Findings Of Fact At all times pertinent to the charges, the Respondent Liz Caldwell was a licensed real estate broker in the State of Florida, holding license number 0122036, and Liz Caldwell was the owner, president and qualifying broker for the Respondent Liz Caldwell Realty, Inc., a corporation registered as a real estate broker, holding license number 0181836. Waldorff Properties of Fort Walton, Inc., is a corporation organized under the laws of the State of Florida. In 1983 and 1984 the principal officers included among others, Lloyd H. Waldorff, as president, and Marlin B. Waldorff, as vice president. In 1983, Waldorff Properties was the developer of a townhome project in Fort Walton Beach, Florida, known as La Mar West Townhomes. Phase One, which had already been completed prior to the time period relevant to this proceeding, consisted of six units in one building. Phase Two originally was to consist of two to three more buildings of five units each. Phase Two was expanded to include the entire balance of the project consisting of 25 units in five buildings, a pool, tennis court, clubhouse, and a boat dock. On or about June 13, 1983, an Exclusive Right of Sale Agreement was entered into between Waldorff Properties and the Respondents, wherein the Respondents would market and sell the townhome units at La Mar West Townhomes on behalf of Waldorff Properties. Thereafter, the Respondents presented to Lloyd H. Waldorff, president of Waldorff Properties, 18 Purchase Agreements, purportedly executed by 17 separate purchasers, which reflected receipt by the Respondents of 18 deposits of $1,000 each for a total of $18,000, to be held in the Respondents' escrow account. On behalf of Waldorff Properties, Lloyd H. Waldorff accepted and executed these contracts. On the strength of the 18 purchase agreements presented to Waldorff Properties by the Respondents, Lloyd H. Waldorff applied to Security Federal Savings and Loan in Panama City, Florida, for a construction loan. On November 2, 1983, Security Federal granted to Waldorff Properties a loan in the amount of $1,100,000 at 13.25 per cent interest for the construction of the La Mar West Townhome project. The 18 purchase agreements were instrumental in the approval of this loan. The project was completed in August or early September, 1984. As completion of the project approached, Lloyd H. Waldorff notified Respondent Caldwell that she needed to line up the purchasers and get ready to close on the purchase agreements. However, the purchase transactions failed to close. In October or November, 1984, Respondent Caldwell met with Lloyd H. Waldorff and, in answer to the question by Mr. Waldorff: "Liz, are these contracts bogus?", Respondent Caldwell nodded in the affirmative. Respondent Caldwell testified at a deposition taken on January 8, 1986, in a civil case in Okaloosa Circuit Court, that Lloyd Waldorff needed a construction loan to proceed with the La Mar West Townhome project, and he felt that if he had contracts for sale of the units the bank would give him the loan. She testified that Lloyd Waldorff asked her to "get up some contracts," because they were needed for the construction loan. She further testified in response to a question "did he (Lloyd Waldorff) ask you to get fraudulent contracts for him?", that "he asked me to work with him". In response to the question "did he ask you to go get bogus contracts for him?", Respondent Caldwell responded, "yes". In response to a question "he asked you to get bogus contracts that he would fraudulently submit to a construction lender?", Respondent Caldwell stated, "that is correct". Respondent Caldwell testified that "those contracts (referring to the 18 purchase agreements) were made up for Mr. Waldorff" and "they (the purchase agreements) were prepared in a couple of hours for him." She also stated under oath, "he (Lloyd Waldorff) needed a construction loan and I helped him obtain it. He asked me if we could prepare some contracts that he could take to the bank. And he felt that way, the bank would give him the loan. And we discussed it, made up the contracts and he picked them up". Finally, in this deposition Respondent Liz Caldwell adopted counsel's statement that "Our position relative to these contracts are as follows: Number one, that the contracts were prepared within a span of about two hours after a request for those contracts and delivered the next morning in total solely for the purpose of ... a construction loan. And number two, the contracts, themselves, are not enforceable contracts." "The names that appear on them are names - - some are actual purchasers; some are fictitious names..." Kelly Wilson Hill worked as secretary and bookkeeper for the Respondents from December, 1982, until June of 1984. A signature purporting to be that of Kelly Hill appears on 17 of the 18 purchase agreements as a witness to either the buyer or the seller. The name of Kelly Hill signed to the purchase agreements was not her signature, and she did not sign as a witness. There was no other employee at the Respondent's company named Kelly Hill. One of the purchase agreements showed the purchaser to be Charles Waters with an address of Sandalwood Drive in Destin, Florida. This purchase agreement is dated July 10, 1983. Charles W. Waters lives at 661 Sandalwood Drive in Destin, Florida, and he lived there on July 10, 1983. Mr. Waters acquired the house on Sandalwood Drive in 1982 through the Respondent's agency. Mr. Waters bought two other homes and a business in 1981 through the Respondent. Although a signature which purports to be Charles Waters appears on the Charles Waters purchase agreement, Charles W. Waters did not sign this agreement, and did not agree to purchase a townhome unit at La Mar West Townhomes. He did not put down a $1,000 deposit, and he had never seen the purchase agreement until a couple of months prior to the hearing. Respondent Liz Caldwell also admitted to Marlin Waldorff that the purchase agreements were not good contracts. Richard Watson has worked as a broker/salesman with the Respondents for approximately 6 years. A signature purporting to be that of Richard Watson appears on 17 of the 18 purchase agreements as a witness to either the buyer, the seller, or both. Richard Watson did affix his signature to the purchase agreements as a witness, but he did not see the buyers and/or the sellers sign the agreements. Richard Watson was aware that the purchase agreements were false, bogus contracts. Despite the written representation of Respondent Liz Caldwell on the purchase agreements that a $1,000 deposit had been received on each of the 18 purchase agreements, for a total of $18,000, and that these deposits had been placed in the Respondent's escrow account, the deposits were not received and were not placed in escrow. On July 3, 1983, the Respondents caused an advertisement to appear in the Playground Daily News in Fort Walton Beach, Florida, wherein it was stated that the La Mar West Townhome project was 95 percent sold. On July 10, 1983, the Respondents caused an advertisement to appear in the Playground Daily News in Fort Walton Beach, Florida, in which it was stated that the La Mar West Townhome project was 100 percent sold. The assertions in these advertisements were false, in that the project was neither 95 percent sold nor 100 percent sold when the ads were published.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0122036 held by the Respondent, Liz Caldwell, be revoked, and that license number 0181836 held by the Respondent, Liz Caldwell Realty, Inc., be revoked. THIS Recommended Order entered on this 18th day of November, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 18th day of November, 1986.
Findings Of Fact Atlas Pools, Inc., contracted with Mr. and Mrs. Jerry Thompson in May, 1978, to construct a swimming pool on the Thompson property for a completed price of $5,940. Work ceased in mid-July, 1978, by which time the Thompsons had paid Atlas Pools $5,643. The Thompsons hired another pool contractor to complete the project at additional cost in excess of $2,000. Atlas Pools contracted with Mr. and Mrs. Dennis Perry in June, 1978, to construct a swimming pool on the Perry property for a completed cost of $5,770. Work ceased in late July, 1978, after the Perrys had paid Atlas Pools $5,474.50. The Perrys completed the project through self-help and use of another pool contractor at a further cost of $1,566. Atlas Pools contracted with Mr. and Mrs. Thomas Wolters in June, 1978, to construct a swimming pool on the Wolters' property for a completed cost of $6,980. Work ceased in mid-July, 1978, after the Wolters had paid Atlas Pools $6,631. The Wolters completed the pool through self help at an additional cost in excess of $1,300. Atlas Pools contracted with Mr. and Mrs. Albert Sentman in June, 1978, to construct a spa on the Sentman property for a completed cost of $5,500. The Sentmans paid Atlas Pools a $550 deposit after which the spa was delivered but not installed. The Sentmans completed the project by other means at an additional cost of $6,137. Respondent abandoned each of the above projects without notice to the customer, who ultimately learned of the company's bankruptcy from a third party source. Each of the four projects described above was completed at a final cost to the purchaser in excess of $900 over the contract price. The company filed a Voluntary Petition of Bankruptcy with the U.S. District Court, Middle District of Florida, on August 1, 1978. Thereafter, on March 7, 1979, the Brevard County Contractors Licensing Board revoked the certificate held by Atlas Pools for a minimum period of one year, with the requirement that financial rehabilitation be demonstrated as a condition of reinstatement. At the time of bankruptcy, Respondent was president of Atlas Pools, Inc., and owned one-third of the stock. He was, at all times relevant to this proceeding, the company's only licensed pool contractor. He is currently employed in pool construction work by a licensed contractor. Proposed findings of fact were submitted by the parties. To the extent these proposed findings have not been adopted herein or are inconsistent with the above findings, they have been specifically rejected as irrelevant or not supported by the evidence.
Recommendation Based on the foregoing, it is RECOMMENDED: That Pool Contractor's License No. RP 0018040 issued to Crawford L. Grove, be suspended until Respondent demonstrates compliance with the financial responsibility standards established by Section 489.115, Florida Statutes (1979). DONE AND ENTERED this 29th day of October, 1980, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of October, 1980.
The Issue As stated by the Hearing Officer the issue in this case is whether the District should issue a surface water management permit to Russell E. and Marilyn F. Scott, and Caloosa Television Corporation for the construction and operation of a surface water management system to serve a television signal tower and control building in Southeast Lee County, Florida. There are no significant water resource impacts related to the management of surface water by the proposed project. The harm at issue in this case is the potential for wood storks and other wading to strike the tower and guy wires which are not structures related to management and storage of waters. The parties disagree as to whether the District has jurisdiction to consider the bird impacts related to collisions with the tower and guy wires, and if so, whether the tower and guy wires will have a significant adverse impact on the water resources of the state through a reduction of wood storks, an endangered species, and other wading birds which through feeding on fish remove biomass from such water, thereby maintaining water quality. In determining jurisdiction in this case, the parties disagree on the meaning of "works" and "surface water management system" as used in Chapter 373, F.S. and Rule 40E-4, F.A.C. The petitioners argue that since one set of guy wires will be placed across one end of the cypress wetland located on the subject property, the entire project including the guy wire and tower is a "works" and part of the surface water management system, which is subject to the permitting jurisdiction of the District. The District and respondent Caloosa Television Corporation contend that the tower and guy wires are not structures related to surface water management and are not "works" nor part of the surface water management system, and therefore, bird mortality, as a result of hitting the tower and guy wires, is not subject to the permitting jurisdiction of the District. FINDINGS ON EXCEPTIONS At the Governing Board meeting of October 6, 1988, the petitioners waived Findings of Fact exceptions 1 and 2 of Petitioners' Exceptions to Finding of Fact, Conclusions of Law, and Recommended Order. Therefore, Findings of Fact exceptions 1 and 2 are rejected. The petitioners' exceptions 1, 2, and 3 to Conclusions of Law of the Recommended Order are rejected as set forth in the District's Response To Exceptions Filed by Petitioners filed on September 27, 1988, and attached hereto as Exhibit B and made part of this Final Order. The Governing Board accepts the exceptions filed by the District and the respondent, Caloosa Television Corporation, as set forth herein under Conclusions of Law.
Findings Of Fact On or about September 14, 1987, Caloosa filed Application Number 09147- B, for a surface water management permit, with the District. This application was for the construction and operation of a surface water management system to serve a 1249 foot high television transmission tower and control building in southeast Lee County, Florida. The proposed location of Caloosa's project is approximately one mile north of the boundary of the Corkscrew Swamp Sanctuary, which is owned and operated by Audubon, and specifically, approximately two and one-half miles north of a wood stork colony located within the Sanctuary. This rookery is the largest rookery of wood stork, a federally endangered wading bird, in the United States. The project site is 60 acres in size, and approximately square in shape. It is improved agricultural land, with a circular cypress wetland of about 5.5 acres located near the center of the site. Extending outward from the cypress wetland are two ditches, one running due east and the other due west. The existing surface water flow varies with the seasons and intensity of storm events. During dry seasons, the rainfall runoff flows into the cypress wetland and percolates into the ground. However, during wet seasons, water builds up in the cypress wetland and flows into the two ditches. In larger storm events, the project site is entirely under water, and sheet flows occur to the southwest. The proposed project should have a negligible impact on the existing surface water system since the total impervious area will only be approximately one acre, or 1.7 percent of the total project area of 60 acres. The project consists of a radio tower and guy wires, a 3150 square foot control building, fill pad and parking area, guy wire anchor slabs, and approximately 1650 feet of lime rock road with an equalizer culvert to maintain existing flow. Three sets of six guy wires will extend from the 1249 foot high tower and connect to the ground at anchor slabs located near the edge of the project site. The entire project is located outside of the limits of the existing wetland, but one set of guy wires does cross the western edge of the cypress wetland. Caloosa proposes to use the tower as a "community tower" which will be capable of supporting more than one transmitting antennae. In addition to Caloosa's antennae, the tower will be able to support up to five commercial radio stations and up to sixty two-way communication antennae. Caloosa has had contacts from several commercial radio stations and governmental agencies which have expressed interest in co-locating their antennae on Caloosa's tower. After review of this application, District staff advised Caloosa, on November 23, 1987, that it was recommending approval of the application since it was felt that any impact from the project on wood storks would not result from the construction and operation of this project. At hearing, the District supported the issuance of this permit, but urged that the tower and guy wires are not a part of the surface water management system over which the District has any permitting jurisdiction. Audubon timely filed its request for a hearing on the District's intent to issue this permit, and at hearing opposed the issuance of this permit to Caloosa, urging that the tower and guy wires were an integral part of the surface water management system, and therefore subject to the District's permitting jurisdiction. The wood stork and other wading birds are an important link in the biological and ecological chain. They are the main mechanism for removing certain species of fish from ponds, lakes and waters of the state. If there is no predation by wading birds, then an increase in the biomass of the water system would be expected, water quality would decrease, and fish kills would result. Ponds that receive biomass reduction by wading birds have a reduction in fish biomass of approximately 75%, with no loss in species, while ponds that do not receive wading bird predation lose almost all individual aquatic animals through reduced water quality resulting from retention of up to 94% of the biomass from dead fish. The reduction in biomass is in direct proportion to the number of birds feeding in a pond, and therefore a 5% reduction in birds will result in a 5% lessening of the biomass reduction. Water quality will be reduced by a lowering of oxygen levels in such waters due to the excessive retention of nutrient laden biomass. During the nesting season, wood storks feed in various ponds and wetland areas that surround the rookery. Their primary feeding areas are within ten miles of the rookery. The proximity of these sites allow the birds to make several flights per day between the colony and the feeding site, and to do so with less energy expended than with feeding sites that are farther away. Caloosa's project site is located between the rookery and a primary feeding area to the north that is within ten miles of the rookery. The proximity of this feeding area allows the birds to fly low, at tree top level, to the site, without the use of thermal updrafts that they use to attain altitudes of up to 5000 feet when traveling greater distances. Thus, if the tower is built, it would be likely that wood storks would fly in the direction of, and at the height of, the tower to reach this primary feeding area. However, it was not established how many such birds actually feed in this nearby area, or how many fish are in these ponds and wetlands. The wood stork colony at Corkscrew Swamp Sanctuary has been experiencing a decline in productivity from approximately 6000 nesting pairs in 1960 and 1966, there has been a steady decline in the number of nesting pairs in the colony, and in 1987, there were no nesting pairs in the colony. During 1988, 750 nesting pairs have been observed. The steady decline in the wood stork colony population is the result of already existing developmental pressures and changes in drainage patterns which have adversely affected the birds' feeding habitats. For nesting to be successful, two adult birds are required per nest during the nesting season, which usually occurs from November to March. This allows one adult bird to be away from the nest obtaining food while the other adult keeps the nest warm and safe from predators. If a nest is left unattended through the loss of one adult bird, it is likely that the entire nest will be lost since the fledglings are very vulnerable throughout the nesting season to predators and changes in temperature. There are usually two or three fledglings per nest. For this reason, the loss of five adult birds per year, for example, results in a total loss to the colony of between ten to fifteen fledglings. This loss compounds each year, as birds lost one year are not available to reproduce in following years. Generally, transmission towers can pose a hazard to birds due to the potential for collisions. Illuminating such towers at night does not decrease this danger since the birds are simply attracted to lights. Strobe lighting has also been tried, but it appears that birds ignore, or are not deterred, by strobes. In this case, Caloosa has agreed to accept conditions placed upon the approval of this project by the Lee County Board of Zoning and Adjustments on March 16, 1987, which include placement of aircraft warning balls on the guy wires and the tower itself, habitat improvement including the creation of a wetland and a wildlife through way, if necessary, and commencement of a monitoring system to identify any problems with wood stork mortality as soon as possible. A very extensive study of bird kills and transmission towers was conducted over a thirty year period involving the WCTV tower in Tallahassee, Florida. The WCTV tower was found to kill 3.9 wading birds per year on average. Based in part upon this data, the U.S. Fish and Wildlife Service concluded that wood stork collisions with the tower will not result in significant mortality, and an "incidental take" of five wood storks per year should result. This is a level of mortality which is noteworthy, since any loss to an endangered species is significant, but is clearly below that which would cause jeopardy to the species. Although Audubon correctly pointed out that the conditions present in the WCTV study do not exactly match those present in this case, such as the fact that there are almost three times as many wading birds in the area of the Caloosa tower as were in the area of the WCTV tower, as well as the differences in the geographical relationship of the tower to nearby wading bird colonies and feeding areas, nevertheless, the WCTV study is relevant and should be considered by the District since it is the most exhaustive study of its kind ever conducted. Caloosa presented evidence of a study it conducted over approximately a one month period in May and June, 1988, of a comparable existing radio tower, the WHEW tower, located near the subject property to the east. Although substantial wood stork and other wading bird activity was observed around the WHEW tower, there were no collisions of wood storks with this 1010 foot high tower. While not a scientific study in the strictest sense, and although it was not conducted for as extensive a period as the WCTV study, nevertheless, the District should consider the WHEW study conducted by Caloosa since it involves a comparable tower in close proximity to the subject property, and the person who conducted the study for Caloosa and who testified at hearing, Robert E. Gatton, appeared particularly credible. The Federal Communications Commission has approved the location of Caloosa's tower. I5. The Florida Game and Fresh Water Fish Commission has recommended that the proposed location for Caloosa's tower be changed to an alternate site which would present a less serious obstacle to the Corkscrew wood stork nesting colony and other wading birds. This recommendation is based on the policy that the mortality of even one wood stork is too much and may present a danger to the population of the wood stork rookery. It was not shown, however, that a basis in fact exists for concluding that the loss of five or fewer wood storks per year would present such a danger. The Commission's recommendation is also based upon a concern that transmission towers will proliferate in the area, and thereby further interfere with the flight paths of wood storks and other wading birds to their feeding locations. However, the fact that Caloosa is seeking to construct a "community tower" to be shared with several governmental agencies, as well as broadcasting stations, will actually serve to decrease this potential proliferation. While there is a potential for wood storks or other wading birds in the area to be killed or injured by striking Caloosa's tower or the guy wires while in flight, the extent of this danger is speculative, but would not appear to exceed five wood storks per year. Under these circumstances, there would not be a significant threat to the population, or continued viability, of the Corkscrew rookery. It has not been shown, by the evidence in this record, that any loss of wood storks and other wading birds caused by this project will result in fish kills through a significant reduction of predation and the resulting failure to remove accumulated biomass in ponds and waters in the area. It was not demonstrated that a fish kill will, or is even likely, to occur. While the loss of five wood storks would result in a certain amount of biomass not being removed from the area's wetlands, nothing in the record suggests that this amount will have an adverse impact on the state's water resources or will otherwise be significant. Therefore, any relationship between the tower proposed by Caloosa and impacts associated with biomass accumulation is purely speculative and de minimis. Fish kills occur naturally as water levels in seasonal marshes and ponds lower in the dry season. The water quality impact of such kills is relatively short-lived, lasting up to two months or until the next wet season begins, at which time water quality parameters return to normal. The evidence produced at hearing does not establish that the project and its surface water management system will have any significant or measurable effect on drainage of surface water runoff from the subject property, or on adjacent properties. The drainage system proposed by Caloosa will utilize the existing ditches and the natural cypress pond on the property. It was established that the post-construction effect of the project on drainage would be insignificant. There are, therefore, no drainage impacts associated with this project.
Recommendation Based upon the foregoing, it is recommended that the District enter a Final Order approving Caloosa's application for surface water management permit number 09147-B, subject to the conditions, agreed to by Caloosa, which were imposed by the Lee County Board of Zoning and Adjustment in its approval of this proposed development. DONE AND ENTERED this 29th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5578 Rulings on Audubon's Proposed Findings of Fact: 1. Adopted in Findings of Fact 1, 3. 2-3. Adopted in Finding of Fact 4, but otherwise Rejected as a conclusion of law rather than a finding of fact. 4-5. Adopted in Finding of Fact 5, but otherwise Rejected as unnecessary, irrelevant and as a summation of testimony. 6. Adopted in Finding of Fact 2. 7-8. Adopted in Finding of Fact 7. 9-10 Adopted in Finding of Fact 8. 11. Adopted in Finding of Fact 11. 12-15. Adopted and Rejected, in part, in Finding of Fact 12. Adopted in Findings of Fact 8, 10, but otherwise Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Findings of Fact 10, 12, but otherwise Rejected as cumulative and as argument on the evidence. Rejected in Finding of Fact 13, and otherwise as simply a summation of the testimony and argument on the evidence. 20-21. Adopted in Finding of Fact 6. 22-23. Rejected in Findings of Fact 15-17. 24. Adopted in Finding of Fact 15. Rulings on Caloosa's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 13. Adopted in Finding of Fact 1. Adopted In Finding of Fact 5. Adopted in Finding of Fact 19. Adopted in Finding of Fact 5, but otherwise Rejected as a conclusion of law and as simply a summation of testimony. Adopted in Finding of Fact 16. 9-10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 12, 13. Adopted in Finding of Fact 11. Adopted in Findings of Fact 4, 15. Adopted in Finding of Fact 6. 15-16. Adopted in Finding of Fact 17. 17. Adopted in Finding of Fact 18, but otherwise Rejected as irrelevant and as cumulative. Rulings on the District's Proposed Findings of Fact: 1-2. Adopted in Finding-of Fact I. 3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 8. Adopted in Findings of Fact 12, 14, 16. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 13. 12. Adopted in Finding of Fact 16. 13. Adopted in Finding of Fact 15. 14. Adopted in Finding of Fact 11. 15. Rejected as irrelevant. 16. Adopted in Finding of Fact 11. 17. Adopted in Finding of Fact 6. 18-19. Adopted in Finding of Fact 5. COPIES FURNISHED: Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Russell P. Schropp, Esquire Post Office Box 280 Fort Myers, Florida 33902 James K. Sturgis, Esquire Post Office Box 24680 West Palm Beach, Florida 33416 John R. Wodraska Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 =================================================================
Findings Of Fact Petitioner provides electric, gas and water utility service at various Florida locations. During the 1979 test year, its Fernandina Beach Water Division served an average of 2,500 residential customers, 523 general service customers and nine private fire line customers. In addition, it maintained 210 fire hydrants for the City of Fernandina Beach. Service The Utility is providing satisfactory water service. There were no service complaints presented at the public hearing, nor were there any citations or corrective orders outstanding. Rate Base The Utility seeks recognition of a $1,332,178 rate base. This amount includes $82,128 for an office building completed in the last month of the test year, a $7,600 chlorinator building completed after the test year (March, 1980) , and a pumphouse still under construction at an estimated completed cost of $106,000. Neither the amounts nor their completion dates are in dispute. However, the Commission seeks to utilize a 13-month average year rate base which would result in the exclusion of all the above facilities except for the office building investment during the final month of the test year. Both parties cite Citizens of Florida v. Hawkins, 356 So.2d 254 (Fla. 1978) in support of their positions. Although the Court discusses the various methods of computing a utility rate base, it concludes that unusual or extraordinary growth is a prerequisite to use of a year end rate base. The Utility did not demonstrate unusual or extraordinary growth. Rather, customer growth during the test year was only about two percent, mandating use of an average rate base. The Utility suggests that construction of the chlorinator was required by the federal government under the provisions of the Safe Drinking Water Act. If so, the Utility would be permitted to include this Investment in its rate base. 1/ However, the Utility was in compliance with the Safe Drinking Water Act prior to construction of the pumphouse and made no showing that it was required to undertake this project by government authority. Capitalization of interest on the funds used in construction of new facilities should be authorized. However, this amount will not be subject to inclusion in the rate base until the facility itself is included. The Utility plant was shown to be 100 percent used and useful in the public service. In view of this, and the adjustments discussed above, the Utility's average rate base for the test year is $1,103,201. See Schedule 1 for detail. Operating Revenues The Utility seeks a test year revenue authorization of $581,037 based on expenses of $456,184 and a 9.39 percent return on its proposed rate base. It seeks to include an expense item of $2,400 for tank maintenance, basing this amount on the five-year amortization of a projected $12,000 expenditure. Although this procedure is proper, since tank maintenance is periodically required, the $12,000 is the anticipated cost of future maintenance rather than an actual cost. Therefore, this figure must be adjusted to one-fifth of the last actual maintenance cost, or $1,105. Prior to December, 1979, when its office building was completed, the Utility rented the required space. Since the new building was not recognized for rate making purposes until the final month of the test year, it is proper to include the rent expense actually involved during the preceding 11 months. Therefore, an upward adjustment in expenses of $1,524 is required. Authorized expenses should also include $45,281 proposed by the Utility to meet known increases in the cost of purchased electrical power. The limitation on test year expenses is not the same as that on test year investment. Rather, Chapter 367, Florida Statutes, specifically provides for recognition of outside test year increases in electrical power costs. See Section 367.081(4)(b), Florida Statutes (1980). The Utility supported its proposed rate case expense of $5,100 by late filed exhibit. Neither the amount nor the proposed three-year amortization period were opposed by the Commission and are appropriately included herein. In view of the above findings and a 9.10 percent return on investment (discussed below) , the Utility is entitled to revise its rates to produce annual revenue of $536,970. See Schedule 2 for detail. Cost of Capital The parties agreed that 15 percent is an appropriate return on equity investment. This amount, when weighed against the current cost of debt, supports an overall 9.10 percent rate of return. Rate Structure The parties propose adoption of a base facility charge rate structure. This rate design includes a fixed charge to each customer served based on that customer's share of fixed operating costs. The second element of the base facility charge represents -- the variable cost of water actually used. This rate structure provides an equitable method of allocating service costs and is consistent with statutory requirements that rates be just and nondiscriminatory. See Section 307.081(2), Florida Statutes (1980). The Utility proposes to increase its fire hydrant charge from $8 to $12 monthly and to include this amount in its regular service rates to all customers rather than as a separate charge to the City of Fernandina Beach. The amount of the increase is consistent with overall revenue needs and was not opposed by the Commission. The procedure to include fire hydrant charges in customer charges was requested by the City Commission of Fernandina Beach and would not discriminate against any customer or group of customers, since all benefit from the fire protection represented by these charges.
Recommendation Based on the foregoing Findings of Fact and Conclusions A, of Law, it is RECOMMENDED that Florida Public Utilities Company be authorized to file revised rates structured on the base facility charge concept, designed to generate annual gross revenue of $536,970 based on the average number of customers served during the test year. DONE and ENTERED this 18th day of December, 1980, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Petitioner is the receiver for Bayside Club, Islamorada, Inc., a dissolved Florida corporation ("Bayside"). Mr. Joseph Popplewell is a general contractor and former president of Bayside. Respondent is the governmental entity authorized by Chapter 76-441, Section 14(1), Laws of Florida, to adopt impact fees for the water system in the Florida Keys, to equitably adjust the financial burden of a new pipeline, and to expand it or improve appurtenant facilities between existing customers and new water users. In 1986, Bayside sought to construct a 30 unit hotel on approximately one acre of land in Monroe County, Florida. The development project was formally classified as an expansion of an existing eight unit hotel. The existing hotel, however, had little, if any, useful life, and, in substance, the project involved the development of a new 30 unit hotel. Bayside obtained a building permit on June 4, 1985. In the same month, the building permit was challenged by an adjacent land owner. The challenge asserted that the existing hotel constituted a grandfathered nonconforming use and that the building permit improperly treated the development site as if it were located in a zoning district which permitted hotel usage and subsequent expansion. During the last half of 1985, the Monroe County Commission considered the challenge to the building permit and found that the building permit was valid. The adjacent landowner filed suit against Bayside. The circuit court upheld the validity of the building permit. The suit was finally decided on May 29, 1990, when the Third District Court of Appeal reversed the lower court's decision that the building permit was valid. Dowd v. Monroe County, 557 So.2d 63 (Fla. 3d DCA 1990). On May 29, 1990, the circuit court entered its order declaring the building permit invalid. In 1986, Bayside was advised by Respondent that unit water system development fees ("impact fees") were scheduled to increase from $1,500 to $2,000. Bayside chose to avoid paying impact fees at the increased unit rate and to achieve a savings in development costs. On or about April 18, 1986, Bayside executed an Agreement For Water Service. On or about April 29, 1986, Bayside issued a check payable to Respondent in the amount of $36,840, which included impact fees in the aggregate amount of $33,000. As provided in Florida Administrative Code Rule 48-3.002 2., the Agreement For Water Service expressly stated in paragraph 1 that "SAID SYSTEM DEVELOPMENT CHARGE SHALL NOT BE REFUNDABLE." Construction of the proposed hotel stopped sometime in 1986. A receivor was appointed for Bayside by the appropriate circuit court on June 14, 1991. Sometime in early 1992, the receiver for Bayside requested a refund of the impact fees. Respondent denied that request in a letter dated February 27, 1992, but refunded amounts paid by Respondent in excess of the impact fees. Respondent's denial of Petitioner's request for a refund did not constitute an unreasonable classification and did not establish a differential rate that was either unjust or inequitable. Respondent has consistently applied Florida Administrative Code Rule 48-3.002 2. to prohibit the refund of impact fees regardless of the classification or rate charged the person who paid the impact fee. Petitioner had adequate notice in Rule 48-3.002 2. and the Agreement For Water Service that the impact fees were nonrefundable. Respondent reasonably anticipated that the projected costs for expanding the water system would be incurred. The county commission and circuit court both upheld the validity of the building permit. If Bayside reasonably anticipated that projected costs for expanding the water system and appurtenant facilities would not be incurred due to a suit challenging the building permit, Bayside had the option of not paying the impact fees until the final conclusion of litigation. Bayside was on notice that the impact fees were nonrefundable and chose to forego its option not to pay the fees until the conclusion of the suit challenging the building permit. Bayside made a business decision to save money and time by paying the impact fees when it did. Viewed in the light of hindsight, that business decision was imprudent. Bayside did not notify Respondent that the costs of expanding the system were not reasonably anticipated until six years after Bayside chose to pay the impact fees. The nonrefundable impact fees imposed by Respondent in 1986 were just and equitable. Expansion of the water system pipeline and appurtenant facilities was reasonably required as a result of the development proposed by Bayside at the time that the impact fees were imposed. The costs attributable to such expansion were reasonably anticipated by Respondent at the time that the impact fees were imposed. The use of the impact fees was limited to meeting such reasonably anticipated costs of expansion. The impact fees imposed by Respondent in 1986 did not exceed a pro rata share of reasonably anticipated costs. Expansion of Respondent's water system was necessary irrespective of the proposed hotel. The expansion of Respondent's water system and appurtenant facilities was financed through the sale of debentures. The indebtedness incurred is made good through revenues in the form of rates, fees, and other charges. Under such circumstances, rates and fees were set with a view towards raising the money necessary to repay the loan. The impact fees did not cease to be just and equitable merely because they were set high enough to meet the water system's reasonably anticipated capital requirements.
The Issue The issue in the case is whether amendments to the Lee County comprehensive plan are not in compliance for the reasons set forth in the amended petition of Petitioners.
Findings Of Fact I. Background Petitioners own legal and/or equitable interests in about 8600 acres in northwest Lee County (the Property). North and west of the Caloosahatchee River, the Property abuts Cape Coral on the south, US 41 on the east, Burnt Store Road on the west, and Charlotte County on the north. The Property is about one and one-half miles east of Charlotte Harbor. Gator Slough runs through the southeast corner of the Property before emptying into Charlotte Harbor. Acquired almost entirely in the 1950's, the Property is not entirely contiguous. It occupies ten entire square-mile sections and parts of six more square-mile sections in unincorporated Lee County. Petitioners also own about one-third of an adjoining section in Cape Coral, but this area is not relevant to the present case. 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 Department of Community Affairs determined that the Plan was not in compliance with the Act. Litigation ensued under Section 163.3184(10) and remains pending as DOAH Case No. 89- 1843GM, as well as two other related cases. A partial settlement was reached in DOAH Case No. 89- 1843GM. Petitioners' interests in the above-described 8600 acres were represented in DOAH Case No. 89-1843GM by Intervenor Wiss, as Trustee. Intervenor Wiss declined to enter into the settlement, but his claims were abated with the remainder of the case while Lee County considered and adopted settlement amendments. As part of the plan amendment process, there were two meetings of the local planning agency, which were properly noticed by newspaper publication. As required, notice of the transmittal hearing of March 3, 1990 was also published. The two adoption hearings, which were held on September 6 and 12, 1990, were also properly noticed by newspaper publication. County representatives generally considered all comments and responded to many comments, including some but not all of the comments made on behalf of Petitioners. Pursuant to the settlement agreement, on September 6 and 12, 1990, Lee County adopted Plan Amendments 90-1 and 90-2 (the Plan Amendments), which are the subject of the present case. The Plan, as amended by the Plan Amendments, will be referred to as the Amended Plan. The Plan Amendments are included in a three-volume package, which is Petitioners Exhibit 331. The third volume, Petitioners Exhibit 331.c, contains the Plan Amendments, as well as accompanying data and analysis. (The data and analysis compiled and submitted to DCA with the original Plan or later with the Plan Amendments will be referred to as the Data and Analysis.) Among other things, the Plan Amendments resulted in the redesignation of 96,712 acres on the future land use map (FLUM) from Open Lands and Rural to a new future land use category, Density Reduction/Groundwater Resource. Three areas received the new designation. One is a large area in southeast Lee County south of Lehigh Acres and east of Interstate 75. Another area is a strip about 20 miles east-west and two miles north-south bordering the Charlotte and Hendry County lines. The third area designated Density Reduction/Groundwater Resource includes the Property. The 16 sections in unincorporated Lee County wholly or partly owned by Petitioners and constituting the Property lie within an area of 23 contiguous square-mile sections that are generally designated Groundwater Resource/Density Reduction. The larger area designated Groundwater Resource/Density Reduction almost completely occupies the above-described area of unincorporated Lee County from Burnt Store Road on the west between Charlotte County and Cape Coral to US 41 on the east with the exception of about two square-mile sections designated Suburban along US 41 south of the portion of the Property abutting US 41. As is the case with the other two areas designated Density Reduction/Groundwater Resource, the only other designation on the Property and the larger area of 23 sections is Resource Protection Areas and Transition Zones. The areas designated Resource Protection Areas and Transition Zones in the 23-section area represent substantial acreage, especially in the northern and western halves of the 23-section area. The Data and Analysis accompanying the Plan Amendments explain the purpose and effect of the Density Reduction/Groundwater Resource designation: During the state agency review of the 1989 Lee Plan, concern was expressed that, in sparsely-developed areas which coincide with areas of potential future water supply development, allowable densities were inconsistent with effective land use planning and too high for protection of groundwater resources. While a comprehensive assessment of existing programs that relate to water resources has already been accomplished (pp. II(e)-I through II(e)-27 of the support documentation of the Community Facilities and Services Element of the 1989 Lee Plan), the assessment did not include an evaluation of appropriate densities in sensitive water resource areas. Four regional investigations conducted over the past decade provide the basis for estimating future water demand, predicting likely supply sources to meet that demand, and developing strategies to insure that sources of supply are not depleted or degraded. The 1981 investigation by Hole, Montes & Associates, Inc. [Hole Montes Study; citation omitted] defined and mapped Lee County groundwater sources east of U.S. 41, evaluated their long-range potential for sustained withdrawals, examined future wellfield options, and outlined a Water Master Plan for potable supply and distribution. The South Florida Water Management District (SFWMD) described, in its 1982 report [Reconnaissance Report; citation omitted], the hydrogeology and groundwater quality of Lee County, and suggested conceptual land-use controls to preserve and maximize water supply potential. The 1987 work by Camp, Dresser & McKee, Inc. (CDM) [Camp Dresser Report; citation omitted] detailed the geometry and hydraulic characteristics of hydrogeologic units, modeled groundwater flow throughout the County, and furnished the technical foundation for the recently-enacted Wellfield Protection Ordinance. James M. Montgomery, Consulting Engineers, Inc., completed an investigation [Montgomery Study; citation omitted] in 1988 that included a detailed assessment of future water demand, a comprehensive reevaluation of groundwater resources, and an analysis of measures needed to ensure that future demand does not exceed supply capability. Projected future water demand has most recently been addressed by the Montgomery study. Demand was evaluated for the case in which all reasonable conservation methods were adopted, and for the case in which conservation was no greater than currently practiced. With extreme conservation, total demand in Lee County is predicted to increase from 132 million gallons per day (MGD) in 1988 to 234 MGD in 2010; the corresponding increase in potable demand supplied by utilities is from 22 MGD in 1988 to 55 MGD in 2010. Without concerted conservation efforts, total demand is predicted to rise from 194 MGD in 1988 to 368 MGD in 2010; 1988 utility demand will increase from 39 MGD to 102 MGD. If, for discussion purposes, the middle of these ranges is selected as a basis for water supply planning, the total need for additional water in 2010 will increase by 85%, to 301 MGD; the need for potable water supplied by utilities in 2010 will increase by 157%, to 78.5 MGD. Where this additional water will come from has been addressed by several of the regional investigations. The three sources which have been identified and considered are: a) shallow aquifers that are recharged by local rainfall; b) deeper aquifers that contain slightly saline to saline water; and c) the Caloosahatchee River. Regarding increased withdrawals from the River, the Montgomery study concludes that the discharge pattern is unreliable and strongly dependent upon upstream releases managed by the SFWMD. Additional supply might be feasible, but will likely be limited by competition from other users. In any event, off-stream storage (for example, a reservoir) would be required. No additional quantities can currently be predicted or assured. Increased used of deeper aquifers that underlie Lee County will probably play some role in meeting future demand, though there is little documentation of the long-term supply capability of these sources. The two aquifers in question are the Lower Hawthorne and the Suwannee aquifers, informally named to correspond with their occurrence in identified geologic units. While both aquifers are suspected to contain large volumes of developable water, it is generally agreed that some form of desalinization (for example, reverse osmosis) will be necessary to make water from these sources suitable for potable use. As a consequence, two attendant disadvantages arise. One is the substantial cost associated with desalinization, a result of the energy-intensive nature of the treatment process. Second is the need for, and expense of providing, an environmentally acceptable method for disposing of the brine that is a treatment byproduct. This is commonly accomplished by deep well injection, at rather extraordinary cost. Among the investigations previously cited, there is a consensus that the shallow aquifers in Lee County have the greatest potential for meeting future water supply needs. These aquifers are, in descending order from land surface, the Water Table, Lower Tamiami, and Sandstone aquifers. Each has its own particular areal extent, depth, thickness, hydraulic properties, water quality, and current usage, but they have in common the important characteristic of being recharged locally, from rainfall, surface water, and downward seepage. Because they are relatively shallow and not overlain by thick clayey sediments, they share as well a sensitivity to, and the potential for, impact as a result of man's activities at land surface. This sensitivity is especially pronounced for the Water Table aquifer, which responds directly and rapidly to surface conditions. Furthermore, this latter aquifer has been identified in the Hole- Montes and Montgomery studies as the single largest source of future potable water supply. A reduction in recharge to the Water Table aquifer occurs when the average elevation of the water table is lowered, most typically by promoting and accelerating runoff through drainage improvements. The consequences of a reduction in recharge to the water table aquifer are: a) a decrease in recharge to underlying aquifers and a lowering of their potential for sustained withdrawals; b) a reduction in the volume of water available for use (termed the "safe yield"); and c) a loss in aquifer storage, which represents an increased probability of environmental impacts during prolonged dry periods. All regional studies which have addressed this issue conclude that maximizing the potential of shallow aquifers in Lee County requires, through appropriate land use controls, the water table to be maintained at or above existing levels. This is especially important because very little rainfall recharges the aquifer during the winter. This dry period coincides with Lee County's seasonal population peak (and corresponding peak water demand). Water quality impacts to the Water Table aquifer are of particular concern, as there is no overlying confining layer to prevent or retard the entry of contaminants. Once introduced, pollutants will migrate to underlying shallow aquifers, because these are recharged from above, and towards wellfields, because these are normally downgradient, discharge areas. Experience demonstrates that contamination may spread, undetected, in a plume-like fashion over large areas, and may be extremely costly to correct. While these concerns have been addressed for existing wellfields through adoption of the Wellfield Protection Ordinance, future wellfield areas, which have been identified only on a broad regional basis, have no such protection. Though the water table aquifer is recharged almost everywhere in Lee County, hydrologic studies have identified specific areas in which recharge is particularly effective, and corresponding areas which hold the greatest potential for future water supply development (figure II.D-l). Delineation of these areas has also been accomplished for the Lower Tamiami aquifer (figure II.D-2) and, to a lesser extent, the Sandstone aquifer (figure II.D-3). South of the Caloosahatchee River, these areas can be generally described as land east of 1-75 and south of SR 82. North of the Caloosahatchee River, areas important for both their recharge function and their potential for future withdrawals include non-urbanized areas near Charlotte County (figure II.D-4). Water supply development in the most favorable areas depends on the ability to capture water that is otherwise lost to evaporation and runoff, and on maintaining acceptable water quality. The principal constraint on the volume of available water is likely to be avoidance of impacts to wetlands, which, particularly in the southern area, are abundant. Studies suggest that, for environmental protection, it may be necessary to abandon traditional concepts of large, focused withdrawals from relatively small wellfield areas. Instead, low- yielding wells widely spaced from one another may be required [citation to Hole Montes Study]. As a consequence, it is not unlikely that most to all favorable recharge and water supply areas will eventually be within the cone of depression of one or more wellfields. Estimates of the safe yield of promising water supply areas north of the Caloosahatchee River have not been made, and will require additional data collection and on-site testing. For favorable areas south of the river, the Hole-Montes investigation concludes that the safe yield may be limited by environmental constraints to about 70 MGD, or only 23% of the averaged 301 MGD which would be required in 2010. Regional investigations are unanimous in their conclusion that land- use controls are necessary to preclude activities which, through increased runoff or water quality degradation, may decrease the potential safe yield of these shallow groundwater resources. There is no universal consensus as to the proper type of land-use controls which are needed to protect shallow groundwater resources. Lee County is in the forefront of communities which prohibit the use of many toxic substances near potable wells and protect the quality of discharges which may affect existing potable water wells. However, the weakness of the current regulations is that urban development can under certain circumstances take place in the very areas which are expected to provide the community's future water supply. However, Lee County is fortunate in that a very considerable portion of the overall land mass is available for development and in fact is more favorably suited for urban development than is the land in the prime groundwater resource areas. There is no need to choose between protecting future groundwater resources and limiting overall development opportunities. The Future Land Use Map designates ample land for urban development over the coming several decades. Therefore, a conservative approach can be taken which encourages urban development in accordance with the overall concepts of the Lee Plan, yet restricts such development in the prime groundwater resource areas. As more is learned about techniques for protecting these areas, it is possible that the restrictions against urban development can be modified. But there is no need to experiment with such a crucial part of the community's future at this time. Of course, reasonable use must still be allowed to land owners in these areas. An example of such uses are rural residential development at very low densities; limerock and fill dirt mining which cause no significant alteration of groundwater levels; all conservation uses; and continued agricultural activities. But urban development, with its resulting demands for improved drainage and associated commercial/industrial/institutional development, should not be permitted. To provide for protection of recharge and future water supply areas, the following changes are hereby made to the Lee Plan[.] Petitioners Exhibit 331.c, pages II-4 to II-12. The above-cited Data and Analysis also contain four figures: Montgomery Study Plates 83-85 (Figures II.D-1 through II.D-3, respectively), which show places with potential well development areas for public water supply, and Hole Montes Study Plate 19 (Figure II.D-4), which shows places with potential for additional groundwater development. The most relevant provisions of the Amended Plan are set forth below. Changes made by the Plan Amendments are shown by striking through deletions and underlining additions. Underlined portions of the Amended Plan are shown in boldface. Future Land Use Element (FLUE) Objective 1.4 divides "Non-Urban Areas" into three designations that "are not anticipated for urban development at this time." The designations are Rural, Outer Islands, and the new category, Groundwater Resource/Density Reduction. FLUE Policy 1.4.3 provides: 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. FLUE Objective 1.5 identifies "Environmentally Sensitive Areas," which "because of overriding environmental considerations" allow development "only at very low densities and intensities." Objective 1.5 divides "Environmentally Sensitive Areas" into two designations, Resource Protection Areas and Transition Zones, which are combined into a single designation on the FLUM. FLUE Policy 1.5.1 provides: The Resource Protection Areas include lands that exhibit soil types, hydrology, and vegetation characteristic of freshwater and saltwater wetlands. They are areas in which it is necessary to protect, conserve, restore, or preserve water resources systems and the biological functions attendant thereto. These areas are unsuitable for all but extremely low-density development for one or more of the following reasons: To prevent degradation of water quality. To prevent degradation of freshwater storage capabilities. To prevent the degradation of biological productivity. To prevent damage to property and loss of life due to flooding. To prevent degradation of the viability and diversity of native plants and animals and their habitats. To assure the conservation of irretrievable or irreversible resources. Permitted land uses in the Resource Protection Areas consist of very low density residential use and uses of a recreational, open space, or conservation nature that will not adversely affect the area's critical environmental character. The construction of ditches, canals, dikes, or additional drainage is prohibited. Roads above grade may be permitted under specific limited conditions as outlined in the Lee County Wetlands Protection Ordinance, as the same may from time to time be amended. Maximum density is one dwelling unit per forty acres (1 du/40 acre) except as otherwise provided in Table 1. FLUE Policy 1.5.2 states: The Transition Zones include lands that may be seasonally inundated from one to three months as indicated by water marks, do not have depressional soils, and are characterized by a mixture of plant species typical of uplands and wetlands. These areas consist of important water resource areas such as seasonal wet prairies; ephemeral ponds, and/or natural flow-ways and are associated with freshwater and saltwater wetlands. Transition Zones provide a hydrological connection between wetlands and uplands and provide protection and buffering of wetlands from fire, water pollutants, and exotic vegetation. Permitted land uses in the Transition Zones consist of very low density residential use and uses of a recreational, open space, or conservation nature that will not adversely affect the area's critical environmental character. The construction of ditches, canals, dikes, roads above grade, or additional drainage is prohibited unless it is demonstrated that such proposed construction will not: cause higher rates of runoff or degradation of water quality or retention capacity; increase the possibility of flooding; or otherwise alter the existing wetland systems. Maximum density is one dwelling unit per twenty acres (1 du/20 acre) except as otherwise provided in Table 1. FLUE Policy 1.8.5, which was added by the Plan Amendments, precludes the use of a planned unit development for areas designated Density Reduction/Groundwater Resource. Community Facilities and Services (Community Facilities) Element Goal 32 is: To ensure that future populations have access to potable water supplies and services at a reasonable price by using and encouraging conservation and resource management measures to reduce consumption of potable water. Community Facilities Element Objective 32.1 is to implement specified programs by specified dates to "reduce potable water consumption and consumption of large volumes of potentially potable raw water, by 5% by 1994." Community Facilities Element Goal 39 is: To protect the county's potential groundwater resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters. Community Facilities Element Objective 39.1 is to consider surface water runoff as a "possible resource" and requires the County to "consider integrating the use of surface water runoff in any supply program or strategy . . .." Community Facilities Element Policy 39.1.1 states: Lee County recognizes that all fresh waters are a resource to be managed and allocated wisely, and shall support allocations of the resource on the basis 1) of ensuring that sufficient water is available to maintain or restore valued natural systems, and 2) of assigning to any specified use or user the lowest quality fresh water compatible with that use, consistent with financial and technical constraints. Community Facilities Element Policy 39.1.2 provides: The County shall explore, and implement where financially and technically feasible, all existing options for storing and utilizing excess surface water runoff for human consumption and other uses. Such options may include surface impoundments; back-pumping to reservoirs, to upland wetlands, or to ground storage; and ground storage by ex-filtration systems or by aquifer storage and recovery systems. Maximum contaminant levels consistent with Florida DER and US EPA regulations governing receiving waters will be met through treatment as required. Excess surface water runoff shall be defined as the water not required to maintain, or to restore to either historic natural conditions or to some other acceptable state, the hydrograph of streams discharging to estuarine waters or other valued wetland systems. Community Facilities Element Policy 39.1.3 states: In the event that the timing and volume of fresh-water discharges necessary to maintain the health and productivity of estuaries and other wetlands cannot be determined or supported by existing scientific data, the County shall sponsor, in collaboration with other agencies, institutions, and organizations, adequate research programs to make such data available by 1995. Community Facilities Element Policy 39.1.4 states: 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. Community Facilities Element Objective 39.2 is to: Support a surface water management strategy that relies on natural features (flow ways, sloughs, strands, etc.) and natural systems to receive and otherwise manage storm and surface water. Community Facilities Element Objective 39.3 is: By 1990, Lee County shall provide sufficient performance and/or design standards for development protective of the function of natural drainage systems. Community Facilities Element Policy 39.3.1 is to: "Provide sufficient performance and design standards to require post-development runoff to approximate the total characteristics of the natural flow prior to development." Community Facilities Element Policy 39.3.4 states: "Natural flow patterns shall be publicly restored where such action is of significant public or environmental benefit, and feasible." Community Facilities Element Goal 41 is: "To protect the County's groundwater supplies from those activities having the potential for depleting or degrading those supplies." Community Facilities Element Objective 41.1 and related policies describe a wellfield protection ordinance to protect the "quality of water flowing into potable water wellfields." Community Facilities Element Objective 41.2 states: During 1989, the cCounty staff shall review all technical data identifying concerning aquifer groundwater recharge areas throughout in Lee County as it becomes available, and propose any necessary modifications to the Future Land Use Map or general county regulations necessary to protect or improve such areas. Community Facilities Element Policy 41.2.1 provides: Based on best available technical data, the County shall designate appropriate areas of the county as sources for future potable water supply and revise development regulations to preclude incompatible uses of this land. Community Facilities Element Policy 41.2.2 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. Community Facilities Element Objective 41.3 is to: Base all future development and use of groundwater resources on determinations of the safe yield of the aquifer system(s) in order not to impair the native groundwater quality or create other environmental damage. Criteria for safe-yield determinations shall be established through groundwater supply and surface water management studies over the years 1989-1993. Community Facilities Element Policy 41.3.1 states: For maximum protection of groundwater resources, identify future wellfields and/or relocation site(s) for existing wellfields well in advance of need. Coordinate with SFWMD, other water suppliers, and DER to avoid duplication and to assist in data collection and interchange. Community Facilities Element Policy 41.3.3 provides: Identify water needs consistent with projections of human population and the needs of natural systems in order to determine the future demands for groundwater. Expand current programs to identify and map the contamination potential of groundwater resources for those areas of Lee County not currently under public ownership. Conservation and Coastal Management (Conservation) Element Objective 84.3 states: Land uses and development designs must protect the values and functions of wetlands, and to the maximum extent possible, avoid the drainage, filling, isolation, and excavation of wetlands. Conservation Element Policy 84.3.3 states: "Absent overriding public needs, access roads and land development in the Resource Protection Areas and Transition Zones shall be strongly discouraged." Conservation Element Goal 87 is: "To conserve, manage, protect, and improve the natural hydrologic system of Lee County to insure continued water resource availability." Conservation Element Objective 87.1 is to: "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." Conservation Element Policy 87.1.1 states: "Natural water system features which are essential for retention, detention, purification, runoff, recharge, and maintenance of stream flows and groundwater levels shall be identified, protected, and managed." Conservation Element Policy 87.1.3 is to manage freshwater resources to "maintain adequate freshwater supplies during dry periods and to conserve water." On October 18, 1990, DCA issued a notice of intent to find the Plan Amendments in compliance. On November 16, 1990, Petitioners filed a petition challenging the determination and commencing the subject case. (One of the Petitioners in the present case, Intervenor Wiss, as Trustee, elected not to participate further in DOAH Case No. 89-1843GM.) In the negotiations between DCA and Lee County that culminated in the settlement agreement, each party approached the designation of the northwest part of Lee County from a different perspective. DCA was primarily interested in lowering densities in rural areas, and Lee County was primarily interested in protecting potential sources of potable water. Both interests were served by designating the entire 23-section area, of which the Property is a large part, as Density Reduction/Groundwater Resource with a density of one dwelling unit per 10 acres (1:10), except for smaller areas designated as Resource Protection Areas and Transition Zones. Much of Petitioners' challenge concerns the adequacy of the data and analysis supporting the Density Reduction/Groundwater Resource designation assigned to the Property. Prior to adopting the Plan Amendments, the County hired David Gomberg, Ph.D., a groundwater resources consultant, to determine whether data and analysis supported the Density Reduction/Groundwater Resource designations. County staff directed Dr. Gomberg to review available technical information related to groundwater resources in Lee County. The primary materials were the Hole Montes Study, Reconnaissance Report, Camp Dresser Report, and Montgomery Study (the Four Studies). County staff then requested Dr. Gomberg, following his review of the data and analysis, to prepare text to be incorporated into the Data and Analysis in support of the Plan Amendments. The Hole Montes Study, which is entitled the Lee County Water Master Plan, was completed in December, 1981, and presented to the County on January 26, 1982. The study includes a plan for the "development, protection, and management of water resources until 1995." The Hole Montes Study ignores northwest Lee County-- specifically all of Lee County west of US 41 and north of the Caloosahatchee River. Figure 9-1 (Petitioners Exhibit 51.a) shows two areas to be protected as sources of potable groundwater. One area, which is north of the Caloosahatchee River, is a narrow band running about 20 miles east-west from the vicinity of US 41 to the Hendry County line on Lee County's east boundary. This area abuts Charlotte County to the north. The other area encompasses most of the County south of the river and east of US 41, including the Lehigh Acres area. Much of the two areas are designated as Density Reduction/Groundwater Resource on the FLUM. The Hole Montes Study recommends that development in the two areas described in the preceding paragraph be required to meet certain standards, such as that post-development runoff be less than predevelopment runoff, historic wet season water levels be maintained, and the storage and use of pollutants be regulated. The Hole Montes Study defines the water table aquifer as the "saturated deposits between the water table and the top of the upper confining unit." Petitioners' Exhibit 51.b, page 19. The Hole Montes Study defines transmissivity as a "numerical expression of an aquifer's capability to transmit water." Id. at page 21. Concerning transmissivity, the Hole Montes Study elaborates: It is generally advantageous to site a wellfield where an aquifer has its highest transmissivities. In these areas fewer wells will be needed to meet demand, while producing the least detrimental effect upon water levels in the area. Id. With respect to its study area, which excludes the area of the Property, the Hole Montes Study recommends that, as to transmissivities, large wellfields tapping the water table aquifer are most suitable in the southeast part of the County. In the remainder of the study area, where transmissivities are lower, "large supply [wellfield] development would still be viable although somewhat more expensive." Id. at page 22. In general, though, the Hole Montes Study is of little additional value in supplying data and analysis directly relevant to the Density Reduction/Groundwater Resource designation given the Property. The Reconnaissance Report, which was completed in January, 1982, covers all of Lee County. Prepared by the South Florida Water Management District (SFWMD), the Reconnaissance Report was intended to "provide a basis for the optimal development and management of the groundwater resources in the area." Lee County Exhibit 52.a, page 4. The introduction to the report notes that this comprehensive hydrogeologic assessment and reevaluation of Lee County's groundwater was necessitated by various factors, including the "complexity of the hydrogeologic systems" that make it more difficult to "identify zones of high production within the aquifers" and the lowering of water levels caused by groundwater withdrawals due to the "relatively low transmissivities in some of the aquifers." Id. The Reconnaissance Report explains that aquifers are "rocks which will yield water in sufficient quantity to be valuable as a source of supply" and confining zones are "low permeability rocks which lie above, between or below aquifers." Lee County Exhibit 52.1, page 41. The report identifies five major aquifers or producing zones in Lee County. From highest elevation to lowest, they are the surficial aquifer, Sandstone aquifer, mid-Hawthorn aquifer, lower Hawthorn/Tampa producing zone (part of the Floridan aquifer), and Suwannee aquifer. Id. Plate 2 of the Reconnaissance Report shows the thickness of the surficial aquifer throughout Lee County. Six of the square-mile sections lying in the northcentral part of the Property are between the 50' and 75' contours. The remaining ten partial or whole sections constituting the Property lie between the 25' and 50' contours. Areas above the 50' contour are relatively thick for Lee County, according to Plate 2, and are surpassed only by the southeast corner of the County where the surficial aquifer thickness rapidly increases from 50' to over 125'. The Reconnaissance Report cautions that the surficial aquifer is hydrogeologically complex. The producing zones and transmissivities may be difficult to measure and locally variable due to a number of technical factors. The Reconnaissance Report indicates that the elevation of the water table aquifer is subject to significant seasonal fluctuations. The main source of recharge is direct infiltration of precipitation. However, rainfall averages through Lee County vary by a surprisingly large amount. According to the report, average annual rainfall over northwest Lee County is less than 48 inches and over southwest Lee County is more than 68 inches. Lee County Exhibit 52.a, page 67. The Reconnaissance Report identifies three other important sources of recharge to the surficial aquifer. They are subsurface inflow from adjacent areas, inflow from surface water bodies, and upward leakage from underlying semi-confined aquifers. There are six sources of loss of water from the surficial aquifer. The sources of discharge are flow into streams, springs, and lakes; direct flow into the Gulf of Mexico or various bays and sounds; evapotranspiration; downward leakage into underlying semi-confined aquifers; subsurface outflow to adjacent areas; and pumping from wells. The Reconnaissance Report summarizes that the major constraints on the availability of groundwater are well yield and water quality. The two major factors affecting well yield are transmissivity and storage. Based on a "subjective" analysis of these factors, the report concludes, in Figure 55, that Lee County may be divided into three areas in terms of development potential for the surficial aquifer: good potential, moderate potential, and poor potential. The only area of good potential is the southeast corner of the County corresponding roughly to where the surficial aquifer thickens quickly. The areas of poor potential are the barrier islands, Pine Island, a strip of 1-2 miles inland from Charlotte Harbor north of the Caloosahatchee River, a wider strip along the coast south of the river, a band about four miles wide encompassing the river, and the Lehigh Acres area. The remainder of the County, including the Property, is shown as moderate potential. This area corresponds roughly with the three areas designated Density Reduction/Groundwater Resource. Addressing the area north and west of the Caloosahatchee River on both sides of US 41, which includes the Property, the Reconnaissance Report states: This assessment [of moderate potential for the development of groundwater from the surficial aquifer] is based on lower transmissivity values (20,000 to 40,000 gpd/ft.) which are probably related to the fact that the aquifer is thinner in this area (25 feet to 40 feet). However, these areas also lack thick, highly permeable beds such as those found in [the southeast corner of the County]. However, water quality is generally acceptable in this area and moderate supplies could be developed with proper well construction and wellfield design. Wells finished in [the area of moderate potential] would probably yield less water than wells in [the southeast corner of the County]. Lee County Exhibit 52.a, page 161. The Reconnaissance Report recommends, among other things, the collection of additional data and the implementation of land use planning to protect major regional recharge areas of the surficial aquifer. Lee County Exhibit 52.a, pages 181-82. The Camp Dresser Report, which was prepared in November, 1987, addressed existing wellfields and was intended to assist the County in the preparation of a wellfield protection ordinance. The Camp Dresser Report contains no data or analysis particularly pertinent to the subject case, except that it found, after reviewing the available data, that the thickness of the water table aquifer at Well L-653 was 60 feet. The most recent and relevant of the Four Studies is the Montgomery Study, which was presented to Lee County on October 5, 1988. The study area includes all of Lee County as well as hydrogeologically relevant parts of surrounding areas. The study analyzes the water table, Lower Tamiami (which is part of the surficial aquifer system, but is located south of the Caloosahatchee River), Sandstone (which is part of the intermediate aquifer system), Mid- Hawthorn (which is part of the intermediate aquifer system), and Lower Hawthorn aquifers. The Montgomery Study stipulates four criteria as preconditions for the suitability of the water table aquifer for wellfield development. The factors are: aquifer thickness of at least 30 feet, transmissivity of at least 100,000 gallons per day per foot, chloride levels of no more than 250 mg/l, and consideration of existing wellfields and their proximity to any proposed wellfield. Petitioners' Exhibit 144.a, Table 4-1, page 4-2. For thickness, transmissivity, and storage, as well as other factors, the Montgomery Study collected substantial data and then statistically extrapolated results for locations for which direct data were not available. This process is called kriging. Defining transmissivity as "a measure of the ability of an aquifer to transmit water through the aquifer material to the well," the Montgomery Study explains that transmissivity is a product of the "hydraulic conductivity of an aquifer multiplied by the aquifer thickness." Petitioners' Exhibit 144.a, pages 4- 1 and 4-3. Given equal withdrawal rates and storage values, the greater the transmissivity value, the lesser the drawdowns. Addressing aquifer thickness, the Montgomery Study states: From a technical standpoint a wellfield can be developed in a water table aquifer if the transmissivity is high enough regardless of the thickness of the aquifer. However, from a wellfield protection standpoint, a minimum thickness of aquifer is necessary to prevent or retard a potential discharge of contaminants from immediate intake at the wellhead. . . . Valid arguments can probably be presented for a criterion involving either a greater or smaller aquifer thickness. To provide for a minimum of wellfield protection we have arbitrarily selected a thickness of 30 feet as a minimum thickness in this trade-off. This thickness has also been selected with the understanding that implementation in the future of a wellfield protection ordinance by Lee County will be necessary to properly protect a wellfield at this shallow depth. Petitioners' Exhibit 144.a, page 4-3. The Montgomery Study warns that wetland impacts from wellfields in the water table aquifer must be evaluated on a case-by-case basis. The study finds that water levels are declining in the water table aquifer, despite the readily available surface water recharge. About 56% of the wells in the water table aquifer show declining water levels. But the problem of declining water levels is even worse in the intermediate aquifers and almost as bad in the Lower Hawthorn aquifer. Petitioners Exhibit 144.a, page 4-34. Cautioning that "[q]uantification of absolute amounts of ground water which are available for use is very difficult," the Montgomery Study calculates "on a gross scale" the amount of water that may be available for withdrawal from each of the studied aquifers. Petitioners' Exhibit 144.a, page 4-28. To permit closer evaluation of potential drawdown issues, the analysis of the water table aquifer considers total storage, storage in the top two feet of saturated aquifer, and storage in the top foot of saturated aquifer. Id. at page 4-30. The Montgomery Study concludes: The Water Table aquifer in conjunction with the Lower Tamiami aquifer and the Lower Hawthorn aquifer are the major potential aquifer sources of water supply to Lee County. . . . [T]he Water Table and Lower Hawthorn aquifers have the highest storage values of all the aquifers. Water availability from the Water Table aquifer is not precisely known. However, based on the amount of storage available from even a one or two foot thickness of the Water Table aquifer, a significant amount of water is available. Extraordinary measures for withdrawal may be necessary, including: (1) using large well spacings to reduce drawdowns near wetlands, (2) developing smaller wellfields rather than large supplies, and (3) mitigation of impacts on wetlands such as by discharge of water into wetlands to eliminate drawdown impacts or development of replacement wetlands by use of Caloosahatchee River water. Development of the pending three dimensional ground water flow model by the SFWMD will shed additional light and perhaps provide a more quantitative estimate of water availability from the Water Table aquifer. Petitioners' Exhibit 144.a, page 4-45. The Montgomery Study finds that the entire County is a recharge area for the water table aquifer. Petitioners' Exhibit 144.a, Table 4-43, page 4- 118. The study notes that natural groundwater aquifer recharge areas provide numerous benefits, including the capture and filtration of water for vertical flow, the supplying of an energy gradient that will make groundwater flow into an aquifer, the supplying of potentiometric head and groundwater flow to retard the inland movement of salt water, the supplying of better-quality water requiring less treatment in connection with wellfield development, and the growth and development of wetlands. As to the wetland function of natural recharge areas, the Montgomery Study continues: In Lee County, wetlands abound over the recharge area for the Water Table aquifer. Wetlands have formed over the recharge area because water levels are above or close to the surface of the Water Table aquifer most of the year. The indication is that wetlands will form over a recharge area when the aquifer tends to be overflowing or close to fully recharged. Wetlands have intrinsic value as part of the natural resources of Lee County. Wetlands also act as buffers to the water level and level of recharge within the aquifer. Wetlands accept both surface water runoff and discharge from the Water Table aquifer during the wet seasons when water levels are high. During the dry season, when water levels are low, the wetlands in turn provide recharge to the aquifer. Petitioners' Exhibit 144.a, page 4-126. Montgomery Study Plate 83 shows where in the County existing and proposed wellfields are located with regard to the water table aquifer. Most of Lee County bears no marking, indicating that it is unsuitable for wellfield development in the water table aquifer. However, Plate 83 also bears three other designations. One area in south Lee County is marked: "Areas which appear hydrologically suitable for well development but will require wetland mitigation." Most of the portion of this area in Lee County adjoins vast areas of wetlands that are marked: "Wetlands--Not suitable for well development." Smaller areas in north Lee County are marked: "Areas where well development may be possible--will require additional investigation and wetland mitigation." These areas include almost the entire extent of the Property, as well as two other areas of similar size along the north Lee County border. Much of the northcentral part of the Property also bears a Wetland designation. Lee County used other sources of data and analysis concerning the suitability of the Density Reduction/Groundwater Resource designation for the Property. For instance, Map I-12 of the Southwest Florida Regional Plan's data and analysis shows Gator Slough as one of the 15-20 major sloughs and swamps in the entire six-County region. Generally, the findings of these other sources conform to the findings contained in the Four Studies. Each of the Four Studies was prepared by qualified persons with appropriate areas of expertise, including hydrogeology. The Four Studies meet all relevant professional standards, as do the methodologies employed in connection with investigations conducted as part of the Four Studies. The Four Studies are not flawless. Originally, the Montgomery Study was to include extensive field testing, which was not performed for financial reasons. Other shortcomings were identified by Petitioners' expert, Thomas M. Missimer, who is the founder and principal hydrogeologist of the firm of Missimer and Associates, Inc. Mr. Missimer based his testimony not only on his considerable technical expertise, but also on an unusually extensive experience of the hydrogeology of the area. Mr. Missimer's work as far back as 1976 appears as a source of the Four Studies. Most significantly, Mr. Missimer testified that the aquifer thickness data for well L-653 is incorrectly reported as 60 feet when it in fact was only 20 feet. The Reconnaissance Report, Camp Dresser Report, and Montgomery Study all rely on the 60-foot value. Given the absence of data points in the area of well L-653 and its location on the northern edge of the Property, the accuracy of the aquifer thickness value significantly affects the kriged aquifer thickness value extrapolated for the water table aquifer under the Property. Based on Mr. Missimer's testimony, the evidence is, to the exclusion of fair debate, that the correct value for the aquifer thickness of well L-653 is 20 feet and the extrapolated value for the thickness of the water table aquifer underneath the Property is considerably less than as stated in the Montgomery Study. According to Mr. Missimer's testimony, which is credited on this point, the appropriate dry-season water table aquifer thickness for the Property ranges from 18-23 feet. More accurate data, rather than extrapolations, for the water table aquifer under the Property are not available partly due to Petitioners' refusal in 1984 to allow a County official to conduct field tests on the Property in order to determine the characteristics of the water table aquifer. The only field testing done in connection with the subject case was performed by Mr. Missimer, but was not available to the County until after it had adopted the Plan Amendments and thus was excluded. In any event, the evidence does not establish to the exclusion of fair debate that the criteria of 30-foot aquifer thickness and transmissivity of at least 100,000 gallons per day per foot used in the Montgomery Study represent minimum requirements for wellfield development. In other words, the evidence fails to prove by the requisite standard that an area designated Density Reduction/Groundwater Resource for potential water table aquifer wellfield development must meet the Montgomery Study criteria or else the designation lacks support from the data and analysis. Mr. Missimer also informed the County Commission during its March 27, 1990, public hearing on the Plan Amendments that the Montgomery Study omitted test data from five test wells located in northwest Lee County near the Property. It is unnecessary to determine whether these data met the screening requirements of the Montgomery Study and earlier studies or reports that also omitted these data. Even with the data from these five test wells, according to Mr. Missimer, the water table aquifer transmissivity on the Property would be extrapolated to 10,000-20,000 gallons per day per foot, except for a small area near US 41 with a maximum transmissivity of 25,000 gallons per day per foot. The transmissivity values offered by Mr. Missimer are at the low end of the 20,000-40,000 gallons per day per foot values referenced in the Reconnaissance Report. Although the aquifer thickness of 18-23 feet is just below the 25-40 foot thickness stipulated in the Reconnaissance Report, the Reconnaissance Report, like the Montgomery Study, does not establish minimum standards from which a local government may not deviate without repudiating the prevailing data and analysis. Petitioners have failed to prove to the exclusion of fair debate their key assertion--i.e., that the Plan Amendments are not based on relevant and appropriate data. Relative to other parts of Lee County, the three areas designated Density Reduction/Groundwater Recharge are the most suitable for the development of wellfields. The permitted low-density and -intensity land uses are entirely consistent with the protection of the potential of the area for wellfield development, while still allowing affected landowners reasonable use of their property. Although the entire County provides recharge to the water table aquifer, areas relatively undeveloped will allow more rainfall to enter the water table aquifer at the point where the rainfall falls rather than be lost to evapotranspiration or drainage improvements that accompany the installation of impervious surface. Petitioners are trying to impose a higher degree of precision on the data and analysis than the data and analysis permit. Projections of aquifer thickness and transmissivity are not traffic counts. Setting "minimum" standards for these values, as an indication of an area's potential for wellfield development, is not as exact a process as calculating the volume- to- capacity ratios defining different levels of service on road segments. The "minimum" standards on which Petitioners heavily rely are necessarily arbitrary to a certain extent, as conceded by the Montgomery Study. Equally important, the "minimum" standards for aquifer thickness and transmissivity are directly related to each other (e.g., a higher transmissivity may allow the use of a thinner aquifer). And the aquifer thickness is inversely related to the extent of land use restrictions imposed on areas in the cones of influence of water wells (i.e., stricter land use restrictions may allow the use of a thinner aquifer). The Data and Analysis accompanying the Plan Amendments adequately respond to the underlying data and analysis, including the Four Studies. The salient facts are fairly simple. To meet increasing demand, Lee County must tap a wider range of its potable water resources. Lee County will very likely be forced to withdraw increasing amounts of water from the water table aquifer for the production of potable water. Despite low values for aquifer thickness and transmissivity (relative to ideal conditions), the Property has reasonable potential, under the circumstances, for the development of the water table aquifer, most likely through a decentralized system of smaller wells in order to protect wetlands and, by so doing, the water table aquifer itself. And it is vital that Lee County carefully regulate the densities and intensities permitted on the Property in order to protect the quality and quantity of water in the water table aquifer. The data and analysis, which are accurately summarized in the Data and Analysis accompanying the Plan Amendments, support the designation of the Property as Density Reduction/Groundwater Resource, as well as Resource Protection Areas and Transition Zones. For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that the data supporting the Plan Amendments were not collected and applied in a professionally acceptable manner, that the Plan Amendments are not based on the best available data, and that special studies forming part of the data and analysis did not use appropriate, clearly described methodologies or did not meet professionally accepted standards. More data and more complex models can always yield more reliable results. But the evidence in this case establishes the validity of the data on which the County relied and the ensuing analysis in terms of the establishment of the Density Reduction/Groundwater Resource designation on the Property. The shortcomings of the Montgomery Study in particular were not material and, in any event, were far short of what Petitioners would have to show in order to determine that the study did not use appropriate methodologies or meet professionally acceptable standards or even that the Montgomery Study did not represent the best available existing data. Likewise, Lee County's use of the Four Studies was also appropriate. To the extent that the sufficiency of the data and analysis submitted to DCA even provides a basis for determining that a plan or plan amendment is not in compliance, Petitioners have failed to prove to the exclusion of fair debate that DCA did not have sufficient data and analysis to determine whether the Plan Amendments were in compliance. The relevant Data and Analysis accompanying the Plan Amendments were derived from Dr. Gomberg's summation of the data and analysis, especially the Four Studies. The Data and Analysis were a fair, suitably detailed representation of the relevant findings and conclusions in the Four Studies. As such, the Data and Analysis gave DCA a reasonable opportunity to conduct a review of the materials and reach an informed compliance determination concerning the Plan Amendments or, where appropriate, the Amended Plan. For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that Lee County did not have available for public inspection during the adoption proceedings copies of all data and analysis or that Lee County did not comply with all requirements of notice and public participation. Petitioners have failed to prove to the exclusion of fair debate that the Amended Plan lacks a policy addressing implementation activities for the protection of environmentally sensitive lands. In the context of the present case and the relief sought by Petitioners, the above-cited provisions of the Amended Plan adequately address the protection of environmentally sensitive lands. The data and analysis make it clear that any significant drawdown of adjacent wetlands will deplete the water table aquifer at the most critical time--during the winter dry months when seasonal demand is high. The provisions of the Amended Plan adequately address the threat to adjacent wetlands posed by the development of wellfields in the water table aquifer. Petitioners have failed to prove to the exclusion of fair debate that the Plan Amendments cause the FLUM not to reflect the operative provisions of the Amended Plan. The FLUM clearly reflects that the Property is designated exclusively Density Reduction/Groundwater Resource and Resource Protection Areas and Transition Zones. Petitioners have failed to prove to the exclusion of fair debate that the Amended Plan is internally inconsistent. Limiting residential densities to 1:10, FLUE Policy 1.4.3 also indicates, among other things, that "[l]and uses in [the Density Reduction/Groundwater Resource] areas must be compatible with maintaining surface and groundwater levels at their historic levels." Nothing in the policy implies that this requirement is suspended if and when the area is converted to potable water production. As a practical matter, the County cannot ignore the vital interrelationship between the water table aquifer and nearby wetlands without risking the destruction of the water table aquifer as a source of potable water. Acknowledging the interrelationship between the water table aquifer and nearby wetlands, Conservation Element Objective 84.3 requires that land development "protect the values and functions of wetlands, and, to the maximum extent possible, avoid the drainage, filling, isolation, and excavation of wetlands." Conservation Element Policy 84.3.3 discourages access roads and land development in Resource Protection Areas and Transition Zones. These provisions are not frustrated by a designation of surrounding areas at a density of 1:10 with the possibility of wellfield development. Again, the long-term viability of any wellfield on the Property is dependent upon the preservation of prevailing wetland water elevations, as well as the maintenance of adequate natural recharge areas. Community Facilities Element Objective 41.2 is for County staff to review technical data concerning groundwater recharge areas in Lee County and propose modifications to the FLUM as necessary to protect or improve areas of groundwater recharge. Community Facilities Element Policy 41.2.1 requires the County, based on the best available technical data, to designate areas for future potable water supply and to preclude incompatible land uses. Community Facilities Element Policy 41.2.2 merely identifies the new Density Reduction/Groundwater Resource designation, which shall be applied to "protect the county's groundwater resources and principal recharge areas." As discussed above, nothing in FLUE Policy 1.4.3 or the designation of the Property as Density Reduction/Groundwater Resource conflicts with the provisions of the Amended Plan set forth in this paragraph. The water table aquifer under the Property is the site of groundwater resources and the available recharge is relatively good given the undisturbed state of the land. For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that the Plan Amendments, Amended Plan, or adoption process is inconsistent with Regional Plan Policies 8.B.3, 10.A.2, 10.A.3, 16.A.3.a, 16.A.3.c, 16.B.1.a, 25.C.2, 25.C.3, and 25.C.4. The cited provisions from the Regional Plan involve protecting various natural resources, such as wetlands and groundwater, planning for a mixture of land uses, and providing effective public participation in the planning process. For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that the Plan Amendments are inconsistent with the State comprehensive plan provisions, which involve the protection of wetlands and protection and restoration of wetland systems.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Administration Commission enter a final order dismissing the Amended Petition of Petitioners. ENTERED on December 16, 1992, in Tallahassee, Florida. ROBERT E. MEALE 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 on December 16, 1992.
The Issue The issue to be resolved in this proceeding concerns whether Lagoon Oaks, Inc., (Petitioner) is entitled to an award of attorney's fees, pursuant to Section 57.111 Florida Statutes, by becoming a prevailing party in accordance with the final order issued by the Department of Health and Rehabilitative Services (Department) in the underlying case related to this proceeding which is Case No. 95-4394. The primary issue concerns whether the Agency's intended action was "substantially justified." Additionally it must be determined whether the Petitioner is a "small business party" in terms of its net worth.
Findings Of Fact The preponderance of the testimony and evidence of record establishes that the Petitioner, Lagoon Oaks, Inc.'s domicile and principal office is located in Panama City, Bay County, Florida. Lagoon Oaks is a de Jure Florida corporation. It has no employees and has a net worth which does not exceed $2 million. Additionally, it is established that Lagoon Oaks, Inc., is a "prevailing small business party," inasmuch as the above- referenced final order has been entered by the Department granting Lagoon Oaks' permits, which were originally denied, thereby sustaining Lagoon Oaks' position that it was entitled to the permits pursuant to applicable Florida Statutes and Rules. That order has not been reversed on appeal and the time for seeking judicial review thereof has expired. Further, this case qualifies as an "administrative proceeding pursuant to Chapter 120 initiated by a state agency." The agency herein was required by law to advise the Petitioner of a clear point of entry after some recognizable event in the investigatory or other proceeding by the agency, to wit, the denial of the sought permits. See Section 57.111(3)(b), Florida Statutes. The Petitioner has requested and the undersigned takes "judicial notice" of the original record in this proceeding including the transcript of the hearing in DOAH Case No. 95-4394, pursuant to Rule 60Q.2010, Florida Administrative Code. The Findings of Facts and Conclusions of Law in the Recommended Order entered by the undersigned in that proceeding are hereby adopted and incorporated by reference herein as well. In the final order entered, the Department found and conceded that: ". . . the Department did not follow the applicable rules in Chapter 10D-6 Florida Administrative Code, in denying the permit applications. The site evaluation forms do not identify a recognizable water body (ie. a normally wet drainage ditch), nor do they establish the presence of surface water for the requisite 72 hours following rainfall. The forms do not indicate the setback which exists from the proposed system to the disputed feature. The forms are not signed or dated. The observed water table and estimated wet season water table are not provided, nor is high water table vegetation indicated. The extensive soil sampling that was detailed at the hearing is not described. Much of the evidence tending to demonstrate the presence of a surface water apparently was not gathered until well after the permits were denied. Finally, the denial letter, as noted by the hearing officer, references a 'normally wet area' which is not a 'surface water' feature described in statute or rule that may justify denial of a septic system permit. (footnotes omitted)." The Department has thus conceded that it did not follow its own rules in denying these permits, that the documentation allegedly supportive of the denial was incomplete and did not justify the denial and that much of the evidence tending to demonstrate the presence of a surface water apparently was not gathered until well after the permits were denied. Thus, when the intended agency action was taken (the denial) by the Department's own admission, it had not gathered much of the evidence which it contended supported its position concerning presence of the surface water involved in the underlying proceeding. Attorney's fee affidavits required by Section 57.111(4)(b)1. Florida Statutes and submitted by the Petitioner demonstrate that Lagoon Oaks incurred the sum of $17,950.00 in attorney's fees and $2,281.98 in costs in the course of this proceeding. Additionally, the affidavit of R. Steve Lewis, Esquire, illustrates that Lagoon Oaks incurred an additional $2,707.50 in attorney's fees for services he performed for this proceeding (This is not inclusive of any fees or services for which Mr. Lewis might have become entitled for work done unrelated to the subject proceeding). The attorney's fees submitted and represented by affidavit (Exhibit E) by Attorney Lee Killinger, counsel of record, alone exceed the $15,000.00 limit provided for in Section 57.111(4)(d)2, Florida Statutes. Testimony and evidence adduced at hearing demonstrates that the fees and costs claimed are reasonable under the circumstances of the underlying case and this proceeding.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Alfred C. Wicht, has been registered as a pool contractor, license numbers RP 0026439 and RP A026439. At all times material herein, Respondent was the qualifier for Heritage Pools, Inc. On or about August 1, 1978, Heritage Pools, Inc. entered into a contract with Pacesetter Homes, Inc. to install a swimming pool at 3530 North 30th Terrace, Hollywood, Florida, for the sum of $5,350.00. Heritage Pools, Inc. commenced construction and completed the pool through the gunite and tile stage and received draw payments totaling approximately $4,295.00. About April or May, 1979, the pool popped out of the ground through no fault of the Respondent. The Respondent made some effort at repairing the pool and placing it back in the ground from the date it popped out through October, 1979. Respondent conceded that he delayed completing his repairs on the pool by virtue of the expense it was causing to his company and his belief that Pacesetter Homes, Inc. should have provided financial assistance. On or about December 5, 1979, Pacesetter Homes, Inc. learned that the pool could not be repaired and hired Electra Pools, Inc. to take out the pool initially installed by Respondent, and install a new pool in its place.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter its Final Order dismissing the charges contained in the Administrative Complaint. DONE and ENTERED this 27th day of May, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1983. COPIES FURNISHED: Michael Cohen, Esquire Suite 101, Kristin Bldg. 2715 E. Oakland Park Blvd. Ft. Lauderdale, Florida 33306 Alfred C. Wicht 6701 Cypress Rd., #108 Plantation, Florida 33317 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
