The Issue Whether Respondent, Andrew T. Edgemond, committed the offenses alleged in the Amended Administrative Complaint, and, if so, what discipline should be imposed against Respondent's land surveyor's license.
Findings Of Fact The Department is the state agency charged, in conjunction with the Board of Professional Surveyors and Mappers, with the responsibility to license, regulate, and discipline land surveyors in the State of Florida. Respondent is, and has been at all times material hereto, a licensed land surveyor in the State of Florida, having been issued license number LS 0002347. Respondent was initially licensed as a land surveyor in 1971 and has practiced land surveying in Plant City, Florida for more than twenty years. On or about March 22, 1989, Respondent was contacted by a client who requested that Respondent prepare a survey specifying the location of certain mono form boards. Mono form boards are temporary structures and are not fixed improvements, although they may be used to indicate where fixed improvements will be located. The client indicated that the survey was needed immediately because the client was to have a slab of concrete poured before the next morning. Prior to conducting the survey, Respondent asked his client for a legal description of the property on which the form boards were located. The client provided Respondent with a copy of a building permit which contained a reference to a preliminary plat. Respondent then went to City Hall in Plant City, Florida where he obtained a preliminary plat which included the property on which the form boards were located. After leaving the City Hall, Respondent went to his office to determine where the property was located. In researching the files in his office, Respondent found a boundary survey which included a property line which was coincident with the property the client had asked him to survey. Having obtained the building permit, preliminary plat, and the boundary survey, Respondent went into the field to measure the location of the form boards. Upon returning to his office, Respondent prepared a survey which indicated the location of the mono form boards. The survey, dated March 22, 1989, was signed and sealed by Respondent. On the survey was the following: "SPECIFIC PURPOSE SURVEY" "FOR BUILDING PERMIT PURPOSES ONLY" The survey drawing contained a preliminary description as follows: PRELIMINARY DESCRIPTION Lot 22 of WALDIN LAKE UNIT 55 as per "Preliminary Plat" on file in City Engineers office, City of Plant City, Florida. Respondent made the decision to designate the survey a specific purpose survey after he reviewed Rule 21HH-6.002, Florida Administrative Code. After reviewing the various types of surveys outlined in the rule, Respondent concluded that a survey done solely to provide a client with the location of mono form boards that were already in place came within the definition of a specific or special purpose survey. A specific or special purpose survey is one that is performed for specified purposes and does not come within the definition of other types of surveys outlined in Rule 21HH-6.002, Florida Administrative Code. The specific purpose survey allows the surveyor to perform a survey that meets the client's particular need. However, a specific purpose survey may not be used to circumvent the law and must conform to the minimum technical standards. The Department's position is that a specific purpose survey was inappropriate in the instant case. Moreover, even if a specific purpose survey was appropriate, the Respondent's survey failed to meet the minimum technical standards. With regard to the type of survey performed by Respondent, the Department's expert witness, Lewis Kent, testified that Respondent's use of the specific purpose survey in this case was improper. Although this was his opinion, Mr. Kent candidly admitted that he was not sure what Respondent was requested to do by the client. Mr. Kent further testified that standard practice requires that boundary surveys be performed prior to new construction. Apparently, Mr. Kent believed that the situation in this case involved new construction. Based on that belief, he concluded that Respondent was obligated to perform a boundary survey. Notwithstanding this conclusion, no authority was cited for this proposition. In fact, evidence was presented that the Plant City Building Department did not require a boundary survey as a condition of issuing a building permit for commercial projects, such as the proposed project of Respondent's client. At one point, Mr. Kent stated that the Respondent was required to perform a boundary survey of the entire 1,539.523 acre tract, even though the tract had already been surveyed. During the course of his testimony, Mr. Kent retreated from this position and indicated that Respondent was not obligated to retrace the entire tract, but should have retraced enough of the tract to tie his survey to a legal corner. Notwithstanding the Department's position that the specific purpose survey was inappropriate in this case and that Respondent should have performed a boundary survey, its expert witness testified that a boundary survey was not the only way to locate the mono form boards. During his rebuttal testimony, Mr. Kent indicated that perhaps the type of survey that Respondent should have performed was a "construction layout survey" as that term is defined in Rule 22HH-6.002 (6)(c), Florida Administrative Code. In regard to the second allegation, the Department asserted that even if the survey was appropriately designated a specific purpose survey, the survey failed to meet the minimum technical standards. Specifically, the Department alleged that Respondent's specific purpose survey failed to include an adequate legal description and a legend which included abbreviations used in the drawing. According to the Department's expert witness, the legal description on Respondent's specific purpose survey failed to meet the minimum technical standards in that the description on the face of the survey referred only to a preliminary plat, which by its very nature is subject to change. However, at the time Respondent prepared the specific purpose survey, the subdivision had not yet been platted. The Department's position is that the minimum technical standards required that the survey include a phrase describing the legal metes and bounds, and show the location of the mono form boards in relation to a boundary line. According to the Department's expert, as presently drawn, another surveyor could not reproduce this survey without first obtaining a copy of the preliminary plat referred to on the survey. Richard Hinson, the expert witness for Respondent has been a licensed land surveyor in the State of Florida since 1982. During that time, Mr. Hinson has performed several hundred boundary surveys in Plant City, Florida and over a hundred surveys for building permit purposes. The testimony of Mr. Hinson conflicted directly with the testimony of Mr. Kent. It was Mr. Hinson's testimony that in the instant case, a specific purpose survey is appropriate. Based on what Respondent's client requested, a measurement showing the location of the mono form boards, the survey was appropriately designated a specific purpose survey. The Department asserted that, at a minimum, Respondent was obligated to do a boundary survey of Lot 22. However, in this situation, a boundary survey of preliminary Lot 22 would have made no difference in the location of the mono form boards because Lot 22 did not exist when Respondent prepared the survey. With regard to the preliminary description on the survey, based on Mr. Hinson's opinion, the specific purpose survey prepared by Respondent meets the minimum technical standards. While the survey does not recite or go back to a corner for the description, the description given is that it relates to the preliminary plat. With respect to the use of a specific purpose survey, Mr. Hinson's opinion was that, in this case, it was appropriate for Respondent to perform a specific purpose survey to measure the location of form boards. This opinion was based on two factors, both of which were present in this case. First, prior to performing the survey, the surveyor must have reviewed the following: a boundary survey, a building permit with a legal description describing Lot 22 according to a preliminary plat, and a copy the preliminary plat showing Lot 22. Second, the surveyor must have determined that the preliminary plat was rendered out of the boundary survey. In this case, prior to performing the specific purpose survey, Respondent utilized a boundary survey of the tract, which included Lot 22 as shown on the preliminary plat, and determined that the preliminary plat was rendered from that survey. After assuring himself that the preliminary plat was rendered from the boundary survey which he reviewed, Respondent went to the site and proceeded to measure and draw the location of the mono form boards in his field notes. Respondent's survey shows Lot 22 and notes that this is a preliminary description based on a preliminary plat. The preliminary plat is referenced on the survey. The drawing, which depicts the location of the mono form boards, measures the distance from the boundary of Lot 22 to Old Sydney Road and to Sydney Road. The drawing also measures the distance of the mono form boards from the boundary lines of Lot 22. The accuracy of these measurements were undisputed by the Department. Based on Mr. Hinson's opinion, Respondent's decision to designate the survey in the instant case as a specific purpose survey was appropriate. Also, with respect to the preliminary description that appears on the face of the survey, the survey meets the minimum technical standards. The specific purpose survey prepared by Respondent fails to meet the minimum technical standard set forth in Rule 21HH-6.003(5), Florida Administrative Code. That rule requires that the abbreviations used on the drawing be noted within a legend on the face of the drawing. In this case, the abbreviations used on the survey are not noted on a legend or anywhere else on the survey. No evidence was presented to indicate that the specific purpose survey performed by Respondent inaccurately depicted the location of the mono form boards. Neither was evidence presented which even claimed to indicate that the survey prepared by Respondent failed to comply with the client's request. Respondent has been a licensed land surveyor in the State of Florida for twenty-four years, and there is no evidence that he has been subjected to disciplinary action on any prior occasion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore: RECOMMENDED that the Department of Business and Professional Regulation, Board of Land Surveyors and Mappers, enter a final order finding Respondent guilty of violating Section 472.033(1)(h), Florida Statutes, and imposing a fine of $250.00 RECOMMENDED that Count II of the Amended Administrative Complaint be DISMISSED. RECOMMENDED this 29th day of November, 1995, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 29th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1159 To comply with the requirements of Section 120.59(2), Fla. Statutes, (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1-3. Accepted and incorporated. 4-5. Accepted. 6. Accepted and incorporated. 7-9. Accepted. 10. Rejected as statement of rule. 11. Rejected as irrelevant, immaterial, or unnecessary. 12. Rejected as not supported by the weight of the evidence. 13. Rejected as irrelevant, immaterial, or unnecessary. 14. Rejected as not supported by the weight of the evidence. 15. Rejected as argument. 16. Accepted and incorporated. 17-18. Accepted. 19. Rejected as not supported by the weight of the evidence. 20. Rejected as argument. 21-22. Rejected as not supported by the weight of the evidence. Accepted. Accepted except at time of survey the lots were preliminary. Rejected as argument. 26-27. Rejected as not supported by the weight of the evidence. 28. Accepted except statement that Respondent was obligated to retrace part of the survey is rejected. 29-31. Rejected as not supported by the weight of the evidence. Rejected as irrelevant, immaterial, or unnecessary. Accepted. 34-35. Rejected as argument. 36. Accepted. 37-40. Rejected as not supported by the weight of the evidence. 41. Accepted. 42-43. Rejected as irrelevant, immaterial, or unnecessary. Rejected as not supported by the weight of the evidence. Rejected as conclusion of law. 46-48. Rejected as irrelevant, immaterial, or unnecessary. Respondent's Proposed Findings of Fact Accepted and incorporated. Unsupported by record evidence. 3-7. Accepted and incorporated. Rejected as conclusion of law. Rejected as irrelevant, immaterial, or unnecessary. 1-3 of page 2. Rejected as conclusions of law. COPIES FURNISHED: Miriam S. Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mark W. Reagan, Esquire P.O. Box 321028 Cocoa Beach, Florida 32932 Angel Gonzalez, Executive Director Board of Professional Land Surveyors 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The matters in dispute in this cause concern the attempts by Petitioner to achieve licensure in the State of Florida as a registered land surveyor, pursuant to Chapter 472, Florida Statutes, and through Rule 21HH-3.01, Florida Administrative Code. In particular, Respondent asserts that Petitioner has not met the necessary prerequisites in Section 472.013, Florida Statutes, to allow him to stand the licensing examination. Moreover, Respondent has not allowed Petitioner to gain licensure by endorsement as defined in Subsection 472.015 (3) , Florida Statutes. Petitioner contends that he is entitled to licensure by endorsement or in the alternative, to stand the examination, leading to his licensure by testing. WITNESSES AND EXHIBITS Petitioner testified in this cause and offered two exhibits which were received. Respondent presented a composite exhibit which is constituted of file materials related to the Petitioner's application for licensure and responses to the application request.
Findings Of Fact Petitioner is a retiree from the United States Army, having served 22 years, commencing in 1955. During his service, he obtained military occupational specialties related to the field of surveying in the artillery branch. This experience included occupational training given to Petitioner and examinations of his skills following that training; practical surveying work, and instructional work by Petitioner performed for the benefit of other trainees. This work experience included surveying activities in Florida while in the military. Those surveying duties were military assignments. Material related to Petitioner's training and job performance is generally set forth in Respondent's Exhibit No. 1. Petitioner's Exhibits Nos. 1 and 2 are further statements related to the Petitioner's military occupational specialties. Petitioner has made application to be licensed as a land surveyor in Florida in keeping with the provisions of Chapter 472, Florida Statutes. Through this process, it is Petitioner's desire to be accepted for licensure through the endorsement process or be given the opportunity to sit for the examination. Respondent is unwilling to accent Petitioner as a candidate for licensure by endorsement. In this connection, he did not establish his successful completion of an examination identified in Subsection 472.015(3)(a), Florida Statutes, or that he holds a valid license from another jurisdiction within the meaning of Subsection 472.015(3)(b) , Florida Statutes. After reviewing Petitioner's application, Respondent through correspondence dated September 10, 1982, denied Petitioner's reguest for licensure by examination premised upon the fact that Petitioner's land surveying experience was not verified by a registered land surveyor who had employed or supervised Petitioner's work. In addition, the letter of denial of licensure indicated that the applicant's file was not complete in that it failed to account for work experience following Petitioner's retirement from the armed services in 1976. (In the course of the hearing, it was established that Petitioner has not practiced land surveying following his retirement.) Notwithstanding his considerable experience, Petitioner has failed to submit by application and/or in the course of the final hearing, documentation which would verify that Petitioner has gained his experience in the field of surveying as a sub- ordinate to a land surveyor as defined in Subsection 472.005(3), Florida Statutes. His documentation did not identify that Petitioner's supervisors or commanders were land surveyors as previously defined and Petitioner did not establish in the hearing that his superiors were land surveyors, as defined. As a consequence, Petitioner failed to provide references from land surveyors setting forth the quality and character of his duties and responsibilities while under the land surveyor's supervision. After receiving the letter of denial of the application, Petitioner made a timely request for a formal Subsection 120.57(1), Florida Statutes, hearing. This matter was transmitted to the Division of Administrative Hearings and received by that Division on October 18, 1982. An initial hearing date was established for December 8, 1982, and was continued to allow for the negotiations between the parties. The case was subsequently reset for final hearing on March 16, 1983, the date the final hearing was conducted.
Findings Of Fact Sarasota County's Comprehensive Plan Amendment RU-5 was adopted, as Sarasota County Ordinance No. 91-41, on July 3, 1991. RU-5 amends the 1989 "Revised and Updated Sarasota County Comprehensive Plan," which is also known as "Apoxsee." Res Judicata and Collateral Estoppel.-- The 1989 plan, Apoxsee, is the subject of the Final Order, Hiss v. Sarasota County, ACC 90-014, DOAH Case No. 89-3380GM (the Hiss Final Order). The Hiss Final Order resulted from the Section 163.3184(9) formal administrative proceeding Hiss initiated after notice by the Department of Community Affairs (the DCA) of its determination that the adopted Sarasota County comprehensive plan was "in compliance." After a final hearing, a Division of Administrative Hearings hearing officer entered a Recommended Order on August 14, 1990, recommending that, for certain specified reasons, the plan be found to be not "in compliance." After consideration of the Recommended Order and exceptions to it filed by Hiss, by the County and by the intervenors, the DCA determined that the plan was not in compliance, concluded that, with the exception of the remedial actions recommended by the hearing officer, the Recommended Order should be adopted. The DCA submitted the Recommended Order to the Administration Commission for final agency action (the Hiss Final Order), which was taken on June 4, 1991. The Hiss Final Order recited in part 4/: PRELIMINARY STATEMENT * * * The Recommended Order divides Hiss' numerous allegations for the plan's noncompliance into four categories: the first alleging adoption in a manner inconsistent with the minimum criteria regarding public participation, the second involving the Recreation and Open Spaces Element, the third involving the Future Land Use Element and Future Land Use Map, and the fourth involving urban sprawl. The Hearing Officer concluded that the plan was in compliance with regard to the first, second and fourth of these categories. But, with regard to the third category, the Future Land Use Element and Future Land Use Map, the Hearing Officer concluded that the plan was not in compliance for a number of reasons. * * * ACTION ON THE RECOMMENDED ORDER Pursuant to Section 120.57(1)(b)10., Florida Statutes, the Commission accepts the Findings of Fact and the Conclusions of Law contained in the Recommended Order . . . with the exception of the recommended Remedial Action to the extent inconsistent with the Remedial Action ordered below. The Sarasota County comprehensive plan, therefore, is determined to be not in compliance for the reasons set forth in the Recommended Order and the following remedial action is ordered. REMEDIAL ACTION The following remedial action pursuant to the schedule in paragraph 15, below, is hereby ordered to bring the comprehensive plan of Sarasota County into compliance: * * * a. Plan amendments ordered herein shall be prepared by the County and transmitted to the Department of Community Affairs by September 30, 1991. DCA by October 15, 1991 shall certify to the Commission that the plan amendments have been received. In the event the plan amendments are not received by that date the DCA shall notify the Commission by October 31, 1991 and the Commission shall review the matter as to the appropriate action to be taken. DCA shall report to the Commission on the progress of its review of the plan amendments by February 15, 1992. DCA shall forward a recommendation to the Commission regarding the County's conformance with the remedial action ordered herein no later than June 1, 1992. SANCTIONS Under the circumstances of this case, the Commission exercises its discretion to impose no sanctions on the County at this time. The Commission retains jurisdiction, however, to consider sanctions available under Chapter 163, Florida Statutes, and to impose sanctions in the future if the County fails to comply with the remedial actions of this order. Paragraph 10 of the "Remedial Actions" portion of the Final Order, which required the County to amend Policy 1.1.2 and add or amend other appropriate objectives and policies in the Public Facilities Plan as described therein, contained the following footnote: "Clarifica- tion of the language in the amendments ordered by Remedial Action 10, so long as they do not depart from the purposes of the remedial actions ordered, may be made by the County subject to review and compliance determinations by the Department of Community Affairs and this Commission." The Walton Tract. The Walton Tract is approximately 6,151 acres of land in south central Sarasota County. It is about a mile east of Interstate 75 and is presently undeveloped with vegetation typical of the pine flatwood community. At the time Apoxsee was adopted, the County was in the process of planning for a solid waste disposal complex on the Walton Tract but had not yet identified an exact landfill site on the tract. In Apoxsee, the entire Walton Tract was identifed as the general area for the proposed Central County Solid Waste Disposal Complex, and the entire Walton Tract was designated as "Public Resource Lands." Prior Proceeding.-- In part, the Recommended Order adopted in the Hiss Final Order found: Neither the FLUM nor the FLUE designates a category of land devoted to conservation use. Designations tending to include conservation uses are Public Resource . . .. The Public Resource Lands designation is assigned to, among other parcels, the Walton Tract where any preservation or conservation uses will be subjected to the use of a part of the tract as a landfill, as discussed in Paragraphs 246 et seq. The primary provision in the plan describing the uses associated with Public Resource Lands is Policy 1.2 of the FLUE, which is "[t]o acquire and protect Public Resource Lands." In addition, FLUE Policy 1.2.3 permits environmental management practices on such lands, including controlled burning. These provisions are readily applicable to the other three parcels designated as Public Resource Lands and the part of the Walton Tract undisturbed by the landfill. However, these provisions are inconsistent with the portion of the Walton Tract proposed for use as a major landfill and other areas affected by this intensive use. * * * The inclusion of the entire Walton Tract in the Public Resource Lands is inconsistent with the proposed use of a substantial part of the tract as a major landfill. If the County eliminates this inconsistency by designating the actual landfill area and other affected areas as institutional or other public facilities, the Public Resource Lands designation would be consistent with the conservation designation. If the actual landfill area remains designated as Public Resource Lands, the designation of the Walton Tract as Public Resource Lands precludes, to the exclusion of fair debate, a finding that the Public Resource Lands designation is consistent with the criterion of a conservation designation. * * * It is fairly debatable that the plan is consistent with the criterion of a policy addressing intergovernmental coordination with respect to the conservation, protection, and appropriate use of interjurisdictional vegetative communities. With one exception, it is fairly debatable that the plan is consistent with criteria of policies addressing the protection of natural reservations and the designation of environmentally sensitive lands. [F.A.C. Rule 9J-5.013(2)(b)7. and 9.] To the exclusion of fair debate, the plan is not consistent with the latter two criteria as applied to the designation of the entire Walton Tract as Public Resource Lands, despite the intended use of part of the tract as a major landfill. The early stages of planning for the landfill may prevent the plan from dealing specifically with the likely environmental impacts of a landfill yet to be designed or sited. However, the plan should contain many of the provisions of the management plan promised for the Walton Tract. If, as the Supportive Material indicates, the landfill disturbs one-third of the Walton Tract, siting the landfill among the important environmental resources in the area is a critical task requiring more from the plan than inaccurately designating the entire tract as Public Resource Lands or promising the issuance of a management plan at some point in the future. The plan fails to provide guidelines for a detailed management plan, and guidelines are especially critical for the coordination of a major landfill with sensitive natural resources in the area. Detailed and effective safeguards in the plan for the Walton Tract and surrounding natural resources would require that the landfill project conform to these requirements. If some aspect of the landfill design prevents conformance with such plan provisions, the County may amend the plan with in [sic] compliance with all procedural requirements of the Act, including public participation and review by DCA. Absent effective provisions concerning the landfill to be placed in the Walton Tract, it is impossible to find that the plan contains policies addressing implementation activities for the protection of existing natural reservations. The Walton Tract is designated in its entirety as Public Resource Lands, and the conversion of part of this land to a landfill is not consistent with the protection of the entire tract. The same findings apply with respect to the designation of environmentally sensitive land because the Walton Tract is the site of critical natural resources, including various types of wetlands, part of Cow Pen Slough, and part of the Myakka River floodplain, as well as a bank of part of the Myakka River. * * * 402. To the exclusion of fair debate, the FLUM is not consistent with provisions to protect and acquire environmentally sensitive lands due to the conflict between the Public Resource Lands designation of the Walton Tract on the FLUM and the proposed use of part of the tract as a major landfill . . .. In part, the Recommended Order adopted in the Hiss Final Order concluded: 76. Based on the ultimate findings of fact contained in Paragraphs 366 and 367, the plan . . . is consistent with the criterion of the designation on the FLUM of proposed conservation land uses, if the designation of the part of the Walton Tract proposed for actual landfill use and any other affected area are redesignated from Public Resource Lands to another designation such as institutional or other public facilities. Otherwise, the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with the criterion of the designation on the FLUM of proposed conservation land uses. * * * Based on the ultimate findings of fact contained in Paragraphs 376 et seq., the plan is consistent with these [9J-5.013(2)(c)7.-9.] criteria with one exception. The plan is not in compliance with the Act and Chapter 9J-5 because the treatment of the entire Walton Tract is not consistent with criteria of the protection of existing natural reservations and designation of environmentally sensitive land for protection. The designation of the Walton Tract as Public Resource Lands despite the proposed use of part of the tract as a landfill demands, to the exclusion of fair debate, more specificity in the plan coordinating the land uses that will be permitted on the tract with the sensitive natural resources already there. Because of the intense use proposed for part of the tract and the proximity of important natural resources, the promise to adopt later a management plan for the Walton Tract is insufficient. . . . The proposed uses and special features of the Walton Tract require that, regardless of its future land use designation, the plan provide details of the management plan, if the plan is to contain policies addressing implementation activities for the protection of environmentally sensitive lands and existing natural reservations. [Fn. 43.--This determination remains applicable even if the County redesignates the Walton Tract as institutional or other public facilities. Although arguably redesignation could result in the tract losing its status as an existing natural reservation, the tract, or at least parts of it, would continue to represent environmentally sensitive lands, whose status is unaffected by any change in designation.] * * * 109. Based on the ultimate findings of fact contained in Paragraph 402, the plan is not in compliance with the Act and Chapter 9J-5 because the FLUM is not consistent with FLUE objectives and policies to protect and acquire environmentally sensitive lands with respect to the designation of the entire Walton Tract . . .. The Hiss Final Order required the following Remedial Action pertinent solely to the Walton Tract: 5. The County shall revise the section in the solid waste portion of the Public Facilities chapter that refers to "landfill Site Feasibility Report: Walton Tract and Central County Solid Waste Disposal Complex - Preliminary Cost Estimate" to reflect that the Walton Tract is currently only one potential location for the proposed landfill, subject to additional study. The County shall also adopt a policy requiring that at such time as a final decision is made on the location and type of solid waste treatment facility to be developed, the Future Land Use Plan Map Series and Public Facilities chapter will be amended accordingly to reflect that decision. The RU-5 Walton Tract Amendments.-- In part, RU-5 amends Figure 23, a part of the Future Land Use Map (FLUM) Series, to delineate 2,972 acres of the Walton Tract as "Public Resource Lands" and 3,179 acres of the Walton Tract as "Central County Solid Waste Disposal Complex and other Government Use." RU-5 specifically locates a proposed solid waste disposal complex on 550 acres of the 3,179 acres designated as "Central County Solid Waste Disposal Complex and other Government Use." The 2,972 acres in the Walton Tract designated as "Public Resource Lands" were zoned Open Use Conservation (OUC) by Sarasota County Ordinance 90-54. RU-5 also amends the Public Facilities Element of the Sarasota County Comprehensive Plan (Apoxsee) by adding Objective 2.6 and Policy 2.6.1. Objective 2.6 is: To develop a solid waste disposal complex and site which is economically feasible and which has minimal environmental impacts. Policy 2.6.1 states: The Central County Solid Waste Disposal Complex shall minimize, to the greatest extent possible, potential environmental impacts consistent with the adopted stipulations contained within Ordinance No. 90-54 and Resolution No. 91-149. Prior to development of the Central County Solid Waste Disposal Complex a resource based Land Management Program shall be adopted consistent with the "Principles for Evaluating Development Proposals in Native Habitats" and all other relevant policies in the Environment Chapter. The Public Facilities Supportive Material adopted as part of RU-5 states: The Board also approved a special exception for a 550 acre parcel for the Solid Waste Disposal Complex including a sanitary landfill and other uses associated with the landfill operations. * * * In order to minimize potential environmental impacts to the greatest extent possible, stipulations in the special exception approval include requirements for submission of studies such as the completion of a background Water Quality Monitoring Plan and a resource based Land Management Program, prior to the development of the landfill or other associated operations. Data and Analysis.-- The RU-5 amendments relating to the use of a portion of the Walton Tract for the Central County Solid Waste Disposal Complex are supported by the best available data and by appropriate analysis of the data. The County utilized all the appropriate data available at the time of the adoption of RU-5. All analysis required to be performed on the data through the time of the final hearing was performed and taken into consideration. Both the data and the analysis of the data through the time of the final hearing support the selection of the Walton Tract site for the Central County Solid Waste Disposal Complex. The total functional population of Sarasota County is projected to increase from 337,471 in 1990 to 475,353 in 2010. Meanwhile, with the closure of numerous unlicensed dump sites in the early 1970s, the County began operating the Bee Ridge Landfill in 1972. Although two of the County's four municipalities formerly operated landfills, those facilities have been closed due to environmental problems. Bee Ridge currently is relied on to serve all the municipalities as well as the entire unincorporated area of Sarasota County. Bee Ridge receives an average of 1,400 tons of solid waste per day (511,000 tons a year). Even assuming a 50% reduction in solid waste disposal through recycling, the County is projected to require solid waste disposal facilities capable of land filling over 850,000 tons per year. A County study entitled Solid Waste Management and Resource Recovery Plan, completed in 1980, indicated that landfilling would likely remain an essential means of managing the County's solid waste stream for the foreseeable future and that it would be necessary to obtain a replacement facility for the Bee Ridge Landfill. The Bee Ridge Department of Environmental Regulation (DER) permit expires in 1995. Bee Ridge was not constructed with liners meeting current DER permit requirements. Although the County has installed an underground "slurry wall" at the perimeter to attempt to prevent contamination from leaching out, there is no assurance that DER will renew the permit. In any event, Bee Ridge is projected to reach its maximum height by the mid-1990s. In addition, the ability to expand Bee Ridge is not assured, due to strong opposition from neighboring property owners. In 1986, the opportunity arose to acquire the Walton Tract without the use of condemnation, and the County authorized a specific feasibility study performed on the 6,151 acre tract. The study examined the parcel in terms of Florida statutory landfill requirements, physical characteristics of the site, hydrogeology and soils, landfill block configurations, environmental considerations, and regulatory agency comments. Although the study indicated that only 3,600 acres would be required for a landfill, the entire tract was purchased on advice of professional staff to maximize siting flexibility and ensure sufficient areas for perimeter buffers, wetland mitigation, and wildlife conservation areas. The purchase price was $8.6 million, paid out of the proceeds of an $80 million Solid Waste System Revenue Bond Issue. Preliminary cost estimates were prepared for the initial 20 years of the life of a landfill on the site. The estimate came to $39 million. At the time the Revised and Updated Sarasota County Comprehensive Plan was being compiled in the years prior to its adoption in 1989, the County had not yet identified an exact landfill site on the Walton Tract. Accordingly, Apoxsee identified the entire Walton Tract was identified as the general area for the proposed Central County Solid Waste Disposal Complex. The Walton Tract was also designated entirely as "Public Resource Lands" since the County regarded the "Public Resource Lands" use designation to permit public facilities in careful conjunction with large conservation areas of important native habitat, e.g., a potable water wellfield and water treatment plant on the Carlton Reserve; a solid waste disposal complex on the Walton Tract; and RV parks, campsites and active recreation facilities at Oscar Scherer State Recreation Area and Myakka River State Park. In the spring and summer of 1991, after entry of the Hiss Final Order, the Board of County Commissioners held public hearings to determine whether the Walton Tract should once again be designated as the site for the Central County Solid Waste Disposal Complex to accommodate a Class I landfill, composting areas for yard waste and yard waste/sludge recycling, and a Class III landfill for construction debris, and, if so, to determine the specific location and extent of the Complex, in the context of a rezoning and special exception proceeding. During the course of the hearings the County Commission considered detailed presentations by the county professional staff, expert consultants and the public concerning the suitability of the Walton Tract site, as well as other sites, for a solid waste disposal complex. The Commission also considered, as part of the evidence, a Draft Alternative Siting Study prepared by the engineering firm Camp Dresser & McKee (CDM) to meet the regulatory requirements of the EPA and Corps of Engineers under Section 404 of the Clean Water Act and the requirements of the Recycle Now! Chapter Amendment. At the conclusion of the hearings, the County Commission, by Ordinance 90-54 rezoned 3,179 acres of the Walton Tract to Government Use (GU) and 2,972 acres to Open Use Conservation (OUC). The Commission, by Resolution 91-149 also designated a reduced 550 acre site (instead of a 1,187 acre site) for the Central County Solid Waste Disposal Complex subject to final action on Comprehensive Plan Amendment RU-5, which was adopted by Ordinance 91-41 on July 23, 1991, after another public hearing at which all the evidence from the rezoning and special exception hearings was received into the record. (a.) Economic Feasibility.-- The Walton Tract site is centrally located in the County, between what are planned to be the County's major population concentrations, and close to the Laurel Road interchange with I-75 which is committed to be constructed by FDOT in 1993 under an agreement with the County. This location provides efficient transportation access to the rest of the County. The trend in solid waste management is toward centralizing solid waste disposal facilities due to the cost of the facilities, including the cost of permitting; the ability to achieve economies of scale; the increased reliability inherent in operating a limited number of facilities; and the advantages of focusing budget-limited management and regulatory compliance resources. Transportation costs with a centralized facility are offset by the use of transfer stations which greatly compress the solid waste to reduce the number of trips from the transfer station to the central facility. Sarasota County is already successfully using this system. The Draft Alternative Siting Study identifies three other properties besides the Walton Tract as suitable. During the public hearings before the County Commission, however, two of the sites (D and E) were strongly opposed by citizens living around those potential sites and the third site (G) was closer to the Myakka River and could be in conflict with the Myakka River Wild and Scenic Management Plan. From the standpoint of economic feasibility, the County Commission was advised: The County has certain bond obligations due to the purchase of site F [the Walton Tract] to provide a solid waste disposal facility. The legal and future bond financing issues must be considered against the potential benefits of selecting another site. The County's bond counsel also advised the County Commission that, if the County elected not to locate the solid waste disposal complex on the Walton Tract, the County would have to pay back to the Solid Waste System Revenue Bond enterprise fund the fair market value of the Walton Tract from some other revenue source. (b.) Adjacent Property.-- In contrast to the other suitable sites, the property owners closest to the proposed site on the Walton Tract are not opposed to the solid waste disposal complex in light of the County's ability to provide 1,000 foot buffers and avoid access conflicts due to the size and location of the Walton Tract. Due to the 6,151 acre size of the Walton Tract, the solid waste disposal complex, as approved by the County Commission, including all borrow pits, is located more than 8,000 feet from the closest point on the Myakka River, a designated Wild and Scenic River, and the testimony indicates that heavy equipment would not be heard on the river. Due to the flexibility in siting the solid waste disposal complex, and the 100 foot height limitation placed on the landfill by the County Commission, the landfill will not be seen on Lower Myakka Lake or the Myakka River. Due to the location of the solid waste disposal complex on the Walton Tract, together with the hydrogeologic characteristics of the site, no adverse impact on the Carlton (Ringling MacArthur) Reserve potable water wellfield located several miles to the east across the Myakka River is to be anticipated. The restriction of the solid waste disposal complex and associated borrow pits to the northwest portion of the Walton Tract and the designation by the County Commission of the remainder of the property as Public Resource Lands results in approximately 3,000 acres of the Walton Tract, contiguous to Myakka River State Park and the Carlton Reserve to the east, being placed in a conservation land use designation, linking these natural areas into a contiguous system of 55,000 acres of high quality native habitat in protected public ownership. (c.) Character of the Walton Tract.-- Hundreds of hours over a period of approximately five years were spend on-site at the Walton Tract by experts in environmental, engineering and other scientific disciplines to collect and analyze data on soils; topography; natural resources, including habitats, flora, and fauna; and historic resources to determine whether, and where, a solid waste disposal complex should be sited on the tract that would be economically feasible and minimize environmental impacts. Every wetland and upland habitat on the Walton Tract as well as likely ecological corridors and preservation areas, including the Myakka River 100 year floodplain and mesic hammocks, have been identified and verified in the field. The methods that were used to identify habitats, including likely habitats of threatened and endangered species, met professionally accepted standards, particularly for planning purposes. Environmental constraints were identified at the beginning of the assessment of the Walton Tract and drove or determined the siting process. Over the course of a five year period, there were no sightings of threatened or endangered species that would render the designated site of the complex or the borrow pits unsuitable for the proposed use. The designated site was suitable from the standpoint of minimizing environmental impacts. The pine flatwoods and isolated wetlands within the solid waste disposal complex footprint are neither rare nor endangered, constituting 57% and 17% of the area of the County, respectively, and there are suitable formerly improved pasture areas on the site to mitigate these wetlands on a type-for- type, one-for-one ratio. There is also a large 300 acre area adjacent to Cow Pen Slough suitable for mitigation by rehydrating wetlands previously impacted by the channelization of Cow Pen Slough in the 1960's. The proposed location of the landfill on the site is the most appropriate from the context of habitat, wetlands and wildlife. The complex and borrow pits protect water resources by being located outside the watershed of the Myakka River and outside the 100 year floodplain of Cow Pen Slough. Also, the Class I landfill will be elevated approximately three feet above grade, and the entire solid waste disposal complex will be surrounded with a bermed stormwater management system at least five feet above grade that will not only treat the stormwater to required standards but also provide additional protection against flooding beyond a 100 year flood event. The reduced 550 acre size of the solid waste disposal site is reasonable for meeting the solid waste recycling and disposal needs of the County for a 20 year planning period. CDM used the best available data, including the Federal Emergency Managment Agency (FEMA) Flood Insurance Rate Maps (FIRM), in siting the complex out of the 100 year floodplain. (The U.S. Soil Conservation Service 1985 Flood Plain Management Study of the Cow Pen Slough is not reliable data with respect to the extent of the 100 year floodplain.) The site designated for the landfill on the Walton Tract has no geotechnical or water resource factors that would preclude it from being suitable for a landfill. There is no realistic danger of groundwater contamination of either the surficial or the deeper Floridan aquifer beneath the landfill in light of the required multiple liners and the required leachate collection and treatment systems. A modern landfill operation is not necessarily incompatible with surrounding wildlife. The landfill would be limited to an exposed working face of solid waste no more than 100 feet by 200 feet which must be covered daily. This reduces the landfill's attactiveness to seagulls and other scavengers. Many species of birds, including sandhill cranes, woodstorks, and bald eagles, continue to be seen within several hundred yards of the working face of the Bee Ridge landfill and its heavy equipment. Over the 12 year existence of the Bee Ridge landfill, there has been no quantifiable decline in such wildlife. The herd of deer adjacent to the landfill had increased substantially over that period. Internal Consistency.-- It was not the intent of RU-5's Public Facilities Objective 2.6 and Policy 2.6.1 that the specifically designated site for the solid waste disposal complex on the Walton Tract would be invalidated if any other possible site were found to have even marginally less environmental impact. Although there are other sites arguably with less environmental impacts, according to a rating system developed for evaluating the suitability of potential sites, other factors also went into the selection of the Walton Tract site. Both Public Facilities Objective 2.6 and Policy 2.6.1 contemplate the development of a solid waste disposal complex and site. They mean that the designated site should be developed in a manner which reduces environmmental impacts as much as possible. It certainly is at least fairly debatable that they contemplate the development of the Walton Tract site as a landfill. RU-5's amended "Principles for Evaluating Development Proposals in Native Habitats," Section VI.A.2.e., provides in part: In cases where a wetland is no longer capable of performing defined environmental functions and providing defined environmental values, or in cases where no other reasonable alternative exists other than disrupting a wetland, some alteration may be allowed. As amended by RU-5, this portion of the "Principles for Evaluating Development Proposals in Native Habitats" focuses on wetland mitigation requirements on other portions of a landowner's property, when a wetland must be altered to allow reasonable, beneficial use of the property. Section VI.A.2.e. of these principles does not require the County, or any other property owner, to demonstate, prior to developing their property, that there is "no reasonable alternative location in the County which impacts less wetlands or an equivalent acreage of wetlands of less environmental value." It certainly is at least fairly debatable that they do not. The Supportive Material for Apoxsee's Recreation and Open Space Element states: "Large portions of the Walton Tract cannot be used for landfill purposes because they are in the floodplain of either the Myakka River or the Cow Pen Slough." Nothing in RU-5 is inconsistent with this data and analysis. The acreage being used for the landfill and associated uses are not in the floodplain. Through RU-5, Recreation Policy 1.1.4 of Apoxsee provided: "Ecologically benign, non-consumptive, resource-based uses shall be implemented at the Walton Tract and the Ringling-MacArthur Reserve." On March 10, 1992, RU- 6 was adopted and amended Recreation Policy to provide: "Recreational uses implemented on the Walton Tract and the T. Mabry Carlton, Jr., Memorial Reserve [formerly known as the Ringling-MacArthur Reserve] shall be limited to activities which are ecologically benign, non-consumptive and resource based." It is at least fairly debatable that this policy does not refer to the portion of the Walton Tract designated for use as a landfill. Future Land Use Element (FLUE) Objective 1.1, as amended through RU-5, restricts land uses on Public Resources Lands by requiring the County: "To protect environmentally sensitive lands, conserve natural resources, protect floodplains, maintain water quality, and maintain open space." FLUE Objective 1.2 is: "To acquire and protect Public Resource Lands." The implementing policies under FLUE Objective 1.2 include: Policy 1.2.1 -- Sarasota County shall attempt to coordinate efforts to acquire public lands for conservation, preservation and open space. Policy 1.2.2 -- Provide adequate buffering of Public Resource Lands for potentially incompatible adjacent land uses. Policy 1.2.3 -- Permit normal management practices associated with native habitats. Again, it is at least fairly debatable that these objectives and policies do not preclude the designation of a part of the Walton Tract for use as a landfill. The Supportive Material for Apoxsee's FLUE states that the County will adopt "detailed management plans" for the Walton Tract (and the Ringling- MacArthur Reserve) and adds: In conjunction with the development of a portion of these two County-owned properties as a waste disposal complex and potable water supply, respectively, subtantial acreage is to be preserved to provide for wildlife corridors, wetlands protection, buffering zones, recreation, education, and open space uses. It is critical that any development within, and adjacent to, these Public Resource Lands be compatible with their inherent environmental values as well as the public values ascribed to them. The management plans . . . will address this issue. The County has not yet adopted a management plan for the Walton Tract landfill. But Public Facilities Policy 2.6.1 incorporates the detailed protective stipulations contained in Ordinance 90-54, which zoned the Walton Tract "Government Use" and "Open Use, Conservation," and in Resolution 91-149, which designated the site of the Central County Solid Waste Disposal Complex. These stipulations: require submission of a background water quality monitoring plan for review and approval by the County Natural Resources Department; require a preapplication meeting with the Stormwater Management, Natural Sciences, and Pollution Control Divisions prior to submission of a Master Stormwater Management Plan; limit post development runoff volumes to predevelopment volumes for storm events up to the mean annual (2.33-year) storm; require design and planting of littoral zones in all stormwater detention lakes in accordance with the County Land Development Regulations; require design and planting of littoral zones in all borrow lakes in accordance with the County's Earthmoving Ordinance; require submission of a final mitigation plan, including engineer drawings and plans for creating and maintaining adequate hydroperiods in created wetlands for review and approval by the Natural Sciences Division; require clear delineation and, during construction, marking of Preservation/Conservation areas; require appropriate sediment control devices around buffers of all wetlands within 500 feet of construction; prohibit disturbances in any Perservation/Conservation area except in approved construction areas or to provide approved access roads, fire lanes, utility transmission lines or nature trails; require notification to the Natural Sciences Division for determination of appropriate remedial action in the event listed species are observed; prohibits development of the solid waste disposal complex until a resource-based Land Management Program is prepared, approved and adopted; and limits the height of the landfill to 100 feet. In addition, Public Facilities Policy 2.6.1 prohibits development of the solid waste disposal complex until a resource-based Land Management Program is adopted consistent with the detailed requirements of the "Principles for Evaluating Development Proposals in Native Habitats" and the policies of the Environment Chapter of Apoxsee, e.g., Environment Policy 5.5.13, as well as Recreation Policy 1.1.4 and Future Land Use Policies 1.2.2 and 1.2.3. The Hiss Final Order does not require that a detailed management plan be adopted as part of RU-5 in order for RU-5 to amend the FLUM Series to designate a portion of the Walton Tract as the new County landfill. Rather, it was critical that the 1989 "plan fails to provide guidelines for a detailed management plan, and guidelines are especially critical for the coordination of a major landfill with sensitive natural resources in the area." (Emphasis added.) Recommended Order, Finding of Fact 378. It stated that "the plan should contain many of the provisions of the management plan promised for the Walton Tract." (Emphasis added.) Recommended Order, Finding of Fact 377. While not specifying the management plan guidelines believed to be necessary, the Hiss Final Order found that the plan was not "consistent with criteria of policies addressing the protection of natural reservations and the designation of environmentally sensitive lands [referring to F.A.C. Rule 9J-5.013(2)(b)7. and 9.]." (Emphasis added.) Recommended Order, Finding of Fact 376. Elsewhere, it found it "impossible to find that the plan contains policies addressing implementation activities for the protection of existing natural reservations." (Emphasis added.) Recommended Order, Finding of Fact 379. F.A.C. Rule 9J-5.013(2)(b)7. and 9. require objectives that "[protect] existing natural reservations identified in the recreation and open space element" and "[designate] environmentally sensitive lands for protection based on locally determined criteria which further the goals and objectives of the conservation element." The plan, as amended through RU-5, contains guidelines for a management plan for the Walton Tract that are sufficiently detailed to meet the requirements of F.A.C. Rule 9J-5.013(2)(b)7. and 9. RU-5 is not inconsistent with the Support Material referred to in Finding 49, above. The final version of the management plan is not data or analysis that must precede the amendment of the FLUM Series. RU-6 amended Environment Policy 5.5.3 to read: By July 1, 1992, the Sarasota County Board of County Commissioners shall have adopted criteria for conducting and staff shall have conducted an analysis to identify habitats of high ecological values and strategies to physically link natural areas into a contiguous system. The criteria for identifying these areas should consider several major factors including the presence of endangered species, outstanding water resources, high quality natural habitat, and value as a wildlife corridor. The Future Land Use Map Series shall be revised to show the location of these areas of high quality ecological value. This provision is not inconsistent with RU-5. The portion of the Walton Tract designated for development as a landfill is made up of pine flatwoods and isolated, seasonal wetlands which are neither rare nor endangered habitats. Except for a minor portion of the westernmost borrow pit, it is outside the 100-year floodplain. 5/ It is outside the watershed of the Myakka River. It is set back from habitats of threatened or endangered species, as well as surrounding property owners. It is reasonably sized to meet the solid waste recycling and disposal needs of the County for the 20-year planning period. Consistent with Environment Policy 5.5.3, the 2,971 acres of the Walton Tract which RU-5 leaves designated Public Resource Land includes those areas which are contiguous to Myakka River State Park and the Carlton Reserve to the east, linking natural areas into a contiguous system, and providing protection to the outstanding water resources and high quality habitat in the Myakka River watershed and in the Cow Pen Slough watershed in the southernmost portion of the Tract. Historic and Archaeological Preservation.-- In part, the Recommended Order adopted in the Hiss Final Order found: 362. To the exclusion of fair debate, the plan is not consistent with the criterion of the depiction on the ELUM of historic resources. The depicted archaeological sensitivity zones, which represent projections of possible sites, do not purport to represent the location of, for example, the 78 or 79 sites on the Florida Master Site Plan and other historical resources, which are concededly vulnerable to development. In part, the Recommended Order adopted in the Hiss Final Order concluded: As relevant to the determinations contained in this section, . . . Rule 9J- 5.006(1)(a)(11), . . . requires that the "following generalized land uses shall be shown on the existing land use map or map series: . . . Historic resources." Rule 9J-5.003(35) defines "historic resources" to mean: all areas, districts or sites containing properties listed on the Florida Master Site File, the National Register of Historic Places, or designated by the local government as historically, architecturally, or archaeologically significant. Based on the ultimate findings of fact contained in Paragraph 362, the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with the criterion of showing historic resources on the ELUM. For instance, there are 78 or 79 sites in the Florida Master Site File that are, by definition, historic resources, but are not shown on any ELUM. The Hiss Final Order required the following Remedial Action pertinent to historic and archeological preservation: 2. The County shall revise its existing land use map to show the location of historic resources, including the generalized location of sites listed in the Florida Master Site File or National Register of Historic Places or otherwise designated by the County as historically, architecturally or archaeologically significant. * * * 4. The County shall revise its Future Land Use Plan Map Series to include the historic resources mentioned in paragraph 2 above. RU-5 amends the Historic Preservation Chapter of Apoxsee to indicate that the map provided in Figure 3 in the Future Land Use Map (FLUM) Series shows the location of "National Register sites and other historically significant sites in Sarasota County." It also amends Figure 3 to identify 78 National Register sites from the Florida Master Site File. Appendix A to "Section 3: Sites in Unincorporated Sarasota County Listed in the Florida Master Site File" also is amended to list these sites. In essence, RU-5 follows from the updating of the supporting documentation to Apoxsee by adding to the Existing Land Use Map (ELUM) Series and the FLUM Series verified historically significant sites in Sarasota County, namely the sites found on the National Register and on the Florida Master Site File List. The County also has performed extensive study of portions of the County in an effort to locate significant historic and archaeological sites. The study has located many potential sites. However, the sites have not yet been fully evaluated to determine if they are historically, architecturally or archaeologically significant. Therefore, they have not yet been added, or proposed to be added, to the National Register or the Florida Master Site File List, and they do not appear in Apoxsee, as amended by RU-5. The County's determination not to identify and depict more sites on RU-5 is supported by the best available data and analysis. In addition, RU-5 adopted Future Land Use Element (FLUE) Policy 1.13.1 which provides for the coordination of land uses with the protection of historical resources. As part of the process for issuing development orders, the County has incorporated review by the County Historian to determine the likelihood of the site being historically significant, and the County places conditions on various development permits to protect historically significant sites. Except for the failure of Apoxsee, before RU-5, to depict the locations of, "for example, the 78 or 79 sites on the Florida Master Site Plan and other historical resources, which are concededly vulnerable to development," the Historic Preservation Chapter of Apoxsee already has been exhaustively scrutinized and found to be internally consistent and in compliance. See Hiss Final Order. Floodplain Delineation and Protection.-- In part, the Recommended Order adopted in the Hiss Final Order found: To the exclusion of fair debate, the FLUM is not consistent with criteria of the depiction of floodplains; Big Slough, whether it is classified as a river, floodplain, or wetland; and minerals and soils. . . .. The omission of floodplains is complete. Nothing in FLUM-2 corresponds to the floodprone areas shown in Figure 27 in the Supportive Material. For example, the Conservation/Preservation areas surrounding the Myakka River are not coextensive with the larger floodplain of the Myakka River depicted in Figure 27. The omission of floodplains is exacerbated by the absence of plan provisions providing effective protection for these critical natural drainage features, except for the Myakka River floodplain. * * * To the exclusion of fair debate, the plan is not consistent with criteria of objectives to ensure the protection of floodplains (other than that of the Myakka River), floodplain- associated soils, and wetlands (due to the inadequacy of the mitigation provision). Policy 5.5.8 of the Environment Element promises to adopt land development regulations to regulate develop- ment and specify necessary design standards for floodplains. In the absence of any undertaking in the plan to require that land uses in the floodplains be consistent with their function, Policy 5.5.8 does not resemble an objective ensuring the protection of floodplains. To the exclusion of fair debate, the plan is not consistent with criteria of objectives to coordinate the future land uses with topography, soil conditions, and availability of facilities and services, with respect to floodplains and the unrestricted use of septic tanks 6/ in the Urban area. The Supportive Material advises that future land uses in the floodplains must be less intensive than in the past. Except for the Myakka River floodplain, the plan fails to coordinate future land uses with the unique topography and soil conditions of the floodplains because the plan does not require that any development in the floodplains be consistent with their functions. In part, the Recommended Order adopted in the Hiss Final Order concluded: 83. Based on the ultimate findings of fact contained in Paragraphs 372 et seq., the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with criteria of the depiction on the FLUM of floodplains, Big Slough (regardless of its classification as a river, wetland, or floodplain), and minerals and soils. * * * 96. Based on the ultimate findings of fact contained in Paragraph 388, the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with criteria of objectives to ensure the protection of flood- plains other than that of the Myakka River, floodplain-associated soils, and wetlands due to the inadequacy of the mitigation provisions. 7/ The Hiss Final Order required the following Remedial Action pertinent to floodplain delineation and protection: The County shall amend "Figure 27: 100-year Floodprone Areas" to depict the location of all 100-year floodplains . . . and adopt Figure 27, as amended, as an addition to the Future Land Use Map Series. The county shall amend "Figure 5: General Soil Associations in Sarasota County" to indicate general locations of known sand and gravel deposits, and adopt Figure 5, as amended, as an addition to the Future Land Use Map Series. * * * 9. The County shall adopt a new policy in the Future Land Use Plan, to provide that no development order shall be issued which would permit development in floodplains or on floodplain- associated soils that would adversely affect the function of the floodplain, or that would degrade the water quality of water bodies associated with the floodplains in violation of any local, state or federal regulation, including water quality regulations. In part, RU-5 amends FLUE Objective 1.1 to state: "To protect environmentally sensitive lands, conserve natural resources, protect floodplains, maintain water quality, and maintain open space." RU-5 also adds the following policies: Policy 1.1.5: "All future development shall be consistent with the detailed master plans for each drainage basin as they are adopted through the Basin Master Planning Program." [Revision of Environment Policy 2.1.8.] Policy 1.1.6: "No development order shall be issued which would permit development in 100-year floodplains, as designated on Federal Emergency Management Agency [FEMA] Flood Insurance Rate Maps [FIRM] or adopted County flood studies, or on floodplain associated soils, defined as Soils of Coastal Islands, Soils of the Hammocks, Soils of Depressions and Sloughs, and Soils of the Floodplains and shown in figure 5, that would adversely affect the function of the floodplains or that would degrade the water quality of waterbodies associated with said floodplains in violation of any local, State, or federal regulation, including water quality regulations." Policy 1.1.8: "'Figure 27: 100 - Year Floodprone Areas' shall be adopted as Future Land Use Plan Map 5." Policy 1.3.2: "'Figure 5: General Soil Associations In Sarasota County' shall be adopted as Future Land Use Plan Map 4." RU-5 also adds Environment Policy 5.8.2: Floodplain functions shall be protected by application of the Land Development Regulations (Ordinance No. 81-12, as amended) and Goals, Objectives, and Policies of the Public Facilities and Future Land Use Plans. RU-5 adds Public Facilities Policy 3.2.8: New development in the 100-year floodplains shall be consistent with the Goals, Objectives and Policies of the Environment, Public Facilities, and Future Land Use Plans. By virtue of the RU-5 amendments, which use the best available data (the FEMA FIRM) and appropriate analysis, the Apoxsee now depicts the floodprone areas in the County and plans appropriately for their protection. It is at least fairly debatable that the plan provisions are internally consistent. Septic Tanks.-- In part, the Recommended Order adopted in the Hiss Final Order found: A similar lack of coordination exists with respect to the unrestricted use of septic tanks in Urban areas. The Supportive Material discloses "chronic" septic tank failures in areas south of the City of Sarasota, south of Venice, and in the Englewood area at the southern tip of the County on the coast. The last area is one of the few areas remaining near the coast with significant amounts of vacant, unplatted land. Each of the three areas is adjacent to estuarine waters. The Supportive Material cautions that, without centralized sewer in the Englewood area, the County's last remaining shellfish harvesting area, which is in Lemon Bay, is threatened. The Englewood area also includes wellfields that draw upon the surficial aquifer, which is highly susceptible to contamination in this region. Failing to coordinate future land uses with topography, soil conditions, and availability of facilities and services, the plan allows the unrestricted use of septic tanks in these critical Urban areas. Promises to study the problem, prioritize areas for centralized hookup, and in the meantime "discourage" the use of on-site sewage disposal systems offer little in the face of chronic failures of on-site sewage disposal systems and the absence from Table 80 of any expenditures for a centralized wastewater treatment system. Sarasota Exhibit 38, which is the 1986 Englewood Sector Plan, illustrates, in its discussion of septic tanks, the historic lack of coordination between future land uses and topography, soil conditions, and the availability of facilities and services. The Sector Plan notes that the soils of the majority of undeveloped lands in the Englewood area are poorly drained with less than two feet between the surface level and the groundwater table. A 1970 study by the County Health Department concluded: "Based on test results it would appear that Englewood has already reached the point where further development without adequate centralized sewerage facilities will lead to increased problems with regard to fecal pollution of ditches and waterways." [Fn. 30--The Sector Plan mentions various requirements imposed by the County that, if incorporated into the plan, would help coordinate future land uses with topography, soil conditions, and availability of facilities and services. County Ordinance 81-12 prohibits septic tanks within 100 feet of a 25-year floodplain unless the lot is at least five acres. The same ordinance reportedly requires that "the groundwater table be maintained at not less than forty-eight (48 inches) [apparently from the bottom of the drainfield]." Sector Plan, p. VI-4. Also, the County requires hookup to centralized wastewater systems for all new residential subdivisions within one-quarter mile of an existing sewer line, although this requirement can be waived. Id. at pp. VI-4 and VI-5. Finding insufficient septic-tank restrictions imposed by the Department of Health and Rehabilitative Services, the County has adopted several ordinances regulating on-site sewage disposal systems. Plan, p. 166. Ordinances 83-14, 83-83, and 86-03 detail these requirements, but Appendix D, 2 does not describe them in much detail. More important, the restrictions contained in all of these ordinances did not find their way into the operative provisions of the plan.] Sector Plan, p. VI-4. In the context of a plan that allows unrestricted use of septic tanks anywhere in the Urban area, coordination is not achieved by a plan provision requiring "reasonable assurance" that development proposals within the watersheds of existing public potable surface waters (i.e., the upper Myakka River, both Myakka Lakes, and Big Slough) will not "degrade the quality of such water." Nor is coordination achieved by a provision offering the general assurance of protection and conservation of surface water and groundwater resources, or another provision promising the adoption of land development regulations to specify "design standards" in environmentally significant/sensitive areas like watersheds and water recharge areas. No plan provisions guide the review of specific development proposals. The plan contains no performance or design standards or any requirements to guide the preparation of such standards. [Fn. omitted.] The vague provisions governing the use of septic tanks in the Urban area do not provide, in the plan, a meaningful basis upon which to coordinate, in the plan, future land uses with topography, soil conditions, and availability of facilities and services. In part, the Recommended Order adopted in the Hiss Final Order concluded: 97. Based on the ultimate findings of fact contained in Paragraphs 390 et seq., the plan is not in compliance with the Act and Chapter 9J-5 because it is not consistent with the criterion of an objective to coordinate future land uses with topography, soil conditions, and the availability of facilities and services, with respect to floodplains and the unrestricted use of septic tanks in the Urban area. Besides the provisions already mentioned in connection with floodplain delineation and protection, the Hiss Final Order required the following Remedial Action pertinent to septic tanks: . . .. The Public Facilities Element, Future Land Use Element, and other appropriate elements must contain objectives, with principles, guidelines and standards, to coordinate future land uses with topography, soil conditions, and available facilites and services, with respect to both floodplain protection and the use of septic tanks. The County shall amend Policy 1.1.2 and add or amend other appropriate objectives and policies in the Public Facilities Plan, as follows 8/: * * * Policy 3.2.2 The County shall prohibit the installation of septic tanks in areas designated urban on the Future Land Use Plan Map Series, unless the installation and use shall not adversely affect the quality of groundwater or surface water or adversely affect the natural function of floodplains; further, the County shall adopt regulations which, to the maximum extent permitted by law, mandate hookup of existing as well as new development to a centralized wastewater treatment system. RU-5 amends Public Facilities Policy 3.2.2 to provide: The County shall prohibit the installation of septic tanks in areas designated Urban and Barrier Island on the Future Land Use Plan Map Series, unless the installation and use shall not adversely affect the quality of groundwater or surface water or adversely affect the natural function of floodplains as required by the provisions of the County Land Development Regulations (Ordinance No. 81-12, as amended); Ordinance No. 83-83, regulating design, construction, installation, utilization, operation, maintenance and repair of individual on-site sewage disposal systems, as amended; and any more stringent regulations applicable. Further, the County shall revise as necessary or adopt regulations which, to the maximum extent permitted by law, mandate hookup of existing as well as new development to a centralized wastewater treatment system, when available. The County has admitted, for purposes of effectuating a settlement, that Public Facilities Policy 3.1.2 is not in compliance for the reasons set forth in the settlement Stipulation between the Department and the County. By the Stipulation, the County agrees to further amend Public Facilities Policy 3.2.2 by amending the last sentence to read: Further, the County shall require that all buildings served by on-site sewage disposal systems, except approved on-site greywater systems, connect to a publicly owned or investor-owned sewerage system within one year of notification by the County that such a system is available as defined in Chapter 10D-6.042(7), F.A.C. The County shall establish procedures for the notification of sewer availability. RU-5 also amends Public Facilities Policy 3.2.5 to make clear that the requirement for compliance with federal, state and local permit laws extends to individual on-site systems. It also provides: Soil surveys shall be required for septic tank permits. No individual on-site systems shall be permitted where soil conditions indicate that the system would not function without degrading water quality or where land alterations necessary to accommodate the system would interfere with drainage or floodplain functions. RU-5 also amends Public Facilities Policy 3.2.9 to provide: By 1994, the County shall begin implementation of its wastewater resource management program to be completed by 2020. The comprehensive plan, including the Captial Improvements Element, shall be amended by 1994 to reflect implementation of the program. Priority shall be given to providing centralized service to areas experiencing septic tank failure and areas where water quality has been adversely affected by current disposal methods. RU-5 added Environment Policy 5.8.3: Septic tanks shall not adversely affect water quality in accordance with Ordinance No. 83-83 and goals, objectives and policies of the Public Facilities and Future Land Use Plans. The vast majority of septic tanks in the County were installed prior to the adoption of increasingly stringent County regulations during the 1970s and 1980s. Since the early 1980s, there have been virtually no subdivisions approved for septic tanks in urban areas. With one seldom-used exception, all urban subdivisions (densities greater than one dwelling unit per acre) are required to have central sewerage facilities. (The exception, for subdivisions of half-acre lots where central water is provided, has proven not to be economically feasible for the developer in most cases.) Virtually all new subdivisions are being connected to large franchised systems. Consistent with Public Facilities Policies 3.2.2 and 3.2.5 and FLUE Policy 1.1.6, current regulations already provide that no septic tanks or drainfields are permitted within 100 feet of the 25-year portion of the 100-year floodplain. Under current County regulations, all lots are required to meet the County standards. When a septic tank system fails, the property owner is required to upgrade the system to the current county standards to the maximum extent physically possible on the property. Apoxsee's Capital Improvements Element provides for the expenditure of $3,403,000 for expansion of the County-owned centralized sewerage system. The County Health Department is currently developing a priority list for the extension of central sewerage systems into the older subdivisions in the County which are experienceing septic tank system failures due to the age of the systems. Funding for the extension of central sewerage into septic tank subdivisions is awaiting completion and approval of the priority list and an estimate of the costs. The timing of funding and implementation under RU-5 is reasonable and is supported by the best available data and appropriate analysis. Apoxsee specifically coordinates the density of urban development with central water and sewer service through FLUE Policies 1.7.2 and 1.7.3, as well as the application of the Urban Area Residential Checklist and the Urban Area Residential Density Matrix, which substantially reduces urban density when central water and sewer service are not provided. Potable Water Wellfields.-- In part, the Recommended Order adopted in the Hiss Final Order found: 242. The plan contains provisions conserving potable water and recharge areas. In the Public Facilities Element, for instance, Objective 3.1 is "[t]o establish a program of identifying and protecting existing and potential potable water supply sources." Policy 3.1.1 speaks of the adoption of a wellhead protection program by 1990, although this promise is nullified by the condition that the adoption of such a program is "subject to engineering studies and future deliberations and considerations." * * * Wellfields receive little direct protection in the plan. Objective 3.1 of the Public Facilities Element is "[t]o establish a program of identifying and protecting existing and potential potable water supply sources." As the language of this objective suggests, no such program exists, and the ensuing policies do little, if anything, in identifying implementation activities designed to achieve this objective. As already noted, Policy 3.1.1 states that the County will "ensure adequate protection for potable water supply systems," as well as recharge areas, "by initiating efforts to prepare and implement a wellhead protection program by 1990, subject to engineering studies and future deliberations and considerations." * * * Important protection of waterwells is derived from general provisions applicable to groundwater and potable water. Provisions governing groundwater have been discussed in connection with groundwater recharge. Provisions protecting potable water protect wellfields to the extent that groundwater provides potable water. For instance, Policy 5.3.2 of the Environment Element provides that the County shall implement water conservation measures. Measures to conserve water include the use of wastewater or stormwater runoff as a potable water source, as envisioned by Policies 2.1.4 and 2.1.5 of the Public Facilities Element. Likewise, Policy 1.2.6 promises that the County "will continue to explore ... water conservation strategies in cooperation with regional water supply authorities and other local entities." Water conservation measures will obviously protect wellfields by reducing demand and the possibility of overpumping. * * * 371. It is fairly debatable that the FLUM is consistent with criteria of the depiction of waterwells . . .. * * * It is fairly debatable that the plan is consistent with criteria of objectives and policies addressing the conservation of potable water, protection of natural groundwater recharge, and protection of waterwells. . . . . . .. With one exception, it is fairly debatable that the plan is consistent with criteria of policies addressing the protection of natural reservations and the designation of environmentally sensitive lands. To the exclusion of fair debate, the plan is not consistent with the latter two criteria as applied to the designation of the entire Walton Tract as Public Resource Lands, despite the intended use of part of the tract as a major landfill. * * * 385. It is fairly debatable that the plan is consistent with the criterion of an objective addressing the protection of water quality by the restriction of activities known to affect adversely the quality and quantity of identified water sources, including waterwells. The requisite protection is attained by policies protecting surface water and groundwater and conserving potable water, such as by investigating the use of treated wastewater effluent and stormwater runoff as potable water sources. * * * 387. It is fairly debatable that the plan is consistent with criteria of objectives to ensure the protection of waterwells . . .. In part, the Recommended Order adopted in the Hiss Final Order concluded: Based on the ultimate findings of fact contained in Paragraph 371, the plan is consistent with criteria of the depiction on the FLUM of waterwells . . .. There are no cones of influence that are required to be depicted on the FLUM because the Southwest Florida Water Management District has not identified any cones of influence in the County. According to Rule 9J-5.003(18), a "cone of influence" is "an area around one or more major waterwells the boundary of which is determined by the government agency having specific statutory authority to make such a determination based on groundwater travel or drawdown depth." * * * 91. Rule 9J-5.013(2)(c)1. requires that the plan contain "policies address[ing] implementation activities for the": 1. Protection of water quality by restriction of activities known to adversely affect the quality and quantity of identified water sources including existing cones of influence, water recharge areas, and waterwells[.] 92. Based on the ultimate findings of fact contained in Paragraphs 380 and 385-386, the plan is consistent with criteria of objectives addressing the conservation of potable water and protection of natural groundwater recharge areas and policies addressing implementation activities for the protection of water quality by restricting activities known to affect adversely sources of potable water. * * * 95. Based on the ultimate findings of fact contained in Paragraph 387, the plan is consistent with criteria of objectives to ensure the protection of waterwells . . .. The only pertinent thing RU-5 did with respect to potable waterwells was to amend Public Facilities Policy 3.1.1 to indicate that, whereas the 1989 plan stated that County was "initiating efforts to prepare and implement a wellhead protection program by 1990," by the time of RU-5, the plans were to "continu[e] efforts to immediately implement a wellhead protection program." The delay in implementation of the program was predicated on County staff's advice: The extension of the deadline . . . allows for the need to establish base line data and because of the extensive requirements for monitoring such a program. . . . In the face of this explanation, the intervenors did not prove that the extension of the deadline was not supported by the best available data and appropriate analysis. RU-5 also added Public Facilities Policy 3.1.2 Sarasota County will continue working in close cooperation with the Southwest Florida Water Management District and other professional regulatory agencies to develop and evaluate the feasibility of adopting a model wellhead protection ordinance for major public supply wells and well fields shown on the Future Land Use Map Series. This effort may include requests to the SWFWMD for cooperative funding or technical assistance to conduct an inventory and assessment of existing and potential public supply wells areas and conditions. and Public Facilities Policy 3.1.3 For existing and proposed public supply wells shown on the Future Land Use Map or Map Series, a zone of protection shall be delineated within which land use will be regulated to protect public water supply resources, consistent with the wellhead protection program. Where cones of influence have been delineated, the zone of protection shall be consistent therewith. Where cones of influence have not been determined, Sarasota County shall use its best available data to consider delineating interim protection zones of between 200 feet to 400 feet in radius, depending on variables including, but not limited to, soil characteristics and surrounding uses. When DCA found fault with the absence of an explicit time frame for implementation of the wellhead protection program in Public Facilities Policy 3.1.2, the County admitted, for purposes of effectuating a settlement, that Public Facilities Policy 3.1.2 was not in compliance for the reasons set forth in the settlement Stipulation between the Department and the County. The settlement Stipulation amends the first sentence of Public Facilities Policies 3.1.2 as follows: Sarasota County will continue working in close cooperation with the Southwest Flroida Water Management District and other professional regulatory agencies to develop a model wellhead protection ordinance, culminating in Sarasota County adopting a wellhead protection ordinance during fiscal year 1992 for major public supply wells and well fields shown on the Future Land Use Map Series. The Department agrees that this amendment would bring RU-5 into compliance. The balance of the intervenors' criticism of the potable waterwell protection amendments in RU-5 are foreclosed by the Hiss Final Order, as recited above. Wetlands Mitigation.-- In part, the Recommended Order adopted in the Hiss Final Order found: 266. The mitigation requirement applicable to Marshes, Sloughs, or Wet Prairies addresses the habitat function of these wetlands. However, this requirement does not address the critical drainage function of those wetlands altered because "no other reasonable alternative exists." The drainage function is especially pertinent to Marshes and Sloughs, which are contiguous wetlands. Additional findings concerning the treatment of wetlands are at Paragraph 315 below. [Fn. 17 omitted.] * * * 315. Ignoring alterations to wetlands causing the loss of drainage functions, the mitigation requirement fails even to ensure the protection of the habitat function of wetlands, whose loss triggers the obligation to mitigate. The mitigation provision leaves to the developer the task of monitoring the success of the artificial wetlands created to replace converted wetlands. Assuming that developer monitoring may suffice with County supervision, the plan supplies no standards by which to evaluate a mitigation project or sanctions by which to enforce a mitigation agreement. These short- comings undermine the protection afforded Swamps, Marshes, and Wet Prairies. Testimony established that many wetland-mitigation projects fail, largely due to the absence of performance standards and failure to monitor. The Hiss Final Order contains no conclusions of law regarding wetlands mitigation. However, for reasons not readily apparent from the Final Order, the Remedial Action 13 does address wetland mitigation by requiring the County to "amend the Freshwater Wetlands section 'Principles for Development Proposals in Native Habitats.'" In most respects, RU-5 follows the specified remedial action. In those respects, the intervenors are foreclosed from challenging RU-5's amendment to the "Principles for Evaluating Development Proposals in Native Habitats." In some respects, there are difference between the specified remedial action and RU-5. The Remedial Action in the Hiss Final Order requires that the "Principles for Development Proposals in Native Habitats," Section VI.A.2.e., be amended to read: All alterations in wetlands which result in a loss of wetlands shall be mitigated on at least a two-to-one basis for wooded wetlands. Mitigated wetlands shall restore the type, nature and function of the altered wetland. A wetland mitigation, maintenance, and monitoring plan based on best available technology shall be submitted for review and approval by the County prior to or concurrent with the preliminary plan or site and development plan development review process. The success of mitgation shall be monitored by the applicant or his designees and shall also be subject to monitoring and enforcement by the County. Except as otherwise authorized herein, wetlands shall not be filled, drained, dredged, or converted to lakes or borrow pits. Instead, RU-5 amends the "Principles for Evaluating Development Proposals in Native Habitats," Section VI.A.2.e., to read: All alterations in wetlands which result in a loss of habitat, shall be mitigated in accordance with performance standards adopted by the Board of County Commissioners. These performance standards shall ensure that the recreated wetlands provide values and functions equal to or, particularly in the case of an impacted or degraded wetland, greater than those of the wetland qualifying for alteration. Reasonable assurance shall be provided such that the recreated wetland will exhibit the defined environmental function, nature, and, where hydrologically feasible, similar type of the altered wetland. Mitigation ratios shall be as follows: One-to-one for herbaceous wetlands and two-to-one for wooded wetlands, in accordance with Level I performance standards; or Two-to-one for herbaceous wetlands and four-to-one for wooded wetlands in accordance with Level II performance standards. General Requirements for Level I and Level II Performance Standards: For all projects, a wetland mitigation, maintenance, and monitoring plan based on best available technology shall be submitted for review and approval by the County prior to or concurrent with the preliminary plan or site and development plan development review process. All federally listed threatened and endangered plant species shall be preserved, protected or relocated pursuant to a transplantation program to be implemented prior to construction authorization. The success of mitgation shall be monitored by the Applicant or his designees and shall also be subject to monitoring and enforcement by the County. Except as otherwise authorized herein, wetlands shall not be filled, drained, dredged, or converted to lakes or borrow pits. Specific performance standards shall be contained in the County's Land Development Regulations (Ord. 81-12, as amended). Criteria for Level I Performance Standards: Level I standards shall include the following: the diversity of plants in the wetlands to be impacted shall be approximated in the recreated wetland; the habitat value of the recreated wetland shall approximate or exceed that of the wetland to be impacted; similar substrate shall be provided in the recreated wetland; success criteria (e.g., plant survival, animal diversity, hydroperiods) shall be established based on the best availabale technology, and shall be met before monitoring can be completed; and a hydroperiod maintenance plan, acceptable to the County, shall be prepared. Mitigation at ratios as described in (1), above, and based on success criteria for Level I performance standards may be provided prior to the alteration of any wetland qualifying for alteration. Mitigation with Level I performance standards may be provided in a defined area that is part of an environmental system or corridor that can enhance wildlife values and functions. Off-site wetland mitigation shall be allowed only where on-site mitigation or preservation is not feasible, as determined by the County. Criteria for Level II Performance Standards: Level II standards shall include the following: recreated wetlands shall be planted with at least three different native species at specific distances between plants; mulching may be used in lieu of planting; a hydroperiod maintenance plan, acceptable to the County, shall be prepared; and monitoring of success shall be required for at least three years. The County has admitted, for purposes of effectuating a settlement, that Section VI.A.2.e. of the "Principles for Evaluating Development Proposals in Native Habitats" is not in compliance for the reasons set forth in the settlement Stipulation between the Department and the County. Under the settlement Stipulation, the County has agreed to revise Section VI.A.2.e. to specify that the "federally listed threatened and endangered plant species" to be preserved includes "those species that are listed or are C1 candidates for listing by the U.S. Fish and Wildlife Service; listed as threatened or endangered by the Florida Department of Agriculture and [C]onsumer [S]ervices pursuant to the Preservation of Native Flora Act, Section 581.185, Floirida Statutes; and listed by the Convention on International Trade in Endangered Species of Wild Fauna and Flora." There is no basis in the record for the intervenors contentions that RU-5, as amended by settlement Stipulation between the DCA and the County, is contrary to the required Remedial Action or inconsistent with the Growth Management Act. 9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administration Commission enter a final order that: (1) Sarasota County's RU-5 amendments to its comprehensive plan are not in compliance, but only for the reasons set out in the settlement Stipulation between the County and the DCA; (2) that the RU-5 amendments are otherwise in compliance; and (3) that the County be required to take the remedial action agreed to in the settlement Stipulation. RECOMMENDED this 31 day of August, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 31 day of August, 1992.
The Issue Have the Intervenors timely challenged the Hamilton County adoption of its comprehensive plan under the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes? If allowed to pursue their challenge, what is their burden of proof? Is it pursuant to Section 163.3184(9), Florida Statutes, (1991), the "fairly debatable" standard? Is it pursuant to Section 163.3184(10), Florida Statutes, (1991) the "preponderance" standard? Did Hamilton County (the County) fail to adopt its comprehensive plan within sixty (60) days from the receipt of written comments from the Department of Community Affairs (DCA) as required by Section 163.3184(7), Florida Statutes (1991)? If it did, was that failure jurisdictional thereby voiding the adoption process? Within the adopted plan, is Policy V.2.13 requiring special permits for hazardous and bio-medical waste treatment facilities and for their placement in areas designated agricultural and located with the rural area of Hamilton County, consistent with plan adoption requirements set forth in Chapter 163, Florida Statutes, (1991), Chapter 9J-5, Florida Administrative Code, the State Comprehensive Plan set forth in Chapter 187, Florida Statutes (1991) and the North Central Florida Regional Policy Plan? Within the adopted plan is Policy 1.15.1 prohibiting the disposal of medical, bio-hazardous, hazardous or solid waste by incineration or by other methods which produce air pollution, other than by facilities permitted, legally sited and operated as of July 23, 1991, consistent with plan adoption requirements set forth in Chapter 163, Florida Statutes (1991), Chapter 9J-5, Florida Administrative Code, the State Comprehensive Plan as set forth in Chapter 187, Florida Statutes, and the North Central Regional Policy Plan? More particularly must these policies meet and do they meet the requirements for surveys, studies and data set forth in Section 163.3177(6)(a),(8) and (10)(e), Florida Statutes (1991) and Rule 9J-5.005(2), Florida Administrative Code?
Findings Of Fact In December, 1990, Hamilton County prepared a proposed comprehensive plan. That proposal was submitted to the Department in accordance with Section 163.3184(3)(a), Florida Statutes. Within the Conservation Element of the proposed plan the County included Policy V.2.13, which stated: The County shall only allow hazardous and bio-medical waste treatment facilities as special permits within areas designated agricultural and located within the rural area of the County. Further, the County's land development regulations shall include conditions for such approval of a hazardous and bio-medical waste treatment facility as a special permit regarding the location, site design, buffer requirements, access to principal arterials and major intersections, requirements for appropriate public facilities, and require- ments which consider wind currents in relationship to population centers, which will direct any incinerated materials or noxious odors from these population centers. In no case shall a hazardous or bio-medical waste treatment facility be located within an Environmentally Sensitive Area as designated within this Comprehensive Plan. Policy V.2.13 was associated with Objective V.2 which states: The County shall include within the land development regulations, by 1992, provisions for the conservation, appropriate use and protection of the quality and quantity of current and projected water sources, water recharge areas and potable water wells. There was no specific data and analysis in the proposed plan directed to Policy V.2.13. Other policies associated with Objective V.2 addressed water issues. In the data and analysis which the County submitted to DCA with its proposed comprehensive plan the County did identify known pollution problems. This included a reference to point discharges for wastewater, non-point sources of water pollution, point air pollution sources and non-point sources of air pollution. None of the known activities were associated with hazardous and bio- medical waste treatment facilities. The data and analysis associated with the Conversation Element in the proposed plan also identified watersheds, wetlands, lakes, flood prone areas, and current water sources. The data and analysis further discussed the circumstances related to watersheds, wetlands, rivers, lakes, flood prone areas and air quality as the County perceived the existing conditions for those topics. Finally, the data and analysis spoke to the issue of projected water needs. No mention was made concerning how the aforementioned data and analysis would be considered in granting special permits for hazardous and bio-medical waste treatment facilities. On April 14, 1991, DCA transmitted its comments to the County concerning the proposed comprehensive plan and supporting data and analysis, together with its objections and recommendations for modifications to the proposed comprehensive plan. This activity was in accordance with Section 163.3184(6), Florida Statutes. The report that was transmitted is known as the "ORC" Report. The County received the ORC Report on April 22, 1991. The ORC Report made a number of objections to the objectives and policies set forth in the Conservation Element to the proposed comprehensive plan and recommendations for modifications to the same. The ORC Report specifically objected to Policy V.2.13 wherein the DCA stated: Policy V.2.13 does not describe the 'special permits' concerning hazardous and bio-medical waste treatment facilities within agricultural areas, does not define the extent of the buffers, and does not prohibit these facilities in conser- vation areas. The general recommendation to improve Policy V.2.13, among policies found within the Conservation Element, was to this effect: Provide data and analysis to support the above- referenced policies. Revise the policies to identify the specific implementation programs or activities that will be undertaken by the County to achieve the goal and objectives with which the policies are associated. Eliminate or define all conditional and vague language. Revise the Future Land Use Map to support the revised policies. The County then held two public hearings related to the adoption of a comprehensive plan. See Section 163.3184(15), Florida Statutes (1991). The first public hearing was held on June 18, 1991. At that time no decision was reached to adopt a comprehensive plan. The public hearing was adjourned. On July 23, 1991, the County reconvened the public hearing related to the comprehensive plan adoption. Following the second public hearing associated with the plan adoption, the County in the person of its Board of County Commissioners who had conducted the public hearings, adopted a comprehensive plan for Hamilton County. The adopted comprehensive plan was transmitted to DCA on July 30, 1991. The transmittal letter supporting the adopted comprehensive plan noted that the comprehensive plan was adopted on July 23, 1991. The transmittal letter pointed out the changes to the adopted comprehensive plan which were not reviewed by DCA when DCA considered the proposed comprehensive plan. As with the proposed comprehensive plan, the County submitted data and analysis with the adopted comprehensive plan pointing out the data and analysis accompanying the adopted comprehensive plan which had not been reviewed by the DCA when it considered data and analysis supporting the proposed comprehensive plan. Within the conservation element to the adopted comprehensive plan Objective V.2 remained as set forth in the proposed comprehensive plan. Certain policies associated with Objective V.2 had changed. However, Objective V.2. and its associated policies set forth in the adopted comprehensive plan continued to address water issues. In particular, Policy V.2.13 did not change with the plan adoption. Additional data and analysis submitted by the County supporting the Conservation Element to the adopted comprehensive plan deleted the Suwannee River State Park as a conservation area. Specific references were made to Jumping Gully Creek, Swift Creek, Hunter Creek and the Withlacoochee River and activities associated with those water bodies. However, as with the proposed plan it was not explained how the County intended to use the original and additional data and analysis in deciding special permit issues for hazardous and bio-medical waste treatment facilities. When the County adopted its comprehensive plan it added an objective and a policy that had not been included with the proposed comprehensive plan in the category of objectives and policies for both urban development areas and rural areas in the Future Land Use Element. New Objective I.15 stated: Residential areas shall be protected from uses which cause or result in greater than average noise, hazards or odors. The associated Policy I.15.1 stated: No medical, bio-hazardous, hazardous, or solid waste shall be disposed of by incineration or by any other method which produces air pollution emissions subject to permitting by the Department of Environmental Regulation within Hamilton County, unless the use or facility was permitted and otherwise legally sited and operated as of July 23, 1991. The supporting data and analysis which the County provided the Department with the adopted comprehensive plan did not address Objective I.15 nor Policy I.15.1, with the exception that residential land use projections are described. The adopted plan provided specific information concerning future residential land use. That description was supported by a residential land use need methodology and analysis of future residential land use needed. As with the proposed plan, the adopted plan included a reference to industrial land use within the Future Land Use Element. In both the proposed plan and the adopted plan in Policy 1.3.1 it was stated: Lands classified as industrial consist of areas used for the manufacturing, assembly processing or storage of products. Industrial development may be approved in areas of the County not designated industrial on the Future Land Use Plan upon submission and approval of a development plan which shall include at the least: an industrial site plan; traffic plan; and traffic impact studies; provisions for the construction and maintenance of a wastewater treatment system meeting requirements of the State of Florida for that use; and a submission of a Future Land Use Plan Map amendment to Industrial classification. Industrial uses shall be limited to an intensity of less than or equal to 1.0 floor area ratio. The data and analysis associated with industrial land use which had been provided with the proposed comprehensive plan remained consistent with the adopted comprehensive plan when describing the methodology for identifying projected industrial land use. The comments in the data and analysis supporting the proposed and adopted plans indicated: Projecting the need for additional acreage for industrial use cannot be approached using a methodology similar to those used for residential and commercial Future Land Use needs. This is due to the fact that there is no direct relationship between population and industrial location. The additional future acreages for industrial location are anticipated to occur on a site specific basis as needed at the time industrial activities are proposed. Within the adopted comprehensive plan, Future Land Use Element related to urban development areas and rural areas is found the general industrial land use classification. The general industrial land use designations are located in the central area of the county to the southwest of the City of Jasper along County Road 249. There is an additional limited industrial land use classification within the urban development area and rural area category. It identifies industrial opportunities at interchanges on Interstate 75. At these interchanges, upon submission of a site plan that comports with development standards, with due regard for safety and adequate access, light industrial development is allowed which does not require an air emission permit from the State of Florida. Industrial land use designations as well as other land use designations were based upon an analysis of the amount and character of undeveloped land in the county, reliable population projections and growth patterns anticipated for the area, together with the availability of the public services to accommodate the projected population. The adopted comprehensive plan includes a Future Land Use Map and Map Series found within the Future Land Use Element of the adopted plan which depicts industrial land use. Intervenors' property carries a general industrial classification in the future land use designation in the adopted plan. Intervenors' property is not located on the Interstate 75 corridor and therefore would not be considered for this special industrial land use classification. The North Central Florida Regional Planning Council (the Council) assisted the County in preparing its proposed and adopted plans. The Council staff were engaged in that process as early as 1986. From that point forward the Council staff conducted field surveys relating to land use, compiled data from existing data sources and reviewed population projections and growth patterns in Hamilton County. The Council staff compiled information concerning public facilities, recreational and solid waste facilities, information relating to physical capacity for those facilities and information concerning the financing of capital projects. In anticipation of the requirements set forth in Section 163.3177(6)(a), Florida Statutes, the Council staff conducted field surveys of existing land use to determine the character of undeveloped land in the county. The staff reviewed the population projections of the University of Florida Bureau of Business and Economic Research. These activities were designed to assist the County in analyzing the amount of land necessary to accommodate projected growth and the availability of public services. The Council staff was responsible for preparing the proposed plan statement related to goals, objectives, and policies. The staff also prepared the Future Land Use Plan Map. The documents prepared by the Council staff were subject to review and workshops were held to consider those matters. Modifications were brought about through public comments presented at the workshops. The Council staff prepared an evaluation, appraisal and review report to examine the success of previously adopted comprehensive plans. Following the conduct of workshops the public sessions for plan adoption were held on June 18, and July 23, 1991. As representative for the County, the Council staff invited the Department to send representatives to attend the public hearing sessions. The Department was represented at those sessions. In the public hearings related to the plan adoption, there was considerable public testimony expressing concern about health and environmental impacts involved with the incineration of bio-medical waste. In particular, remarks were made about air emissions of mercury and dioxins and the disposal of ash residue from the incineration process. Documents were also presented by members of the public who opposed waste incineration. One document was from the United States Environmental Protection Agency, entitled Seminar-Medical and Institutional Waste Incineration: Regulations, Management, Technology, Emissions and Operations. Another document was entitled Hazardous Waste News #82, June 20, 1988, identified as a weekly news and resource for citizens fighting toxins. A third document was entitled "Facts" related to definitions within Section 403.703, Florida Statutes and observations from the author of this document concerning Intervenors intended operations of a bio-medical incineration facility in Hamilton County. Finally, there was a document from the Hamilton County School Board calling for a buffer zone between any school in the county and facilities which incinerated or otherwise disposed of substances through incineration or other disposal means which would create air emissions from the destruction of solid waste, hazardous substances, bio-hazardous waste and biological waste as defined within Section 403.703, Florida Statutes. The Hamilton County School Board also expressed a desire to completely prohibit the incineration or other disposal of those substances which were generated outside Hamilton County. The EPA document spoke in terms of the emissions from incinerators as being particulate and gaseous emissions. The particulate emissions being constituted of char and soot and minerals in the form of metals, silicates and salts. The gaseous emissions referred to in the EPA document were constituted of combustible emissions such as hydrocarbons, carbon monoxide, PCDD and PCDF and noncombustible emissions, such as nitrogen oxides, HCLs, hazardous compounds such as POHCs, products of incomplete combustion such as dioxins, and uncondensed volatile metals in excess air. Dr. Ralph Dougherty, an expert in environmental mass spectrometry, analytical chemistry and the chemistry of waste incineration, provided expert testimony concerning the significance of some of the information provided to the County in its public sessions. This testimony was presented at the administrative hearing. Dr. Dougherty did not attend the public hearing associated with the plan adoption. Dr. Dougherty in addressing the waste stream that is created by bio- medical waste described how the incineration process in destroying polyvinyl chloride, PVC plastic, saran wrap and neoprene converted those materials to chlorinated organics such as dioxin. As Dr. Dougherty established, dioxins are very hazardous substances. Kenneth Krantz appeared for the Intervenors at the public sessions for the plan adoption. At that time Basic Energy Corporation was known as TSI Southeast, Inc. (TSI). He provided written information to the county commissioners concerning the TSI bio-medical waste disposal business intended to be located in Hamilton County. TSI took no issue with Objective I.15 which was adopted on July 23, 1991. Intervenors proposed different text for policy I.15.1 and requested adoption of two additional policies I.15.2 and I.15.3 which would place some restrictions on solid waste disposal but would allow an opportunity for operating the TSI facility in the county. Information provided by Krantz in the public sessions indicated that TSI intended to operate a business to incinerate solid, bio-medical and solid municipal waste, together with a waste recycling area, Pelletizer area and turbine-generator area. Krantz addressed the county commissioners concerning county building permit information about the facility, permitting by the St. Johns River Water Management District and the State of Florida, Department of Environmental Regulation. Information was provided concerning square footage for buildings within the overall TSI facility. Information was provided by TSI concerning the intended pollution control systems as being constituted of fabric filters and dry-lime injection systems, together with a detailed description of pending permit applications before the Department of Environmental Regulation for additional incineration units. Information provided by TSI addressed the expected constituents of the air emissions to include carbon monoxide, volatile organic compounds, nitrogen oxides, organics such as dioxide, sulphur dioxide, hydrogen chloride and particulate matter. A site location map and schematic showing the flow within the waste stream was also provided. TSI also provided information at the public sessions about the Intervenors anticipated emissions rates for two previously permitted units and the third and fourth units that were being considered by the Department of Environmental Regulation. This data about emission rates included a comprehensive listing of anticipated emissions by pollutant type to include projected measurements of omissions for units one and two which would deal with medical waste combustion and units three and four which would deal with medical waste combustion and possibly refuse-derived fuel (RDF). As commented on by members of the public who appeared at the public sessions for adopting the plan, information provided by the Intervenors verified that significant amounts of pollutants would be discharged into the air through Intervenors' operations. TSI provided information concerning the modeling that was done to measure concentration levels for the expected pollutants. Information was provided concerning the incineration process and the manner in which calculations were made concerning expected emissions levels. Information was provided concerning anticipated annual and short term emission rates for the four units intended to be operated by the TSI. The technical information about the intended TSI facility was through documents that appeared to be from an engineering consulting firm. All information provided in the public sessions that has been described was properly available to the county commissioners when adopting the plan. The information provided at the public sessions which has been described was not presented to the Department with the adopted plan. As stated, on July 30, 1991, the County submitted its plan to the Department to determine if the adopted plan was in compliance with the requirements of law. See Section 163.3184(8), Florida Statutes (1991). On September 12, 1991, DCA issued a notice of intent to find the adopted plan, not "in compliance". See Section 163.3184(10), Florida Statutes (1991). Pursuant to that provision, DCA filed a petition with the Division of Administrative Hearings setting forth the reasons for its decision to find the adopted plan not "in compliance". That petition was filed on September 23, 1991. The DCA took no issue with Policies I.15.1 and V.2.13. On February 20, 1992, Intervenors petitioned to intervene in the not "in compliance" case. As identified in the statement of issues, the Intervenors were and continue to be opposed to the adoption of Policies I.15.1 and V.2.13. On March 17, 1992, an order was entered which granted the Intervenors leave to intervene. Intervenors own property in Hamilton County. As contemplated by Section 163.3184(16), Florida Statutes (1993), DCA and the County engaged in settlement discussions. This culminated in a stipulated settlement agreement executed by DCA and County on November 24, 1993. The stipulated settlement agreement is referred to in the statute as a compliance agreement. Intervenors did not join in the settlement. On January 18, 1994, the County adopted the remedial amendments, referred to in the statute as plan amendments pursuant to a compliance agreement called for by the compliance agreement. The remedial plan amendments were submitted to the Department for consideration. On March 10, 1994, DCA issued a cumulative notice of intent addressing the compliance agreement amendments and the plan. DCA gave notice that it attended to find the plan and remedial comprehensive plan amendments/compliance agreement amendments "in compliance" with Sections 163.3184 and 163.3187, Florida Statutes. Notwithstanding that the Intervenors did not submit further pleadings within 21 days of the publication of the cumulative notice of intent, the Intervenors were allowed to proceed with their challenge to the plan that was not the subject of the compliance agreement leading to the compliance agreement amendments.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered finding the Hamilton County comprehensive plan to be "in compliance" with the exception that Policy V.2.13 is only "in compliance" in its latter sentence, the remaining language in Policy V.2.13 is not "in compliance". DONE and ENTERED this 21st day of April, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, 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 21st day of April, 1995. APPENDIX "A" CASE NO. 91-6038GM The following discussion is given concerning the proposed fact finding by the parties: Intervenors' Facts: Paragraph 1 is subordinate to facts found. The first sentence to Paragraph 2 is contrary to facts found. The remaining sentence is subordinate to facts found. Paragraph 3 is rejected in its suggestion that there is a perpetual ban on bio-hazardous waste incineration. It is otherwise not necessary to the resolution of the dispute. Intervenors' Facts: Paragraphs 1 through 7 are subordinate to facts found. Paragraph 8 is not relevant. Paragraphs 9 through 12 are subordinate to facts found. Paragraph 13 is not necessary to the resolution of the dispute. Paragraph 14 is subordinate to facts found with the exception that the date of adoption was January 18, 1994. Paragraphs 15 through 22 are subordinate to facts found. Paragraph 23 is not relevant. Paragraph 24 is subordinate to facts found. Paragraph 25 constitutes legal argument. Paragraph 26 is subordinate to facts found. Paragraphs 27 through 31 are not necessary to the resolution of the dispute. Paragraphs 32 through 38 are subordinate to facts found. Paragraphs 39 and 40 are not necessary to the resolution of the dispute. Paragraph 41 is rejected to the extent that it is suggested that it constitutes agency policy. Paragraphs 42 through the first phrase in 49 are subordinate to facts found. The latter phrase in Paragraph 49 is not necessary to the resolution of the dispute. Paragraphs 50 through 58 are subordinate to facts found. Paragraph 59 constitutes legal argument. Paragraphs 60 through 75 are subordinate to facts found. Paragraphs 76 through 82 are rejected as not constituting allowable analysis of data presented in support of the plan adoption. Paragraphs 83 and 84 are not necessary to the resolution of the dispute. Paragraph 85 is subordinate to facts found. Paragraph 86 is not necessary to the resolution of the dispute. Paragraphs 87 through 91 are rejected to the extent that it is suggested that some lesser standard is involved with consideration of data for optional plan elements as opposed to mandatory plan elements. See Section 163.3184(8), Florida Statutes (1991) and Section 120.57(1)(b)15, Florida Statutes (1993). Paragraph 92 is acknowledged but did not form the basis for fact finding in the recommended order. Paragraph 93 is rejected as intended to interpret Policy I.15.1 as an absolute prohibition against waste incineration in the County. Paragraph 94 constitutes legal argument. Paragraphs 95 through 102 are not relevant. Paragraphs 103 through 105 are not necessary to the resolution of the dispute. Paragraphs 106 through 108 are subordinate to facts found with the exception of the rejection of Policy V.2.13 in part. COPIES FURNISHED: David L. Jordan, Esquire Terrell L. Arline, Esquire Suzanne Schmith, Certified Legal Intern Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 John H. McCormick, Esquire Post Office Box O Jasper, FL 32052 William L. Hyde, Esquire Gunster, Yoakley, Valdes-Fauli and Stewart, P.A. 515 North Adams Street Tallahassee, FL 32301 Donald J. Schutz, Esquire Suite 415 535 Central Avenue St. Petersburg, FL 33701 Linda L. Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue Eleven separate petitions were filed pursuant to section 120.535, F.S. alleging various non-rule policies of the Board of Professional Land Surveyors and requesting that those alleged policies be adopted by rule. The threshold issue in these cases is whether such policies exist; if so, it must be determined whether they are rules, as defined in section 120.52(16), and whether rulemaking is feasible and practicable, as provided in section 120.535(1), F.S. CASES NUMBER 94-0609RX - 94-0616RX The eight petitions in these consolidated cases are challenges to specific provisions within Chapter 61G17-6, F.A.C. (formerly 21HH-6, F.A.C.), "Minimum Technical Standards", relating to the practice of land surveying, adopted by the Board of Professional Land Surveyors. The issue in these cases is whether those specific provisions are invalid exercises of delegated legislative authority, as alleged by Petitioner. CASE NUMBER 94-0925F In this case, Respondent seeks attorney's fees and costs from counsel for Petitioner pursuant to section 120.57(1)(b)5., F.S. The issue, therefore, is whether an award under that section is appropriate. OTHER ISSUES Respondent does not dispute the standing of Petitioner in the sections 120.535 and 120.56, F.S. cases. Petitioner, in his proposed order, argues that he, not Respondent, is entitled to fees and costs. Petitioner also argues that his subpoena were properly served by mail on various board members. Those two issues are thus addressed in this order.
Findings Of Fact Gary A. Burden (Burden) is a professional land surveyor registered in the state of Florida pursuant to Chapter 472, F.S. The parties have stipulated that he is substantially affected by the rules of the Board of Professional Land Surveyors (Board). On June 22, 1993, the Department of Professional Regulation (now, Department of Business and Professional Regulation, DBPR) issued an administrative complaint alleging that Burden failed to follow minimum technical standards for land surveying in a boundary survey he performed for Lot 33, Lafayette Forest, in Seminole County, Florida. The complaint alleged seven specific deficiencies and cited the Board rule which applies to each. (Petitioner's exhibit Number 9) The seven specific violations are identified in a consultant's report dated April 1, 1993, from Dianne Jones, PLS, to the Board. (Petitioner's Number 10) Burden requested a formal hearing on the complaint and the case was referred to the Division of Administrative Hearings (DOAH) and was assigned DOAH Case Number 93-6433. On February 14, 1994, Hearing Officer, Ella Jane P. Davis issued an order on all motions pending as of that date. The order includes these pertinent provisions describing discussions at a January 20, 1994, conference call between the hearing officer and counsel for the parties: The undersigned also advised the parties that the instant Section 120.57(1), F.S. proceeding was not the appropriate vehicle to raise what appeared to be challenges in existing rules named in Respondent's affirmative defenses and that challenges to existing rules can only be initiated pursuant to Section 120.56, F.S. Further, the parties were informed that challenges to existing rules could not and would not be resolved by the Recommended Order to be entered in the instant Section 120.57(1), F.S. license disciplining proceeding. After hearing oral argument, the undersigned further requested that the parties file their respective memoranda as to whether the instant case had any Section 120.535, F.S. ramifications. Shortly after the January 20th telephone conference, Gary Burden, through counsel, filed the nineteen petitions that are the subject of this proceeding. The eleven petitions filed pursuant to section 120.535, F.S. request that these alleged policies of the Board be promulgated as formal rules: The Board's refusal to allow land surveyor registrants to incorporate other recorded instruments into their drawings by reference; The Board's determination of what constitutes "substantial compliance" to the minimum technical standards; The Board's application of a "substantial compliance" standard to probationary registrants, but a "strict compliance" standard to accused registrants. The Board's assessment of a single penalty, no matter how major or minor the offense; The Board's refusal to utilize the simple citation rule found at rule 61G17-9.004, F.A.C. (providing for disciplinary citation and fine); The Board's refusal to allow its registrants to mitigate damage to the public. The Board's equating the determination of boundaries to real property to the words contained in recorded deeds and plats; The Board's equating the standards of practice for "corners" with the standards of practice for "monuments". The Board's need to define the meaning of the term, "fixed improvements"; The Board's requirement that lot and block numbers be shown on a survey drawing in a specific location; and The Board's requirement that registrants measure distances and directions to "reference points". Burden did not testify at hearing, nor did he appear in person at the hearing. His single witness, Benjamin Paul Blackburn, has been registered as a land surveyor since 1969. Blackburn has been before the Board once on allegations of minimum technical standard violations, and the charges were dismissed; he has attended two Board meetings in the last year, and attended once in 1981 when the Board was promulgating rules. He has been an active member of the state professional association and was president of the association in the past. Blackburn was an articulate and sincere witness; however, he has no competent knowledge of the policies of the Board. His information comes from talking with other surveyors and from attending training seminars sponsored by the association. He freely admits that he has no direct knowledge of many of the policies alleged by Burden; in some instances his understanding of the Board's policy is contrary to that alleged by Burden. For example, Blackburn believes the Board has allowed surveyors to mitigate damages; he also believes the Board allows incorporation by reference on surveys and maps. Counsel for Burden attempted to compel the appearance of Board members by mailing subpoena to them, certified mail, with witness checks enclosed. On the advice of counsel that the service was defective, the members did not appear. Documents sought by the subpoena duces tecum were voluntarily produced by the Board's Executive Director, an employee of the DBPR, Angel Gonzalez, to the extent that he was able to obtain the documents and records. Diane Jones has been registered as a land surveyor for seven years and worked as an intern in the field for fifteen years. She has been employed by DBPR in the past as a consultant in cases the agency brings to the Board. She was a consultant in the Burden case. Ms. Jones was unable to confirm that the alleged policies were, in fact, Board policies. Her understanding was similar to Blackburn's, generally. In her capacity as consultant to DBPR in discipline cases, she has no difficulty interpreting and applying the minimum technical standards or other rules of the Board, based on her knowledge of the rules and her professional experience. In addition to alleging unwritten policies by the Board, Burden challenges a series of existing Board rules which he claims are invalid exercises of legislative delegation. For each rule that is a subject of his petitions, he claims invalidity based on excess of rulemaking authority, enlargement or modification of the law, vagueness and capriciousness. More specifically, Burden claims the following: a) Rules 61G17-6.002(2) and 61G17-6.002(6)(g), F.A.C. (defining "corner" and "land or Boundary Survey", respectively) illegally attempt to grant the land surveyor the right to establish or re-establish "boundary lines"; b) Rule 61G17-6.003(4), F.A.C. illegally requires a basis of bearing to be shown; c) Rule 61G17-6.003(8)(a), F.A.C. is non-specific about the location of lot and block numbers on a survey drawing; Rule 61G17-6.003(15), F.A.C. illegally requires land surveyors to state certain unnecessary data for survey corners. Rule 61G17-6.003(18), F.A.C. illegally requires the land surveyor to place almost all abbreviations in a legend or not use such abbreviations; Rule 61G17-6.003(13), F.A.C. illegally requires the land surveyor to show unidentified "fixed improvements"; Rules 61G17-6.003(8)(c) and (d) illegally require a land surveyor to perform a comparative analysis to reference points other than those described at Rule 61G17-6.002(5), F.A.C.; and Rule 61G17-6.003(10), F.A.C. illegally requires the land surveyor to show adjoining elements and rights of way which are shown on instruments incorporated by reference into the survey drawing. 11. Rules 61G17-6.002(2) and 61G17-6.002(6)(g) provide: (2) Corner: shall mean a point on a land boundary that designates a change in direction, for example: points of curvature, points of tangency, points of compound curvature and so forth. . . . (6) Survey: shall mean the orderly process of determining data relating to the physical or chemical characteristics of the earth, and may be further defined according to the type of data obtained, the methods and instruments used, and the purpose(s) to be served. All surveys showing land boundary information must be in accordance with Rule 61G17-6.003. For purposes of this rule, types of surveys shall include the following definitions: . . . (g) Land or Boundary Survey: shall mean a survey, the primary purpose of which includes, but is not limited to, the determining of the perimeters of a parcel or tract of land by establishing or re-establishing corners, monuments, and boundary lines for the purposes of describing, locating of fixed improvements, or platting or dividing the parcel. According to Blackburn, the deed rather than the surveyor establishes the land boundaries. This argument or fact does not provide a basis to invalidate the rules as the rules do not require or allow a surveyor to create boundaries as an extent of legal possession. Rather, the purpose of the rules is clearly stated in (6)(g). The language of the rules is consistent with treatises and textbooks that are nationally recognized. The American Congress on Surveying and Mapping (ACSM) and the American Society of Civil Engineers (ASCE) jointly adopted this definition in 1978: Land surveying is the art and science of: (1) Re-establishing cadastral surveys and land boundaries based on documents of record and historical evidence; (2) planning, designing and establishing property boundaries; and (3) certifying surveys as required by statute or local ordinance such as subdivision plats, registered land surveys, judicial surveys, and space delineation. Land surveying can include associated services such as mapping and related data accumulation; construction layout surveys; precision measurements of length, angle, elevation, area and volume; horizontal and vertical control systems; and the analysis and utilization of survey data." (Respondent's exhibit Number 2) 12. Rule 61G17-6.003(4), F.A.C. provides: (4) A reference to all bearings shown must be clearly stated, i.e., whether to "True North"; "Grid North as established by the NOS"; "Assumed North based on a bearing for a well defined line, such as the center line of a road or right of way, etc."; "a Deed Call for a particular line"; or "the bearing of a particular line shown upon a plat." References to Magnetic North should be avoided except in the cases where a comparison is necessitated by a Deed Call. In all cases, the bearings used shall be referenced to some well-established line. Both parties' experts agree that the purpose of this rule is to relate the property surveyed to an established line so that subsequent surveyors could retrace or reconstruct what the surveyor did with regard to angles and the like. "Assumed north" is simply a direction assumed and does not relate to a compass direction. If only angles are shown, and no bearings, the rule does not apply. Bearings are a way of indicating angular relationships; an angle can be developed from the bearings. The rule legitimately fulfills its purpose of avoiding ambiguity. 13. Rule 61G17-6.003(8)(a), F.A.C. provides: Surveys of all or part of a lot(s) which is part of a recorded subdivision shall show the following upon the drawing: The lot(s) and block numbers or other designation, including those of adjoining lots. This is not a complicated rule. Showing the lot numbers helps interpret and orient the map. Even though the title of the survey or text on the survey may identify the lot number of the lot being surveyed, including the number on the face of the drawing makes the survey easier to read. 14. Rule 61G17-6.003(15), F.A.C. provides: (15) The surveyor shall make a determination of the correct position of the boundary of the real property and shall set monuments, as defined herein, unless monuments already exist at such corners. All monuments, found or placed, must be described on the survey drawing. When the property corner cannot be set, a witness monument shall be placed with data given to show its location upon the ground in relation to the boundary lines or corner. The corner descriptions shall state the size, material, and cap identification of the monument as well as whether the monument was found or set. The distance along boundaries between monuments shall not exceed fourteen hundred feet. When a parcel has a natural and/or an artificial feature such as a roadway, river, lake, beach, marsh, stream or other irregular boundary as one or more of its boundaries, then a monument meander or survey line shall be established either directly along or near the feature. Dimensions shall be shown between the meander or survey line and the boundary line sufficient to show the relationship between the two. Even though monuments may be accidentally or deliberately moved by contractors, property owners or neighbors, the monuments are still an important feature of a survey. A prudent surveyor would not rely on an existing monument without looking for signs of disturbance and verifying its placement. The efficiency of showing and describing a monument outweighs any danger of including it. 15. Rule 61G17-6.003(18), F.A.C. provides: ABBREVIATIONS: Abbreviations generally used by the public or in proper names that do not relate to matters of survey are excluded from the legend requirement. Acceptable abbreviations on the face of maps, plats, or survey drawings are: N = North S = South E = East W = West or any combination such as NE, SW, etc. . = Degrees ' = Minutes when used in bearing " = Seconds when used in a bearing ' = Feet when used in a distance " = Inches when used in a distance AC = Acres + = More or less (or Plus or Minus) Any other abbreviations relating to survey matters must be clearly shown within a legend or notes appearing on the face of the drawing. Blackburn contends that the legend requirement is time-consuming, expensive and unnecessary. A surveyor, however, is not required to use abbreviations. To the extent that they are used, they should be explained on the face of the document. A legend facilitates interpretation of the survey and eliminates questions or ambiguities. The rule establishes some clear exceptions to the legend requirement in subsection (b). According to Diane Jones, subsections (a) and of the rule are vague and confusing. In her opinion, every abbreviation that is not addressed in subsection (b) should be explained in a legend on the survey. She, therefore, would prefer to see everything explained on the face of the document, while Petitioner prefers to dispose of the legend altogether. Reasonable minds plainly differ; although the rule could be improved with rewording, as suggested by Ms. Jones, it is not invalid for the reasons advanced by Petitioner. 16. Rule 61G17-6.003(13), F.A.C. provides: (13) Location of fixed improvements pertinent to the survey shall be shown upon the drawing in reference to the boundaries, either directly or by offset lines. If fixed improvements are not located or do not exist, a note to this effect shall be shown upon the drawing. Pertinent improvements are improvements made for the enjoyment of the property being surveyed and shall include docks, boathouses, and similar improvements. According to Blackburn, inclusion of fixed improvements on the survey should depend on what the client has ordered. He also feels the rule results in surveys that are misleading to the public as the inclusion of any fixed improvements would imply that those are the only fixed improvements in the area. These concerns are mutually inconsistent. The rule is clear and unambiguous. It is also consistent with accepted principles of land survey practice. 17. Rules 61G217-6.003(8)(c) and (d), F.A.C. provide: (8) Surveys of all or part of a lot(s) which is part of a recorded subdivision shall show the following upon the drawing: . . . A comparison between the recorded directions and distances with field measured directions and distances to the nearest street centerline, right of way intersection or other identifiable reference points where the block lines are straight. A comparison between the recorded directions and distances or computed directions and distances based upon the recorded data with field measured directions and distances to an identifiable reference point where the block lines are curved. The requirements of these rules are clear to a practicing land surveyor. "Reference point" is described in rule 61G17-6.002(5), F.A.C. as ". . . any defined position that is or can be established in relation to another defined position." Contrary to Petitioner's assertion, there is no conflict between the requirements of (c) and (d), and the definition of "reference point". 18. Rule 61G17-6.003(10), F.A.C. provides: (10) All recorded public and private rights of way shown on applicable recorded plats adjoining or across the land being surveyed shall be located and shown upon the drawing. Easements shown on applicable record plats or open and notorious evidence of easements or rights of way on or across the land being surveyed shall be located and shown upon the drawing. If streets or street rights of way abutting the land surveyed are not physically open, a note to this effect shall be shown upon the drawing. If location of easements or rights of way of record, other than those on record plats, is required, this information must be furnished to the surveyor. This rule requires that specific information be included even when that information may already be found on material incorporated by reference, like a plat, for example. The rule serves the legitimate purpose of saving the user from time consuming research. The survey should stand alone as a complete document. In summary, the rules at issue are valid and reasonably clear and consistent with establishing principles guiding the practice of professional land surveying. According to Brown, Robillard, and Wilson, Evidence and Procedures for Boundary Location, 2nd Ed (Respondent's Ex. 2): A plat should tell a complete story; it should show sufficient information to allow any other surveyor to understand how the survey was made and why the survey was correct. It also should show complete information on encroachments to enable any attorney or others to evaluate properly the effect of continued possession. (p.350) . . . A plat should be complete in itself and should present sufficient evidence of monuments (record and locative) and measurements so that any other surveyor can clearly, without ambiguity, find the locative points and follow the reasonings of the surveyor. A plat does not show the client's land alone; it shows all ties necessary to prove the correctness of location. If it is necessary to measure from a mile away to correctly locate a property, that tie, as measured, is shown. (p. 360) There is no evidence in this proceeding that either party or attorney filed pleadings or papers for any improper purpose, such as delay harassment, increase in cost or otherwise. The petitions are numerous, but they relate to rules or alleged policies at issue in a separate disciplinary action, and, on their face, they raise legitimate issues. Respondent's defense was necessary and appropriate.
Findings Of Fact Background Lee County adopted its comprehensive growth management plan under Section 163, Part II, Florida Statutes, (the Act) on January 31, 1989 (without regard to the subject plan amendments, the Plan). The Plan is compiled in the first volume of a three- volume set. The remaining volumes contain data and analysis (Original Data and Analysis). The Department of Community Affairs (DCA) determined that the Plan was not in compliance with the Act. DCA filed a petition challenging the Plan under Section 163.3184(10), which commenced DOAH Case No. 89-1843GM. Pursuant to a settlement agreement, on September 6 and 12, 1990, Lee County adopted Plan amendments and revised the Original Data and Analysis. These amendments to the Plan shall be referred to as the Plan Amendments. The Plan Amendments are contained in a three-volume set. The first volume contains Plan Amendments and data and analysis concerning traffic. The second volume contains Plan Amendments and data and analysis concerning the future land use map series, which includes two maps forming the 2010 overlay. The third volume contains Plan Amendments and data and analysis involving general matters. The Plan, as amended by the Plan Amendments, shall be referred to as the Amended Plan. The additional data and analysis submitted by Lee County in September, 1990, shall be referred to as the Revised Data and Analysis. The Original Data and Analysis and Revised Data and Analysis shall collectively be referred to as the Data and Analysis. On or about October 29, 1990, DCA published a notice of intent to find the Plan Amendments in compliance. Petitioner Brenda Sheridan, who is a resident of Lee County, had previously submitted oral or written objections during the review and adoption proceedings concerning the Plan Amendments. On or about November 17, 1990, Petitioner commenced the above-styled case by filing with DCA a petition alleging that the Plan Amendments and Revised Data and Analysis are not in compliance with the Act and Chapter 9J-5, Florida Administrative Code (collectively referred to as the growth management law). Wildlife Habitats and Vegetative Communities (Issues 2 and 6) As to Issue 2, the Revised Data and Analysis contain limited data or analysis pertaining to wildlife habitat and vegetative communities. Much of the data and analysis concerning wildlife habitats and vegetative communities are in the Original Data and Analysis and were unchanged by the Revised Data and Analysis. The Revised Data and Analysis inventory only certain habitats or vegetative communities and analyze the environmental, socioeconomic, and fiscal impacts of development and redevelopment upon only certain unique wildlife habitats. The habitats or communities so considered are only those used by wood storks, Florida panthers, and black bears. The Revised Data and Analysis state: The only documented wood stork rookery in Lee County is on Telegraph Creek. In the past 3 years, no nesting has occurred there. It is possible that they exist in the Flint Pen Strand, adjacent to the Corkscrew Swamp Sanctuary. Corkscrew includes a well-known wood stork rookery. Wood stork productivity is highly variable as a result of annual rainfall amounts which accumulate in South Florida. Flight paths . . . associated with that rookery cross into feeding locations within Lee County. These movements are primarily dependent on food availability. Tall structures placed in this flight path could affect the wood storks. The first monitoring report concerning the impact of WEVU's new broadcast tower on wood storks has been submitted. Every day during breeding season a biological intern has inspected the 60-acre tower site for injured wood storks. No injuries or fatalities were found. Feeding areas of the Corkscrew Swamp colony have been documented in Lee, Collier, and Hendry Counties. Southeastern Lee County provides important forage areas for this colony; occasionally saltwater habitats are also used. These food sources are essential to the success of wood stork reproduction within the colony. Figure IX.C-1 indicates the foraging sites used by wood storks from the Corkscrew Swamp Colony. Lee County wetlands provide significant feeding areas for wood storks. As water levels drop in the winter, fish are trapped in depressions associated with the wetland. These fish become an easy meal for the wood storks. The storks rely on this feeding source for successful breeding and survival. Strict enforcement of strong wetland regulations is the first step to protect this important feeding source. The Lee County Protected Species Ordinance provides the next step in protecting wood stork forage areas. It requires surveys and management plans for the wood storks. Nesting, roosting, and rooking areas are identified in the survey. Preservation of those areas can be accomplished through conservation easements granted to the county. All management plans must follow the Habitat Management Guidelines for the Wood Stork in the Southeast Region, a 1990 publication of the U.S. Fish and Wildlife Service. Of the 20 surveys submitted to date, only one indicated the presence of wood stork areas. Two wood storks were identified off of the property. The management plan associated with this property includes preservation of the wetlands associated with this documented forage site. Joint Exhibit 10.c, page IX-3. Figure IX.C-1 indicates the foraging sites used by wood storks of the Corkscrew Swamp colony from 1985 to 1988. The 30 indicated sites are (with one exception) concentrated in extreme southeast Lee County. All of the area is designated Density Reduction/Groundwater Resource or Resource Protection Areas and Transition Zones. Addressing Florida panthers, the Revised Data and Analysis report: The greatest problems facing panthers are directly related to human intrusion. Habitat loss due to increased development erodes the range necessary for each cat's survival. Florida panthers require extensive and biologically diverse landscapes. Male panthers utilize up to 400 square miles of territory. Biotic systems utilized by the Florida panther include "mixed swamp forests, cypress swamps, sawgrass marshes, mesic hammocks, pine flatwoods, and palmetto prairies." (Maehr, David S., "The Florida Panther and Private Lands.") Uplands are especially critical habitats for Florida panther. The tall palmetto systems which are particularly beneficial to the panther are also particularly prized for agriculture and development. Because of the vast range necessary for the survival of the panther, protection of their habitat cannot be fully accomplished through site design regulations for private development. Large areas need to be acquired, preserved, and managed for the long- term survival of this species. Suitable corridors must also be maintained, either through acquisition or regulations. . . . In recent years, two cats have been documented in Lee County. One travels from Collier County, through the Flint Pen Strand, and north past the Southwest Florida Regional Airport to the Caloosahatchee River. This is a young panther. This movement is reflected in Figure IX.C-2 showing public lands within panther range. The second panther has been documented in Northern Lee County. Its range probably includes portions of Charlotte County. Figure IX.C-3 showing Florida panther range is currently out of date given the known travels of the first panther. The enlargement of this map in Figure IX.C-4 illustrates the importance of the Flint Pen Strand acquisition in the preservation of well-documented panther habitat. Joint Exhibit 10.c, pages IX-5 to IX-6. Figures IX.C-3 and -4 disclose that about 50 square miles of south Lee County serves as known panther habitat, although actual habitat is even greater. The 50-square mile area contains much of the land in Lee County east of I-75 and the headwaters of the Estero River. All of the area is designated Density Reduction/Groundwater Resource or Resource Protection Areas and Transition Zones except for all or parts of six one- mile sections, which are designated Suburban and General (Interchange Area). The Revised Data and Analysis discuss the habitat of black bear: Black bear range requirements are strikingly similar to that of the Florida panther. Like the Florida panther, the adult male will occupy home ranges that are greater than the female; in the case of the black bear, 3 to 8 times greater. The range of the black bear forage area extends anywhere from 40 to 312 square miles. In Lee County, bears are known to exist in the northern and southeastern areas of the county. Bear dens are common in the eastern extent of the Flint Pen Strand acquisition. Black bear are generally more common in the southeastern area of the county (see Figure IX.C-7). Black bears have a diverse diet including acorns, various berries, and insects. Under some circumstances, they may also consume feral hogs and cattle. Consistent with their famous desire for honey, bears are notorious for invading apiaries. This activity causes an obvious conflict between bee-keepers and the bears, as many orange groves currently exist in the northern and eastern areas of the county. More groves are permitted in the area as well. Bears studied in the Ocala National Forest predominantly utilized pine flatwoods for bedding and forage. "Pine flatwoods provide good cover for winter bedding as well as a nearly year-round source of food and water. This habitat type supports a variety of food- producing plans including gallberry, blueberry, and saw palmetto." (Wooding, John B. and Hardisky, Thomas S., Final Performance Report: Black Bear Study, page 18.) Bears studied in [the] Osceola National Forest utilized cypress/bay swamps greatest in the fall and winter. The dense cover and fall food supply are explanations for this use. Black bears are prone to utilize areas which include oak in the autumn to take advantage of acorn production. Oak hammocks provide black bears with dense cover and food during these periods. It appears that black bear hibernate to some degree in south Florida. This period of hibernation is of a shorter duration (2 to 3 months) and the bears are more alert during hibernation than they are in more northern areas. However, building energy stores for the hibernation is still important to the black bear in south Florida. Florida black bear dens are simply beds made of vegetation such as palmetto fronds. They are known to den in a variety of habitats. However, pine flatwoods and cypress swamps would appear to be the most utilized for this area. "It is speculated that Florida black bears have adequate food supplies to reproduce by the age of 3-4 years." (Wooding and Hardisky, page 23.) Black bear road kills have been reported along I-75. These bears were crossing in the vicinity of San Carlos Park. Bears have been sighted in that community and occasionally elsewhere west of I-75. However, I-75 is more typically a barrier to black bear migration to the western half of the county. Preservation of large tracts of unfragmented forests is necessary for the continued survival of black bear in Lee County. Public acquisition of connected forested tracts is an effective way of ensuring habitat preservation for black bear. The Flint Pen Strand acquisition includes the area of most extensive bear denning and bedding in Lee County. Since this area is connected by the Bird Rookery Swamp acquisition to the Corkscrew Swamp Sanctuary, connectivity of preserved land is accomplished. The largest area of land currently under public control in southeastern Lee County is owned by the city of Fort Myers. Their southeast wellfield site encompasses 6 sections and is compatible with the management of black bear. This area is just 2 miles from the Flint Pen Strand acquisition. A link between the two would provide the needed connectivity and should become a priority. Enhancement of large preserved tracts may yield a higher density of bears. This enhancement includes the planting of forage plants and the maintenance of dense vegetation. A burning program that favors the production of soft mast-forming species should be evaluated with consideration of promoting Melaleuca [sic]. Joint Exhibit 10.c, pages IX-6 and -13. Figure IX.C-7 shows that most of the bear use areas correspond to the depicted location of the Florida panther habitat. As to Issue 2, to the extent that the Revised Data and Analysis address vegetative communities and wildlife habitats, Petitioner has failed to prove to the exclusion of fair debate that the Revised Data and Analysis are inconsistent with the criteria of an inventory of existing coastal wildlife habitat and vegetative communities and analysis of the environmental, socioeconomic, and fiscal impacts of development and redevelopment upon unique wildlife habitat. As to Issue 6, the Plan Amendments address to a limited extent regulatory or management techniques for limiting the impacts of development and redevelopment on wildlife habitat. The Plan Amendments address the wood stork and its habitat as follows: Objective 77.10: WOOD STORK. By July, 1991, regulatory measures to protect the wood stork's feeding and roosting areas and habitat shall be adopted and enforced by Lee County. Policy 77.10.1: By December 31, 1990, the Protected Species Ordinance (#89-34) and its administrative code (AC-13-10) shall include wood storks as a Lee County Listed Species, requiring surveys for and protection of wood stork habitat. The county shall maintain an inventory of documented feeding, roosting, and rooking areas for the wood stork to ensure that surveys submitted through the Protected Species Ordinance include such areas. Policy 77.10.2: By December 31, 1990, the county shall require management plans for existing wood stork feeding, roosting, and rooking areas to utilize "Habitat Management Guidelines for the Wood Stork in the Southeast Region" (U.S. Fish and Wildlife Service, 1990). Policy 77.10.3: By July 1991, the county shall provide incentives for the creation of wood stork feeding areas in mandatory littoral shelf design, construction, and planting. These incentives shall include relief from 50% of the shrub requirements in exchange for fish entrapment areas. Policy 77.10.4: By July 1991, the county shall identify wood stork flight patterns from roosting and rooking areas to feeding areas within the county. Regulations protecting significant flight areas shall be adopted by July 1992, restricting the construction of tall structures such as broadcast towers (see Policy 2.1.5). Policy 2.1.5 provides: 25/ * [[After the completion and acceptance of a special study]] <<By July 1991, the county shall complete a special study on locational criteria for tall structures such as broadcast towers. These criteria shall include wood stork flight corridors from roosting and rooking areas to feeding areas as well as airport hazard areas. By July 1992, new>> tall structures such as broadcast towers shall be [[encouraged or]] required to be located in areas identified as appropriate <<after examining the findings of the study (see Policy 77.10.4).>> * Note: In the above quotation, language added to the policy is within the <<>>; deleted language is within the [[]]. Policy 77.10.1 requires Lee County to keep an inventory of wood stork feeding, roosting, and rooking areas to ensure that developer-provided surveys include such areas. The Revised Data and Analysis indicate that the County is already aware of certain of such areas. Policy 77.10.2 requires, by December 31, 1990, Lee County to demand that management plans for existing wood stork feeding, roosting, and rooking areas use regionally applicable U.S. Fish and Wildlife Service guidelines for habitat management. The requirement of management plans arises from the inclusion of wood storks among Lee County Listed Species, as provided in Policy 77.10.1. Policies 77.10.3 and 77.10.4 provide additional protection for wood storks found in Lee County. The Plan Amendments address the Florida panther, black bear, and their habitat as follows: Objective 77.11: FLORIDA PANTHER AND BLACK BEAR. By June 30, 1991, county staff shall develop measures to protect the Florida panther and black bear through greenbelt and acquisition strategies. Policy 77.11.1: County staff, working with the Florida Game and Fresh Water Fish Commission, shall identify known black bear and Florida panther corridors in Lee County. Policy 77.11.2: Criteria developed for ranking land acquisition priorities shall include known panther and black bear corridors. Policy 77.11.3: Lee County shall inform Collier and Charlotte counties as to Lee County corridor acquisition projects to encourage a regional approach to corridor acquisition. Policy 77.11.4: Lee County shall support the acquisition of the Flint Pen Strand through a millage increase of .2 mills over a three-year period. Acquisition of this documented Florida panther and black bear corridor shall be coordinated with the South Florida Water Management District's "Save Our Rivers" program and the state's "Conservation and Recreational Lands" program. Policy 77.11.5: Important black bear and Florida panther use areas shall be identified. Corridors for regulatory and public acquisition purposes shall be designated within these use areas. The corridor boundaries shall include wetlands, upland buffers, and nearby vegetative communities which are particularly beneficial to the Florida panther and black bear (such as high palmetto and oak hammocks). Policy 77.11.6: Florida panther and black bear corridors shall be included in the Protected Species Ordinance (#89-34) management section. Where corridors are purchased (or designated for purchase) adjacent to the development site, then a buffer to the corridor of no greater than 500 feet shall be required. Policy 77.11.7: In any vegetative restoration projects conducted by Lee County for land acquired due to its environmental sensitivity (such as the Six Mile Cypress Strand and the Flint Pen Strand), plant lists shall include species that provide forage for the prey of the Florida panther and forage for the black bear. The Plan Amendments also modified another policy contained in the Plan: Policy 77.4.1: Identify, inventory, and protect flora and fauna indicated as endangered, threatened, or species of special concern in the "Official Lists of Endangered and Potentially Endangered Fauna and Flora of Florida," Florida Game and Fresh Water Fish Commission, as periodically updated. <<Lee County's Protected Species Ordinance (#89- 34) shall be enforced to protect habitat of those listed species found in Lee County that are vulnerable to development. There shall be a funding commitment of one full-time environmental planner to enforce this ordinance through the zoning and development review process.>> Although not further described in the Amended Plan, the Protected Species Ordinance, which is not part of the Amended Plan, is addressed in the Revised Data and Analysis: The Protected Species ordinance (#89-34) was adopted by the Lee County Board of County Commissioners on August 31, 1989, and became effective on September 1, 1989. The ordinance was the first in the nation to require a survey for listed species habitat and a management plan for proposed development sites. The survey method is delineated to ensure a proper survey is performed. This survey is only required for those vegetative communities known to harbor listed species from the "Official Lists of Endangered and Potentially Endangered Flora and Fauna of Florida" of the Florida Game and Fresh Water Fish Commission. Once the listed species are identified, a number of regulatory tools are used to preserve the nesting, feeding, and "other use" areas. These tools include the transfer of density on-site, use of open space requirements, and credits toward regional park impact fees. * * * The ordinance is being administered to allow maximum development flexibility while preserving listed species habitat. Joint Exhibit 10.c, page IX-1. Added by the Plan Amendments, Objective 17.4 states: NATURAL RESOURCES. County regulations, policies, and discretionary actions shall permit no further degradation of estuarine and wetland resources and no unnecessary loss of native upland vegetation and wildlife habitat. Although unaffected by the Plan Amendments, other provisions of the Amended Plan address wildlife habitat and identifies techniques for limiting the impacts of development and redevelopment upon important vegetative communities. These provisions state: Goal 77: RESOURCE PROTECTION. To manage the county's wetland and upland ecosystems so as to maintain and enhance native habitats, floral and faunal species diversity, water quality, and natural surface water characteristics. Objective 77.l: RESOURCE MANAGEMENT PLAN. By 1991 the county shall adopt a resource management plan that will ensure the long- term protection and enhancement of the natural upland and wetland habitats through the retention of interconnected, functioning, and maintainable hydroecological systems where the remaining wetlands and uplands function as a productive unit resembling the original landscape. Policy 77.l.l: The county shall designate a natural resource management agency with responsibilities including: Identifying upland and wetland habitats/systems most suitable for protection, enhancement, reclamation, and conservation. Recommending standards to the Board of County Commissioners for Board approval for development and conservation that will protect and integrate wetlands (Resource Protection Areas and Transition Zones), and significant areas of Rare and Unique upland habitats (RU) as indicated in the Lee County Coastal Study, including but not limited to: sand scrub (320); coastal scrub (322); those pine flatwoods (411) which can be categorized as "mature" due to the absence of severe impacts caused by logging, drainage, and exotic infestation; slash pine/midstory oak (412); tropical hardwood (426); live oak hammock (427); and cabbage palm hammock (428). The numbered references are to the Florida Land Use Cover and Forms Classification System (FLUCFCS) Level III (FDOT, 1985). Preparing standards for wetland and rare and unique upland mitigation. Preparing a prioritized listing of wetlands, rare and unique uplands, and critical endangered and threatened species habitat properties for possible acquisition. Recommending a plan for eradicating and controlling problematic exotics Melaleuca, Schinus, and Casuarina with the highest priority placed on preventing new or accelerated infestations in wetlands and rare and unique upland habitats. Maintaining a central clearinghouse for all environmental studies and recommendations by both public and private organizations. Completing the mapping of the hydrological boundaries and habitats of each coastal watershed that extend landward of the coastal area study boundary. Preparing recommendations for maintaining or restoring the desired seasonal base flows and water quality into the coastal zone after reviewing monitoring data. Coordinating the preparation of plans with the municipalities, South Florida Water Management District, and Southwest Florida Water Management District to better control flows of freshwater and reduce pollutant discharges into the Lee County coastal waters. Regularly updating the Level III maps and database of the Coastal Study to reflect the existing conditions following each aerial photography overflight of the county. Providing an annual report to the county commission on the status of wetlands, native uplands, and rare and unique habitats. The report should focus on the adequacy of the land use regulations and management plan to protect and enhance these natural systems. Adjustments should be made in the regulatory process to address whatever deficiencies are noted. Objective 77.2: PLANT COMMUNITIES. By 1991, Lee County will have completed an inventory of natural plant communities and will adopt a program to protect at various suitable locations remnant tracts of all important and representative natural plant communities occurring within Lee County. Policy 77.2.1: Establish a coordinated natural resources information exchange program with state and regional agencies. Policy 77.2.2: Prevent incompatible development in and around areas that have been identified as unique or important natural plant communities. Policy 77.2.3: Prevent water management and development projects from altering or disrupting the natural function of significant natural systems. Policy 77.2.4: Encourage the protection of viable tracts of sensitive or high-quality natural plant communities within developments. Policy 77.2.5: Prepare and adopt regulations to control the clearing of natural vegetation except where and when needed for permitted development. Policy 77.2.6: Avoid needless destruction of upland vegetation communities including coastal and interior hammocks through consideration during the site plan review process of alternative layouts of permitted uses. Policy 77.2.7: Specify in the development regulations where inventories and assessments of the impacts of development in environmentally sensitive lands and Rare and Unique upland habitats shall be required. Policy 77.2.8: Promote the long-term maintenance of natural systems through such instruments as deed restrictions, covenants, easements, transfer of development rights, restrictive zoning, and public acquisition. Policy 77.2.9: Identify possible programs which would help to eradicate noxious plant species and/or non-native plant species from environmentally critical areas and Rare and Unique upland habitats, and implement pilot programs. Incentives such as density bonuses may be considered. Policy 77.2.10: Development adjacent to aquatic and other nature preserves, wildlife refuges, and recreation areas shall protect the natural character and public benefit of these areas including, but not limited to, scenic values for the benefit of future generations. Policy 77.2.11: The planting of Brazilian Pepper, Melaleuca, and Australian Pine is prohibited in order to prevent the spread of these noxious species. Policy 77.2.12: Lee County shall protect its natural resources by encouraging and cooperating with the local Mosquito Control District to employ the maximum feasible use of natural biological agents to control injurious insects. Objective 77.3: WILDLIFE. Maintain and enhance the current complement of fish and wildlife diversity and distribution within Lee County for the benefit of a balanced ecological system to which man is inexorably linked. Policy 77.3.1: Encourage upland preservation in and around preserved wetlands to provide habitat diversity, enhance edge effect, and promote wildlife conservation. Policy 77.3.2: Develop a plan to establish wildlife corridors in order to help to maintain regional species viability and diversity. Policy 77.3.3: Adequate safe passage for wildlife under or across new and reconstructed roads shall be provided where appropriate. Objective 77.4: ENDANGERED AND THREATENED SPECIES IN GENERAL. Lee County will continue to protect habitats of endangered and threatened species and species of special concern in order to maintain or enhance existing population numbers and distributions of listed species. * * * Policy 77.4.2: Conserve critical habitat of rare and endangered plant and animal species through development review, regulation, incentives, and acquisition. Policy 77.4.3: Require detailed inventories and assessments of the impacts of development where it threatens habitat of endangered and threatened species and species of special concern. Policy 77.4.4: Restrict the use of critical habitats to that which is compatible with the requirements of endangered and threatened species and species of special concern. New developments shall protect remnants of viable habitats when listed vegetative and wildlife species inhabit a tract slated for development, except where equivalent mitigation is provided. Objective 77.5: LOGGERHEAD SEA TURTLES. By the beginning of the 1989 nesting season (May 1), establish a program to minimize the disorientation of hatchling sea turtles along the Gulf beaches. Policy 77.5.1: The sea turtle protection program shall include at least the following activities: Prepare a guide for homeowners and builders which explains the detrimental effects of night-time beachfront lighting on hatchling sea turtles. Examine public light sources (streetlights, security lights, beach access lights, etc.) and prepare a plan to minimize the amount of harmful light from such sources onto the beach during the nesting season. Conduct an educational program to persuade residents to reduce lighting levels on the beach and to publicize other hazards to turtles from activities of people, pets, and vehicles. Encourage electrical suppliers and lighting dealers to stock special fixtures which reduce the negative effects of beachfront lighting. Develop an ordinance which controls the installation of new light fixtures which could shine on the beach, and which encourages or requires that existing lights be shielded or turned off during the nesting season. Determine whether certain areas of the beachfront are not used by sea turtles for nesting and should therefore not be subject to the same restrictions. Objective 77.6: SOUTHERN BALD EAGLES. During 1989, amend the county's ordinance protecting southern bald eagle habitat to provide an optimum mix of incentives and regulations for protecting buffer areas around nests. Policy 77.6.l: Maintain a policy of negotiations with owners of land surrounding eagle nests to provide an optimal management plan for land subject to imminent development. Policy 77.6.2: The county Eagle Technical Advisory Committee shall complete by the end of 1989 an assessment of all eagle nests in Lee County, and shall prepare proposed guidelines for each nest. Policy 77.6.3: The Committee shall also prepare management guidelines to inform land owners and the general public of proper practices to minimize disturbances to eagle nests. Objective 77.7: WEST INDIAN MANATEES. Minimize injuries and mortality of manatees to maintain the existing population by encouraging the adoption by the state of Florida and local governments of regulations to protect the West Indian Manatee in the Caloosahatchee and elsewhere in Lee County. During 1990, manatee management plans will be prepared for other waters of Lee County also frequented by manatees. Policy 77.7.1: Characterize and map important manatee habitats; identify and evaluate potential threats to important habitats; and consider management agreements to protect such habitats. Policy 77.7.2: Identify areas of greatest actual or potential boat/barge mortality and/or injury by December 31, 1990, and establish slow or idle speed zones. Policy 77.7.3: Inform and educate the public through sign posting, lectures, and regulations about manatee protection. Policy 77.7.4: Educational materials regarding manatees should be disseminated to boaters and warning signs placed in areas where both manatees and humans congregate. Policy 77.7.5: Construction and expansion of multi-slip docking facilities and boat ramps shall be encouraged in locations where there is quick access to deep, open waters where the associated increase in boat traffic will be outside areas of high manatee concentration. Policy 77.7.6: Rezoning and DRI applications for marinas and boat ramps shall be evaluated in the context of cumulative impacts on manatees and marine resources. Policy 77.7.7: State, local, and private interests shall work in cooperation to develop and implement area-specific manatee protection plans. Policy 77.7.8: By October 1, 1991, the county shall provide a permanent funding source to assist the Florida Department of Natural Resources in enforcement of such manatee protection plans as may be adopted. Objective 77.8: GOPHER TORTOISES. During 1989, determine the suitability of publicly owned property for the relocation of gopher tortoises. Policy 77.8.1: The county's policy is to protect gopher tortoise burrows wherever they are found. However, recognizing that there occasionally are unavoidable conflicts which require the relocation of gopher tortoises, the suitability of alternate sites should be evaluated as to --physical suitability of the site for the gopher tortoises; --long-term protection of the land; --conflicts with other management objectives for the land; and --costs that would be incurred by the relocation. Objective 77.9: RED-COCKADED WOODPECKER. By 1990, county staff will prepare a list of best management practices for the red- cockaded woodpecker's habitat. Policy 77.9.1: County staff will note and document other possible red-cockaded woodpecker sites during routine site inspections. As to Issue 6, to the extent that the Plan Amendments address the identification of regulatory or management techniques for limiting the impacts of development and redevelopment on wildlife habitat, Petitioner has failed to prove to the exclusion of fair debate that the Plan Amendments are inconsistent with the criterion of a policy identifying such regulatory or management techniques. Future Land Use Map Series (Issues 3, 4, 5, 7, and 11) Issues 5, 7, and 11 As to Issue 11, the future land use map series, which includes the 2010 overlay, reflects a planning timeframe of 20 years. The schedule of capital improvements covers a five-year timeframe. Petitioner argues in her proposed recommended order that the Amended Plan uses inconsistent timeframes, such as those mentioned above, as well as timeframes of five years for potable water and sewer, less than 10 years of need for potable water wellfield protection, and one year for mass transit. Different timeframes may be appropriate for different projected items because of the varying amounts of available data and analysis for different items, varying planning requirements in the growth management law concerning different items, and varying degrees of predictability for different items. As to Issue 11, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with the criterion of two planning timeframes. As to Issue 5, nothing in the Plan Amendments or Revised Data and Analysis identifies potable water wellfields or their cones of influence. Map 8 of the Amended Plan identifies the cones of influence surrounding depicted wellfields and indicates that it was "as adopted [on] January 31, 1989." Map 8 obviously was part of the Plan and was unchanged by the Plan Amendments. The extensive amendments and revisions concerning the new 2010 overlay, the Density Reduction/Groundwater Resource designation, related Plan Amendments, and the data and analysis underlying these operative provisions do not provide a basis for Petitioner's assertion that the future land use map series fails to identify potable water wellfields permitted to pump less than one million gallons per day and their cones of influence. Issue 5 is directed toward the Plan, not the Plan Amendments. As to Issue 7, nothing in the Plan Amendments or Revised Data and Analysis involves densities in the coastal high hazard area, except to the extent that the 2010 overlay may reduce such densities by limiting residential uses when compared to the original 70-year future land use map. 26/ Issue 7 is directed toward the Plan, not the Plan Amendments. Issues 3 and 4 Overview As to Issues 3 and 4, the Plan Amendments substantially changed the future land use map series by the addition of the 2010 overlay and related text. However, except for the introduction of the new Density Reduction/Groundwater Resource designation, the Plan Amendments, including the 2010 overlay, did not substantially alter the types of land uses permitted by the future land use map series in the Plan. The 2010 overlay and related text address the timing of land uses by limiting the amount of land that may, prior to 2010, be devoted to the uses designated by the future land use map in the Plan. Issues 3 and 4 generally raise the issue whether the Plan Amendments, including the amended future land use map series, are supported by data and analysis. Because the Plan Amendments and the amended future land use map series do not generally change the uses that are ultimately to be allowed in an area, the Plan Amendments and amended future land use map series are not implicated by allegations that the amended future land use maps are not consistent with soils, topography, and floodplains. For the same reason, the Plan Amendments and amended future land use map series do not play a significant role in determining whether land use designations for specific areas, such as North Bonita Springs, are supported by data and analysis. However, as explained below, the Plan Amendments, including the amended future land use map series, directly affect the amount of land that will be available for designated uses by 2010. Based on the findings contained in the following sections, the designations contained in the amended future land use map series--even as limited by the 2010 overlay--lack support from data and analysis in two crucial respects. The first deficiency is that the density allocations are not supported by data and analysis. The second deficiency involves all designations, not just residential designations expressed in terms of densities. The second deficiency contains two parts. First, the existing land use baseline data are omitted from the Amended Plan and Data and Analysis. Second, the County has yet to design a reliable process for updating the available baseline existing land use data. The determination whether the density allocations in the amended future land use map series are supported by data and analysis begins with consideration of the ratio of the maximum population accommodated by the Amended Plan for the planning timeframe divided by the projected population at the end of the planning timeframe. The resulting ratio is not itself determinative of the issue whether data and analysis support the density designations in a comprehensive plan. A wide range of density allocation ratios may be calculated for the same plan. There are a variety of reasonable assumptions and adjustments, especially for reducing the maximum population accommodated by the plan. Also there are a range of reasonable density allocation ratios. A density allocation ratio represents a rough calculation of the relationship between the amount of land needed for residential uses during the planning timeframe compared to the amount of land so designated during the planning timeframe. If the ratio is relatively high, there is a greater chance that the plan may not facilitate the efficient use of land or the efficient provision of public facilities, especially if the spatial distribution of densities and textual plan provisions do not tend to achieve these objectives. In any event, a density allocation ratio is an important factor in determining whether data and analysis support the density designations contained in a comprehensive plan. As explained below, the Data and Analysis contain a critical adjustment by which the maximum densities permitted in the Amended Plan are reduced to reflect historic densities--by an unstated amount and according to an incompletely described methodology. The second deficiency concerning supporting data and analysis undermines residential, commercial, industrial, and other designations. The baseline existing land use data are omitted from the Amended Plan and Data and Analysis, and the process by which existing land uses will be updated is uncertain and unreliable. The 2010 overlay is meaningless without these data. As described below, the 2010 overlay divides the County into numerous subdistricts. The 2010 overlay limits development in each subdistrict to a maximum acreage for each land use category. The acreage limitations represent total acreage, which consists of the acreage of existing land uses that preexisted the implementation of the 2010 overlay and the acreage of land use authorized pursuant to, and following, the implementation of the 2010 overlay. The baseline data missing from the Amended Plan and Data and Analysis are the acres of each existing land use for each subdistrict. The absence of such data from a readily available source such as the Amended Plan or Data and Analysis undermines effective implementation of each of the designations contained in the 2010 overlay. Although the evidence indicates that the County has adequate baseline existing land use data, such data, for the reasons set forth in the Conclusions of Law, must be included in the Amended Plan or the Data and Analysis because of its indispensable role in the implementation of the 2010 overlay. Neither the Amended Plan nor the Data and Analysis identify the process by which Lee County will update the baseline existing land use data. Evidence at the final hearing revealed serious deficiencies in the updating process, which requires the County to extrapolate from traffic data and analysis the ongoing incremental acreage increases of land use, rather than track the increases as they are authorized in a more straightforward fashion. Thus, concerning the second deficiency, the designations contained in the 2010 overlay are supported by data and analysis only to the extent of: 1) a clearly ascertained baseline, in terms of acres of existing land uses by category for each planning subdistrict, set forth in the Amended Plan or the Data and Analysis and 2) the identification of a reliable means of determining the incremental acreage increases authorized by the County for each land use category for each planning district following the implementation of the 2010 overlay. 2. How the Amended Future Land Use Map Series Works The primary component of the future land use map series Map 1, which is a future land use map containing 18 future land use designations. Map 1 projects land uses through buildout of the entire County, or about 70 years. Map 1 was contained in the Plan and was not changed by the Plan Amendments, except for the addition of the 2010 overlay and the Density Reduction/Groundwater Resource designation. The Plan Amendments added Maps 16 and 17 to the future land use map series. Maps 16 and 17 constitute the 2010 overlay. Map 16 divides the entire County, including the three municipalities, into 115 planning subdistricts. Map 17 is not a map, but is a series of bar graphs depicting acreages for seven land use categories: residential, commercial, industrial, parks and public, active agriculture, conservation, and vacant and passive agriculture. The regulatory concept of the 2010 overlay is to prohibit, prior to 2010, the issuance of "final development orders or building permits" for any future land use designation once the subdistrict has attained the acreage specified for that type of land use by Map 17. Joint Exhibit 10.b, page 3. This concept is implemented by Policy 1.1.1, which provides: The Future Land Use Map contained in this element is hereby adopted as the pattern for future development and substantial redevelopment within the unincorporated portion of Lee County. <<Maps 16 and 17 are an integral part of the Future Land Use Map series (see Policies 1.7.6 and 2.2.2). They depict the extent of development through the year 2010. No final development orders or building permits will be issued by Lee County which would allow the acreage totals for any land use category on these maps to be exceeded.>> The cities of Fort Myers, Cape Coral, and Sanibel are depicted on [[this]] <<these>> maps only to indicate the approximate intensities of development permitted under the comprehensive plans of those cities. Residential densities are described in the following policies and summarized in Table l. The Revised Data and Analysis explain that the purpose of the 2010 overlay is to make the 70-year future land use map in the Plan "even more useful as a decision-making guide by providing a 20-year horizon in addition to its present longer- term horizon." Joint Exhibit 10.b, page 1. The Revised Data and Analysis elaborate: The addition of a 20-year horizon (i.e., to the year 2010) to the map series is an effort to project and monitor land development quantitatively on a small area basis and over a relatively shorter period of time, thus improving the county's ability to coordinate zoning, impact fees, and other development regulations with the planning and programming of public facilities and services. Joint Exhibit 10.b, page 2. Assumptions, Data, and Methodologies Applicable to 2010 Overlay Density Allocations: Assumptions and Data Map 1 and the 2010 overlay are based on the 1987 University of Florida high-range population projections for 2010. Joint Exhibit 10.b, page 4. Residential projections are based on peak or seasonal populations, which are permanent populations plus 18%. Joint Exhibit 10.b, page 4, and County Exhibit 1.B, page V-7. Populations are converted to dwelling units by assuming that 2.01 persons occupy each dwelling unit. Id. The population figures typically include Ft. Myers, Cape Coral, and Sanibel, not merely unincorporated Lee County. 27/ Other important assumptions identified in the Revised Data and Analysis are that there will be no net loss of wetlands, the density allocations will reflect the new Groundwater Resource/Density Reduction designation with a density of one dwelling unit per 10 acres (1:10), the Mid-Point Bridge will be built by 2000, all but one of the transportation projects shown on the Interim Traffic Circulation Plan Map will be finished by 2010, and the "state road network" will be enhanced by the Traffic District Program and Interim/Operational Improvement Program for backlogged roads and Operational Improvement Program for constrained roads. 28/ Joint Exhibit 10.b, pages 4-5. Another key assumption involves adjustments to the designated densities authorized in the comprehensive plans of Ft. Myers, Cape Coral, and Sanibel. Acknowledging that Lee County lacks planning jurisdiction over these municipalities, the Revised Data and Analysis nonetheless reveal that Lee County made "some adjustments" to their growth trends. In other words, in determining the densities to use for the 2010 population that could be accommodated by the cities' plans, Lee County chose not to rely on the maximum densities indicated by the future land use designations given vacant residential acreage on each city's future land use map. Instead, as it did for the unincorporated County, Lee County reduced the maximum densities in the cities' plans to account for historic buildout densities. Joint Exhibit 10.b, page 3. Density Allocations: Methodology Noting that the 2010 overlay is not a "textbook planning concept," the Revised Data and Analysis acknowledge that the 2010 overlay required an "innovative methodology," which, due to time constraints, could not be fully documented in the Revised Data and Analysis. Joint Exhibit 10.b, page 3. Instead, the Revised Data and Analysis provide only a "brief explanation" of the methodology. Id. Section III of the Revised Data and Analysis for the Future Land Use Element 29/ describes the methodology underlying the County's estimate of the builtout capacity of the land. In this analysis, the County reduces maximum densities permitted under the Amended Plan to reflect anticipated actual densities. This adjustment is intended to reflect the historic buildout factor in Lee County, which generally resulted in involved lower densities in urban areas and higher densities in rural areas than are designated in the Amended Plan. The Revised Data and Analysis explain that the Original Data and Analysis used 1981 data and analysis of then-existing vacant land, including platted but vacant lots. The vacant acreage was then tabulated by land uses identified within the Plan. The Revised Data and Analysis add: By adding the 1981 dwelling unit count to a reasonable projection of future housing densities on the "vacant" acreage, an estimate was made of the build-out capacity of the unincorporated area as shown in the Lee Plan's land use map. The process by which vacant acreage was converted to dwelling units is partly described, at least to the extent of several assumptions. The following percentages were deducted from the vacant acreage for the following uses: commercial--8%; major collector and arterial roads--5%; educational facilities- -2%; and community and regional parks--1%. Another 10,000 acres were deducted from the vacant acreage for industrial uses. The percentage reductions for commercial and industrial future land uses were based on studies by the independent planning consultant who was involved in the preparation of Map 1 and the 2010 overlay. Joint Exhibit 10.b, page 6. The deductions for commercial and industrial acreage allotments, as described in this paragraph, are reasonable and supported by data and analysis. 30/ The Revised Data and Analysis, as well as the Original Data and Analysis, mention adjustments that Lee County made to its analysis of the capacity of residential development authorized by the Amended Plan. By these adjustments, the County attempted to show where commercial and industrial uses would preempt residential uses. Although the methodology of the adjustments is not disclosed, they appear to represent a reasonable attempt to avoid the unrealistic land use planning assumption that commercial and industrial uses would be scattered equally throughout the parts of the County where they are authorized under the Amended Plan. The Revised Data and Analysis next break down the acreage of each future land use designation into 15 planning districts and 115 planning subdistricts. Table 1 (III C) beginning on page 8 of Joint Exhibit 10.b provides acreages for each of the 15 planning districts on three tables: one for Lee County in its entirety, one for unincorporated Lee County, and one for the three municipalities. Table 2 (III C) breaks down the acreages by planning subdistrict. The acreages in Tables 1 (III C) and 2 (III C) do not correspond to the acreages shown in Map 17 and Table 3 (V G). 31/ The differences are not indicative of deficient data and analysis. Tables 1 (III C) and 2 (III C) represent interim stages of the process by which Lee County developed the 2010 overlay and, as such, do not provide acreages on which density allocations may be calculated. However, Tables 1 (III C) and 2 (III C) do not suggest that the final acreage figures in Map 17 and Table 3 (V G) represent the maximum densities or population allowed in the Amended Plan without reduction for historic densities. To the contrary, the Revised Data and Analysis indicate that the preparation of Table 2 (III C) allowed "the input of expected densities." Joint Exhibit 10.b, page 7. Unlike Table 3 (V G) or Table 1 (III C), Table 2 (III C) contains a column entitled, "Buildout Assumptions." One part of the Buildout Assumptions column is "percent residential." The adjustment for percent residential appears to be based on the above-described deductions for commercial and industrial allotments. In any event, the adjustment represents a reasonable projection as to what portions of land designated residential will necessarily be devoted to other uses, such as commercial and industrial. The other part of the Buildout Assumptions column in Table 2 (III C) is "dwelling units per acre," which appears to represent adjusted projections based on historic buildouts. The maximum densities for each category allowed by the Amended Plan are invariably equal to or (more often) higher than the dwelling units per acre contained in the Buildout Assumptions. 32/ The Revised Data and Analysis revise Section V(G) of the Original Data and Analysis. This section is entitled "Future Land Use Needs for the Year 2010." The new section addresses exclusively residential development. Table 2 (V G) in the new section lists by planning subdistricts the number of dwelling units in 1987, the number of dwelling units projected for 2010, and the number of dwelling units projected at buildout. In introducing Table 3 (V G), the Revised Data and Analysis note that the projected number of dwelling units for 2010 (presumably from Table 2 (V G)) was translated to acreage by "taking the number of acres in each land use category in each district and allocating the residential units projected for 2010 at the density factor (number of units per acre) allowed in the land use category." Joint Exhibit 10.b, page 37. However, the acreage allotments in Table 3 (V G), which are the same as those in Map 17, reflect historic density adjustments, rather than unadjusted applications of the maximum densities authorized in the Amended Plan. For the purpose of calculating density allocation ratios in determining whether the designated densities are supported by data and analysis, there is no justification for failing to disclose information necessary to calculate the maximum population that can be accommodated by the Amended Plan. 33/ For the purpose of calculating density allocation ratios in determining whether the designated densities are supported by data and analysis, there is no justification for reducing the maximum population that can be accommodated by the Amended Plan by an undisclosed amount to reflect historic buildout densities. The purpose of Map 1 was to depict the land uses in Lee County at buildout, which was estimated to be about 70 years. This 70-year future land use map was to facilitate end-state public facility planning by assisting the County and private utility companies in determining where to locate and how to size public facilities so as to accommodate the builtout population of Lee County. Projecting actual buildouts for end-state public facility planning requires an adjustment based on historic densities. But the present determination is whether the densities authorized by the Amended Plan are supported by data and analysis. This determination requires consideration of the effectiveness of the future land use map series as a regulatory device to assist the Amended Plan in achieving consistency with applicable criteria of the growth management law. To a large extent, any regulatory purpose for Map 1 was frustrated by the fact that, in 1989, it made available for immediate development (subject to concurrency) all of the land that would be needed for various uses by 2060. The 70-year planning timeframe meant that Map 1 designated amounts of land for various uses that were grossly in excess of that which was needed in 1989 or even 2010. To this extent, the 70-year future land use map did not facilitate effective land use planning. The sole purpose of the 2010 overlay is to shorten the planning timeframe of Map 1 from 70 year to 20 years. The shorter planning timeframe is more meaningful for land use planning, as well as facility planning in the interim. Although the 2010 overlay clearly strengthens the future land use map series as a regulatory device, the question still remains whether even the reduced densities designated by the map series are supported by data and analysis. The calculation of a density allocation ratio is part of the determination whether data and analysis support the residential densities in a plan. The analysis misses the point of the process if the maximum densities authorized by a plan are reduced to reflect historic densities. The question is whether the densities authorized by a plan are supported by data and analysis, not whether data and analysis support densities somewhere between the maximum authorized densities and historic densities. Especially where historic densities reflect an inefficient use of land, as is clearly the case in Lee County, analysis of a plan based in part on historic densities invites the repetition of past planning failures. Although there is some flexibility in calculating and interpreting density allocation ratios, the reduction of maximum densities allowed in the Amended Plan by an undisclosed amount and by an incompletely explained methodology frustrates the purpose of comprehensive land use planning. The purpose of the density allocation calculation, as part of the process of determining if the plan is supported by data and analysis, is not to predict the actual density that will occupy the planning jurisdiction at buildout. The purpose of the density allocation calculation is to compare the maximum density allowed by the plan with the projected population and consider the extent of the overallocation in light of other factors in the planning jurisdiction, including plan provisions and relevant data and analysis. The ratio is not required to be 1:1 to satisfy the criterion of supporting data and analysis. But the ratio must be ascertainable in order to determine if the density allocations in a plan, in view of other plan provisions, are supported by data and analysis. By failing to disclose either the maximum population that can be accommodated by the Amended Plan or even the bases upon which such maximum densities could be derived, Lee County has implicitly and--at times--explicitly demanded undue deference to its above-described density analyses. Nothing in the record warrants such deference. Although Lee County has made considerable progress in regulating land uses since first adopting zoning in 1962, sprawling, low-density residential monoliths already occupy much of the landscape in Lee County. Two such areas are Lehigh Acres and Cape Coral, the latter of which has now been incorporated. These inefficient land use patterns, which are a large part of Lee County's historic densities, generally exceed rural densities but do not attain urban densities. Lee County confronts a serious challenge from the massive tracts of prematurely (and in some cases unsuitably) platted lots, as well as the ongoing pressure to continue such inefficient and costly land use practices. The Original Data and Analysis note that "vacant zoning together with platted lands could accommodate over 218,700 units or 518,000 people in the unincorporated area alone" and that the "pace of rezoning, often with speculative intent, has not lessened appreciably since that time." County Exhibit 1.B, Future Land Use Element Data and Analysis, page V-1. The Original Data and Analysis observe that Lee County in its entirety contains 480,458 platted lots covering over 153 square miles. Although it is not entirely clear that all of these lots are vacant or preplatted, a considerable number of them are. Most of the lots are in Lehigh Acres (132,512 lots) and Cape Coral (287,869, but deed restrictions require two lots for one homesite.) Only 3768 lots are considered nondevelopable. County Exhibit 1.B, Future Land Use Element Data and Analysis, page I-1. The Revised Data and Analysis argue that Lee County should be accorded greater planning flexibility than should other local governments in Florida due in part to its "large concentrations of pre-platted lands." The other reasons cited to justify special treatment are the presence of three independent municipalities, a multiplicity of private sewer and water systems lacking centralized control, a complicated land and water configuration, a strong wetlands protection program, a large regional airport, existing and future DRI's, and an "historical pattern of decision-making that has created land use expectations which, in the aggregate, are difficult to reverse and require care and sensitivity in so doing." Joint Exhibit 10.b, page 2. With the exception of the strong wetlands protection program, if one were to exist, the cited factors at best cut both ways in terms of whether, under the growth management law, a local government facing such challenges requires greater planning flexibility. The pre-platted lands factor militates against greater planning flexibility, as these vacant lots represent a potential liability that threaten the viability of a local government's comprehensive plan. Following the discussion of Tables 1 (III C) and 2 (III C), the Revised Data and Analysis admit: The above analysis helps to explain the inability of Lee County and private sector utility companies to provide infrastructure to all of the future urban areas shown on the future land use map. Those services that involve major expenditures for site-specific capital improvements (such as sewer lines, water lines, and major roadways) are the major components of local governments' expenses in providing for new growth; yet they are the very services which are difficult to provide economically when a large supply of land is provided for development. Joint Exhibit 10.b, page 7. The Revised Data and Analysis identify several factors that militate in favor of abandoning the stricter regulatory land-use controls introduced by the 1984 comprehensive plan. 34/ These factors are the presence of numerous private utility suppliers over which Lee County has no regulatory control; the "existing pattern of development within unincorporated Lee County [involving] numerous physically scattered communities of widely varying character," which renders attempts to apply a "single concept" of urban services across a wide spectrum of communities "inappropriate" and "financially infeasible" both as to existing and future development; the unsuccessful implementation of flexible planning strategies in the 1984 plan, such as planned unit developments in which developers and landowners provide a full range of urban infrastructure without expense to Lee County; and, "[p]erhaps the most difficult issue. . . in implementing the 1984 Lee Plan," the "lack of total commitment to the policy of allowing urban-scale development [over 1:1] only where a commitment was actually being made to provide an urban level of infrastructure." Elaborating on the last factor, the Revised Data and Analysis add: "The future land use map has often been seen as just another obstacle rather than as a vehicle towards the creation of desirable development patterns." Joint Exhibit 10.b, pages 30-31. Again, the cited factors do not militate in favor of more relaxed regulatory land-use practices to achieve consistency with the criteria of the growth management law. Addressing the 2010 overlay and the projected population that it is intended to accommodate, the Revised Data and Analysis contend: [DCA] has tried to rigorously defend the concept of enforcing a future land use map having an approximate capacity equal to the projected growth of the county over a given (typically, 20-year) period. This is not possible in Lee County where existing platted and sold lots greatly exceed the 20-year period. In addition, it is also important to know where and how growth will occur well beyond the conventional timeframe of a comprehensive plan. Joint Exhibit 10.b, page 31. However, the Revised Data and Analysis acknowledge the drawbacks of reliance upon a future land use map with a 70-year planning timeframe. The cited disadvantages include the increased likelihood of changes in designations over the intervening 70 years (as compared to shorter periods like 20 years); the premature conversion of agricultural and vacant land to residential uses due to designations that, in 1990, presently permit land uses that will accommodate all projected urbanization through the year 2060; and the possibility that actual population growth will not attain projected population growth, which would result in an even more scattered development pattern that would further increase the cost of servicing the scattered population with required public facilities and services. The Revised Data and Analysis frankly concede that "there is no easy way to exit from the present dilemma." Joint Exhibit 10.b, page 32. A "wholesale rollback" of existing future urban areas, though simple, "would inevitably diminish development rights previously granted by Lee County." The prime examples of previously granted development rights are the "hundreds of thousands of [already-sold] platted lots" and "numerous large-scale developments which have recently been approved based on the existing Lee Plan . . .." Id. Acknowledging the obvious, the Revised Data and Analysis admit that the preceding analysis "indicates clearly that the development potential shown on the Future Land Use Map is greater than the projected population for the year 2010." Id. The Revised Data and Analysis list five steps that Lee County has taken to "bridge the gap between the adopted [70- year] future land use map and the desirability of a 20-year map." Joint Exhibit 10.b, page 32. These steps are reserving about one-third of the Future Urban Areas for privately funded infrastructure; substantially reducing the total acreage of land, including coastal ares designated urban in the 1984 plan; adopting impact fees for fire protection and emergency medical services; adopting the 2010 overlay; and adopting the new Density Reduction/Groundwater Resource designation to reduce densities in sensitive areas to 1:10. As noted above, the encouragement of privately funded infrastructure has not enjoyed much success in Lee County. As noted below, the adoption of the Density Reduction/Groundwater Resource designation with a low density of 1:10 over thousands of acres of the County allows a real separation of urban and rural uses. But, as noted in this section of the recommended order, data and analysis do not support the density designations in the 2010 overlay and thus the question remains open whether even the reduced densities authorized by the 2010 overlay are supported by data and analysis. Baseline and Updated Existing Land Use Data: Data, Assumptions, and Methodology Lee County possesses the baseline data for existing land uses by each land use category for each subdistrict. Lee County's Growth Management Director William Spikowski testified that the County possessed sufficient, baseline existing land use data, broken down by land use category and subdistrict, as of 1987. Tr., page 122. There is no basis in the record for discrediting the 1987 baseline data, 35/ but, for the reasons discussed in the Conclusions of Law, the criterion of supporting data and analysis requires in this instance that such crucial baseline data be included in the Data and Analysis (or the Amended Plan, if the County prefers). For the faster-growing subdistricts, these baseline data were updated to 1990, which is when the 2010 overlay was adopted. Id. The record does not support the finding that, to the exclusion of fair debate, any problems exist with respect to the one-time 1990 update of the baseline data, which may have been produced by the independent consultant who prepared the commercial and industrial studies and initiated Map 1 and the 2010 overlay. The point at which the 2010 overlay finds no support from the data and analysis is in the updating of the existing land use data from the 1987 (or 1990, where applicable) baseline data. The 115 planning subdistricts in Map 16 are formed out of over 800 traffic analysis zones. Part of the reason for using the traffic analysis zones was the detailed data available for small areas of the County. When confronted with the necessity of calculating exactly how much land remains in a specific subdistrict for a specific use, the County has a very poorly defined process whose results are unreliable. The updating process does not involve tracking actual land areas authorized for development in a specific land use under the 2010 overlay. Instead, the County reverts to traffic data, employs undisclosed conversion factors, and reaches a result that may or may not measure the extent of the development that it has authorized in the subdistrict under the 2010 overlay. The conversion process is unreliable and, even if it were reliable, may be measuring merely actual uses, but not already-authorized uses not yet in existence. The unreliability of the updating process by which authorized development under the 2010 overlay is measured was disclosed in the testimony of Mr. Spikowski. The relevant portion of the transcript reads: Q: Okay. Where would I find the--just the vacant acreage that you're proposing to allow to be developed? A: The exact inventory is what I discussed as what we want to have--be able to take off the property appraiser's records for each parcel so that we can have a constantly updated figure. We don't have that available. . . . Tr., page 1294. After discussing a recent rezoning request that evidently involved commercial uses, possibly as part of a mixed- use project, Mr. Spikowski explained that the County elected to do a manual count of existing land uses rather than rely on the traffic data and use a conversion factor. Mr. Spikowski testified in relevant part: A: . . . instead of using the information we used, which is the 1987 inventory done for the traffic model where we had to use conversion factors to take employees back to acres, the right thing to do in that case was to do a manual count, to do what we want to do on the computer. And maybe week after next we're going to have the capability to do that. It had to be done manually. Because we had base projections in here based on the inventory for the '87 traffic model, but it was calculated for commercial based on number of employees, because that's what the traffic model wanted. For us to use it in the overlay we had to convert that back to acres using standard conversion factors, which introduces an element of error. So before you would use this overlay as a regulation of telling somebody they cannot use their land, you really would need to manually check it. Whether that goes to the property appraiser records for those sections or estimate of aerial photography with the Plan amendment, or either way would work. We tried both methods. Q: I really can't do--take the documents that are in evidence and do this calculation because I can't tell what is existing? A: You would have to--If you take the documents in evidence, I believe you'd have to assume that the conversion factors that are county-wide averages are correct for that subdistrict. And again, for general planning purposes we were comfortable doing that, also knowing that we were getting this new system to do it automatically. This is one of the regulatory flaws of the 2010 overlay and that's why it's become so hated in the development community. They say, if you can't give us the exact amount, how can you expect us to live with it? Tr, pages 1294-97. The record is otherwise devoid of evidence describing the methodology by which the acreage allotments by subdistrict will be updated. The role of Map 17, as described by Policy 1.1.1, is to ensure that the County will not authorize development that would exceed relevant acreage totals. There are absolutely no data or analysis supporting the crucial updating process. Nothing in the Amended Plan or the Data and Analysis prevents the County from, if it so chooses, using traffic data (which may possibly ignore authorized uses that have not yet placed vehicles on the road), converting employees to acres by some undisclosed formula (or perhaps residents to acres through the undisclosed historic density adjustment), and determining that the development would not exceed the acreage allotment. It is to the County's credit that, in the rezoning application described by Mr. Spikowski, it manually determined existing land uses in the affected subdistrict to determine if additional acreage were available. This is the "right thing to do" for using the 2010 overlay "as a regulation." But the 2010 overlay is unsupported by data and analysis unless the County restricts itself to a reliable updating process. The alternative updating process, which is based on converted traffic data, cannot be found, on basis of this record, to be any more reliable than reading owls' entrails. The Amended Plan or Data and Analysis must assure that the County will adhere to more reliable means of measuring interim increases in land uses authorized under the 2010 overlay. Even if the County implements a computer- assisted reading of updated property appraiser records, questions remain concerning, for instance, the accuracy of such records as measurements of the extent of development authorized by the County pursuant to the 2010 overlay and the frequency with which these measurements must be updated in order to ensure that acreage allotments are not exceeded. These matters must be described either in the Amended Plan or the Data and Analysis for the designations contained in the 2010 overlay to find support in the data and analysis. As to Issues 3 and 4, for the reasons set forth above, Petitioner has proved to the exclusion of fair debate that the Maps 1, 16 and 17 of the amended future land use map series are not supported by data and analysis. Transportation (Issues 8 and 9) With five exceptions not material to this case, Policy 21.1.1 adopts the Metropolitan Planning Organization's (MPO) 2010 Financially Feasible Map as the Interim Traffic Circulation Plan Map. This color map is Map 3 in the Amended Plan. Policy 21.1.5 explains that the future traffic circulation map series consists of Map 3, the MPO 2010 Needs Plan (Map 4), and a map of ports, airlines, and rail lines (Map 13). The Plan Amendments completely revised Policies 21.1.1 and 70.1.3.6, which adopt minimum peak hour/peak season level of service standards 36/ for roads in Lee County. The adopted level of service standard is D for freeways, such as I-75, and principal arterials under state jurisdiction other than US 41. The Amended Plan assigns a level of service E to all other roads, which are County arterials and collectors, and state minor arterials and others, as well as US 41. Concerning constrained roads, Policy 22.1.3 provides: <<Due to scenic, historic, environmental, aesthetic, and right-of-way characteristics and considerations, Lee County has determined that certain roadway segments will not be widened. Therefore, reduced peak hour levels of service will be accepted on those constrained roads as a trade-off for the preservation of the scenic, historic, environmental, and aesthetic character of the community. These constrained roads are defined in Table 2(b). Growth on those constrained roads will be permitted only within the volume-to-capacity (v/c) ratios established in this plan and only if consistent with the Operational Improvement Program for those constrained roads.>> Table 2(b) identifies nine state and County road segments that are constrained. Policy 22.1.9 sets a maximum volume-to-capacity ratio of 1.85:1 and prohibits the issuance of additional permits for development affecting the constrained segment once that ratio has been reached. Policy 22.1.10 establishes an Operational Improvement Program for each constrained segment. There is no evidence that Lee County has identified as constrained road segments roadways for which capacity-enhancing projects are not appropriately limited by scenic, historic, environmental, aesthetic, or right- of-way factors. Petitioner has failed to prove to the exclusion of fair debate that the treatment of constrained roads in the Amended Plan is inconsistent with any of the criteria of the growth management law. Table 2(a) identifies 26 state and County road segments that are backlogged. The treatment of backlogged roads in the Amended Plan is much more elaborate. Even though these road segments do not, by definition, meet the minimum level of service standards otherwise adopted in the Amended Plan for roads of their functional classifications, the Amended Plan requires neither the addition of greater transportation capacity in the affected area nor the cessation of development impacting the affected area. Instead, the Amended Plan offers a two-part alternative. Under the Traffic District Program, a backlogged road segment may be viewed in the context of a much larger area. Pursuant to the Interim/Operational Improvement Program, interim operational improvements may be undertaken, but are not required to restore the subject road segment to its otherwise applicable level of service standard. As to Issue 8, the Traffic District Program in particular has a clear impact on the consistency of the Amended Plan and Plan Amendments with the criteria of setting level of service standards for roads, ensuring concurrency for roads, and correcting infrastructure deficiencies regarding roads. Policy 22.1.2 states: <<The minimum acceptable levels of service specified in Policy 22.1.1 shall not apply on an interim basis to the backlogged roads identified in Table 2(a). It is the County's intent that those segments will be improved to the identified standard in the shortest period possible, but no later than December 31, 1999. During that interim period, however, growth on those backlogged roads may be permitted if it is consistent with the Traffic District Program (Policy 22.1.5) and Interim/Operational Improvements Program (Policy 22.1.6).>> Policy 22.1.5 provides: <<A Traffic District Program is hereby established for purposes of determining allowable development affecting backlogged roads. On at least an annual basis, Lee County shall estimate the service volumes for all City, County and State collectors, arterials and freeways within each traffic district, and shall determine the district- wide service volume surplus or deficiency. Development permits that affect a backlogged road may still be approved provided that the surplus service volume resulting from the existing surplus service volume, any service volume increases due to committed roadway improvements, and any service volume increases due to interim improvements (reported as a percent of existing service volume on a district basis) is equal to or exceeds the annual percent increase in traffic on a traffic district basis. However, such permits will be issued only if mitigation is provided in accordance with Policy 22.1.13. In the event that the percent service volume growth identified above on a traffic district basis is less than the percent traffic growth in that district, no permits will be issued by Lee County for development that affects the backlogged segment. Such development will be permitted only if capacity enhancement and/or operational improvements are programmed for implementation within the specific District so that the total service volume growth for the District will again be equal to or greater than the District traffic growth. Growth on non-backlogged roads will not be affected. Development that does not affect the backlogged segment will still be allowed. For purposes of calculating service volumes for the Traffic District Program, the following rules apply: Constrained roads (see Table 2(b)) will not be included in the determination of traffic growth and percent service volumes. Percent traffic growth will be based on the last full year of traffic count information. Committed roadway improvements for purposes of this calculation are those improvements under a current construction contract.>> Policy 22.1.6 states: <<For the identified backlogged roads (see Table 2(a)), and as any additional backlogged roads may emerge over time, an Interim/ Operational Improvement Program will be established. The Interim/Operational Improvement Program will include the following types of improvements: Phased improvements, representing a staged implementation of the eventual improvement that is needed to return the backlogged road to the minimum acceptable level of service. Operational improvements, representing short-term measures to improve traffic operations and expand capacity prior to the eventual roadway improvement.>> <<The initial Interim/Operational Improvement Program for backlogged roads is identified in Table 2(c).>> <<On an annual basis, a minimum of five backlogged roads will be studied in detail by Lee County with specific interim/operational improvements identified. Specific interim/ operational improvements shall be incorporated into the County's Capital Improvements Program. Initially, six backlogged roads have been studied in detail including portions of US 41 South, US 41 North, McGregor Boulevard, Gladiolus Drive, San Carlos Boulevard, and Metro Parkway. The selection of specific interim/operational improvements to be constructed in any given year may be adjusted as deemed necessary by Lee County to reflect developer funding opportunities, adjustments to construction schedules, other agency improvement projects and schedules, and alternative improvements of a comparable nature. Specific interim/ operational improvements shall be included in all following updates of the County's Capital Improvements Program to ensure the expeditious construction of those improvements.>> Policy 22.1.8 assures that, "[a]fter December 31, 1999, Lee County shall measure concurrency on all roads on a roadway segment-by-segment basis rather than using the Traffic District Program contained in this plan." Policy 22.1.13 provides: <<All proposed development activity, as part of the concurrency management process, will be reviewed against the Traffic District Program, the Interim/Operational Improvement Program for backlogged roads and the Operational Improvement Program for constrained roads. Development activity affecting backlogged and constrained roads will be required to mitigate its traffic impacts: For that development activity determined not to affect a backlogged and/or constrained road segment, traffic mitigation will consist of payment of Roads Impact Fees and needed intersection improvements at the site entrance(s). For development activity determined to affect a backlogged and/or constrained road segment, traffic mitigation may include, but not necessarily be limited to, the following: Advanced, lump sum payment of Roads Impact Fees to Lee County; Developer construction or financing, with Lee County approval, of one or more of the interim or operational improvements identified in the Interim/Operational Improvement Program for backlogged roads or the Operational Improvement Program for constrained roads; Developer prepares, with Lee County approval, a detailed Interim/Operational Improvement Program for the affected road(s) and funds one or more of the needed interim or operational improvements; and Developer funding of needed road improvements.>> <<Lee County's Concurrency Management Ordinance shall be amended prior to the end of 1990 to specify the impact mitigation procedure and threshold measurements for mitigation purposes.>> The establishment of the Traffic Districts for backlogged roads is left to the Revised Data and Analysis. At page VI-7 of Joint Exhibit 10.a is a map dividing Lee County into nine traffic districts. Six districts cover the entire mainland. The districts approximate the preexisting districts created by Lee County in the implementation of its traffic impact fee program. The service/traffic formula does not operate in isolation. As noted above, the Interim/Operational Improvement Program also requires developer- provided mitigation. However, the required mitigation does not require the developer to restore the road segment to its otherwise applicable adopted level of service standard and may not even affect the road segment impacted by the proposed development. More importantly, the service/traffic formula requires little of the County in addressing the problem of backlogged roads before 2000. A graph on p. VI-10 of Joint Exhibit 10.a provides the necessary data to calculate the service/traffic formula to determine if, under this formula, Lee County would likely be precluded from issuing final development orders due to the presence of backlogged roads. A sample calculation on p. VI-6 of Joint Exhibit 10.a illustrates the calculation. As noted on the graph, the service/traffic formula is inapplicable to two of the island traffic districts, which contain only constrained roads. The service/traffic formula, as a practical matter, eliminates the possibility of concurrency-imposed limitations on development due to the enforcement of level of service standards on nonconstrained roads in any of the six mainland districts. The reason is the vast difference--in each district-- between existing service volume and traffic volume. But this difference bears no relationship to the fact that many road segments are already operating below their otherwise applicable level of service standards and that, under the Traffic District Program, many more road segments, not presently backlogged, will also operate below their otherwise applicable level of service standard prior to 2000. Assuming the same annual increase in traffic volume as presently exists for each mainland district, the service/traffic formula would not require Lee County to build or commit to build any road improvements for over 10 years in Districts 1, 2, 5, and 8, six years in District 4, and seven years in District 3. In other words, the service/traffic formula allows Lee County to continue to issue final development orders impacting backlogged road segments and causing more road segments to become backlogged for at least six years anywhere on the mainland and over 10 years for most of the mainland--even in the absence of any capacity- enhancing transportation improvements. The combination of the service/traffic formula and the vast areas covered by the mainland districts allow the perpetuation of congested conditions on nonconstrained roads in Lee County. The Traffic District Program, including the service/traffic formula, renders completely meaningless the adopted level of service standards for nonconstrained roads and concurrency as it applies to nonconstrained roads. The formula and program also relieve Lee County of any obligation to correct transportation infrastructure deficiencies, or even address such deficiencies. The above-stated findings apply even if Table 2(a) and other provisions of the Amended Plan effectively limited the number and length of backlogged road segments to those listed on Table 2(a). Even worse, however, the Amended Plan does not so limit backlogged roads, and Table 2(a) is merely descriptive of road segments that were backlogged when the Plan Amendments were adopted. As contemplated by the first clause of Policy 22.1.6, "additional backlogged roads may emerge over time." This possibility is repeated in the Revised Data and Analysis, which concede that "backlogged and constrained roads may be added to the list over time." Joint Exhibit 10.a, page VIII-5. By effectively ignoring existing backlogged roads and allowing more roads to become backlogged, Lee County has deferred the adoption of level of service standards and postponed concurrency until the year 2000 when the Traffic District Program ends. When a road segment falls below its otherwise applicable standard, the effect of the Traffic District Program and Interim/Operational Improvement Program is to override concurrency by allowing development impacting the affected road segment to proceed without regard to the availability of capacity-enhancing transportation improvements sufficient to restore the affected roads to their otherwise applicable level of service standards. The short-term prospects for roads in Lee County are discussed in the Revised Data and Analysis. In its discussion of existing roads, the Revised Data and Analysis note: The rapid growth in Lee County's population during the past several years has been accompanied by even more rapid growth in traffic volumes on Lee County roads. According to the [FDOT] . . ., traffic volumes (daily vehicle miles traveled) in Lee County increased by 126 percent from 1979 to 1987, the second highest rate of growth in the State of Florida. This rapid growth in traffic is expected to continue. . . . Generally, historic road construction has not kept pace with traffic growth. However, Lee County has recently embarked on an ambitious roadway improvement program and the pace of construction has accelerated in recent years. Joint Exhibit 10.a, page IV-1. The discussion of the existing road network adds that the existing plus committed roadway network includes major roadway improvements programmed by State and local governments for construction through 1994. Addressing backlogged roads, the Revised Data and Analysis state: Despite the accelerated roadway construction activity in Lee County, many road segments are becoming increasingly congested. Several already meet or exceed the level of service standards established in the Lee Plan. . . . Joint Exhibit 10.a, page V-1. The Revised Data and Analysis describe two exhibits displaying information about traffic volumes. Exhibit V-1 analyzes 1989 traffic volumes with the existing road network. Exhibit V-3 analyzes 1994 traffic volumes with the existing plus committed road network, which reveals that several backlogged segments from Exhibit V-1 have been eliminated and several new backlogged segments have been added. The Revised Data and Analysis explain that Exhibit V- 7, which lists all of the backlogged roads on Table 2(a), shows which backlogged roads will be "relieved to some extent by committed improvements." Joint Exhibit 10.a, page V-3. The Revised Data and Analysis acknowledge that "there are no major improvements programmed for several backlogged roads in Lee County." Id. Exhibit V-1 shows that, for 1989, there were 26 backlogged road segments for a total of 27.3 miles. 37/ Of these, 18 segments for 18.2 miles were under state jurisdiction, rather than County jurisdiction. Exhibit V-3 shows that, for 1994, based on the existing plus committed road network, there will be 28 backlogged road segments for a total of 34.2 miles. The total for state backlogged roads is projected to rise even more rapidly: 22 road segments for a total of 29.4 miles. As indicated by the text, Exhibit V-7 shows that several backlogged roads listed in Table 2(a) are not scheduled to receive committed improvements (presumably through 1994). Recommended improvements to eliminate backlogged conditions (Joint Exhibit 10.a, page VII-4) are shown on Exhibit VII-7. However, nothing in the Amended Plan commits the County to undertaking these projects. The purpose of Exhibit VII-7 is to show the work needed over a ten-year period to restore backlogged roads to their otherwise applicable level of service standards. Some of the projects would be outside of the five-year period covered by the schedule of capital improvements on page VII-21 of the Amended Plan. But, in addition to the fact that Lee County does not commit itself in the Amended Plan to undertaking this work, nothing in Exhibit VII-7 addresses those road segments that become backlogged at a later date. As to Issue 8, Petitioner has proved to the exclusion of fair debate that, as to all nonconstrained roads not under the jurisdiction of any municipality, the Amended Plan is inconsistent with the criteria of setting level of service standards, ensuring concurrency, and correcting existing infrastructure deficiencies. As to Issue 9, Petitioner argues that the Plan Amendments regarding transportation are not financially feasible because the capital improvement schedule does not identify a current source of funding for all of the road improvements described in the Plan Amendments as "necessary or desirable." It is not entirely clear what Petitioner means by road improvements that are described as "necessary or desirable." These words correspond to the MPO Needs Plan and MPO Financially Feasible Plan. Of course, these plans, which are adopted in the Amended Plan as Maps 4 and 3 respectively, pertain to the year 2010, and the five-year capital improvements schedule properly pertains only to 1995. Petitioner may mean by "necessary and desirable" that the road projects do not adequately address backlogged roads, so as to allow the Traffic District Program to attain consistency. This issue has been addressed in connection with Issue 8. Except to the extent that the financial feasibility of transportation improvements has been addressed in connection with Issue 8, Petitioner has failed to prove to the exclusion of fair debate that the transportation capital projects are inconsistent with the criterion of financial feasibility. Miscellaneous Minimum Criteria (Issues 1, 10, and 12) As to Issue 1, nothing in the Plan Amendments or Revised Data and Analysis addresses directly the issue of private potable water suppliers. The Plan Amendments create a new future land use category, Density Reduction/Groundwater Resource. The Revised Data and Analysis discuss four studies or reports focusing on the aquifers in Lee County and aquifer recharge areas. But the focus of these material is general and on hydrogeologic supplies, rather than on the specific entities presently involved in producing potable water. As to Issue 10, nothing in the Plan Amendments or Revised Data and Analysis addresses coordination between Lee County and its Amended Plan and the Charlotte Harbor Management Plan. However, the separate issue whether the Plan Amendments are consistent with the provisions of the Charlotte Harbor Management Plan is addressed below. As to Issue 12, the only provisions amended by the Plan Amendments are Policies 2.2.2 (primarily third factor and flush language), 15.2.2, 38.1.6, 38.4.1, and 38.4.3, as well as the 2010 overlay. The remaining objectives and policies were unchanged by the Plan Amendments. Policy 2.2.2 states: Map 1 of Tthe Future Land Use Map <<series>> indicates the uses and density ranges that will ultimately be permitted on a given parcel. However, it is not a guarantee that such densities or uses are immediately appropriate, as the map provides for the county's growth over the coming 70 years. During the rezoning process the Board of County Commissioners will balance the overall standards and policies of this plan with [[two]] <<three>> additional factors: --whether a given proposal would further burden already overwhelmed existing and committed public facilities such that the approval should be delayed until the facilities can be constructed; <<or>> <<--whether a given proposal is for land so far beyond existing development or adequate public facilities that approval should be delayed in an effort to encourage compact and efficient growth patterns.; or>> <<--whether a given proposal would result in unreasonable development expectations which may not be achievable because of acreage limitations on the "Year 2010 Overlay" (see Policy 1.7.6 and Maps 16 and 17).>> <<In all cases where rezoning is approved, such approval does not constitute a determination that the minimum acceptable levels of service (see Policy 70.1.3) will be available concurrent with the impacts of the proposed development. Such a determination must be made prior to the issuance of additional development permits, based on conditions which exist at that time, as required by Lee County's concurrency management system.>> The 2010 overlay designates the proposed location of various future land uses in Lee County. Map 1 shows where certain land uses may generally be located for the next 70 years. Maps 16 and 17 limit these land uses for the next 20 years and, to some extent, show where these land uses may be permitted during that timeframe. Although the specific locations of land uses prior to 2010 are not disclosed by Maps 16 and 17, the generalized locations are. There is nothing vague or ambiguous in Policy 2.2.2. Misciting Policy 2.1.2 as Policy 2.2.2, Petitioner argues in her proposed recommended order that certain language is vague, but she did not plead Policy 2.1.2, which, in any event, was unchanged by the Plan Amendments. Objective 15.2 provides: COMMUNITY FACILITIES. Within funding constraints, the county shall attempt, during 1989, 1990, and 1991, to incorporate the following recommendations of the ad-hoc Bonita Study Group into the planning process for public facilities. Policy 15.2.2 states: <<IRRIGATION WELLS. Bonita Springs (as defined in this plan) is hereby declared a critical area for future potable water supply, based on evidence that withdrawals from the main potable aquifer, the lower Tamiami aquifer, are approaching or exceeding the maximum safe yield. In response to this designation, the county shall amend current regulations to provide that new irrigation well permits in Bonita Springs may not utilize the main potable water source. (Also see Policy 32.1.9 for new permit requirements for wells in Lehigh Acres, and Policy 2.4.3 for special requirements for amendments to the Future Land Use Map.)>> Policy 15.2.2 is not vague, nor does Petitioner argue grounds for vagueness as to Policy 15.2.2 in her proposed recommended order. Policy 38.1.6 provides: <<Within one year after the adoption of this policy, Lee County shall amend its land development regulations to require that proper stormwater management systems be installed when land is being redeveloped. Appropriate exemptions shall be provided to this requirement for individual residential structures and for historic districts. The regulations may also provide modified stormwater management standards for publicly sponsored projects within community redevelopment areas (as defined by Chapter 163, Part III, Florida Statutes). However, this policy shall not be interpreted so as to waive any concurrency level-of-service standards.>> Petitioner argues in her proposed recommended order that the words "proper," "appropriate," and "modified" lack sufficient definition so as to render Policy 38.1.6 vague and ineffective. The terms are sufficiently definite to provide enforceable guidance to the County in the adoption of implementing land development regulations. The word "proper" incorporates the stormwater level of service standards stated at Policy 38.3.1. The word "appropriate" applies to reasonable exceptions to the stormwater level of service standards for individual residences and historic districts. The word "modified" creates a reasonable exception to the stormwater level of service standards for publicly sponsored community redevelopment areas. There are communities in Lee County, such as Harlem Heights, where the housing is seriously substandard and the community is eligible for publicly sponsored redevelopment, as well as interim assistance through such projects as Habitat for Humanity. Evidently due to relatively low elevations, at least when the housing is compared to adjacent roadways, the Harlem Heights community also suffers from a seriously inadequate (and possibly nonexistent) stormwater management system. Ideally, all areas within Lee County should be subject to, and receive the benefits of, effective stormwater management. However, communities desperately in need of publicly funded redevelopment, such as Harlem Heights, present a special challenge. As a practical matter, the treatment of publicly sponsored projects within community redevelopment areas by Policy 38.1.6 represents a fair accommodation of competing policy demands in providing stormwater management and decent, affordable housing. Objective 38.4 states: <<CRITICAL AREAS. The Six Mile Cypress Basin (as defined in Ordinance #83-5 as amended) and the Density Reduction/Groundwater Resource land use category are both identified as "critical areas for surface water management." By December 31, 1990, the county shall adopt additional regulations to protect the unique environmental and water resource values of these areas.>> The policy cluster under Objective 38.4 provide: <<Policy 38.4.1: The county shall amend the Six Mile Cypress Ordinance to reduce or eliminate the exemptions allowable in the ordinance.>> <<Policy 38.4.2: The county shall conduct public hearings to consider amending the boundaries of the Six Mile Cypress Ordinance to include all land within the Density Reduction/Groundwater Resource land use category.>> <<Policy 38.4.3: The county shall amend the Wetlands Protection Ordinance (#86-31), the Tree Protection Ordinance (#86-34), and the Development Standards Ordinance (#82-42 as amended) to reduce or eliminate the exemptions for agricultural uses and small subdivisions within the "critical areas for surface water management" and shall subject these uses to an appropriate review process.>> The Revised Data and Analysis explain that Lee County has adopted over the years various environmental ordinances, including the Six Mile Cypress Ordinance, Wetlands Protection Ordinance, Tree Protection Ordinance, and Development Standards Ordinance. The Revised Data and Analysis note that exemptions have been adopted that can reduce the effectiveness of these ordinances in "'critical areas for surface water management.'" Joint Exhibit 10.c, page VI-2. Reviewing the exemptions to the Six Mile Cypress Ordinance, the Revised Data and Analysis observe that the exemptions should be revised so that, under the ordinance, the County must "consider all impacts to surface water flow." Joint Exhibit 10.c, page VI-3. As for the Wetlands Protection Ordinance, the Revised Data and Analysis conclude that its expansion "is probably necessary to limit the impact of clearing of wetlands for agricultural purposes." Id. The Revised Data and Analysis observe that amending the Tree Protection Ordinance would reduce incentives to remove trees and understory vegetation, which assist in water quality and quantity considerations in stormwater management. The Revised Data and Analysis note that the Development Standards Ordinance exempts small subdivisions, whose impervious surfaces alter surface water flow. Petitioner correctly argues in her proposed recommended order that the reduction or elimination of exemptions by an unstated amount or without regard to a stated objective is vague and ineffective. However, the assurances involve only land development regulations that, in the context of a limited plan- amendment challenge, do not play a significant role in the outcome of the case. The vagueness is thus harmless. Contrary to Petitioner's assertions, the 2010 overlay is not confusing, nor does it fail to depict the general distribution, extent, and location of the required land use categories. Although more conventional future land use maps are more precise in rendering the location of future land uses, the imprecision of the 2010 overlay is not inconsistent with the criteria of the growth management law. As noted above, the shortcomings of the 2010 overlay result from the lack of crucial supporting data and analysis. Internal Consistency (Issue 13) Issue 13 alleges that the Amended Plan is internally inconsistent. Petitioner argues that the Traffic Circulation Element and transportation improvements contained in the five-year schedule of capital improvements are inconsistent. She also argues that Goal 2, which requires financial feasibility, and the Traffic Circulation Element, including the financially feasible transportation map, are inconsistent. She asserts the same grounds as she does in connection with Issue 9, which has been discussed above. Based on the findings set forth in connection with Issue 9, and subject to the findings set forth in connection with Issue 8, Petitioner has failed to prove to the exclusion of fair debate any inconsistency between the Traffic Circulation Element and Goal 2 or the transportation improvements contained in the five-year schedule of capital improvements. As noted above, Policy 1.7.6 requires that final development orders and building permits be consistent with the 2010 overlay, including Map 17. Policy 1.7.6 does not impose this requirement upon rezonings. Petitioner asserts that Policy 1.7.6--particularly its omission of rezonings--is inconsistent with Objectives 2.1 and 2.2, Goal 12, and Section XIII(a) of the Amended Plan. Petitioner argues in her proposed recommended order that Policy 1.7.6 is inconsistent with Objectives 2.1 and 2.2 because of the emphasis on zoning in the two objectives. The objectives state: DEVELOPMENT LOCATION. Contiguous and compact growth patterns shall be promoted through the rezoning process to contain sprawl, minimize energy costs, conserve land, water and natural resources, minimize the cost of services, and reverse typical development patters where large tracts of land are bypassed in favor of development more distant from services and existing communities. DEVELOPMENT TIMING. Direct new growth through the rezoning process to those portions of the Future Urban Areas where adequate public facilities exist or are assured and where compact and contiguous development patterns can be created. Goal 12 is: "To ensure that appropriate water, sewer, traffic, and environmental review standards are considered in reviewing rezoning applications and are met prior to issuance of a county development order." Section XIII(a) of the Amended Plan adds in part: "Upon adoption of this amended plan, all development and all actions taken in regard to development orders shall be consistent with the plan as adopted." Given the subordinate role of zoning to the designations contained in the Amended Plan and future land use map series, the conflicts perceived by Petitioner either do not exist or, if they exist, are harmless. The Amended Plan governs. Zoning is of such inferior importance that any conflict will be resolved in favor of the Amended Plan. Petitioner has therefore failed to prove to the exclusion of fair debate that Policy 1.7.6 is inconsistent with Objectives 2.1 and 2.2, Goal 12, and Section XIII(a). Petitioner asserts that Policy 2.2.2 and Section XIII(a) are inconsistent. As noted above, Policy 2.2.2 identifies the factors that will govern rezonings. This policy explicitly subjects rezoning to the concurrency requirements of the Amended Plan. Nothing in this policy attempts to allow rezoning to override the acreage allotments contained in the 2010 overlay and implemented by Policy 1.1.1. Although it would have been preferable for Policy 2.2.2 to acknowledge the acreage allotments as limitations upon land uses that can be authorized, the subordinate role of zoning, as compared to land use designations in the comprehensive plan, emerges clearly from the Amended Plan as a whole. Petitioner has therefore failed to prove to the exclusion of fair debate that Policy 2.2.2 and Section XIII(a) are inconsistent. Petitioner alleges that the amended future land use map is inconsistent with Goals 71, 75, 77, and 79; Objectives 2.3, 74.1, 75.1, 77.3, 77.4, 79.1, and 87.1; and Policies 77.2.2, 77.4.4, 77.11.5, and 83.1.4. Goal 71 is to: "To protect the public from the effects of natural and technological hazards through county emergency plans and programs." Objective 74.l provides: ENVIRONMENTALLY CRITICAL AREAS. By 1990, land within coastal area environmentally critical areas, including present Resource Protection Areas and Transition Zones and Rare and Unique upland habitats, shall be regulated and managed so as to conserve and enhance the natural functions of these critical areas. Goal 75 is: "To protect human life and developed property from natural disasters." Objective 75.l adds: DEVELOPMENT IN HAZARD AREAS. Development (other than minor structures) within the V Zones shall not be allowed seaward of the Coastal Construction Control Line as it exists in 1988; new development on barrier islands shall be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion shall not be permitted; and allowable densities for undeveloped areas within A Zone areas will be considered for reduction. Goal 77, Objectives 77.3 and 77.4, and Policies 77.2.2, 77.4.4, and 77.11.5 have been set forth above. 38/ Goal 79 is: "To provide evacuation and shelter capabilities adequate to safeguard the public against the effects of hurricanes and tropical storms." Objective 79.l adds: EVACUATION. By 1995, evacuation times will be restored to 1987 levels using the 1987 Southwest Florida Regional Hurricane Plan Update as guidance; and by 2010, the clearance time portion of evacuation time will not exceed 18 hours. Policy 83.1.4 provides: Lee County shall protect and conserve the following environmentally sensitive coastal areas: wetlands, estuaries, mangrove stands, undeveloped barrier islands, beach and dune systems, aquatic preserves and wildlife refuges, undeveloped tidal creeks and inlets, critical wildlife habitats, benthic communities, and marine grass beds. Objective 87.1 states: WATER SUPPLIES. Insure water supplies of sufficient quantity and quality to meet the present and projected demands of all consumers and the environment, based on the capacity of the natural systems. Petitioner argues in her proposed recommended order that the future land use map series is inconsistent with Goals 71 and 75 because the Amended Plan increases densities in the hurricane vulnerability zone in the North Bonita Springs area and fails to coordinate land use designations with evacuation times and shelter space capacities. The Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Goals 71 and 75. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 74.1, which requires the County, by 1990, to "conserve and enhance the natural functions" of environmentally critical areas in the coastal area. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Objective 74.1, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 74.1. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 75.1, which requires the County to consider reducing allowable densities in the hurricane vulnerability zone. The Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 75.1. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Goal 77, which requires the County to manage the County's wetland and upland ecosystems so as to maintain and enhance native habitats, floral and faunal diversity, water quality, and natural surface water characteristics. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Goal 77, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Goal 77. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objectives 77.3 and 77.4, which require the County to "maintain and enhance" current fish and wildlife diversity and existing populations and distributions of listed species. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Objectives 77.3 and 77.4, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objectives 77.3 and 77.4. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Policies 77.2.2, 77.4.4, and 83.1.4, which call for the protection of unique or important natural plant communities, protection of critical habitats for the preservation of listed species, and protection of critical wildlife habitats in the coastal area, respectively. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with these policies, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by these policies. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Policy 77.11.5, which provides in part: "Corridors for regulatory and public acquisition purposes shall be designated in [black bear and Florida panther] use areas." Added by the Plan Amendments, Policy 77.11.5 is not inconsistent with the Plan Amendments concerning the future land use map series. The orientation of Policy 77.11.5 is prospective and does not require immediate implementation through amendment of the future land use map series to show corridors that are subject to additional regulatory controls or are eligible for public acquisition. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 79.1, which requires the County, by 1990, to restore evacuation times to 1987 levels by 1995 and to ensure a maximum clearance time of 18 hours by 2010. The Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 79.1. Petitioner argues in her proposed recommended order that the amended future land use map series is inconsistent with Objective 87.1, which requires the County, by 1990, to ensure sufficient quantity and quality of water to meet present and projected demands of all consumers and the environment. Except for the creation of the Density Reduction/Groundwater Resource designation, which is entirely consistent with Objective 87.1, the Plan Amendments concerning the future land use map series do not directly involve the issues addressed by Objective 74.1. Consistency with Charlotte Harbor Management Plan (Issue 14) The Charlotte Harbor Management Plan, which was adopted June 5, 1981, is a resource management plan prepared and adopted pursuant to Section 380.045, Florida Statutes. Lee County is within the jurisdiction of the Charlotte Harbor Management Plan. Under "regulatory actions," there are 12 objectives in the Charlotte Harbor Management Plan. Beneath each objective are implementation actions that pertain to specified federal, state, regional, and local agencies. Twenty-two implementation actions apply to local governments, such as Lee County. Objective 4 of the Charlotte Harbor Management Plan provides: "Future development in floodplain areas is to occur only in a manner consistent with the function of floodplains." In her proposed recommended order, Petitioner argues that the Amended Plan lacks specific provisions identifying the functions of floodplains and requiring new development to be consistent with floodplain functions. Petitioner also argues that the Amended Plan fails to coordinate densities and intensities with tidal floodplains. Except for the stormwater level of service standard, which is discussed below in connection with Objective 5, nothing in the Amended Plan directly addresses floodplains. The floodplain map--Map 9--was part of the future land use map series in the Plan and was unchanged by the Plan Amendments. In general, Petitioner argues only that the Amended Plan fails to deal effectively with floodplain issues. The Plan Amendments substantially change designated land uses by applying the new Density Reduction/Groundwater Resource designation to thousands of acres in the County. The correspondingly reduced densities and restricted intensities, especially as compared to previously authorized land uses, are much more consistent with floodplain functions. Objective 5 of the Charlotte Harbor Management Plan requires: "The stormwater and drainage systems of the Charlotte Harbor area are to function in a manner that protects and preserves the Charlotte Harbor estuarine system." The second implementation action under Objective 5 requires local governments to: establish plans and regulations requiring post development runoff conditions to approximate the natural surface water flow in terms of rate, quality, hydroperiod, and basin. The summary of the problem addressed by Objective 5 states: Improperly designed and maintained stormwater/ drainage systems have affected the quality and quantity of freshwater flowing into area water bodies. These systems have transported various pollutants, including nutrients, sediments, pesticides, heavy metals, and animal waste to local waters. While some of these waters have recognized water quality problems, most of the area's valuable water resources are still of good quality. However, with an expected doubling of population in the next twenty years, preventative action is necessary to prevent further degradation. In addition to the quality of freshwater inflows, the sufficient quantities of freshwater corresponding with the natural hydroperiod are necessary to maintain the productivity of the estuaries. While the flows necessary to meet estuarine needs are unknown, continued development of stormwater/ drainage systems which alter the rate and hydroperiod of runoff may adversely impact estuarine productivity. Petitioner Exhibit 2, page 5. Objective 38.3 of the Amended Plan is to "[r]evise by 1994 the surface water management level-of-service standards for basins and sub-basins identified in the Surface Water Management Master Plan." The Surface Water Management Master Plan was to have begun in 1989, according to Policy 38.1.1. Policy 38.3.1 of the Amended Plan provides: As an interim measure, the following surface water management standards are adopted as minimum acceptable levels of service for unincorporated Lee County . . .: <<Existing>> [[Public]] Infrastructure The [[public stormwater]] <<existing>> [[trunk]] <<surface water>> management system <<in any basin>> in the unincorporated areas of the county, [[including drainage districts]] shall be sufficient to prevent the flooding of <<designated evacuation routes (see Map 15) from the 25-year, 3-day storm event (rainfall)>> [[the public roads to a depth of 12 inches or greater]] for more than [[3 consecutive days]] <<24 hours>>. Regulation of Private <<and Public>> Development Surface water management systems in <<new>> private <<and public>> developments <<(excluding widening of existing roads)>> shall <<be designed to detain or retain excess stormwater to match the predevelopment discharge rate for>> [[meet or exceed]] the <<25-year, 3-day storm event (rainfall)>>. [[minimum standards of the South Florida Water Management District as set forth in the Permit Information Manual, Volume IV, Management and Storage of Surface Water (West Palm Beach, 1986), as may be amended from time to time, and shall meet local regulations in order]] <<This standard is designed>> to minimize <<increases of>> discharges to public water management infrastructure (or to evapotranspiration) that exceed historic <<rates>> [[natural volumes]], to minimize change to the historic [[natural]] hydroperiod of receiving waters, to maintain the quality of receiving waters, [[at or above the applicable minimum standards set forth in Chapter 17-3, Florida Administrative Code ("Water Quality Standards," Florida DER)]], and to eliminate the disruption of wetlands and flow-ways, [[the]] <<whose>> preservation [[of which]] is deemed in the public interest. The implementation action requiring local governments to require that postdevelopment runoff approximate the natural surface water flow in terms of rate, quality, hydroperiod, and basin is the only implementation action involving local governments that imposes specific performance standards. The analysis contained in the Charlotte Harbor Management Plan clearly links the health of the estuarine system to preservation of natural rates and hydroperiods of runoff. Obviously, degraded water quality or alteration of drainage basin also impacts the estuarine system. Policy 38.3.1.B, which underwent substantial revisions by the Plan Amendments, imposes a single requirement upon development in terms of runoff: postdevelopment rate must match predevelopment rate for the 25-year, 3-day storm event. It is irrelevant that this is an interim level of service standard. The stormwater level of service standard contained in Policy 38.3.1.B deviates from Objective 5 of the Charlotte Harbor Management Plan in three important respects. First, it fails to incorporate water quality, basin, and hydroperiod into the performance standards of the level of service standard. Second, it qualifies even the rate standard by a specified storm event of specified duration, even though Objective 5 of the Charlotte Harbor Management Plan is not so limited. Regardless of the storm, Objective 5 imposes the requirement that postdevelopment conditions as to these four crucial factors approximate natural conditions. Obviously, natural conditions probably involve considerable flooding during and after the 100-year, 3-day storm; but the effect of the limitation in Policy 38.3.1.B is to allow postdevelopment conditions to exceed natural conditions once the specified storm has been exceeded. Third, the stormwater level of service standard contained in Policy 38.3.1.B ignores redevelopment, including but not limited to road-widening projects. When addressing redevelopment in particular, the postdevelopment conditions must match natural conditions, not merely predevelopment conditions. Lee County argues that Policy 38.3.1.B addresses factors in addition to runoff rate. The second sentence of Policy 38.3.1.B imposes no additional requirements; it merely explains the intent of the County in imposing the rate requirement. By regulating the runoff rate, Policy 38.3.1.B may partly address water quality and hydroperiod issues; retained or detained postdevelopment stormwater may be of higher quality and may more closely approximate natural hydroperiods than unretained or undetained postdevelopment stormwater runoff. But these are indirect benefits of a performance standard addressing exclusively postdevelopment runoff rate. The County's stormwater standard may reduce change to hydroperiods and improve water quality--over undetained or unrestrained postdevelopment stormwater--but it does not impose the performance standards of unaltered hydroperiod, water quality, and basin. Nor, more importantly, will the County's stormwater standard assist in meeting the crucial objective of the Charlotte Harbor Management Plan to regulate stormwater and drainage to protect and preserve the Charlotte Harbor estuarine system, which is the primary focus of the resource management plan. Petitioner has thus proved to the exclusion of fair debate that Policy 38.3.1.B is inconsistent with Objective 5 and the Charlotte Harbor Management Plan, construed as a whole. 39/ Objective 8 of the Charlotte Harbor Management Plan provides: "The barrier islands and beaches of the Charlotte Harbor area should be managed as a whole, recognizing that any developmental activity potentially affects the processes of the entire barrier beach, barrier island, and pass systems." The second implementation action under Objective 8 is for the Florida Department of Natural Resources, Florida Department of Environmental Regulation, and U.S. Army Corps of Engineers to discourage the dredging of new channels and addition of more passes to the existing pass maintenance program. This implementation action does not apply to local governments. Petitioner has therefore failed to prove to the exclusion of fair debate that the Plan Amendments are inconsistent with Objective 8 of the Charlotte Harbor Management Plan. Objective 10 of the Charlotte Harbor Management Plan provides: Future land development decisions by local government should be in accord with the goals and objectives of the Charlotte Harbor Committee, and existing platted areas should also be encouraged to develop in accord with these goals and objectives. The third implementation action under Objective 10 requires local governments and the Florida Department of Transportation to ensure that: "Highway corridor planning for undeveloped areas . . . consider[s] suitability of adjacent land for urbanization and directing [sic] construction away from environmentally sensitive areas." Petitioner argues in her proposed recommended order that Polices 27.2.1 and 27.2.2 of the Amended Plan are insufficient in terms of implementing the cited portion of the Charlotte Harbor Management Plan. However, these provisions were in the Plan and were unchanged by the Plan Amendments. For the reasons set forth in connection with Petitioner's challenge based on Objective 4 of the Charlotte Harbor Management Plan, nothing in the Plan Amendments addresses this aspect of transportation. Objective 11 of the Charlotte Harbor Management Plan provides: "Mitigation and prevention of development impacts should be initiated during site planning and site alteration processes." The second implementation action requires local governments to: require site development plans, provide for the maintenance of habitats for wildlife species, as listed by the Federal and State Endangered Species Acts, tree protection [sic], and prevent the introduction or spread of noxious vegetation. Petitioner argues in her proposed recommended order that Policy 77.4.1 of the Amended Plan, which was substantially amended by the Plan Amendments, fails to coordinate with the implementation action under Objective Petitioner asserts that Policy 77.4.1 is deficient because it refers only to the habitats of protected species listed by the Florida Game and Fresh Water Fish Commission and not those listed by the U.S. Fish and Wildlife Service. There is no evidence of any material divergence between the state and federal lists of protected wildlife species. Specific objectives in the Amended Plan address loggerhead sea turtles, southern bald eagles, West Indian manatees, gopher tortoises, red-cockaded woodpeckers, wood storks, Florida panthers, and black bears. Without a showing of some discrepancy between the state and federal wildlife lists, especially in the face of numerous provisions in the Amended Plan explicitly addressing specific wildlife species, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with Objective 11 of the Charlotte Harbor Management Plan. Consistency with Regional Plan (Issue 15) The Southwest Florida Regional Plan (Regional Plan), which covers Lee County, discusses at length the problem of platted lands. Map 3 depicts vast areas of platted lands in the Lehigh Acres area of unincorporated Lee County and Cape Coral. In relevant part, the discussion states: Southwest Florida has approximately 1.1 million existing platted lots . . .. Most of these platted and subdivided lots, although undeveloped, have been sold to individual owners who have expectations of building. Regretfully, these platted areas often have not reflected the most efficient use of land. Also, due to their location, the provision of infrastructure access and service will be prohibitively costly. Further, aging of most of these subdivisions has resulted in deterioration and dilapidation of existing roads and drainage systems. Finally, many needed urban uses are not adequately provided for within these extensive plats. * * * . . . effective concentration of development activities and providing incentives for contiguous development are alternative methods of planning which continue to be discussed and debated within the Region. Although these techniques would have a positive effect on land use patterns, they conflict with development desires of lot owners who purchased property previously reviewed and approved by the local government. Efforts have been made to ensure that development is compatible with available and planned infrastructure services. Still, the problems of previously subdivided, yet still undeveloped, land remain; such problems are particularly severe for planning activities that must meet the 1985 Growth Management Act requirements, since these developments generally do not meet current regulations. As growth continues, Southwest Florida will be under greater pressure to provide services to new homes, businesses, and service centers. These platted areas will be popular, affordable home sites. Providing services to these lots, however, will become an increasing burden. Additionally, the Region will have to consider providing alternative land use choices to current lot owners where development would not be desireable or cannot have services provided at the ultimate buildout densities. Joint Exhibit 11.b, pages 16-8 to 16-9. Regional Plan Goal 16 states: By 2010, the number of vacant platted lots in areas without adequate infrastructure or in areas not designated for urban development in Southwest Florida will be reduced by 30%. Goal 16 is an integral part of the Regional Plan. Effective land use planning may be impossible without addressing the problems presented by thousands of acres of vacant, prematurely platted lands. There is evidence that Lee County is addressing the problem. It has utilized vacant, preplatted lots to some extent in an affordable housing program. Lehigh Corporation, which is evidently a major developer in the Lehigh Acres area, has bought back some lots and/or exchanged better lots for more outlying and less developable lots. However, at the same time, Lehigh Corporation is subdividing more property in the Lehigh Acres area. It is unclear whether Lee County will find itself with more or less vacant, preplatted lots by 2010. More likely, it will be less for a variety of reasons, but how much less is left entirely to conjecture based on the present record. Petitioner's argument in her proposed recommended order is based on the acreage remaining vacant in 2010 in planning subdistricts 601- 11, 704, and 706, which constitute much if not all of Lehigh Acres. However, the record does not establish how much of this acreage is already platted or how much of the vacant acreage remaining in 2010 will by then have been platted. For these reasons, as to Issue 15, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with the Regional Plan. Consistency with State Plan (Issue 16) Petitioner argues in her proposed recommended order that the Amended Plan is inconsistent with Section 187.201(8)(b)2 and 12, (10)(b)10, (16)(b)2, and (18)(b)3. Section 187.201(8)(b)2 is to: "Identify and protect the functions of water recharge areas and provide incentives for their conservation. Petitioner argues in her proposed recommended order that the Amended Plan does not protect the functions of water recharge areas. She asserts that Policies 85.1.2 and 87.1.1, which generally require the protection of surface and groundwater quality and natural recharge systems, are vague and ineffective. The Plan Amendments did not modify Policies 85.1.2 or 87.1.1. The Plan Amendments added the Density Reduction/Groundwater Resource designation to thousands of acres of land, together with Policy 1.4.3, which states: <<The Density Reduction/Groundwater Resource areas include upland areas that provide substantial recharge to aquifers most suitable for future well field development. These areas also are the most favorable locations for physical withdrawal of water from those aquifers. Only minimal public facilities exist or are programmed. Land uses in these areas must be compatible with maintaining surface and groundwater levels at their historic levels. Permitted land uses include agriculture, mineral and limerock extraction, conservation uses, and residential uses at a maximum density of one dwelling unit per ten acres (1 du/10 acres). Individual residential parcels may contain up to two acres of resource protection areas and transition zones without losing the right to have a dwelling unit, provided that no alterations are made to those wetland areas.>> The Plan Amendments also added Policy 39.1.4, which provides: <<The county's Surface Water Management Master Plan shall place particular emphasis on 1) routing surface water runoff from areas of excess to areas where additional subsurface storage is available; and 2) maintaining and increasing historic surface and groundwater levels in the Density Reduction/Groundwater Resource land use category.>> The Plan Amendments revised Policy 41.2.2, which states: <<A new land use category, called the Density Reduction/Groundwater Resource category, shall be applied to protect the County's groundwater resources and principal recharge areas. Land use controls in the category shall be as described in Policy 1.4.3.>> Policies 15.2.2 and 32.1.9, which were added by the Plan Amendments, impose special land use restrictions in the Bonita Springs and Lehigh Acres areas, based on potable groundwater considerations. Policy 2.4.2, which was also added by the Plan Amendments, concludes by offering additional protection to these areas and all areas designated Density Reduction/Groundwater Resource: <<All proposed changes to the Future Land Use Map in critical areas for future potable water supply (Bonita Springs as described in Policy 15.2.2; Lehigh Acres as described in Policy 32.1.9; and all land in the Density Reduction/Groundwater Resource land use category) shall be subject to a special review by the staff of Lee County and the South Florida Water Management District (SFWMD). This review will analyze the proposed land uses to determine the short- term and long-term availability of irrigation and domestic water sources, and will assess whether the proposed land uses would cause any significant impact on present or future water resources. If the Board of County Commissioners wishes to approve any such changes to the Future Land Use Map, it must make a formal finding that no significant impacts on present or future water resources will result from the change. (SFWMD's recommendations or findings under this policy shall not be construed to restrict or otherwise encumber their authority to issue or deny water-use permits as may be required by law.)>> The Revised Data and Analysis survey recent hydrologic investigations for all relevant aquifers. The investigations amply support the Density Reduction/Groundwater Resource designations. The Data and Analysis provide no basis for questioning the consistency of the provisions of the Amended Plan in protecting the functions of water recharge areas with similar provisions in the State Plan. Largely due to the adoption of the Plan Amendments, especially the new Density Reduction/Groundwater Resource designation, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with Section 187.201(8)(b)2. Section 187.201(8)(b)12 is to: "Eliminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state." This is an integral part of the State Plan and is linked to the protection of surface waters including estuaries, drainage and floodplains, and various other natural resources. For reasons already discussed in connection with Objective 5 of the Charlotte Harbor Management Plan, Petitioner has proved to the exclusion of fair debate that Policy 38.3.1.B, which sets an interim stormwater level of service standard, is inconsistent with Section 187.201(8)(b)2 with respect to the omission of hydroperiod, basin, and quality performance standards; the addition of a qualifying storm event; and the exclusion of redevelopment. 40/ A level of service standard is a vital provision in a comprehensive plan because the standard is typically clear and easily enforceable. The stormwater management provisions in the State Plan play a crucial role in attaining consistency with numerous provisions of the State Plan. For these reasons, Policy 38.3.1.B represents an inconsistency with the State Plan construed as a whole. The inconsistency between Policy 38.3.1.B and the State Plan is limited to the failure of Policy 38.3.1.B: 1) to set a stormwater level of service standard throughout Lee County requiring postdevelopment conditions to be equal to or better than natural conditions in terms of water quality, hydroperiod, and basin, as well as rate; 2) to impose the stormwater level of service standard throughout Lee County regardless of the storm event; and 3) to impose the stormwater level of service standard on all development and redevelopment in Lee County. 41/ Petitioner argues in her proposed recommended order that the inconsistency with the State Plan extends to the failure of the Amended Plan to fund fully the stormwater management plan. Petitioner has failed to prove to the exclusion of fair debate that consistency with Section 187.201(8)(b)12 and the State Plan requires the above-described funding. Section 187.201(10)(b)10 is to: "Emphasize the acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation." Petitioner argues that the Amended Plan is not consistent with the State Plan due to the failure of the future land use map series to designate rare and unique habitats for densities and intensities that are suitable for the vegetative and habitat values of certain areas, especially the North Bonita Springs area. As noted above in connection with the discussion of the 2010 overlay, the Plan Amendments do not directly reintroduce the issue of land use suitability. A timing device, the 2010 overlay is quantitatively oriented. With the exception of the Density Reduction/Groundwater Resource designation, which tends to enhance suitability, nothing in the Plan Amendments directly raises the suitability issue. Provisions contained in the Plan Amendments enhancing the coordination of future land use designations with valuable vegetative communities and, particularly, wildlife habitat are Objectives 77.10 and 77.11 and their policy clusters. These provisions have already been discussed. 42/ Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with Section 187.201(10)(b)10. Section 187.201(18)(b)3 is to: "Allocate the costs of new public facilities on the basis of the benefits received by existing and future residents." Petitioner objects in her proposed recommended order to the sufficiency of Objective 70.3, which requires that "new development pays at least 80% of the capital costs of public infrastructure directly attributable to that new development." Petitioner argues that Policy 2.3.2 is also insufficient because it merely requires that the "cost for the provision and expansion of services and facilities that benefit new development shall be borne primarily by those who benefit." Objective 70.3 and Policy 2.3.2 were unchanged by the Plan Amendments. Section 187.201(16)(b)2 is to: "Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats." The Amended Plan is no model of urban containment. Choosing a less regulatory approach to land use planning, although involving considerably more intervention than has traditionally prevailed, Lee County has repeatedly and unconvincingly argued in the Revised Data and Analysis that various conventional planning strategies are unsuitable for Lee County. Some planning alternatives proffered by Lee County have failed to achieve consistency with the growth management law. Some planning alternatives have achieved consistency, and some planning alternatives have been spared review by the focus of the present recommended order on the Plan Amendments and Revised Data and Analysis and the focus of the recommended order in DOAH Case No. 89-1843GM on the settlement agreement. It would be a daunting task to try to determine the effect of the Amended Plan upon urban sprawl. Without the density allocation ratio, it is an impossible task. If the ratio were relatively high, provisions of the Amended Plan would have to bear a greater burden in ensuring efficiency in the use of land and provision of public facilities and the protection of natural resources and agriculture. Without a density allocation ratio, relevant provisions of the Amended Plan cannot be adequately evaluated in terms of their relationship to urban sprawl. It suffices for the purpose of determining consistency with the State Plan that the Plan Amendments assigned the Density Reduction/Groundwater Resource designation to thousands of acres of land in Lee County and, by so doing, achieved a significant separation between urban and rural uses. For this reason, Petitioner has failed to prove to the exclusion of fair debate that the Amended Plan is inconsistent with the State Plan in terms of separating urban and rural uses.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that, pursuant to Section 163.3184(9)(b), Florida Statutes, the Department of Community Affairs submit the recommended order to the Administration Commission for entry of a final order determining that the Plan Amendments are not in compliance for the reasons set forth above. ENTERED on January 27, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 27, 1993. NOTE: In the ACCESS document, language added to the policy is within the <<>>; deleted language is within the [[]].
The Issue The issue is whether the proposed site is consistent and in compliance with existing land use plans and zoning ordinances.
Findings Of Fact NOTICE In compliance with Rule 17-17.151(4)(e), Florida Administrative Code, notice of the hearing was published in the Florida Administrative Weekly on October 2, 1992. A news release containing notice of the hearing was given to the media on September 21, 1992, and October 21, 1992. A copy of the public notice was sent by certified mail, return receipt requested, to the chief executives of the local authority responsible for zoning and land use planning in Dade County, in compliance with Rule 17-17.151(4)(b), Florida Administrative Code. A copy of the public notice was posted at the site in compliance with Rule 17-17.151(4)(c), Florida Administrative Code. Additionally, notice was published on September 25, 1992, in the Miami Review, a newspaper of general circulation in Dade County, in compliance with Rule 17-17.151(4)(a), Florida Administrative Code. LAND USE AND ZONING CONPLIANCE The proposed expansion of Dade County's Resource Recovery Facility, as set forth in its Site Certification Application, will be within the confines of the certified site of the existing resource recovery facility. Hence, that existing site carries a presumption that its current use is consistent with land use considerations. The site of the proposed expansion is consistent with the Dade County Comprehensive Development Master Plan (Dade Master Plan) pursuant to the Growth Management Act of 1985. More particularly, the site has a land use designation of "Institutional and Public Facility" on the Future Land Use Plan Map of the Dade Master Plan. The "Institutional and Public Facility" designation permits the construction and operation of a resource recovery facility. Also, the proposed expansion of Dade County's Resource Recovery Facility is consistent with: Objective 5 and Policies 5-A and 5-B as set forth in the interpretive text to the Land Use Element of the Dade Master Plan; Objective 3 and Policies 3-A, 3-B, 3-C, 3-D, 3-E and 3-F of the Conservation Element of the Dade Master Plan; and Policies 1-K and 4-B of the Water, Sewer and Solid Waste Elements of the Dade Master Plan. The existing site is presently within the GU interim district. Resolution R-569-75, which granted county approval for the existing site, satisfies the need to show compliance with the zoning ordinance. The proposed expansion of the Dade County Resource Recovery Facility is consistent with the zoning code found in Chapter 33 of the Code of Metropolitan Dade County as well as Resolution R-569-75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order determining that the site of the proposed Dade County expansion of its resource recovery facility is consistent and in compliance with existing land use plans and zoning ordinances. DONE and ENTERED this 24th day of November, 1992, at Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1992. APPENDIX TO RECOMNENDED ORDER IN CASE NO. 92-4672EPP The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Applicant, Dade County Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-4(1); 5(2); 6(4); and 7(5). Proposed finding of fact 1 is unnecessary. COPIES FURNISHED: Ross McVoy, Attorney at Law Fine Jacobson Schwartz Nash & Block 215 South Monroe, Suite 804 Tallahassee, Florida 32301-1859 Stanley B. Price, Attorney at Law Fine Jacobson Schwartz Nash & Block 100 Southeast 2nd Street Suite 3600 Miami, Florida 33131-2130 Representing the Applicant Richard Donelan Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Representing DER Hamilton S. Oven, Jr. Office of Siting Coordination Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Gail Fels Assistant County Attorney Metro Dade Center, Suite 2800 111 Northwest First Street Miami, Florida 33128 Representing Dade County Lucky T. Osho Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Representing DCA William H. Roberts Assistant General Counsel Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, Florida 32399-0458 Representing DOT Toni M. Leidy Attorney at Law South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 Representing SFWMD Michael Palecki, Chief Bureau of Electric & Gas Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 Representing PSC M. B. Adelson IV Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd., MS-35 Tallahassee, Florida 32399-3000 Representing DNR James Antista, General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 630 South Meridian Street Tallahassee, Florida 32399-1600 Representing GFWFC Carolyn Dekle, Executive Director Sam Goren, Attorney at Law South Florida Regional Planning Council 3440 Hollywood Boulevard, Suite 140 Hollywood, Florida 33021 Representing South Florida Regional Planning Council David M. DeMaio Attorney at Law One Costa del Sol Boulevard Miami, Florida 33178 Representing West Dade Federation of Homeowner Associations Honorable Lawton Chiles Honorable Jim Smith Governor Secretary of State State of Florida State of Florida The Capitol The Capitol, PL-02 Tallahassee, Florida 32399 Tallahassee, Florida 32399-0250 Honorable Robert A. Butterworth Honorable Tom Gallagher Attorney General Treasurer and Insurance State of Florida Commissioner The Capitol State of Florida Tallahassee, Florida 32399-1050 The Capitol Tallahassee, Florida 32399 Honorable Bob Crawford Commissioner of Agriculture Honorable Gerald A. Lewis State of Florida Comptroller The Capitol State of Florida Tallahassee, Florida 32399-0810 The Capitol, Plaza Level Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent was a licensed Professional land surveyor under registration number LS 0002125, with expiration data of January 31, 1989. Registration was granted by examination on July 14, 1967. The Board of Professional Land Surveyors, (Board), is the state agency charged with the regulation of professional land surveyors in Florida. On January 30, 1987, Respondent's firm, Mandish and Associates, Inc., performed a survey of Lot 62, Fairway Village, a subdivision located in Hillsborough County, Florida. As a result of the field, work performed by a crew employed by Respondent, which prepared field notes indicating the layout of the dwelling located on the property in question, and a second set of field notes which consisted of annotations to the original survey of the lot done by Bay Area Engineering Company, Inc., on August 5, 1977, Respondent prepared a survey drawing of the lot in question for the purpose of mortgage and flood certification on January 30, 1987. The document drawing reflects that the crew performing the survey was headed by an individual named Page. Evaluation of the drawing indicated several defects in the survey process and the matter was referred to Mr. Thomas E. Kaney, a licensed expert surveyor, who reviewed the survey done by Respondent's firm and completed his own field survey of the property. He found that on Respondent's drawing, a railroad spike called for to be on the drawing was not located and that the corner definition was off. He also found that the distances between the structure and the fence were incorrect. In his opinion, the finished drawing could not have been made from the field notes completed by the crew chief. The field notes appeared to be inadequate and did not conform to the survey as finally prepared. In his opinion, the survey drawing conforms to the minimum technical standards in the State of Florida as they pertain to form, but not to accuracy. Even though Respondent did not personally conduct the survey, he is responsible for the activities of the party chief and if Respondent were aware that the party chief had, made false or misleading notes in the past, he would be negligent if he failed to check the accuracy of these field notes accomplished by that individual. Here, the original party chief was Paul Page. Additional field notes were taken by Mr. Lucas, who did the boundary survey and who had some problems in doing so. Because of these problems, Page did a second survey at Respondent's request and upon his return to the office, indicated that everything was OK and he had picked up the information requested that was not available to Lucas. However, the field notes done by both Page and Lucas are not sufficient to give an accurate reflection of the front line of the lot in question. The original field notes fail to show angles, bearings, or distances, but show radial ties to the building. Minimal technical standards require that angles, bearings and distances be shown in the final drawing. In the opinion of Mr. Kaney, the final drawing, with the exception of the misplaced corner, does conform to minimum standards set forth in the Rule since the misplaced corner creates no real problem and the house is well within the property setback lines. Mr. Cole, who also evaluated the survey for the Board, is satisfied that the field notes show corners, but it is difficult to tell whether the angles, bearings, or distances shown are on the original notes or were put there subsequently. In his opinion, the field notes are not sufficient to determine the configuration of Lot 62 and for several reasons, the final survey drawing does not conform to minimum technical standards. First, the type of survey is not indicated. A reference for the bearings shown is not present. There is no comparison on the final drawing with the plat bearings. Second, no distance to the nearest street intersection is identified. The Department's standards allow a showing of a distance to another point of reference when showing the distance to the nearest street is not practical. In the instant case, the Respondent showed the distance to another point of reference even though the lot in question is only two lots removed from the nearest intersection. While Respondent contends this is a reasonable application of the rule, the witness contends it is not. In light of the fact that this is a suburban subdivision and not acreage, and street references are practical, it is found that this is a discrepancy and deviation from minimum standards. Finally, Mr. Cole indicates that the discrepancies between bearings and measurements found on the original plat and those on Respondent's drawings are not shown. The precision shown on the map is too high to be reasonable and this leads to the conclusion that remeasurement was not accomplished in this regard, it should be noted that Mr. Cole's review was based only on a review of the documentation and not on his own survey of the property. The property is described as "suburban" where the error permissibility ratio is one part in 7,500. On a 100 foot line, this would equate to approximately one inch. If the Respondents errors were to fall within the authorized tolerance, it would be appropriate to show the actual measurement as opposed to the original measurement. This is, however, a matter of judgement. The exceptions described by Cole are relatively minor in nature. However, taken as a whole, the Respondent's survey contains errors which, while not the most serious, render the survey less than compatible with minimum technical standards within the community.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, William H. Mandish, be reprimanded and ordered to pay an administrative fine of $250.00. RECOMMENDED this 7th day of February, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 7th day of February, 1989. COPIES FURNISHED: Elizabeth Alsobrook Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 William H. Mandish 262 South May Avenue Brooksville, FL 33512 Allen R. Smith, Jr. Executive Director Board of Professional Land Surveyors Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750
The Issue Whether the Florida Department of Transportation (FDOT) properly denied application(s) for an advertising sign permit.
Findings Of Fact On September 27, 2005, Petitioner Lamar submitted two permit applications (Nos. 55595 and 55596) to FDOT for two signs to be attached to one monopole, one sign to be facing north and one sign to be facing south. The applications stated that the proposed location of the monopole is the west side of State Road 85 (SR 85), 200 feet (or .042 miles) south of Barnes Road in Okaloosa County, Florida. SR 85 is a Federal-aid primary highway. (See Stipulated Facts 1 and 4.) The proposed sign structures met the size, height, and spacing requirements of Section 479.07, Florida Statutes. (See Stipulated Fact 3.) The proposed sign location is in an unincorporated area of Okaloosa County, Florida. (See Stipulated Fact 5.) Okaloosa County is the only local entity involved herein. The 42.5 acre parcel of land for the proposed billboard has significant frontage on SR 85, north of Crestview, Okaloosa County. A residence is located on a portion of the parcel. The permit application form used by Petitioner was composed and authorized by FDOT. Petitioner's submitted application was complete, and the appropriate fee was paid to FDOT. (See Stipulated Fact 2.) Upon request, FDOT provides a published "Instruction" pamphlet to assist applicants for outdoor advertising sign permits. Pages 12-13 thereof provide, in pertinent part, as follows: Land Use/Zoning: Outdoor advertising signs must be located in areas where the land use category allows properties which lie within 660 feet of the controlled road and which are within the contiguous land use designation area to be developed with primarily commercial or industrial uses. This information is found in the Land Development Regulations and on the Future Land Use Map of the City or County’s Comprehensive Growth Management Plan. The City or County or other local government must certify that the current zoning (Land Development Regulations) and the Future Land Use Map designation allow for commercial/industrial uses and that outdoor advertising signs are allowed for that designation. When the Land Development Regulations [zoning] or the Future Land Use Map do not specifically designate the parcel as commercial or industrial, but allow for multiple uses on the parcel, including commercial or industrial, a “use test” will be employed to determine whether an outdoor advertising permit may be issued. The use test requires that there be a minimum of three (3) conforming businesses within 1600 feet of each other, and that the sign be on the same side of the highway and within 800 feet of one of the businesses. The Department will not approve an outdoor advertising sign permit when local regulations prohibit outdoor advertising at the proposed location. (Emphasis supplied.) In preparation of Petitioner’s application(s), Chad Pickens, Petitioner’s Lease Manager, read FDOT’s Instruction pamphlet as guaranteeing Petitioner a “use test” if either the County land use map or the zoning for this parcel provided for mixed or multiple uses. He conducted extensive site location and ownership searches; made contacts with the potential lessor; submitted photographs of three businesses within 1600 feet of the proposed outdoor advertising sign location; filled out the permit application; proceeded to the appropriate Okaloosa County government officials for County approval; surveyed and staked out the proposed outdoor advertising sign location; and took photographs of the proposed site. He then submitted this information on FDOT-approved forms, along with a letter of authorization and the application fee. Petitioner Lamar leased the property site from the owner, with no lease payments due from Petitioner to the landowner unless FDOT approved its sign permits. At the time of the application, the three commercial businesses closest to the proposed sign location were: Dogwood Veterinary Clinic - approximately 118 feet south of the proposed sign site. This business specializes in treating house pets. The clinic makes no farm calls, but horses may be treated if brought into the clinic. This business also contains a retail outlet; Billy's Trade Store, approximately 463 feet south of the proposed sign site, is a convenience store; and Plantation Farms Pet Grooming, approximately 780 feet northeast of the proposed sign site. This business, in addition to retail sales of pet items and food, incorporates a section for the grooming and boarding of household pets. This business does not handle livestock. (See Stipulated Fact 9.) These three business establishments, submitted by Petitioner for FDOT’s application of a "use test," were businesses one could actually walk into and purchase goods or services. In addition to information regarding the proposed sign site, the proposed construction on the site, and where the proposed construction was to occur, the permit application required the applicant to secure Okaloosa County’s local certification of the proposed site’s future land use designation and its current zoning, which Petitioner did. Although FDOT requires that local government entities sign off on advertising sign applications to FDOT, the State Agency does not rubber stamp those approvals. Ultimately, FDOT administers State statutes and regulations in conjunction with its Federal agreement. The State is not bound by the County’s permitting of signs. In January, 1972, the State of Florida entered into an agreement with the Federal Highway Administration, in which the State agreed to implement and carry out the provisions of Section 131 of Title 23, United States Code (1965), commonly referred to as "The Highway Beautification Act." Through this agreement, Florida agreed to limit the permitting of outdoor advertising signs adjacent (within six hundred sixty feet of the nearest edge of right-of-way) to Interstate or Federal-aid primary highway systems, to areas which are zoned industrial or commercial or are located in unzoned commercial or industrial areas. Failure of FDOT to comply with the terms of this agreement could result in a loss of 10 percent of federal-aid highway funds. Lynn Holschuh, FDOT Outdoor Advertising Administrator, testified that since the January 1972, agreement with the Federal Department of Transportation, Florida local governments have been required to “zone” all property. Therefore, the 1972 Agreement’s use of the term, “unzoned commercial or industrial areas,” is an anachronism, because all Florida property should now be zoned. Still, the term remains in the Florida Statutes, and FDOT uses this term to grapple with areas where specific land use is not very well defined. Zoning designations arise from county land development regulations, i.e. zoning ordinances. Future land use designations come from a Land Use Plan, adopted by the local entity or entities, pursuant to Chapter 163, Florida Statutes, and placed on a future land use map. The proposed sign location is on a parcel with a land use designation of “Agricultural 1” (AA1). (See Stipulated Fact 6.) In other words, the parcel is zoned for agriculture. Okaloosa County Code 8.02.02 provides that permanent off-site outdoor advertising signs are a permitted use within agricultural areas. (See Stipulated Fact 7.) Counties may allow off-site advertising along county roads, but interstate and federal primary-aid highways, such as SR 85, are within FDOT’s jurisdiction. The applicable Future Land Use Map designates the proposed site for “rural mixed land use” (RMU). (See Stipulated Fact 8.) This multiple use future land use map designation includes residential and non-residential uses. Non-residential uses may include commercial or business uses, although the parcel being designated “rural” suggests otherwise. There is no evidence herein that the terms used in the current zoning or on the future land use map do not comport with the same or similar terms used in Chapter 163, Florida Statutes, or in 23 C.F.R. Section 750.703(a) or 750.708. At all times material, Billy Wayne Strickland, Florida Department of Transportation Outdoor Advertising Senior Agent, processed all outdoor advertising applications, statewide, on behalf of FDOT. He testified that if the current land development regulations (current zoning) and the future land use designation (future land use map) differ, FDOT considers both. If the current zoning and future land use map are both a "mixed use" designation, FDOT performs its own use test, sometimes delegated to an outside consultant. Ms. Holschuh testified that “agriculture” is a “rather specific” zoning term/designation. However, if a zoning category authorizes more than one use, FDOT looks at the current primary uses of the parcel. FDOT’s intent is not to go by the label that has been applied to the zoning category, but “to go beyond the label to determine whether or not the area really has the characteristics of a commercial or an industrial area,” and that with regard to the characteristics of commercial zoning, the use test would be employed to determine if there were bona fide commercial or industrial activities within the specified footage of a proposed sign location. In processing the application(s) in this case, Mr. Strickland accepted the future land use designation “AA1”, for “agricultural,” as certified by Planner Tim Durbin on behalf of Okaloosa County. He also researched Okaloosa County’s land development regulations, which described the permitted uses for property designated "agricultural." The Okaloosa County Land Development Code specifically designated three zoning categories as “Commercial.” They are “Business Retail,” Business General,” and “Business Tourism”. In the Code, commercially zoned areas, under the categories of "Business Retail" and "Business General," states: "[t]his is a Commercial (C) and Mixed Use Development (MU) Future Land Use Map Category." Under the category of "Business Tourism," the Code states: "[t]his is a High Density Residential (HDR), a Commercial (C), and a Mixed Use Development (MU) Future Land Use Map Category." Each of these business categories allows for traditional commercial uses such as retail stores, filling stations, banks, restaurants and mini- warehouses. The Okaloosa County Land Development Code specifically designated two zoning categories as “Industrial.” They are “Protected Industrial Districts” and “Airport Industrial Park Districts.” The Okaloosa County Land Development Code, under “Industrial” uses, has zoning categories of "Protected Industrial Districts" and "Airport Industrial Park Districts." The Code provides: "[t]his is an Industrial (I) Future Land Use Map Category." No similar reference to either “commercial” or “industrial” zoning is made under the zoning for “agricultural” areas. The agricultural zoning does not mention “filling stations.” The Okaloosa County Land Development Code lists the following (with some restrictions not material to these proceedings) in areas zoned “agricultural”: Permitted Principal Uses and Structures: -Dwellings -Commercial and non commercial agricultural [structures] -Sawmills -Places of worship, schools, publicly owned and operated community structures and land, nursing homes, charitable or philanthropic institutions; public or private golf courses; public lands; public or private cemeteries, private lodges and fraternal orders. -Privately operated day nurseries, pre- schools, and kindergartens. -Private airstrips -Private Airports -Public or private fishing clubs, and other similar enterprises. -Recreational areas for public use, campgrounds, travel trailer parks, including golf driving ranges, swimming pools, fishing lakes, and similar recreation uses. -Public or private stables -Commercial kennels and the raising of other small animals for sale -Community residential homes -Radio, television and commercial towers and antennas. -Terminals for petroleum products -Public Utility Structures -Municipal solid waste transfer stations and recycling facilities. Permitted Accessory Uses and Structures: Uses and structures which are customarily accessory and clearly incidental and subordinate to permitted or permissible uses and structures. Home Occupations. Special Exception Uses and Structures: Activities that are agricultural or support agricultural activities and are in keeping with the rural character of the area Public or privately operated gun clubs Borrow Pits Construction and Demolition Debris landfills Prohibited Uses and Structures: Any use or structure not of a character indicated under permitted accessory uses and structures, or permitted as a special exception. Class I, II and III landfills are prohibited, along with other types of solid waste disposal facilities except as identified in Permitted Uses and Special Exceptions. [Boldface in original; underlining supplied] Mr. Strickland opined that a terminal for storing petroleum products, transported to that location in tanker trucks, for use by machinery on a farm, which use is allowed by the County’s zoning code to be located on land zoned agricultural (see Finding of Fact 29), would not be the same as a gas/filling station for cars, permitted under the County’s commercial or industrial classification. Mr. Strickland’s interpretation is reasonable, and it was not credibly refuted by Mr. Durbin, the County’s planner, whose testimony that the County would allow a filling station on the parcel in question did not comport with the clear designations under the County’s zoning. (See Findings of Fact 24-29 and 35-36.) In processing the applications in this case, Mr. Strickland reasonably interpreted the current zoning to permit only commercial uses "tied to agriculture" on this parcel. Mr. Strickland also used the Okaloosa County Tax Appraiser’s records. The County Appraiser listed the parcel whereon the signs were intended to be erected as improved agricultural land containing a single family dwelling for which a homestead exemption was taken/granted. A residential use clearly is not a commercial use. Mr. Strickland took this to mean that the “rural mixed use” for that parcel implied a “residential” use, as opposed to a “non-residential” and potentially commercial use, under the RMU designation on the future land use map. FDOT never permits billboards on residential property unless the parcel is currently zoned commercial and the parcel merely contains a private residence that has been grandfathered- in. On October 18, 2005, FDOT, through Mr. Strickland, issued a Notice of Denied Application stating: Location is not permittable under land use designations of the site [s. 479.111(2), FS] Location does not qualify as unzoned commercial/industrial area [s. 479.01(23), FS] At the same time, FDOT returned Petitioner’s application fee checks. (See Stipulated Fact 10.) At hearing, County Planner, Tim Durbin, testified that based upon Okaloosa County’s current zoning and future land use, the proposed sign site met Okaloosa County standards and would support an outdoor advertising sign. He further testified that the County no longer considers "AA1”, which once referred to parcel size, "to have any significance,” and that the County plans, in the future, “to remove that designation from its Land Development Code.” According to Mr. Durbin, the County now considers all agricultural land to be "AA." However, as of the date of hearing, more than a year after the sign permit application review by FDOT, the County still has not changed its AA1 category. According to Mr. Durbin, Okaloosa County currently would permit the following non-residential uses of the parcel at issue: "small scale agricultural, civil uses of churches and houses of worship, public or private primary or secondary schools, small scale neighborhood commercial or business uses, general commercial uses. Small scale neighborhood commercial and business includes neighborhood-serving offices, neighborhood-serving retail activities.” He opined that any classification that contains “residential” and “non-residential” uses, as do both the AA1 zoning category and the land use map ”RMU-rural mixed uses” designation, may contain commercial projects within the “non-residential” areas. He equated “filling stations” with “terminals for petroleum products." Herein, because the zoning and land-use map designations were not identical, Mr. Strickland did not consider, in making his decision to deny the sign permit, the three businesses listed near the parcel. He did try to discover how the actual parcel in question was currently regarded locally. In doing so, he used reasonable methods. He denied the sign application(s) on the basis of the future land use designation (rural mixed use-residential) and the agricultural zoning current when these applications were submitted and considered between September 27, 2005, and October 18, 2005, (AA1-agricultural). Petitioner has not demonstrated that any change in the zoning or land use designation has occurred since that time. However, when asked at hearing how he would consider those three nearby businesses (a veterinary, a convenience store, and a pet groomer), which had been submitted for a use test, Mr. Strickland testified that he would consider the veterinary and the store to be commercial uses and would consider Plantation Farm Pet Grooming to be not commercial because it contained a family residence with a homestead exemption. Petitioner did not refute that the pet groomer’s building primarily constitutes a residential use.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered ratifying the October 18, 2005, denial of sign application. DONE AND ENTERED this 4th day of April, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 4th day of April, 2007.
