-0001 William Buezett The Governor, Legal and Legislative Office The Capitol, Room 209 Tallahassee, Florida 32399-0001 Carla Stanford, Esquire Department of Community Affairs 2740 Centerville Drive Tallahassee, Florida 32399-2100 David McIntyre, Esquire County Attorney 2300 Virginia Avenue Fort Pierce, Florida 34982 Roger Orr, Esquire City Attorney 220 South Second Street Fort Pierce, Florida 33450 Patty Woodworth, Director Land and Water Adjudicatory Commission Planning & Budgeting Executive Office of the Governor The Capitol, PL-05 Tallahassee, Florida 32399-0001
The Issue The issue is whether Respondent materially breached a contract with Petitioner, South Florida Water Management District (District), as alleged in the District's Final Order dated November 10, 2005, and if so, whether Respondent should be placed on the temporarily suspended list for a period of one year.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Respondent is engaged in the business of exotic vegetation control. The firm's office is located in Loxahatchee, Florida, and its principals are Dr. Howard E. Westerdahl, president and majority owner (52 percent), and Christopher P. Bless, minority owner (48 percent). The business has been in existence for around ten years, operating first under the name of Enviroglades, Inc. and then Enviroglades, LLC. When this matter first began before the District in 2004, the firm's majority stockholder was Irene Goltzene, who now serves as its office manager, and the firm was classified as a District Non-Certified Minority Business Enterprise. In April 2005, the business was sold to its current majority shareholder, Dr. Westerdahl, and on May 15, 2005, Enviroglades, LLC, changed its name to Eco-Engineering, LLC. The District is a public corporation created under Chapter 373, Florida Statutes. Its Vegetation Management Division is responsible for administering its exotic vegetation control program. On May 28, 2004, the District issued Request for Proposal OT040866 (RFP) soliciting "technical and cost proposals from qualified respondents to provide crews, equipment, and supplies for ground based control of exotic plant species via the application of herbicides and the hand removal of small seedlings using licensed applicators and laborers." The RFP called for responses to be submitted no later than June 25, 2004. Three companies, including Respondent, then known as Enviroglades, LLC, timely submitted proposals. On September 23, 2004, the District conducted a negotiation meeting with Respondent. During that meeting, Francois B. LaRoche and Donald Hill, both employees in the Vegetation Management Division, discussed items on a prepared Agenda concerning the RFP, including the type of contract, contract execution, cost proposal, invoicing, statement of work, and general questions. Also, Mr. Hill negotiated labor rates to be charged for Respondent's labor and supervisory positions. On October 14, 2004, the District awarded a contract (Contract) to Respondent and the other two companies who submitted proposals. The Contract with Respondent is a three- year "work order contract," that together with the other two contracts awarded was not to exceed the total project funding of $18 million. A work order contract and the work orders issued pursuant to the contract are based on time and materials, which obligates the District to pay the contractor for labor and chemicals when the invoices are submitted to the District up to the "not to exceed" amount in the work order. Under this process, Respondent would invoice the District for the actual cost of materials, such as herbicides, and for labor according to the negotiated rate schedule attached to the Contract as Exhibit L. Reimbursement under the work order, however, could not exceed $50,000.00. Paragraph 1 of the Contract's Special Provisions, found in Exhibit A of the Contract, provides as follows: . . . The DISTRICT does not guarantee or represent that any minimum number of Work Orders for any dollar amount will be issued as a result of this CONTRACT. Multiple contracts have been awarded for ground application services for exotic plant control, stated on the cover page as the Project Title, to be provided under this CONTRACT. The DISTRICT does not guarantee or represent that any minimum number of Work Orders for any dollar amount will be issued as a result of this CONTRACT. The amount stated on page one of this CONTRACT represents funding that may be used among the multiple CONTRACTS awarded by the DISTRICT'S Governing Board and in no way represents the amount to be paid under any single CONTRACT issued herein. This language meant that the District does not guarantee that any contractor will receive any minimum number of work orders or be issued more than one work order to complete a job. On November 2, 2004, the District conducted a second meeting, identified as a Contractor Review Meeting, which was attended by all contractors, including representatives of Respondent. At the meeting, the District discussed the following topics: statement of work, applicator safety and training, herbicide mixing, loading, and on-site storage of BMP's, new daily activity report, inspection, billing, anticipated Fiscal Year 2005 projects, questions and discussions, and facility and equipment inspection. On November 24, 2004, the District issued several work orders to Respondent for execution under the Contract. Under the District's customary practice, in order for the District to encumber the funds for the current budget year, the work orders were executed in advance of Respondent starting the work under each work order. One of the work orders issued by the District to Respondent was Work Order No. 01 for $50,000.00 to "treat exotics on SandHill Crane Property" (SandHill). This property encompasses approximately 1,400 acres, is located in Central Western Palm Beach County (west of the City of Riviera Beach), and is bordered by the Beeline Expressway on the south side, the District's C-18 Canal on the north side, an unnamed canal that dumps into C-18 on the west side, and a fence that separates the property from a development on the east side. Although Work Order No. 01 stated, without greater specificity, that the contractor was to "treat exotics on the SandHill Crane property," the District intended for the work order to cover all targeted vegetation on the entire site, and not just certain exotics or portions of the property. This was consistent with the type of work that had been performed on the same property for the two prior years (2003 and 2004) by other contractors. The District also intended that under Work Order No. 01, the $50,000.00 represented a ceiling, and Respondent could be reimbursed up to, but not in excess of, that amount. The Work Order called for the work to begin on November 22, 2004, and to be completed no later than March 31, 2005. It can be inferred from the evidence that the purpose of the March 31, 2005, completion date was to ensure that the work would be completed before the rainy season began a few months later. In determining the ceiling of a work order, and whether the value of the work order will afford sufficient labor and materials for the job, the District, through its Vegetation and Management Division staff, considers at least two factors. First, Mr. LaRoche, who is Senior Supervising Scientist in the Vegetation and Management Division, and/or his staff, makes a visit to the site to assess the extent of work to be performed. While on the site, the staff engages in discussions with the property's land manager to better ascertain the scope of the work. Also, Mr. LaRoche considers whether the property is being treated for the first time, or whether only follow-up treatment is required. In this case, Mr. LaRoche knew that the initial clearing of the exotics on the site had been done in 2003 (by another contractor) for $110,000.00 (consisting of two work orders - one for $50,000.00 and a second for $60,000.00), while a second contractor was paid $75,000.00 to maintain the site in 2004. (Prior to 2003, treatment of vegetation had been performed by mechanical removal, and not with herbicides.) Therefore, because the property had already been treated twice, and only follow-up work was required, he concluded that in 2005 it could be completed for a lesser amount, or $50,000.00. Finally, Mr. LaRoche described SandHill as "a very small property" (apparently in comparison to other sites) on which "a lot of work" had already been performed, "a very easy site," and one with "fairly clear boundaries." The Work Order itself did not contain a map or any information regarding the size of the property, the level of infestation of exotic species, the difficulty in performing the work, or ease of access to the property. Even so, Respondent's representative accepted the Work Order by affixing his signature to the document on November 24, 2004. In addition, Respondent's proposal in response to the RFP contained the following language: The office will receive a work order from SFWMD. The project manager will then schedule a meeting with the SFWMD project supervisor at the site where work is to be performed. When meeting with the SFWMD on site Enviroglades will obtain all necessary information, maps, target species, methodology, type and rate of chemical to be used to perform the work specified in the work order. Enviroglades project manager will then relay all information to the crew leader making sure all aspects of the work order are understood. The crew will then be scheduled to perform the work. The project manager and crew leader will be in contact daily while the work is performed. Daily reports will be turned into the office and reviewed by the project manager. The daily reports will then be processed for invoicing to SFWMD. Enviroglades uses Microsoft Projects to track work orders and all pertaining information. By including this language in its proposal, Respondent understood and agreed that if it needed maps or any additional information to understand the nature or scope of the work to be performed under the work order, that it was required to ask the District for that information. It also understood that before the actual work began, its project supervisor would visit the SandHill site with a District representative to better understand the scope of the work. While Section 1.5 of the Contract provided that "[t]he District shall provide additional guidance and instructions to Contractors' employees or hired workers where necessary or appropriate as determined by the District," this did not mean that the District would micromanage the job or provide continual guidance and assistance to a contractor while the work was being performed. In its proposal, Respondent also indicated that it had experienced no problems performing work for the District under other contracts. (Respondent had performed work for the District under at least one other contract in prior years.) More specifically, it stated in its proposal that "while working on a similar contract several years ago Enviroglades was able to handle all project tracking responsibilities set forth by the SFWMD." Before Respondent began any work, on January 18, 2005, the District project manager, David K. Johnson, a District Environmental Scientist in the Vegetation Management Division, met with Respondent's representative, Shaun E. Bless, at the SandHill site. In preparation for the site visit, Mr. Bless acknowledges that he did not read the contract or the Work Order. (Shaun Bless' supervisor, Christopher P. Bless, his older brother, minority owner of the firm, and listed as project manager, also admitted that he only "briefly looked through [the contract].") Mr. Johnson testified that during the site visit, he drove Mr. Bless around the perimeter of the property, described what exotics needed to be treated, and explained the methodology for treating those exotics. He also provided a small map of the property to Mr. Bless, which was admittedly not "very detailed." While on the site, Mr. Johnson and Mr. Bless met with SandHill's land manager, Bill Helfferich, who was familiar with the property and could answer any questions regarding its size or the type and extent of vegetation present on the property. At hearing, Mr. Bless denied that Mr. Johnson was able to provide a map, a list of exotics to be treated, or the actual size of the site. However, because his deposition testimony directly conflicts with his testimony at hearing in several material respects, Mr. Bless' assertions have not been accepted as being credible. For example, at his deposition, Mr. Bless acknowledged that he knew he was supposed to treat Australian Pine, Melaleuca, Lygodium, Acacia, and Brazilian Pepper. He also stated that he understood what the boundaries of the site were and that Respondent had to treat all exotics, identified above, within the boundaries. There is no evidence that, before the work began, any representative from Respondent ever asked for clarification of any provision in the Contract, a more specific description of the area to be treated, or whether $50,000.00 was sufficient to complete the work. An assertion by Mr. Bless that he asked Mr. Johnson on January 18, 2005, whether there were additional funds (over and above the $50,000.00) to do the work is not deemed to be credible. Mr. Johnson denied that he was asked this question, and no other employee of Respondent expressed this concern to the District. Under Section 4.5 of Exhibit C of the Contract, the District spelled out detailed procedures for the treatment of exotic vegetation. Specifically, Subsection 4.5.3 provided that "[e]xotic vegetation to be treated includes, but is not limited to, melaleuca, Brazilian pepper, Australian pine, Java plum, earleaf acacia, Old World climbing fern, and torpedograss." At the same time, Subsection 4.4.2 of Exhibit C of the Contract spelled out the following level of performance expected to be achieved by the contractor: Minimum acceptable performance is defined as 90% control of targeted vegetation within the timeframe of the manufacturers recommended period for control to occur. This meant that ninety percent of the targeted exotic vegetation (in this case everything identified by the District to be treated) "needs to be showing sign of death or dying once they are treated." Therefore, since specific vegetation on the entire SandHill site was targeted for treatment, at a minimum, it was expected that ninety percent of the targeted vegetation on the entire site "would be dead." Finally, Subsection 4.4.3 of Exhibit C of the Contract specified how Respondent had to remedy the situation if it performed poorly by not meeting the minimum performance standards. Specifically, that provision stated that: If minimum acceptable performance is not achieved for any area of the project within a reasonable time frame following project completion (time frame dependent upon species targeted, mode of action of treatment, site and weather conditions), additional thorough treatment of the target plant(s) shall be the responsibility of the CONTRACTOR at no cost to the District. Areas not treated or not responding to treatment may be required to be retreated at the CONTRACTOR'S expense, if it is determined that the CONTRACTOR provided faulty treatment measures or products. Vegetation treatments will be determined in terms of 'surface acres,' i.e., 43,560 square feet equal one surface acre. In short, this meant that if Respondent did not achieve the minimum acceptable performance for treating any area of the site, it was required to retreat that area at its own expense. Each of these provisions has been used in the District's contracts for many years. Until this case arose, the District represented without contradiction that no contractor had ever claimed to be "confused" by any of these requirements, particularly since there is a negotiation meeting, a contractor review meeting, and a site visit before any work begins. Respondent began work on the SandHill site around January 19, 2005. The District's project manager, Mr. Johnson, visited the site approximately two times per week to check on the progress. If he found a problem, he would prepare a written report, known as an Exotic Plant Treatment Inspection Report. Apparently, no significant problems were noted until the last week in February, when Mr. Johnson prepared two reports. See Finding of Fact 25, infra. However, before those reports were prepared, Mr. Johnson says there were several oral communications to one of the supervisors and the office manager, Irene Goltzene, concerning the proper equipment to be used and the number of employees that were performing the work. It is also worth noting that it takes two to three weeks after vegetation is treated to "figure out what's been killed, what's been treated." At a minimum, then, an evaluation of the quality of the work could not be made until several weeks after the work began. In late February 2005, Ms. Goltzene notified Mr. LaRoche (presumably by telephone) that Respondent had finished its work at the SandHill site, but that Respondent "would require more money to complete the property." By that time, the District had paid invoices totaling $49,300.00 to Respondent. After receiving this request, Mr. LaRoche requested a meeting with Respondent's representatives to discuss what he characterized as a lack of performance at the site and the District's expectation that the site would be retreated at Respondent's own expense. On February 28, 2005, the parties met to discuss the work being performed on the site. According to Mr. Johnson, the District discussed "the problems that we've had," "[s]howed them the pictures we took of both sites, the SDS site and the SandHill Crane site," and "show[ed] them the improper treatments done at both locations." (It can be inferred that Respondent was simultaneously performing work under another work order at "the SDS site.") Finally, the District advised Respondent that "they would have to retreat the SandHill Crane at their own expense." During the course of the meeting, Mr. Johnson documented two instances indicating that Respondent was doing a less than adequate job at the site. These deficiencies were noted in two Exotic Plant Treatment Inspection Reports, which are summarized below: On February 23, 2005, Mr. Johnson inspected the site and found one of Respondent's supervisors (Paul Eversley) asleep in his truck while the truck was running. This activity constituted a safety hazard since a running vehicle could possibly cause a fire. (District Exhibit 12) On February 25, 2005, or two days later, Mr. Johnson again inspected the site and found an "unsystematic treatment of the property and the poor treatment that was done of the property, specifically to Brazilian pepper, Lygodium and . . . melaleuca." Mr. Johnson concluded in his Exotic Plant Treatment Inspection Report that Respondent's treatment was "not a very systematic approach to treatments." (District Exhibit 13) In response to the concerns expressed at the meeting, on March 2, 2005, Ms. Goltzene sent an email to Mr. LaRoche advising that Mr. Eversley "was orally reprimanded and told he was never to sleep while at the job site, this included during lunch and break time. Also that he would not be able to perform work on any SFWMD job for a period of 2 months." (The email notes that a similar oral reprimand was given to Mr. Shaun Bless, who apparently was observed sleeping on another job.) The email did not respond in any manner to criticisms raised at the meeting concerning the "poor treatment" of the vegetation. On March 14, 2005, Daniel D. Thayer, Director of the Vegetation Management Division, received an email from SandHill's manager, Mr. Helfferich, who stated in part: I don't want Enviroglades setting foot on any SOR property again if I have anything to say about it. They did a shitty job and charged us $50k. Steve Smith told me Veg. Manage. was trying to get some answers from the contractor about why the work was so poor and spotty. . . . I would like to have the rest of the area really treated this time, but not by them. After reviewing the emails from Ms. Goltzene and Mr. Helfferich, on March 17, 2005, Mr. LaRoche sent a letter to Ms. Goltzene in which he stated that he did not agree that a verbal reprimand of Mr. Eversley (and Mr. Bless) was adequate; instead, he stated that a suspension from District work for six months was the appropriate remediation. In addition, Mr. LaRoche advised as follows: We have the impression that your company is not fully committed to working for the District. You request additional work orders but are reluctant to fully staff the existing projects to accomplish the work in a timely and efficacious manner. The immediate availability of properly working equipment for all projects must also be included in the commitment. Without this type of commitment we may not be able to continue the contractual arrangement with your company. The projects you have been involved in with the District have multiple partners within the agency and with other governmental agencies. The Vegetation Management Division and its contract partners must be responsive and responsible in its operational activities. A recent evaluation of the SandHill Crane project your company completed, which we are doing for the Land Stewardship Division, is not up to their or our standards. They have indicated to us that their preference is for your company not to be allowed to perform work on any of their properties. Please indicate to us how these issues will be resolved in thirty (30) days, according to Exhibit B, Article 6 - Termination/ Remediation (copy attached) and Exhibit A. Without resolution there will not be any further work orders. (Emphasis in original) No one from Respondent answered Mr. LaRoche's letter of March 17, 2005.1 Further, the SandHill site was not retreated. However, someone from Respondent's office requested a meeting with Mr. LaRoche's supervisor, Mr. Thayer. On April 1, 2005, the parties met and discussed "questions about SandHill Crane, and also what [the District was] going to do to help Enviroglades continue the work on the property." The parties also agreed to meet again on April 13, 2005, at the SandHill site. On April 12, 2005, or the day before the site meeting, Mr. Johnson took photographs which establish that there were misapplications of chemicals at the site as well as areas that were supposed to be treated and were not. These photographs have been received in evidence as District Composite Exhibit 19. On April 13, 2005, several District employees, including Mr. Thayer, met with Shaun and Christopher Bless on the site to "see what was done, what was treated, and determine - what they were going to do about SandHill Crane." On April 22, 2005, Mr. Thayer sent Ms. Goltzene a letter which summarized the results of the April 13 meeting. In his letter, Mr. Thayer stated in part as follows: The work was satisfactory in the areas where melaleuca was treated. However, the areas where Brazilian pepper was targeted (this was throughout the majority of the property) the work was poorly done. According to the contract (Exhibit "C", Section 4.4.2) between the District and Enviroglades, "minimum acceptable performance is defined as a 90% control of the target vegetation within the timeframe of the manufacturers recommended period for control to occur." This critical standard was not met by Enviroglades with the Brazilian pepper work. Therefore in accordance with the contract, Exhibit "C", Section 4.4.3 which states "If minimum acceptable performance is not achieved . . . additional thorough treatment of the target plant(s) shall be the responsibility of the contractor at no cost to the District . . .", the District is requesting that Enviroglades re-treat the Brazilian pepper throughout the entire property. The District will provide the herbicide and Enviroglades shall provide the labor at no further cost to the District. Please respond, in writing, no later than May 1, 2005. Your prompt attention to this matter is appreciated. By this time, Dr. Westerdahl had just purchased controlling interest in the business. (Whether he was fully aware of the problems which the former owners had created under Work Order No. 01 is unknown.) At hearing, Dr. Westerdahl produced an undated letter (District Exhibit 23), which he states was a response to Mr. Thayer's letter of April 22, 2005. Mr. Thayer denied ever receiving a copy, and the District has no record of such a letter being filed or date-stamped. In the letter, Dr. Westerdahl pointed out that a change in ownership had occurred, that he was now the "point person . . . for relations with the District," and that while he disagreed with the "assessment of the work product," Respondent agreed "to do the labor [to retreat the property if] SFWMD [would] supply the chemical." On April 29, 2005, Dr. Westerdahl sent a short email to Mr. Thayer in which he stated in part that the "[o]riginal is being sent in the mail. I would like to set up a meeting with you so you understand that this is important to us and we would like to have the opportunity to re-express our commitment to this[.]" He also asked that Mr. Thayer call him at his cell phone number, which was shown on the email. Dr. Westerdahl says he did not receive a return call from Mr. Thayer. By May 9, 2005, the SandHill property had still not been retreated. About the same time, Mr. LaRoche spoke with J. J. Flathmann, Deputy Director of Procurement, concerning the problems the District had encountered under the Contract. They reached a concensus that Respondent had breached the contract in a material respect. A "material breach" is defined as "any substantial unexcused nonperformance. The breach is either failing to perform an act that is an important part of the transaction or performing an act inconsistent with the terms and conditions of the contract." Fla. Admin. Code R. 40E-7.215(5). They concluded that by failing to meet the minimum performance standard in the Contract, Respondent had performed an act inconsistent with the terms and conditions of the contract. Ms. Flathmann then spoke with Frank Hayden, then Director of Procurement, who had the responsibility of issuing Cure Notices. A "cure notice" is defined in Florida Administrative Code Rule 40E-7.215(3) as follows: a letter citing the specific nature of the material breach, the corrective action required by the District and a thirty (30) day time frame for curing the breach, starting from receipt of the Cure Notice. The letter shall also state that if the contracting entity fails to cure the breach within the thirty (30) day period, the contracting entity will be found in default and may be placed on the District's Temporary or Permanent Suspension List. Mr. Hayden agreed with the assessment of Ms. Flathmann and Mr. LaRoche and directed Ms. Flathmann to prepare a Cure Notice and authorized her to sign it. On May 10, 2005, a Cure Notice was sent to Respondent indicating that the District considered Respondent's failure to comply with the District's vegetation control requirements a material breach of the terms and conditions of Contract No. OTO40866. The Cure Notice went on to say: Pursuant to Exhibit "C" of the contract, paragraph 4.4 you are required to achieve 90% control of targeted vegetation. On February 25, 2005, [sic] Enviroglades, LLC was issued a work order to treat exotic vegetation at the SandHill Crane Property. The completed work did not meet the acceptable performance as defined as 90% control of targeted vegetation. Accordingly, unless this material breach is corrected within thirty (30) days after receipt of this Cure Notice, the District shall terminate Contract No. OTO40866 for default pursuant to Article 6 titled Termination/Remedies of the contract, and shall initiate Governing Board action for determination of temporary or permanent suspension, if any. Please direct all questions concerning this matter to the undersigned . . . . Thus, the Cure Notice provided that all deficiencies must be cured no later than June 10, 2005. After Dr. Westerdahl received the Cure Notice on May 11, 2005, he immediately telephoned Mr. Thayer and reiterated that he desired to work with the District to resolve any outstanding issues. He also retained new counsel (John J. Fumero, Esquire) to assist in resolving the problem. (Enviroglades' counsel to the former owners had been terminated after sending a letter on May 4, 2005, to the District's Executive Director accusing the District of "favoritism, pettiness and discrimination" and other "unfair, illegal, [and] discriminatory" acts in administering the Contract, accusations which apparently did not sit well with the District.] On May 26, 2005, Respondent's new counsel sent a letter to Mr. Hayden advising that he now represented Respondent and confirming that a meeting with District staff was scheduled for May 31, 2005. Dr. Westerdahl stated that he had never received a Cure Notice before, and on advice of his new counsel, did not begin working on the SandHill site after receiving the Cure Notice. He was also told by counsel that the cure period of thirty days could be "stayed." On May 31, 2005, a meeting by District staff and Respondent's representatives took place. At the meeting, which Dr. Westerdahl described as being "a very accusatory meeting" accompanied by considerable "disagreement," the parties apparently agreed to allow Respondent to re-enter the site and complete any remaining work. This was confirmed in a letter from Mr. Fumero to District counsel on June 7, 2005. See District Exhibit 35. (It appears that much of the meeting addressed the accusations raised in the letter which Respondent's former counsel had sent to the Executive Director on May 4, 2005.) A written response to the May 10, 2005 Cure Notice was not sent by Respondent until June 2, 2005, or eight days before the deficiency was expected to be cured. In his letter to Mr. Hayden, Dr. Westerdahl stated in part that Respondent intended to complete the exotic plant treatment on the Sandhill Crane Property in the manner required and expected of the SFWMD staff. Our goal is to start the treatment program NLT [no later than] Monday, June 5, 2005. Arrangements have been made to meet with Mr. David Johnson, SFWMD, on Friday, June 3, 2005, to conduct a thorough site visit, obtain map(s), estimate treatment acreage, and identify herbicides required and quantities required." The letter also indicated that a treatment plan would be submitted to the staff by June 6, 2005. Dr. Westerdahl acknowledged that he prepared a treatment plan because he knew (as of June 2) that he would not be able to begin retreatment of the site until June 9 or 10 at the earliest (or when the time for curing the deficiency expired), even though his letter stated that work would begin no later than June 5. Finally, the letter outlined "some of the key changes that have been made specific to this contract as well as company policy." On June 3, 2005, the south and north areas of the SandHill site were reinspected by Mr. Johnson, who was accompanied by Dr. Westerdahl and Mr. Christopher Bless. (Due to the rainy season, which had now begun, other areas on the site were temporarily inaccessible.) In his Exotic Plant Inspection Treatment Report (District Exhibit 31), Mr. Johnson noted that the treatment of the Brazilian pepper was not "thorough," that the Lygodium in the south area "had not been treated at all," that there were "mis-applications" of chemicals to the north and west of a pasture area, and that hardwood species like Acacia "were not treated in the initial sweep." At the conclusion of the inspection, Mr. Johnson provided a treatment list for Dr. Westerdahl indicating the plant species to be treated, the treatment method, and the chemical to be used. See District Exhibit 32. Based on the information received at the June 3 meeting with Mr. Johnson, on June 6, 2005, Dr. Westerdahl advised Mr. Hayden by letter that there were two areas on the property which needed retreatment. The letter indicated that the first area would be treated on eight days between June 9 and June 20, 2005, while the second area would be treated on ten days between June 13 and 24, 2005. Finally, the letter listed the herbicides and chemicals that would be required for the retreatment. (The District had previously agreed to provide the chemicals if Respondent would provide the labor to complete the job. See Finding of Fact 33, supra.) On June 8, 2005, or more than two months after the Contract called for the work to be completed, Respondent's counsel advised Mr. Hayden by letter that Respondent's personnel misunderstood the terms and conditions of the Contract. Specifically, counsel stated that Respondent understood Subsection 4.4.2 of the Contract to call for "90% of the treated species rather than 90% of all the exotics on the property," and this was responsible for Respondent's "perceived nonperformance" under the Contract. (In other words, Respondent interpreted the provision to mean that whatever areas it was able to treat within the dollar amount of the work order, a ninety percent kill rate was expected; it did not interpret the provision to mean that at least ninety percent of all targeted exotic vegetation on the site must be killed.) The letter also noted that while the Cure Notice required Respondent to cure all deficiencies by June 10, 2005, Dr. Westerdahl's plan to correct the deficiencies "will require additional time to properly complete," and that "[s]ite work will resume on the site upon the District's authorization." By letter dated June 13, 2005, District counsel advised Mr. Fumero that "[d]ue to the unusually wet weather we have experienced, the District is willing to extend the cure notice by ten (10) working days starting on Tuesday, June 14, 2005." The letter also noted that "under no circumstances will the District allow the cure period to extend beyond June 30, 2005." (Emphasis supplied) The purpose of this language was to make it explicitly clear that no further extensions of the cure period would be granted. The letter further stated that Mr. Fumero's letter of June 8, 2005, was the first time the District learned that Respondent did not understand the terms of the Contract. Finally, the letter advised that Respondent should contact Mr. Hayden to make arrangements to visit the site. On June 16, 2005, Dr. Westerdahl, Christopher Bless, and a District Environmental Scientist, Gordon Baker, met on the SandHill site "to review policies and procedures for the retreatment of property in accordance with the Cure Notice." Dr. Westerdahl had a work crew present that day and intended for it to be supervised by Shaun Bless. However, because Mr. Bless had been suspended from all District work for six months (for sleeping while on duty), see Finding of Fact 28, supra, the work could not begin and was delayed until another supervisor could be found. Mr. Baker prepared a memorandum summarizing the meeting and pointed out that Mr. Johnson would meet with Respondent's representatives again the following day (June 17, 2005) at which time it would be emphasized that the entire property had to be "swept." See District Exhibit 38. Based on his inspection of the site and the amount of vegetation that needed to be retreated, on June 17, 2005, Mr. Baker signed a new work order which authorized Respondent to purchase herbicides in the amount of $15,000.00 (rather than $5,000.00) for the retreatment of the site. On June 17, 2005, Dr. Westerdahl prepared a memorandum to Mr. Baker concerning their meeting on the site the previous morning. He confirmed that he had been given a map which marked all areas to be retreated, that Mr. Shaun Bless and Mr. Eversley could not work on the property, and that work would commence the day after the meeting, or on June 17. On June 17, 2005, Mr. Johnson prepared an Exotic Plant Treatment Inspection Report for the two targeted species: Brazilian pepper and Lygodium. He noted that personnel were now working on the site treating the Brazilian pepper. On June 23, 2005, another Exotic Plant Treatment Inspection Report was prepared by Mr. Baker, who reported on the progress of the work to treat the Brazilian pepper. He noted that "at this rate they may not be able to complete the property. Called Howard [Westerdahl] to request additional crews. He said he planned to have additional crew tomorrow." Dr. Westerdahl submitted progress reports to Mr. Baker on June 24, 28, 29, and 30, 2005. See Respondent's Exhibit 4. In his June 28 report, he noted that afternoon rains were delaying the completion of the work. He also stated that out of ten targeted areas, Areas I, II, and V were completed or would be completed no later than June 27; that Areas III, VI, and VII should be completed by July 1; that areas VIII, IX, and X may not be finished until "early next week"; and that Areas III and IV may require "a little follow up spraying" the following two days. Accordingly, he requested "a few extra days to complete this work." In his final progress report submitted on June 30, 2005, Dr. Westerdahl stated that his crews worked all that day and "all B. peppers, melaleuca, and acacia in Area III will be treated by the end of Friday, July 1." He further stated that he anticipated "being finished with all open areas" by July 7; treatment of Brazilian peppers and acacia in Areas VI and VI would be completed by July 5; the "[r]emaining Lygodium in Areas III, VI, and VII will be treated starting again on Tuesday, July 5"; and "[t]he wooded areas (VIII, IX, and X) should be finished by Monday, July 11 or before, if weather permits." Finally, he stated that July 12 would "be used to survey and re- spray colonies that do not appear to be dying." Notwithstanding the District's earlier admonition that no further extensions of the cure period would be granted, on June 30, 2005, Respondent's counsel submitted a letter to District counsel requesting "an extension of time for the SandHill Crane project up to and including July 14, 2005." The letter noted that Respondent had lost "a couple of days due to rain," that access to the certain areas of the property was limited to marsh buggies due to the amount of rainfall, and that two new workers would not begin work until July 11, 2005. As of June 30, 2005, the work was not completed, and Respondent had failed to cure the breach within the time period specified by the Cure Notice. This was treated by the District as a default on the Contract under Florida Administrative Code Rule 40E-7.217. Under that rule, the District is required to issue a Termination for Default Notice by Certified U.S. Mail "[i]n the event that the contracting entity fails to cure the material breach within the time specified in the Cure Notice." In making this determination, Section 6-4 of the Contract requires in part that the District shall specify the reasons for taking this action, "which shall not be arbitrary or capricious." After discussions by Ms. Flathmann and Mr. Hayden, on July 1, 2005, the District, through Mr. Hayden, issued a Stop Work Order, which was provided to Respondent's counsel. (One of Respondent's work crews was also ordered off the site the same day.) The Stop Work Order constituted a termination of the Contract and provided in relevant part as follows: The South Florida Water Management District (District) hereby provides notice that your client has failed to cure the conditions of the material breach under Contract No. OTO40866 as specified in the District's certified letter of May 10, 2005 and the extension letter dated June 13, 2005. Pursuant to clause 6.1 of the contract, the District is therefore issuing this Termination for Default Notice (Notice), effective immediately upon your receipt of this certified Notice for failure to perform ground application services for exotic plant control at SandHill Crane Property. All contract performance shall cease as of the effective date of this Notice and the District shall initiate Governing Board actions for determination of temporary or permanent suspension, if any. * * * The District is in receipt of your letter dated June 30, 2005, in which you have requested additional time for your client to finish spraying at the SandHill Crane project. As the attached letter states, your client materially breached its contract with the District and was given a thirty (30) day cure notice. Your client failed to cure the breach within the required time. The District provided your client an additional 13 days to cure the breach due to the extraordinary circumstances surrounding the impossibility to perform due to the weather. Even after your client was afforded more time to complete the job, Enviroglades failed to show up at the site for over a week while the weather was good. As the attached letter states under no circumstances would your client be provided an extension of time after June 30, 2005. This letter shall serve as notice to have your client cease work on the SandHill Crane Project effective at the close of business on June 30, 2005. On July 29, 2005, Mr. Johnson made a post-treatment inspection of the SandHill site. In his final Exotic Plant Treatment Inspection Report, he noted as follows: The entire property was divided into 10 units which were to be treated sequently (sic) before proceeding to the next. Our inspection revealed that units 1, 2 and 3 were swept while unit 5 had some partial treatments. On units 1, 2 and 3 the Brazilian pepper treatments revealed [at] 80% control, while the Lygodium treatment were around 5% control. Unit 5 had only the western and southwestern area treated. The total area of the three units and one partial unit totaled approximately 30% of the property. When a default on a contract occurs, the District is required to determine "whether the contracting entity should be suspended, and if so, whether it should be temporarily suspended and for what period of time, or permanently suspended from doing business with the District." Fla. Admin. Code R. 40E-7.218(1). Section (2) of the rule identifies seventeen factors to take into account in making this determination. Three such factors are "[t]he economic impact of the material breach to the District," whether "the breach caused or will cause delay in the completion of a District project," and "if the breach caused a delay in performance, whether it was a substantial delay." Fla. Admin. Code R. 40E-7.218(2)(a), (b), and (c). Pursuant to the rule, Mr. Hayden "gathered material that would assist [him] in making the recommendation to the governing board," which included discussions with members of the Vegetation Management Division, the contract administrator, his deputy, and counsel, and a review of documents pertaining to the matter. The evidence shows that because of the breach, the District incurred additional costs due to an "inordinate amount of staff time supervising Enviroglades during the time they performed at SandHill Crane." This included additional site visits, inspections, and monitoring by the staff, numerous meetings with Respondent's representatives, the preparation of written communications, and the provision of further instructions and guidance not normally given to the contracting entity. Mr. Hayden also took into consideration the fact that the District incurred additional expenses in purchasing herbicides while Respondent attempted to complete the job. In all, the District says it incurred an economic impact of $6,264.15. (Mr. Hayden's testimony is unclear as to whether that amount is for the herbicides alone, or whether it also includes the value of the additional staff time expended on this job. It is assumed, however, that this amount represents the cost of the herbicides only, as this would be consistent with the District's Final Order.) Finally, Respondent's inability to complete the work "put the job performance into the rainy season," which caused a substantial delay in getting the project finished. It can reasonably be inferred from the evidence that because of the delay, the site could not be completed by another contractor until a new fiscal year (Fiscal Year 2006), at which time it would have to treat not only the normal vegetation growth which occurs from year to year, but also any targeted vegetation not treated by Respondent in 2005.2 On November 9, 2005, Mr. Hayden recommended that given these considerations, Respondent should be placed on the temporarily suspended list for a period of one year. The Governing Board accepted this recommendation and a Final Order was entered on November 10, 2005. This appeal followed. At hearing, among other things, Respondent contended that the $50,000.00 was insufficient to treat the entire site, and because the Contract was a time and materials contract, Respondent could do as much as it could for that amount, and consistent with District practice on other contracts, then request additional work orders to complete the project. If a contractor expresses concern about going over the ceiling amount in a work order in order to complete a job, the District customarily meets with the contractor to assess the property. This can occur before the job begins, during the job, or near the completion of the work. In determining whether funding is adequate for treatment at a particular site, and additional work orders should be issued for a job, the District takes into consideration such matters as the job performance of the contractor at the time the request is made, the manner in which the money to date has been expended by the contractor, any new conditions unknown to the District at the time the work order was written (such as access problems), and any other circumstances that may affect the price of the work. There are also certain types of sites and work that have constantly changing conditions that often require more than one work order. Examples are the District's Stormwater Treatment Areas (STAs) and the spraying of exotic vegetation in canals. The evidence suggests that Respondent had a work order under the Contract for one such area known as "STA One East." The SandHill site did not fall into either category. Respondent correctly points out that the District issued two work orders for the same site in 2003, and it has issued additional work orders to other contractors to complete a job, including the STA One East job, which Respondent was then performing under the same Contract. In the case of the work performed on the SandHill property in 2003, the contractor was doing the first herbicidal treatment of the site, it was meeting the minimum performance standards under its contract, and the District agreed that the contractor needed and deserved additional money to complete the job. Unlike that situation, Respondent failed to meet the minimum performance standard under the Contract, the District (and SandHill's land manager) did not believe that $50,000.00 worth of work had been performed, and therefore no additional work orders were justified. To issue work orders under these circumstances would be in direct conflict with Subsections 4.4.2 and 4.4.3 of the Contract. As to the issuance of a second work order for the STA One East job, STAs and canals are uniquely different from other projects (such as SandHill) and often times require additional work orders to complete the job. Respondent also contends that the District rule governing cure notices does not contain any prohibition against extending the cure period, and there is no evidence to justify not extending the period for another ten working days when the job was not completed on June 30, 2005. Neither Florida Administrative Code Rule 40E-7.215(3), which defines a "cure notice," or 40E-7.216, which describes the procedure for issuing one, address the issue of whether or not an extension of time to satisfy a cure notice can be granted. Here, the evidence does not show that the District was arbitrary or capricious or otherwise abused its discretion by failing to approve a second extension of time for Respondent to complete the work. Respondent further suggests that after the meeting on May 31, 2005 (which was two months after the work should have been completed), it was prohibited by the District from entering the SandHill site to finish the work for several weeks. The evidence shows that the District's primary concern was to get the job completed as soon as possible, given the fact that the rainy season began in June. Although there may have been some confusion on Respondent's part, particularly since its counsel instructed it not to enter the property until permission was given, there is no credible evidence that any District staffer told Respondent that it was prohibited from entering the site, or that retreatment must be delayed until a treatment plan had been formally approved by the District. Indeed, the evidence shows that Respondent had keys to the property at all times, and notification to the Vegetation Management Division is all that would have been required to access the site. Respondent further contends that it was confused over the language in Section 4.4.2 of the Contract calling for "90% control of targeted vegetation," that the cited provision is ambiguous, and that it did not learn the actual scope of the work until specific instructions were given after the Cure Notice was issued. Given the fact that Respondent's representatives attended a negotiation meeting and a contractor's review meeting, Mr. Bless visited the site prior to the beginning of the work, and no other contractor has ever been confused by this language, this argument has been rejected. All other contentions raised by Respondent have either been addressed in other Findings of Fact, or they are deemed to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order determining that Eco-Engineering, LLC, breached its Contract C-OT040866 in a material respect, and that it be placed on the temporarily suspended list from doing business with the District for a period of one year. DONE AND ENTERED this 25th day of July, 2006, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2006.
