The Issue The issues presented for determination are whether Florida Housing Finance Corporation’s determination that the three applicant-parties were eligible for the allocation of low-income housing tax credits; and its intended decision to award such tax credits to Ocean Breeze East Apartments, LLC, are contrary to governing statutes, rules, or the solicitation specifications.1/
Findings Of Fact Parties and Process Florida Housing is a public corporation and, for the purposes of these proceedings, is an agency of the State of Florida. Pursuant to section 420.5099, Florida Statutes, Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code and has the responsibility and authority to establish procedures for allocating and distributing low-income housing tax credits.3/ Florida Housing is authorized by law to allocate tax credits (and other funding) by means of requests for proposal or other forms of competitive solicitation. On October 6, 2017, Florida Housing published the RFA, starting the competitive application process being challenged in this proceeding. Completed applications were due December 28, 2017.4/ As explained below, all of the non-agency parties (HTG Heron, Channel Side, and Ocean Breeze) in this case applied for funding for a proposed development in Palm Beach County. According to the terms of the RFA, only one application for each county was to be funded. Moreover, the RFA’s stated goal was to fund one application wherein the applicant applied and qualified as a non-profit applicant. This non-profit goal did not apply within each of the six counties included in this RFA; one non-profit applicant in any of the six counties could satisfy the non-profit applicant goal for the entire RFA. No challenges were made to the terms or requirements of the RFA. HTG Heron is an applicant to the RFA, requesting an allocation of $1,541,751.00 in competitive tax credits. Its application, assigned number 2018-289C, was deemed eligible for consideration but was not selected for funding under the RFA. Channel Side is also an applicant to the RFA. It is requesting an allocation of $2,100,000.00 in competitive tax credits. Its application, assigned number 2018-278C, was deemed eligible for consideration but was not selected for funding under the RFA. Ocean Breeze is an applicant requesting an allocation of $2,070,000.00 in competitive tax credits. Its application, assigned number 2018-286C, was deemed eligible for consideration and was selected for funding under the RFA, subject to a credit underwriting review process. Florida Housing has adopted Florida Administrative Code Chapter 67-60 to govern the competitive solicitation process for several different programs, including the tax credit program. See § 420.507(48), Fla. Stat. The bid protest provisions of section 120.57(3) are adopted as part of the process for allocating tax credits, except that no bond is required. See Fla. Admin Code R. 67-60.009. A review committee was appointed to evaluate the applications and make recommendations to Florida Housing’s Board of Directors (the Board). Thirty-three applications for the RFA were received, processed, deemed eligible or ineligible, scored, and ranked, pursuant to the terms of the RFA; Florida Administrative Code Chapters 67-48 and 67-60; and applicable federal regulations. The review committee found 25 applications eligible and eight applications ineligible. Through the ranking and selection process outlined in the RFA, seven applications were recommended for funding, including Ocean Breeze. The review committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On March 16, 2018, the Board met and considered the recommendations of the review committee for the RFA. The same day, the applicants to the RFA received notice of the Board’s determinations as to whether the applications were eligible or ineligible for consideration for funding, and which of the eligible applicants were selected for award of tax credits, subject to satisfactory completion of a credit underwriting process. Such notice was provided by the posting of two spreadsheets, one listing the “eligible” applications to the RFA and one identifying the applications which Florida Housing proposed to fund.5/ Relevant to this proceeding, Florida Housing announced its intention to award funding for Palm Beach County to Ocean Breeze, which received the maximum points available. Channel Side and HTG Heron were deemed eligible and scored the maximum number of points, but were not recommended for funding. Each applicant-party timely filed a Notice of Protest and Petition for Formal Administrative Proceedings. RFA The RFA contemplated a structure in which each applicant is scored on eligibility items and obtains points for other items. To determine if an application is eligible for funding, it must meet all of the requirements listed in section 5.A.1, of the RFA. The following eligibility terms and requirements are challenged in this proceeding: The evidence of control of the development site (site control) by Ocean Breeze and Channel Side; and The address of the development site provided by HTG Heron. For scoring the applications, the RFA allows up to a total of 20 points with the following point allocations: Submission of Principal Disclosure form stamped by Corporation as “Pre-Approved” (5 points); Development Experience Withdrawal Disincentive (5 points); and Local Government Contribution Points (5 points) or Local Government Area of Opportunity Points (10 points). As explained in pages 66-67 of the RFA, the first step in evaluating the applications is the sorting order. All eligible applications are ranked by first sorting all eligible applications from the highest score to the lowest score, with any scores that are tied separated in the following order: First, by the Application’s eligibility for the Proximity Funding Preference (which is outlined in Section Four A.5.e. of the RFA) with Applications that qualify for the preference listed above Applications that do not qualify for the preference; Next, by the Application’s eligibility for the Per Unit Construction Funding Preference which is outlined in Section Four A.11.e. of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s eligibility for the Development Category Funding Preference which is outlined in Section Four A.4.b.(4) of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s Leveraging Classification, applying the multipliers outlined in Item 3 of Exhibit C of the RFA (with Applications having the Classification of A listed above Applications having the Classification of B); [sic] Next, by the Application’s eligibility for the Florida Job Creation Funding Preference which is outlined in Item 4 of Exhibit C of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); and [sic] And finally, by lottery number, resulting in the lowest lottery number receiving preference. In other words, those competing for the RFA must first submit an application that meets all the eligibility criteria and does not have any significant omissions or errors before it is scored. After scoring, any tiebreakers are determined strictly by the luck of the draw. After applications are filed, but before they are scored, Florida Housing randomly assigned each a lottery number, and the highest scoring applicant with the lower number wins any ties, thus becoming the intended funding recipient. The notice of the intended award does not end the process, and the selection of an applicant for funding does not guarantee distribution of tax credits to that applicant. Florida Housing’s representative, Ms. Button, explained at the hearing: Q Okay. What happens once a preliminary agency action from Florida Housing becomes final agency action? A The awardees who are recommended or preliminarily approved for funding, once that becomes final, those applicants are then invited to credit underwriting by Florida Housing. * * * Q Can you provide some general information about credit underwriting? A Credit underwriting is essentially a de novo review of all the information that the applicant has provided in their application to proceed forward with the proposed development. Florida Housing retains their party underwriters who review that information and provide recommendations to Florida Housing. Similarly, the RFA provides that each selected awardee must complete a credit underwriting process before receiving funding or credits. The RFA states on page 68: Notwithstanding an award by the Board pursuant to his RFA, funding will be subject to a positive recommendation from the Credit Underwriter based on criteria outlined in the credit underwriting provisions in Rule Chapter 67-48, F.A.C. Rule 67-48.0072, in turn, provides in part: Credit underwriting is a de novo review of all information supplied, received or discovered during or after any competitive solicitation scoring and funding preference process, prior to the closing on funding, including the issuance of IRS Forms 8609 for Housing credits. The success of an Applicant in being selected for funding is not an indication that the Applicant will receive a positive recommendation from the Credit Underwriter or that the Development team’s experience, past performance or financial capacity is satisfactory. Thus, an application might fail in this de novo credit underwriting phase and never receive funding, even though it was “awarded” tax-credit funding as a result of a proceeding such as this one. In that event, page 67 of the RFA provides: 4. Returned Allocation Funding that becomes available after the Board takes action on the [Review] Committee’s recommendation(s), due to an Applicant withdrawing its Application, an Applicant declining its invitation to enter credit underwriting, or an Applicant’s inability to satisfy a requirement outlined in this RFA and/or Rule Chapter 67-48, F.A.C., will be distributed as approved by the Board. Therefore, if an intended applicant (such as Ocean Breeze), was nominally selected for funding at the end of the eligibility and scoring phase, but failed to garner a positive recommendation from the credit underwriting process, the next eligible applicants in the queue (such as HTG Heron and Channel Side) would be awarded the tax credits. As a result, in this consolidated proceeding, the objective of Petitioners is to displace any and all applicants in more favorable positions. Here, Petitioner Channel Side challenges the eligibility of both the Ocean Breeze and HTG Heron applications; and Petitioner HTG Heron challenges the eligibility of Ocean Breeze. Ocean Breeze, in turn, challenges both HTG Heron’s and Channel Side’s eligibility. The specific issues raised as to the three challenged applications will be discussed below. OCEAN BREEZE APPLICATION HTG Heron and Channel Side challenge Ocean Breeze’s eligibility based on the RFA requirements relating to site control. The parties have stipulated, and the undersigned finds, that site control must have been demonstrated as of the application deadline of December 28, 2017. The RFA provides three ways an applicant can demonstrate site control: (1) eligible contract, (2) deed or certificate of title, or (3) lease. Ocean Breeze utilized the first method to satisfy the site control requirement by submitting a document titled “Purchase and Development Agreement” (PDA) as Exhibit 8 to its Application. The PDA included two attachments: the “Legal Description” and a “Reverter Agreement.” Petitioners challenge the enforceability of the PDA on two apparent grounds: (1) it was not executed by the applicant6/; and (2) it was executed before the applicant was properly incorporated to do business within the State of Florida. The RFA, however, does not mention “enforceability” of a contract in its definition for “Eligible Contract.” The requirements for establishing site control though an eligible contract are found on page 30 through 31 of the RFA. Eligible Contract - For purposes of this RFA, an eligible contract is one that has a term that does not expire before June 30, 2018 or that contains extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018; specifically states that the buyer’s remedy for default on the part of the seller includes or is specific performance; and the buyer MUST be the Applicant unless an assignment of the eligible contract which assigns all of the buyer’s rights, title and interests in the eligible contract to the Applicant, is provided. Any assignment must be signed by the assignor and the assignee. If the owner of the subject property is not a party to the eligible contract, all documents evidencing intermediate contracts, agreements, assignments, options, or conveyances of any kind between or among the owner, the Applicant, or other parties, must be provided, and, if a contract, must contain the following elements of an eligible contract: (a) have a term that does not expire before June 30, 2018 or contain extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018, and (b) specifically state that the buyer’s remedy for default on the part of the seller includes or is specific performance. The initial paragraph of the PDA identifies the parties to the PDA as “Boyton Beach Community Redevelopment Agency,” as the “Seller,” and “Ocean Breeze East Apartments, LLC” as the “Purchaser.” Paragraph 14 of the PDA designates the following for purposes of notices: If to Purchaser: Ocean Breeze East Apartments, LLC Attn: Lewis Swezy 7735 NW 146 Street, Suite 306 Miami Lakes, FL 33016 Under the signature block, however, the PDA states it was executed on behalf of the “Purchaser” by “OCEAN BREEZE APARTMENTS LLC By Ocean Breeze East GP LLC” and signed by Lewis Swezy, “Title: Authorized Member” on December 8, 2017. “Ocean Breeze East, GP, LLC” does not exist and never has in Florida. The parties admit that this entity was not in existence on December 8, 2017, and was never subsequently formed. Ocean Breeze admits the identification of “Ocean Breeze East, GP, LLC” was in error. The PDA was executed on behalf of the “Seller” by BBCRA and signed by Steven B. Grant, “Title: Chair” on December 15, 2017. Paragraph 4 of the PDA indicates that its effective date is the date when the last party signed the PDA; in this case being the date the BBCRA executed the document--December 15, 2017. The Reverter Agreement is executed by the “Purchaser” “Ocean Breeze East Apartments, LLC” and signed by Lewis Swezy, “Title: Manager of Manager,” on December 12, 2017. The Reverter Agreement is executed by the “Seller,” BBCRA, and signed by Steven B. Grant, “Title: Chairman” on December 15, 2017. Mr. Swezy testified Ocean Breeze complied with all the terms of the PDA, including submitting an initial $25,000 deposit within two days of full execution of the PDA and a second deposit within 30 days. The Articles of Organization for Ocean Breeze East Apartments, LLC were filed on December 19, 2017, and effective December 14, 2017. Rachael Grice, Florida Housing Multifamily Programs Manager, scored the site control portion for this RFA based on the information in the application. Mrs. Grice found that Ocean Breeze met the RFA requirements for site control. It is unnecessary, and beyond the scope of the undersigned’s jurisdiction, to make a factual or legal determination as to the enforceability of the PDA. The RFA does not mention enforceability or validity as requirements for an “Eligible Contract” for site control purposes. There is no dispute that on its face, the PDA with the Reverter Agreement satisfied the RFA’s requirements for an “Eligible Contract” listed on page 30 and 31. In fact, as of the date of the application deadline the following was true: Ocean Breeze East Apartments, LLC, was listed as the applicant for the RFA. Ocean Breeze East Apartments, LLC, was listed as the “Purchaser” on the PDA. Mr. Swezy had signature authority to bind Ocean Breeze and was listed on the Ocean Breeze application as the “Authorized Representative.” Ocean Breeze East Apartments, LLC, and Mr. Swezy were identified in the notice provision in the PDA. The Reverter Agreement, which was signed after the PDA, correctly identified the applicant entity as Ocean Breeze East Apartments, LLC. Effective December 14, 2017, Ocean Breeze was incorporated. The PDA was fully executed on December 15, 2017. HTG Heron and Channel Side have not established that the PDA was fatally flawed or that Florida Housing erred in accepting the PDA as an “eligible contract” satisfying the RFA’s site control requirement. Even if the PDA contained errors by listing “Ocean Breeze East GP, LLC” in the signature block or was prematurely signed before Ocean Breeze was effectively incorporated, the evidence at the hearing established that it was a minor irregularity waivable by Florida Housing, and that Florida Housing would have waived any such errors. If the PDA is ultimately determined to be unenforceable and site control is not established at the credit underwriting stage, Petitioners would be next in line to be selected to receive the tax credits under the terms of the RFA. The preponderance of the evidence established that Ocean Breeze’s application is eligible for funding, it received the proper scoring, and should be the intended award for Palm Beach County. HTG HERON APPLICATION Channel Side and Ocean Breeze challenge the eligibility of the HTG Heron application because they claim it fails to satisfy the RFA eligibility requirement to provide a correct address of the proposed development site. Page 18 of the RFA requires in relevant part: Indicate (1) the address number, street name, and name of city, and/or (2) the street name, closest designated intersection, and either name of city or unincorporated area of county. Ms. Button testified the purpose of the address requirement in the RFA is to allow parties, including Florida Housing, to know where the proposed development will be built and to ensure the property has access to utility and other services. In that vein, the RFA does not require the street identified in an application to be a publicly maintained street. In its application, HTG Heron provided the address of the proposed development as “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach,” along with latitudinal and longitudinal coordinates of the development location. Ryan McKinless, Multifamily Programs Senior Analyst for Florida Housing, scored the development address section for this RFA. Mr. McKinless found that HTG Heron met the requirements in the RFA for providing an address of the proposed development. Here, Channel Side and Ocean Breeze argue Florida Housing erred in accepting the “W. 17th Ct.” address provided by HTG Heron because the address does not exist. They point to the site sketch submitted by HTG Heron in support of its application which references a “W. 17th Street” (not “W. 17th Ct.”) and has “W. 17th Street” intersecting with “Congress Avenue Extension,” (not “N. Congress Ave.”). In support of this position that “W. 17th Ct.” does not exist, Ocean Breeze and Channel Side also rely on a 1975 plat and a 1999 City of Rivera Beach Ordinance. The sketches attached to HTG Heron’s application each contain the disclaimer “NOT A SURVEY.” Although the sketches contain a reference to an abandonment relating to “W. 17th Ct.,” the 1999 Ordinance describing the abandonment relied on by Channel Side and Ocean Breeze was not submitted to Florida Housing. Regardless, this plat and ordinance information was not required by the RFA nor was it considered by Florida Housing in determining whether to accept the address submitted by HTG Heron for eligibility determination purposes. There was no evidence at the hearing that the “W. 17th Court” address misled Florida Housing (or anyone else) or caused confusion as to the location of HTG Heron’s proposed development. To the contrary, other information in the application supports accepting the provided address. The “Local Government Verification of Status of Site Plan Approval for Multifamily Developments” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification that Development is Consistent with Zoning and Land Use Regulations” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Electricity” form executed by an Associate Engineer from Florida Power and Light affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure” form for water and sewer services executed by a Utilities Engineer from City of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Roads” form executed by a City Engineer from the City of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification of Contribution- Grant” form executed by the Interim City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The acting director of the City of Riviera Beach, Department of Community Development confirms by letter that the property at the “2003 W. 17th Court (adjacent to North Congress Avenue)” address is located with a “Qualified Census Tract for 2017 and 2018” and attaches a diagram of that tract. Documentation from the Palm Beach County Property Appraiser’s website lists the address location as “2003 W. 17th Ct.” Given that the purpose of providing an address was fulfilled and there was no ambiguity as to the actual location of the HTG Heron’s development site, Channel Side and Ocean Breeze failed to prove that Florida Housing erred in accepting HTG Heron’s address for the purposes of eligibility. At the hearing, HTG Heron also submitted a certified copy of a 2017 map from the Palm Beach County Property Appraiser’s Office for range 43, township 42, which includes the area of the proposed development in HTG Heron’s application, and indicates there is a “W. 17th Ct.” that intersects with “N. Congress Avenue.” There was a preponderance of evidence establishing HTG Heron’s designation in its application of “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach” was not an error, and that HTG Heron’s application is eligible for funding. CHANNEL SIDE APPLICATION7/ To satisfy the Site Control requirements Channel Side submitted a Purchase and Sale Agreement that lists among the sellers an entity named “MWCP, Inc., f/k/a Blueprint Properties, Inc., a Delaware corporation whose post office address is 248 Columbia Turnpike Florham Park, NJ (‘Blueprint’)” in the initial paragraph. MWCP, Inc. (MWCP) did not exist in Florida when the Purchase and Sale Agreement was executed. The parties stipulated that the reference in the Channel Side site control documents to MWCP was erroneous and that the owner of the property for the Channel Side’s proposed development as of the application deadline was a Delaware corporation known as Blueprint Properties, Inc., which has never operated as, or been corporately related to, MWCP. Rachel Grice, Florida Housing Multifamily Programs Manager, scored the Site control portion of this RFA based on the information in the Application. Mrs. Grice found that Channel Side met the RFA requirements for Site control. The RFA does not require the listing of related names of any corporations other than the applicant or developer. Thus, the error in the Purchase and Sale Agreement does not seem to affect Channel Side’s satisfaction of any requirement of the RFA. The error is insignificant and immaterial. There was no evidence presented at the hearing that Channel Side received a competitive advantage by identifying “MWCP, Inc. f/k/a Blueprint Properties, Inc.” instead of simply “Blueprint Properties” as the seller. The slight error conferred no competitive advantage on Channel Side; its application received no more points than it was entitled to by reason of the mistake. Ms. Button reasonably testified that had Florida Housing known about the mistaken listing of MWCP as the seller, it would have waived the error as a minor irregularity. The applicant-parties failed to prove that Channel Side’s application reflecting the “wrong corporate entity” as the seller was an error affecting eligibility of Channel Side’s application, or that Florida Housing erred in accepting the Purchase and Sale Agreement as proof of site control. The mistake was, at worst, a minor, inconsequential error that was waivable. Based on the preponderance of the evidence, Channel Side’s application is eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decisions: (1) finding the applications of Ocean Breeze, HTG Heron, and Channel Side eligible for funding; (2) awarding the RFA Palm Beach County funding for the Ocean Breeze proposed development; and (3) dismissing the formal written protests of HTG Heron and Channel Side. DONE AND ENTERED this 29th day of June, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2018.
The Issue Whether Respondent's Leasing Manual HRS M 70-1 is a rule and, if so, is it an invalid exercise of delegated legislative authority?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Department's Leasing Manual HRS M 70-1 (Manual) sets out the procedure to be followed when the Department is seeking to lease space of 2,000 square feet or more in privately owned buildings. Within this manual are the forms to be utilized for this purpose and, among other forms, is an Invitation to Bid (ITB) For Existing Facilities packet that contains a Bid Submittal Form (BSF) and, within the BSF is a page entitled Evaluation Criteria. The Department followed the procedure set forth in the manual in advertising for competitive bids on Lease No. 590:2029 for office space in Inverness, Florida service area of District Three and, in doing so, used the ITB For Existing Facilities packet that contained the BSF with the Evaluation Criteria page. The BSF, including the Evaluation Criteria page, is a slightly modified version of the Department of General Services' (DGS) Request For Proposal Submittal Form - BPM 4136, incorporated by reference in Rule 13M-1.015(3)(e), Florida Administrative Code, as a suggested format. The Evaluation Criteria page of the Department's BSF contains nine of the eleven evaluation criteria set forth on the evaluation criteria page of the BPM 4136, but does not place any limit on the weight of award factor as does BPM 4136 on two of the same criteria used by the Department. Both the BSF and BPM 4136 are used in bidding for space in existing facilities and, therefore, require a scaled floor plan showing present configuration, with measurements that equate to the net rentable square footage using the Standard Method of Space Measurement. The BSF does not attach a "floor plan for suggested configuration of offices and rooms" as does the BPM 4136 but does provide the number, types and sizes of rooms to be placed in the existing facility. Both forms leave the final configuration of the floor plan to the successful bidder and the lessee. The Department's reasoning for not including a "suggested floor plan" is that this may reduce the number of prospective bidders due to the varied configuration of existing facilities in the bid area. In accordance with the procedure set forth in the Manual an Evaluation Committee (Committee) was appointed to determine, among other things, the award factor (weight) to be placed on the nine evaluation criteria set forth on the Evaluation Criteria page of the BSF. The Committee determined the significance of the nine criteria on the Evaluation page to the Department's needs in regard to Lease No. 590:2029 and awarded a weight factor in accordance with the significance of the criteria. Those criteria most significant to the Department's needs received the highest weight. These award factors were added to the Evaluation page of the BSF at the time the ITB was advertised. The procedure and the forms set forth in the Manual and used by the Department, including the procedure followed by the Evaluation Committee, in putting together the ITB for Lease No. 590:2029 comports substantially with all substantive provisions of Rule 13M-1, Florida Administrative Code, and more specifically Rule 13M-1.015, Florida Administrative Code, adopted by DGS pursuant to Section 255.249(2), Florida Statutes. The differences, such as they are, are not substantial, nor is there any extrinsic or intrinsic divergence from the substance of the rule such as to mislead any potential bidder who sought to address the ITB. The Manual, including the ITB and BSF, sets forth the Department's policy and describes the procedure to be followed by the Department, including each Evaluation Committee selected, and all prospective bidders, in its leasing practices when the Department seeks to lease 2000 square feet of office space or more in privately owned buildings and, although the Manual has been reduced to writing, it has not been promulgated or adopted as a rule.
The Issue Whether Highgate Park Homeowners' Association (HOA) discriminated against Javier Arrillaga (Petitioner) based on his disability when it denied his application to install permanent accordion hurricane shutters; and if so, what is the appropriate remedy.
Findings Of Fact Petitioner owns a house in Polk County at 629 Kensington Drive, Davenport, Florida (Property). He resides at the Property with his wife, nephew, and mother. Respondent is a non-profit association operating for the benefit of the Highgate Park community and its members. There are 243 homes in the community (including the Property) and all the homeowners are members of the HOA. The HOA is managed by Richard Drake, a community association manager employed by Century Management. It is governed by a board of directors made up of three people: Scott Cooper, Kerri Hill, and Wesley Shaffer. The board members also serve as members of the HOA's Architectural Control Committee (ACC). Each homeowner in Highgate Park is provided a copy of the HOA's Amended and Restated Declaration of Covenants, Conditions and Restrictions (Covenants). The Covenants are also available on the HOA 's website. 5 The Property is part of the HOA and subject to the HOA's rules and regulations regarding the appearance of the Property. The ACC is responsible for enforcing some of the Covenants involving modifications or changes to the outside of homes in the community. This includes regulations relating to placement of garbage cans and trampolines, changes in landscaping, and the building of play structures such as basketball hoops and tree houses. The Covenants specifically address the topic of storm and hurricane shutters: (11) Unless installed by the Developer, no awning, canopies or shutters (including hurricane or storm shutters), or other decorative trim, shall be attached or affixed to the exterior of a building without the prior written approval of the ACC. No foil, window tinting materials or shielding materials or devices shall be placed upon any windows or sliding glass doors that are part of a Home, without the prior written approval of the ACC. According to the HOA's board president, "[n]one of the houses have shutters." REQUEST - JULY 12, 2020 On July 12, 2020, Petitioner submitted an "ACC General Application" form (Application) which stated, "Installation of accordion hurricane shutters in all window and doors of my house. Attached are pictures of how the accordion hurricane shutters look like." In the July 12 Application, Petitioner did not mention a disability or that the permanent accordion hurricane shutters (accordion shutters) were required as an accommodation. The accordion shutters Petitioner sought to install were estimated to cost $5,620.00. At the time of the July 12 Application, the HOA did not know that the request to install the accordion shutters was an accommodation for his disability. In response to the July 12 Application, on July 14, 2020, Mr. Drake emailed Petitioner denying his request: The attached ACC Application for Hurricane shutters is not acceptable because the ACC will only accept either: 1.) Removable hurricane panels that can only be installed during a tropical storm/hurricane watch/warning & removed & stored after the tropical storm/hurricane. 2.) Installation of permanent hurricane window and door glass. The email further asks that Petitioner resubmit another Application for one of the two options above so it can be reviewed at the next ACC meeting on July 16, 2020. Although Petitioner claimed he would not be able to hire someone to place and remove hurricane panels during an approaching storm, he offered no evidence that he researched this possibility or obtained estimates for the price of assistance for this service. He also offered no evidence regarding the costs of the removable hurricane panels. Petitioner did not resubmit an Application. Instead, on July 15, 2020, Petitioner emailed the HOA stating the reason he requested the accordion shutters was due to a disability, and that he could not put up and take down the removable panels on his home if there was a storm. He did not address the possibility of installing hurricane proof glass windows and doors. Later, Mr. Drake told Petitioner that installing the hurricane proof windows and door glass would be the best option that the ACC would approve. Petitioner responded, "So now you are breaking disability laws by denying reasonable accommodation. I will be contacting the ADA about this and taking action against the HOA if [I] need to." No further action was taken by the HOA on Petitioner's July 12 Application. Petitioner filed his Charge of Discrimination with FCHR on August 5, 2020. REQUEST - FEBRUARY 2, 2021 On February 2, 2021, Petitioner filed another Application. This Application was for permission to replace the windows on Petitioner's home. In its letter approving the February 2 Application for the installation of new windows on Petitioner's home, the HOA reminded Petitioner: [T]he installation of the permanent accordion style shutters will not be approved by Highgate Park even after you replace the windows and doors with non-hurricane impact glass for the reasons previously stated and that the option for you to install permanent hurricane windows and door glass remains a viable alternative as it both complies with the HOA Restrictions and accommodates your disability claim. Petitioner did not purchase the hurricane proof windows and doors, but opted to install the non-impact resistant windows and doors. The installation of the new windows and doors cost $8,635.1 1 Petitioner claimed and argued in his PRO that the windows were financed through his mother. The undersigned finds it is irrelevant who paid for the windows. Hurricane proof windows would have cost him $7,150 more, or a total of $15,785. In comparison, it would cost Petitioner a total of $14,255 had he installed the accordion shutters ($5,620) with the non-hurricane impact windows and doors ($8,635) that he had installed. The cost difference between the option of installing the accordion shutters compared to installing the hurricane proof glass and doors was $1,530. There was no evidence at the hearing on how much the removable hurricane panels would have cost. REQUEST - March 26, 2021 After receiving the "No Cause" Determination, but before filing his Petition for Relief, on March 26, 2021, Petitioner filed another Application with the ACC, again requesting permission to install the accordion shutters: Per [FCHR], resubmitting ACC for hurricane accordion style shutters. Disability information is attached for reasonable accommodation request. On April 23, 2021, the ACC denied Petitioner's March 26 Application. Specifically, it found that the accordion shutters did not comply with community-wide standards and would violate the Covenants. The HOA again suggested that the option of installing hurricane proof glass and doors was a reasonable viable alternative to the accordion shutters. Although Petitioner argued in his PRO that the accordion shutters were the only option that would not cause him a financial hardship, he provided no evidence as to his income or why the alternatives suggested by the HOA were cost prohibitive. PETITIONER'S DISABILITY Petitioner testified as to his medical condition and physical limitations. These limitations were consistent with the medical documents attached to the March 26 Application: (1) a letter from the U.S. Social Security Administration, Office of Disability Adjudication and Review, dated October 22, 2007, indicating Petitioner was deemed "disabled" due to hip dysplasia and degenerative arthritis, and was entitled to benefits; (2) a medical note dated January 29, 2020, listing a number of medical conditions which limit Petitioner's mobility and cause him pain; (3) an FCHR form executed by Petitioner's treating medical provider dated September 23, 2020, indicating Petitioner suffered from physical impairments that limit his ability to breath, hear, perform manual tasks, see, and walk; and (4) an examination report dated December 23, 2019, recommending Petitioner would benefit from a scooter for ease of movement outside the home. In the FCHR form, the medical provider specifically states Petitioner "has limited mobility of his [lower extremities] and decreased upper body strength. He would be unable to repeatedly put up and take down hurricane shutters." Based on this documentation and Petitioner's undisputed testimony regarding his physical condition, the undersigned finds Petitioner suffers from a physical impairment that affects major life activities, including walking and standing. Petitioner offered no evidence (medical or otherwise) that hurricane shutters (permanent or removable) were necessary to alleviate some aspect of his medical conditions or that accordion shutters were necessary for the full enjoyment of the Property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed by Javier Arrillaga. DONE AND ENTERED this 13th day of August, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2021. COPIES FURNISHED: Robert Aranda, Esquire Campbell, Trohn, Tamayo, & Aranda 1701 South Florida Avenue Lakeland, Florida 33803 Javier Arrillaga 629 Kensington Drive Davenport, Florida 33897 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue Whether Petitioner, Miami Yacht Divers, Inc., is entitled to reimbursement for cleanup costs.
Findings Of Fact The Respondent is the state agency charged with the responsibility of administering claims against the Florida Coastal Protection Trust Fund. Petitioner is a company located in Dade County, Florida, which performs commercial diving operations. Such operations include oil pollution containment and clean-up. At all times material to the allegations of this case, Dan Delmonico was the principal officer or owner for the Petitioner who supervised the operations of the company. In April of 1993, Mr. Delmonico discovered a fuel discharge next door to the premises of Defender Yacht, Inc., a company located on the Miami River in Dade County, Florida. The source of the discharge was an abandoned sunken vessel. This derelict vessel had no markings from which its ownership could be determined. Upon discovering the vessel, Mr. Delmonico did not contact local, state, or federal authorities to advise them of the discharge. Instead, Mr. Delmonico contacted several colleagues whose help he enlisted to assist him to clean up the discharge. In this regard, Mr. Delmonico procured the services of a diver and a crane company to remove the vessel from the water. Additionally, Mr. Delmonico utilized a boom and oil absorbent clean-up pads to remove the discharged fuel from the water. In total, Mr. Delmonico maintains it took four work days to complete the removal of the discharge and the salvage of the derelict vessel. At no time during this period did Mr. Delmonico contact local, state, or federal authorities to advise them of the foregoing activities. No official from any governmental entity supervised or approved the clean-up operation or salvage activity which is in dispute. After the fact Petitioner filed a reimbursement claim with the United States Coast Guard. Such claim was denied. Upon receipt of such denial, Petitioner filed the claim which is at issue in the instant case. In connection with this claim with Respondent, Petitioner submitted all forms previously tendered to the Coast Guard including the standard claim form, labor receipts, rental receipts, supply receipts, trailer and storage receipts, cash expenses, a job summary, and photographs. On or about September 20, 1996, Respondent issued a letter denying Petitioner's claim for reimbursement for expenses associated with the above-described salvage and clean-up activities. The grounds for the denial were the Petitioner's failure to obtain prior approval for the activities and the absence of "good cause" for the waiver of prior approval. Additionally, the Respondent maintained that Petitioner had failed to provide evidence that a pollutant discharge existed and that the removal of the vessel was necessary to abate and remove the discharge. It is undisputed by Petitioner that prior approval for the clean-up activities was not obtained. Petitioner timely disputed the denial and was afforded a point of entry to challenge such decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Petitioner's claim for reimbursement. DONE AND ENTERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathelyn M. Jacques Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 N. Paul San Filippo, Esquire Seidensticker & San Filippo Parkway Financial Center 2150 Goodlette Road, Suite 305 Naples, Florida 34102
The Issue The issue is whether the plan amendments adopted by Ordinances 97-56, 97-59, 97-61, 97-63, 97-64, 97-66, and 97-67 are in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Background On November 14, 1997, Respondent Collier County (the County) adopted numerous amendments to its Growth Management Plan (the Plan). The County adopted these Plan amendments (the Plan Amendments) pursuant to its Evaluation and Appraisal Report (EAR). By law, local governments must assess their comprehensive plans every seven years and prepare an EAR. On December 24, 1997, Petitioner Department of Community Affairs (DCA) published its Notice of Intent to find the Plan Amendments not in compliance with the criteria of Chapter 163, Part II, Florida Statutes (Chapter 163), and Chapter 9J-5, Florida Administrative Code (Chapter 9J-5). A detailed Statement of Intent is attached to the Notice of Intent. The petition of DCA incorporates the Statement of Intent. The petition of Intervenors Collier County Audubon Society, Inc., and Florida Wildlife Federation (Intervenors) also incorporates by reference the Statement of Intent. The petitions cite 16 grounds for a determination that the Plan Amendments are not in compliance with Chapter 163 and Chapter 9J-5, although, at hearing, Intervenors dropped Issue 5. Intervenor Collier County School Board (School Board) intervened to defend the Plan Amendments regarding the siting of schools. The parties stipulated to the standing of all of the parties. The Plan, as amended by the Plan Amendments (County Exhibit 1), discloses repealed and added language by strikeouts and underlines, respectively. All but two of the issues involve amended Plan provisions. The two exceptions are the Intergovernmental Coordination Element (ICE) (Issue 1) and Housing Element (Issue 4). In Issue 1, DCA and Intervenors challenge ICE Policy 1.2.6 and its effect of allowing schools to be sited anywhere in Collier County. Although the County did not amend ICE Policy 1.2.6, it substantially amended another Plan provision with the effect of relaxing restrictions on the siting of schools. In Issue 4, DCA and Intervenors challenge Plan provisions governing farmworker housing as not supported by the best available data and analysis. Although the County did not amend these Plan provisions, Petitioner and Intervenors contend that updated data and analysis demanded that the County do so. Issue 1 ICE Policy 1.2.6 states: The County shall continue to coordinate with the Collier County School Board on the site selection for new schools and the provision of infrastructure, particularly roads, to support existing and proposed school facilities in accordance with the Interlocal Agreement adopted in accordance with Chapter 163.3177 F.S. on June 25, 1996. Although unamended by the Plan Amendments, ICE Policy 1.2.6 is subject to challenge because of the effect of other EAR amendments on school siting. Plan Amendments in the Future Land Use Element (FLUE) affect school siting, but the effect of other Plan Amendments is to restrict slightly school-siting standards. For instance, prior to the Plan Amendments, the Plan generally allowed schools in areas designated Agricultural/Rural. As amended, FLUE II.g adds some restrictions to schools as a land use in areas designated Agricultural/Rural. This provision reads: Community facilities such as churches, group housing uses, cemeteries, and schools which shall be subject to the following criteria: Site area and school size shall be subject to the General Educational Facilities Report submitted annually by the Collier County School Board to the Board of County Commissioners. The Site must comply with the State Requirements for Educational Facilities adopted by the State Board of Education. The site shall be subject to all applicable State or Federal Regulations. The County made the identical change in permitting schools in the Conservation designation. For the Urban designation, the County repealed the identical former language, but, in adding schools as a permitted use, did not include the three bulleted provisions quoted above. However, a Plan Amendment to the Sanitary Sewer Subelement (Sanitary Sewer) outweighs the slight restrictions added in the Plan Amendments to the FLUE and results in a net relaxation of the school-siting standards. In the Plan Amendments, the County repealed Sanitary Sewer Subelement (Sanitary Sewer) Policy 1.1.6, which provided: By January 1, 1990, review existing criteria and regulatory framework for septic tank installations and determine the suitability of same for Collier County by December 31, 1990, implement local ordinances regulating septic tank installations if above review indicates need to do so. Prior to its repeal, Sanitary Sewer Policy 1.1.6 threatened the continued reliance on septic tanks, especially for more intensive uses, such as schools. Although reliance upon septic tanks is not the School Board's preferred means of disposing of sanitary sewage, the School Board has determined that the use of septic tanks is economically feasible. At present, septic tanks exclusively serve the sanitary sewer needs of one public school, Big Cypress Elementary School, which is located on Golden Gate Boulevard east of State Road 951 and is attended by over 1000 students. As long as Sanitary Sewer Policy 1.1.6 was in effect, the School District was on notice that its ability to site schools without regard to the availability of central sewer, including larger package plants, was in doubt. The repeal of Sanitary Sewer Policy 1.1.6 eliminates that doubt and invites school-siting decisions without regard to Plan-imposed, or at least -threatened, requirements of central sewer. As a result of the Plan Amendments, the Plan effectively allows the School District to site schools through the entire range of future land use designations, including conservation areas. In place of regulating school uses like other land uses--i.e., in the Plan--the County instead has elected to resolve school-siting issues through another means--i.e., an Interlocal Agreement, which is mentioned in Sanitary Sewer Policy 1.2.6. However, the use of the Interlocal Agreement, rather than the Plan, attenuates public participation, precludes plan challenges by the public or DCA under Chapters 163 and 9J-5, and fails to ensure that the two parties will site schools consistent with the minimum criteria of Chapters 163 and 9J-5. Withdrawing school-siting decisions from the comprehensive planning process interferes with the ability of the Plan to address the demand that schools will place upon public facilities, such as traffic, sewer, water, solid waste, drainage, and recreation. As do the County and School Board in the Interlocal Agreement, the Florida Department of Education likewise recognizes the direct effects of school siting. Section 1.4(2) of the State Requirements for Educational Facilities, 1997, published by the Florida Department of Education, identifies numerous factors that school boards should consider in siting schools, including the compatibility of uses of adjacent property, the capacity of roads, and the effect (on the buildings) of siting in a floodplain. As the floodplain can affect the school, so the school can affect the floodplain, but the effects of schools on natural and manmade resources receives little, if any, attention in the State Requirements for Educational Facilities or the Interlocal Agreement. When addressing public facilities, the educational planning documents focus on the effects upon the users of the school, such as the capacity of the roads to accommodate the parents driving their children to school or the location of the school in an area safe from flooding. Schools also have indirect effects on natural and manmade resources, especially when a public school is sited in a relatively undeveloped area. Induced sometimes by the availability of relative inexpensive land and developer-provided incentives, the construction of a public school exemplifies the "if you build it, they will come" scenario. The construction of a public school may compete with excess road capacity as a development-attractor to a relatively undeveloped area within a larger area undergoing brisk population growth. Thus, school- siting decisions may have large indirect effects on the natural and manmade resources in an area, well in excess of the impact of the school itself or the demand upon public facilities made by its users. DCA and Intervenors have proved by a preponderance of the evidence that, after consideration of the Plan Amendments affecting the siting of schools, ICE Policy 1.2.6 is inconsistent with the criterion of designating the future general distribution, location, and extent of educational uses of land. By ignoring the issue of school-siting in the Plan, the County has failed to address, in the planning process and in the Plan, issues such as the proximity of schools to existing or future residential development, the identification of land uses incompatible with schools, and the prohibition of the siting of schools in locations that fail to preserve environmentally sensitive lands, such as floodplains, unique native habitats, or habitats for listed species. By relaxing its school-siting standards, the Plan fails to meet the pleaded minimum criteria of land use planning and forfeits an opportunity to discourage urban sprawl and encourage a comprehensive planning solution to the challenges of population growth and the development and redevelopment of land. Issue 2 As amended, Natural Groundwater and Aquifer Recharge Subelement (Groundwater) Objective 1.2 replaces a promise to adopt a groundwater protection ordinance by August 1, 1989, with the following: Implement the Collier County Ground Water Protection Ordinance that includes: regulation of land use activities County-wide as well as within wellfield protection zones surrounding identified public water supply wellfields and identified sensitive recharge areas; and County-wide ground water quality criteria, to protect the County's ground water resources as well as sensitive recharge areas. Groundwater Policies 1.2.1 through 1.2.4 provide: The Ordinance will address both existing and projected future land use and surface activities. Apply action criteria specified in the Collier County Ground Water Protection Ordinance to both existing and future regulated development according to procedures specified in the Ordinance to protect the County's ground water resources. The Ordinance will continue Apply criteria for ground water protection specified in enforcement procedures specified in the Ordinance, to provide an appropriate level of protection to sensitive recharge areas. The Ordinance will address the breaching of confining units by improper well construction, rock mining and other excavations, blasting and other similar activities. Apply the criteria of those sections of the Collier County Ground Water Protection Ordinance that address: breaching of confining units by improper well construction, rock mining and other excavations, blasting, and other similar activities to protect recharge of the Surficial Aquifer System, to planned/permitted future development. The County will implement the Ordinance in a manner to minimize duplication of effort between the County and other State agencies. Implementation of the Collier County Ground Water Protection Ordinance will follow Ordinance procedures, and other internal County procedures in a manner to minimize duplication of effort among County, municipal, and State agencies. DCA and Intervenors have proved by a preponderance of the evidence that Groundwater Objective 1.2 does not supply a specific, measurable, intermediate end that is achievable and marks progress toward a goal. As presently formulated, this objective is nothing but a promise of the implementation of a land development regulation whose regulatory content or performance criteria are omitted from the Plan. The objective defers the establishment of regulatory content and performance standards to the land development regulations. The objective itself offers no protection to the groundwater resources or aquifer recharge areas because the County has relegated this crucial task to the land development regulations. The deferral and relegation of regulatory content and performance standards--required by Chapters 163 and 9J-5--to the land development regulations gravely undermines the entire comprehensive planning process for several reasons. Through deferral and relegation, the County retains the ability to amend or repeal the regulatory content and performance standards without a Plan amendment, which means without the public participation, agency review, and opportunity for a hearing that must accompany Plan amendments. Through deferral and relegation, the County insulates the regulatory content and performance criteria that are required to be in the Plan from determinations of consistency with the criteria of Chapters 163 and 9J-5 (including the crucial criteria of minimum content and supporting data and analysis), the regional policy plan, and the state comprehensive plan. Deferral and relegation to land development regulations do not insulate the provisions setting regulatory content and performance criteria from a consistency determination with the provisions of the Plan. However, the deferral and relegation effectively limit substantially affected persons to challenging the consistency of the land development regulations with the Plan, although this may be a meaningless right if the Plan lacks the required regulatory content and performance standards, against which the land development regulations may be compared. Also, because the comparison is between a land development regulation and Plan provision, the result of a finding of any inconsistency raises the likelihood of the elimination of the land development regulation, rather than the Plan provision with which it is in conflict, due to the relative ease of amendment or repeal of land development regulations as opposed to Plan provisions. Lastly, through deferral and relegation, the County insulates any regulatory content and performance criteria from an enforcement action, under Chapter 163, concerning development orders that are inconsistent with Plan provisions. Although other enforcement actions may be available for development orders inconsistent with land development regulations, the Chapter 163 action provides the added safeguards of statutory intervention by the Florida Department of Legal Affairs and recognition of relatively broad standing among private parties. DCA and Intervenors have proved by a preponderance of the evidence that the four policies do not identify programs and activities by which the County will achieve the planning goals or objectives that the policies are supposed to serve. Like Groundwater Objective 1.2, Policies 1.2.1, 1.2.2, 1.2.3, and 1.2.4 improperly defer and relegate to the land development regulations the identification of those programs and activities that are required to be in the Plan. The policies are impermissibly vague because they rely on land development regulations to identify the programs and activities necessary to achieve goals and objectives, rather than identify in the Plan the programs and activities, possibly leaving to the land development regulations the task of providing an additional level of detail for these programs and activities. For the reasons stated in Paragraphs 26-30 above, the County has improperly deferred and relegated to the land development regulations descriptive material that must be contained in the Plan. DCA and Intervenors have proved by a preponderance of the evidence that the Plan, including Groundwater Objective 1.2, is inconsistent with the criterion of an objective protecting the functions of natural groundwater recharge, and the Plan, including Groundwater Policies 1.2.1 through 1.2.4, is inconsistent with the criterion of regulating land use and development to protect the functions of natural groundwater aquifer recharge areas. Issue 3 Drainage Subelement (Drainage) Policy 1.1.2 provides: Outline how to iImplement procedures and projects within the County's Land Development Code and those procedures delegated by South Florida Water Management District during 5 year planning time frame to ensure that at the time a development permit is issued, pre- development versus post development discharge rates are monitored to assure that adequate water management facility capacity is available or will be available when needed to serve the development. The flaws of the Drainage Policy 1.1.2 start with the County's failure to adopt, in the Plan, an enforceable level of service (LOS) standard for drainage. Drainage Objective 1.2 provides that the County shall "Adopt Maintain adopted level of service standards for basins and sub-basins identified in the Water Management Master Plan." This master plan appears to be a part of the land development regulations, not the Plan. For the reasons stated in Paragraphs 26-30 above, this deferral and relegation of a crucial and required provision of a Plan--i.e., setting a drainage LOS--undermine the Plan's approach to drainage. Drainage Policy 1.2.1 formerly provided that the County would use the findings from a study to be conducted under the master plan to "identify existing levels of service for all the drainage basins and sub-basins." A parenthetical note states that the County completed this task in May 1990. New Drainage Policy 1.2.1.A provides, for "future 'private'" development, that the drainage LOS standards are the "water quantity and quality standards" specified in various ordinances that are not incorporated into the Plan. New Drainage Policy 1.2.1.B assigns "existing 'private'" development and "existing or future public drainage facilities" LOS standards identified in the master plan. For such development, a table assigns letters to various basins, but the meaning of the letter is not explained in the Plan. The net effect of this objective and policies is that the Plan defers and relegates to the land development regulations the crucial task of setting comprehensive drainage LOS standards--comprehensive in the components of drainage (e.g., hydroperiod, rate, quality, and basin) and comprehensive in the scope of development (i.e., all private and public development and redevelopment, including public development, not just "public drainage facilities"). In the context of other Drainage provisions, Drainage Policy 1.1.2 is essentially useless. It defers and relegates to the land development regulations the regulatory content (including setting a drainage LOS), performance criteria, and identification of programs and activities. On its face, given the failure of the Plan to set a drainage LOS, Drainage Policy 1.1.2 promises nothing more than the monitoring of post- development runoff. DCA and Intervenors have proved by a preponderance of the evidence that the Drainage Policy 1.1.2 does not identify programs and activities by which by which the County will achieve the planning goals or objectives that the policy is supposed to serve and that the Plan lacks a policy regulating land use and development to protect the functions of natural drainage features. Issue 4 This issue raises the question whether the County relied on the best available data when preparing Plan provisions concerning farmworker housing. In their joint proposed recommended order, the County and School Board offer proposed Plan amendments providing for the collection of new farmworker housing data in 1998, the analysis of the data in 1999, and the adoption of any necessary Plan amendments in 2000. This is consistent with the tenor of the testimony of their witnesses: the County wants more time to conduct more studies to determine if farmworker housing needs may have lessened somewhat. The data and analysis accompanying the revisions to the Housing Element (Housing) include analysis of 1990 census data done by the Shimberg Center at the University of Florida. Tables showing the percentage in the unincorporated County of owners and renters, respectively, paying more than 30 percent of their income for housing reveal that, for persons with annual incomes of less than $10,000, the percentages are 76.1 and 95.9; for persons with annual incomes of $10,000 to $19,999, the percentages are 44.3 and 75.9; and for persons with incomes of $20,000 to $34,999, the percentages are 32.3 and 31.4. After reciting these data, the Housing data and analysis state: The previous tables indicate a strong need for more affordable owner and rental opportunities throughout the County. Very low, low[,] and moderate income families who pay more than 30 [percent] of their gross monthly income on housing cost are considered to be "cost burdened" according to the U.S. Department of Housing and Urban Development. As a County witness testified, 85-90 percent of County farmworkers reside in Immokalee. According to the County's own data, 36.8 percent of the housing units in the Immokalee area are substandard. The next highest area has 13.4 percent substandard housing, and the next highest has 4.7 percent substandard housing. Of the 4507 units in the Immokalee area, 101 lack plumbing, 74 lack kitchens, and 134 have more than 1.01 persons per room (with some units appearing in more than one category). After reciting these data, the Housing data and analysis state: As the housing stock continues to age, there is a need to provide housing rehabilitation programs for the very low to moderate income rental and owner occupied households in order to prevent continuing deterioration and potential substandard housing conditions. After displaying other data, the Housing data and analysis report that various tables prepared by the Shimberg Center project a very large deficit of affordable, renter occupied and owner occupied dwelling units for the years 2000, 2005 and 2010. Local estimates have not been calculated but efforts to address the estimated deficits are identified in the Housing Element. According to the Shimberg Center data, there is a county wide need for 4,973 affordable rental units and 9,500 affordable owner occupied units by 2000 for a total of 14,473 affordable housing units. Responding to these data, the Housing data and analysis state: The City [Naples] established a goal of encouraging the development of 500 affordable housing units each year within the urban area boundaries identified in a 1994 Interlocal Agreement. Based upon County data collected for this Interlocal Agreement's 500 unit goal, the statistics indicate that 30 [percent] of all single family building permits issued since July 1994 meet the Interlocal Agreement[']s affordable housing criteria. Since the adoption of this Interlocal Agreement, an average of 600+ affordable housing units have been produced countywide each year. Since the urban area target of 500 unit[s] per year has been met, it is recommended that the target be increased to 750 units countywide. A target of 750 units countywide is realistic based upon building permits and [certificates of occupancy] issued annually. The tables contain a comprehensive projection of affordable housing for all income ranges and are not limited to persons with moderate or less annual incomes. Thus, for unincorporated Collier County, one table discloses a deficit of 287 units by 2010 for persons making over $150,000 annually. Addressing farmworker housing specifically, the Housing data and analysis mention the County's 1994 Immokalee Housing Study. Housing designated exclusively for farmworkers consists of privately owned migrant labor camps and Farm Worker Village, which was built with the assistance of the Farmers Home Administration and is owned and operated by the County. The Housing data and analysis note that farmworkers "are also housed in a variety of other housing that is usually substandard, deteriorated or overcrowded." The Housing data and analysis report that farmworker housing in the Immokalee area includes migrant labor camps and shared housing. The Housing data and analysis note that there is no farmworker housing located on the farms in the Immokalee area. According to the Housing data and analysis, the 109 migrant camps in the County comprise 1987 units. The County owns and operates 571 one- to four-bedroom units for rent at affordable rates, but, at the time of the survey, there were 60 applications on the waiting list for these units. The County also has 276 Section 8 certificates from the Farmers Home Administration. Families paying more than 30 percent of their income on housing are eligible for these certificates, which are limited to housing expenses in rural areas. Surveying existing studies, the Housing data and analysis concludes that 4.5 persons reside in each farmworker household. Restating projections from the County's 1994 Immokalee Housing Study, the Housing data and analysis report that, in 2005, farmworker housing demand will consist of 10,711 permanent units and 3251 seasonal units for a total of 13,962 units. For 1995, the Housing data and analysis calculate that the 2961 available seasonal units could accommodate, at 4.5 persons per dwelling unit, 13,324 of the 33,134 seasonal residents, leaving a shortfall of housing for nearly 20,000 seasonal residents or, at 4.5 persons per dwelling unit, 4402 units. However, this analysis understates projected needs for farmworker housing because, without analysis, it uses for all future years the current estimate of 4.5 persons per dwelling unit without considering whether greater availability of affordable housing would reduce the number of persons per dwelling unit. The dispute begins to emerge when the Housing data and analysis note the obvious difficulty of establishing accurate farmworker population figures and conclude that the population increases are relative to the amount of acreage in production at the time of the population count. The County contends that future farmworker housing demands are artificially high because they do not reflect recent trends reducing agricultural operations. However, the County's contentions are unsupported by data and analysis collected in accordance with a professionally recognized methodology. To the contrary, the County elsewhere in the Plan estimated that seasonal farmworker residents, who are present in the Immokalee area during the winter months, would increase by 25 percent after 1992 "to reflect the anticipated expansion of the citrus industry." FLUE, page 57. The County elsewhere relied on the projection of the South Florida Water Management District that agricultural water demands will increase by 46 percent from 1990 to 2010. Conservation, page 35. According to the FLUE data and analysis, nearly 6000 acres of land in the Immokalee area were devoted to agricultural uses. This is only about 2.5 percent of the nearly 250,000 acres in agricultural uses in the County and only about 0.4 percent of the 1.3 million acres in the County. The County's contention of declining needs for farmworker housing repudiates the findings and conclusions of the County's own 1994 Immokalee Housing Plan and the Shimberg Center's more recent work. Rather than address these data and analysis in preparing the Housing goals, objectives, and policies, the County relied on speculation and conjecture that farmworker housing needs may have declined, or may soon decline, due to a perceived decline in agricultural operations. No data indicate what agricultural operations have declined or may decline or, more importantly, the effect of any such decline on the need for farmworker housing. The County did not analyze even this conjecture and speculation from the perspective of other relevant data and analysis, such as the leveling off of a decline, in the mid-1990s, in tomato farming; possibly offsetting trends in other labor-intensive farming; possibly offsetting trends in labor-intensive farming around Immokalee; and trends in Hendry County labor-intensive farming and the impact of Hendry County farmworkers choosing to reside in Immokalee. The available data and analysis reveal ongoing shortages in affordable housing of nearly 15,000 units by 2000. For migrant farmworkers, the available data and analysis suggest a shortage of nearly 4500 units in 1995. The data and analysis suggest that other farmworker substandard housing units will be lost to attrition. Except as it involves farmworker housing, the County relied on a 25 percent increase in farmworkers after 1992 and a 46 percent increase in agricultural water demands from 1990 to 2010. Ignoring the available data and analysis, the County relied on vague concerns about a reduction in labor-intensive agricultural operations in support of its development of affordable housing strategies that do not focus on the unique and pressing needs of farmworkers. The following Plan provisions repeatedly fail to respond adequately to the quantitative and qualitative housing needs of farmworkers. Housing Objective 1 is to increase by only 500 units annually the number of new affordable housing units for persons earning a wider range of incomes than do farmworkers "to continue to meet the housing needs of all current and future very-low, low[,] and moderate income residents of the County, including those households with special needs such as rural and farmworker housing in rural Collier County." Failing to focus measurably the affordable-housing effort on farmworker housing, Housing Policy 1.4 states: Affordable housing will be distributed equitably throughout the County using strategies which include, but are not limited to, density bonus agreements and impact fee waivers or deferrals. In addition, affordable housing will be located where adequate infrastructure and services are available. Housing Objective 2 is to create a nonprofit housing development corporation by 2000, with representatives from business, government, housing advocates, and the general community, to assist the County in achieving the annual goal of 500 new units, as stated in Housing Objective 1. Housing Policy 2.1 is to increase the supply of housing for very low, low, and moderate income residents, including farmworker housing, through the use of existing programs, such as low income housing tax credits, density bonuses, and impact fee waivers or deferrals. DCA and Intervenors have proved by a preponderance of the evidence that the cited Housing objectives and policies are not supported by the data and analysis. In preparing the revised provisions of the Housing Element, the County relied on speculation and anecdotal evidence of reductions in the numbers of farmworkers, declining to address the professionally collected data and analysis of that data, including the County's own data- collection and -analysis. DCA and Intervenors have proved by a preponderance of the evidence that the Plan lacks policies providing guidelines or criteria for the location of farmworker housing. The data and analysis reveal a crucial need for such housing in the Immokalee area, but the Plan, most notably Housing Policy 1.4, fails to address these data and analysis by failing to focus affordable- housing efforts for farmworkers where the need is greatest. The Plan also fails to establish locational criteria or guidelines to assure that the farmworker housing best serves the needs of the farmworkers. Issue 5 Prior to these amendments, Golden Gate Area Master Plan (Golden Gate) Policy 2.2.3 provided that the County would apply the stricter of its special development standards or Chapter 28-25, Florida Administrative Code, to applications for development within South Golden Gate Estates. However, these amendments repealed Golden Gate Policy 2.2.3 and replaced it with new Golden Gate Policy 2.1.4, which provides that the County will apply Chapter 28-25, Florida Administrative Code, to applications in "those Golden Gate Estates units located within the Big Cypress Area of Critical State Concern." The state rules limit site alterations to 10 percent of the total site, limit impervious areas to 50 percent of the site, and prohibit alteration of the natural flow of water. The effect of the Plan Amendment is to remove these land use restrictions from the part of the South Golden Gate Estates that is not in the Big Cypress Area of Critical State Concern. As reported in the Golden Gate data and analysis, "hailed as the world's largest subdivision," the Golden Gates Estates subdivision encompasses about 170 square miles or eight percent of the County. Golden Gates Estates is located in central Collier County. Part of Golden Gate Estates is located east of Interstate 75, north of the point at which the interstate turns east and heads toward Miami. South Golden Gate Estates is located south of Interstate 75. Gulf American sold 95 percent of the lots in Golden Gate Estates by 1965. South Golden Gate Estates comprises around 17,000 parcels, including about 10,000 parcels under 2.25 acres. Approximately 2000 people live in South Golden Gate Estates, although the actual number may be higher due to unpermitted construction. About 8000 people live in the remainder of Golden Gate Estates. Totaling 94 square miles, South Golden Gate Estates is surrounded by the Florida Panther National Wildlife Refuge to the north, the Picayune Strand State Forest and Belle Meade (about 16,000 acres on the CARL list for state acquisition) to the west, the Cape Romano/Ten Thousand Islands Aquatic Preserve to the south, and Fakahatchee Strand State Preserve to the east. The Fakahatchee Strand State Preserve is separated from Big Cypress National Preserve to the east by State Road 29. Northwest of the Cape Romano/Ten Thousand Islands Aquatic Preserve is Rookery Bay Aquatic Preserve, which lies between Marco Island and Naples Bay. Major public conservation lands in the County--all near Golden Gate Estates--include Big Cypress National Preserve (534,947 acres), Fakahatchee Strand State Preserve (65,524 acres), and Florida Panther National Wildlife Refuge (24,300 acres). Major additions include another 100,000 acres added to the Big Cypress National Preserve, but in the northeast part of the County away from Golden Gate Estates, and 30,000 acres in Golden Gate Estates (with nearly 12,000 acres already acquired). A large portion, if not all, of South Golden Gate Estates is proposed for state acquisition under the Save Our Everglades program, but progress, until recently at least, has been slow. The state has imposed the Big Cypress Area of Critical State Concern over the entire County east of Golden Gate Estates, as well as a large area south of South Golden Gate Estates. Most of the Area of Critical State Concern encompasses publicly owned land, but privately owned land is also within the Area of Critical State Concern. DCA contends that the data and analysis do not support the Plan Amendments that are the subject of Issue 5. The effect of the replacement of one policy with another policy is to relax development restrictions in the part of Golden Gate Estates outside of Areas of Critical State Concern. The Drainage data and analysis describe the patterns of surface water runoff characteristic of the County prior to alteration of these natural drainage features. In general, there is a nearly imperceptible ground slope in the County from a high point near Immokalee in the north-northeast corner of the County to the south and southwest to the Gulf of Mexico. Slopes as little as 4 inches per mile are common east of State Road 29; slopes of 12 inches per mile are typical to the west of State Road 29. Prior to construction of artificial drainage facilities, the runoff traveled slowly through long sloughs, which are shallow but wide depressions, and extensive cypress forests in its journey toward the estuaries and bays of the Gulf of Mexico. The natural rhythm between the wet season and the slow, natural drainage left vast parts of the County, including what is now Golden Gate Estates, seasonally inundated. The natural drainage patterns attenuated the runoff, so as to permit the upstream deposit of much of the sediments and nutrients borne by the runoff prior to its entry into rivers and bays. The natural drainage patterns also created native habitat for various plant and wildlife species seeking the periodic or permanent wetlands hydrated by the runoff. The first major disturbance of this natural drainage process came with road construction. Development of roads in the County typically involved the excavation of a canal and the application of the excavated material into the road base, so as to raise the road surface above the surrounding water level. State Road 29, which runs south from Immokalee to Everglades City in the southeast corner of the County, was constructed in this matter in 1926, as was U.S. Route 41 (Tamiami Trail) two years later, reportedly in a transaction in which Baron Collier constructed the road in return for a conveyance from the state of what became Collier County. The logging industry used the same process to construct tramways for transporting cypress logs during the 1950s. The extension of these early canals allowed the expansion of agricultural and other uses of seasonally or permanently inundated lands. The Drainage data and analysis conclude their description of this process as follows: The above described method of "ditch and drain" development in Collier County resulted in a haphazard series of canals that had a tendency to lower the water table and change the flow patterns of the natural drainage basins. In addition to canals, many dikes were constructed around very large tracts of land and the water levels lowered by pumping to create agricultural land. This combination of development events impacted large areas of wetland and began to concentrate the flow of stormwater run-off instead of allowing the traditional sheetflow across the land. In the area adjacent to Naples, developers had cut canals in order to lower the water table and facilitate the construction of housing. In the late 1950s and early 1960s, Gulf American Corporation took this practice to a new level in the development and worldwide marketing of 173 square miles of land and water that came to be known as Golden Gate Estates. Prior to development, much of the area consisted of waterbodies several feet deep through the wet season. In general, the area was flat swamp lands featuring cypress forests, pine forest islands, and wet and dry prairie. In order to market Golden Gate Estates as a vacation and retirement community, Gulf American undertook a vast drainage project in an effort to eliminate from the landscape and waterscape waterbodies several feet deep through the wet season and flat swamp lands featuring cypress forests, pine forest islands, and wet and dry prairie. Major components of this effort were clearing 813 miles of paved and limerock roads and dredging 183 miles of canals, which drain into the Gordon River, Naples Bay, and Faka Union Bay. The County approved the Golden Gate Estates subdivision in early 1960, and, five years later, 90 percent of the land had been platted and sold in parcels of 1.25, 2.5, and 5 acres. As the Golden Gate data and analysis explain, the County rezoned the area to low-density residential when it became apparent that it could not provide essential facilities and services. The artificial drainage facilities that replaced natural drainage features and converted land from water facilitated the urbanization of the County. Urbanization brought large increases in impervious surface. Large increases in impervious surface produced even more and faster runoff and a decrease in percolation into the groundwater system. The effect on the artificial drainage system was to overwhelm it during major or serial storm events, resulting in flooding. Flooding completed the cycle by resulting in additional artificial drainage facilities. The addition of more artificial drainage capacity adversely affected natural resources in several respects. The addition of more artificial drainage capacity accelerated the rate at which canals transported stormwater into the Gulf, so as to eliminate or reduce the duration of flooding. But the rushing stormwater destabilized channels and reduced the opportunity for natural filtration of sediments and nutrients. The bays and estuaries into which the stormwater eventually runs thus received increased loads of sediments from destabilized channels and increased loads of sediments, nutrients, and pollutants from decreased filtration. Another effect of the addition of more artificial drainage capacity was to lower the water table elevation at all times, not just during the wet season. Thus, the canals overdrained large areas, including Golden Gate Estates, leaving them especially vulnerable to fire during the dry season and droughts during the wet season. The Golden Gate data and analysis report that the annual acreage consumed by fire increased eightfold after Golden Gate Estates was drained so as to alter the hydroperiod and lower the water table. The fires became more severe, eliminating the organic (humus) part of soils and thus discouraging post-fire, vegetative recolonization. The replacement of natural drainage features with artificial drainage facilities dramatically altered natural hydroperiods and, in so doing, destroyed wetlands and wetlands habitat, encouraged saltwater intrusion, and degraded estuaries and eliminated marine habitat by altering the timing and amount of freshwater infusions on which commercially harvested fin fish, shellfish, and sport fish depend at some point in their life cycle. The effect of artificial drainage facilities on water quality, water quantity, and hydroperiod adversely affected recharge of the surficial aquifer, on which the County depends for most of its drinking water. The surficial aquifer receives 90 percent of its recharge from rain and surface flow with direct infiltration from rainfall being the most important source of recharge of the water table aquifer, according to the Groundwater data and analysis. As the Drainage data and analysis concede, artificial drainage facilities have reduced aquifer recharge, which is often best served during flood events when the drainage facilities are overwhelmed. Additionally, as the Groundwater data and analysis note, runoff-transported pollutants can enter the groundwater, just as they can enter surface waters. The Groundwater data and analysis state that protection of natural groundwater recharge relies on land use restrictions that ensure that land uses do not change the recharge process in terms of timing, water quantity, or water quality. The Groundwater data and analysis identify two factors as affecting timing and water quantity: covering recharge areas with impervious surfaces and overdraining recharge areas by canals. In terms of water quality, the Groundwater data and analysis warn of pollutants introduced directly into the water table aquifer by stormwater detention/retention facilities, sewage treatment percolation ponds and absorption fields, and septic systems. Based on a formula developed by the Environmental Protection Agency that considers, among other things, water table elevation and soil permeability, the Groundwater data and analysis warn that County groundwater is highly sensitive to groundwater contamination. In particular, the Groundwater data and analysis recommend the investigation of possible groundwater contamination through the agricultural use of pesticides and fertilizer and the residential use of septic tanks in the area of the East Golden Gate Wellfield. The Groundwater data and analysis recommend, among other things, land use controls around wellfields, areas of high transmissivity, and major hydrological flowways. In light of the deleterious impacts of artificial drainage facilities on water quality, water quantity, and aquifer recharge, the Drainage data and analysis suggest that the drainage LOS standards address these three factors. The Drainage data and analysis state that it is "essential" that the stormwater management standards concerning water quality provide treatment levels "at least compatible with current state requirements. Drainage, page D-I-3. Regarding water quantity, the Drainage data and analysis state that the standards must provide adequate flood protection for developed areas and sufficient water to maintain aquifers, wetlands, and estuarine systems. The Drainage data and analysis discuss the difficulties the County experienced in trying to set a drainage LOS. Historically inadequate systems compounded the problem. Developments permitted prior to 1977, including all of Golden Gate Estates, were designed only to protect against flooding in the event of the ten-year storm, and these developments have an inconsistent record in meeting even these relaxed standards. The County required post-1977 development to meet the more demanding standards of the 25-year, 3-day storm event, and these developments have generally done so. The Drainage data and analysis report that the County hired consulting engineers in 1989 to prepare the Stormwater Management Master Plan. Out of this work emerged LOS standards using water quality as a function of the storm event, water quantity, and the potential of the area to provide aquifer recharge. However, neither the Plan nor even the Drainage data and analysis disclose these drainage LOS standards. The discussion of the drainage LOS standards does not focus extensively on basin issues as to water quantity. Another feature of a drainage LOS, the basin in which runoff is naturally found is important because drastic alterations of basin may alter the periodic, natural changes in salinity necessary to the health of the receiving estuaries. Due to the flatness of the topography, basins in the County naturally shift, depending on the location of rainfall and amount of rainfall compared to the capacity of the natural drainage features. Roads that run along the barely perceptible ridge lines defining a basin change the dynamic of location and amount of rainfall compared to the capacity of the natural drainage feature, so as possibly to change the basin receiving the resulting runoff. Roads that cut across ridge lines have an obvious effect on receiving basins. Canals have similar effects on these basins. Citing the results of the Stormwater Management Master Plan, the Drainage data and analysis list the ten major basins in the County. However, after listing these basins, the Drainage data and analysis note: At this time, an aggressive stormwater management capital improvement project construction is not proposed. The intent is to respond to the will of the local citizens as they petition the Board of County Commissioners to design and construct stormwater management improvements through the creation of taxing and/or assessment districts. The omission of the drainage LOS standards from the Plan (and, although not strictly relevant, even from the data and analysis) precludes an determination of the scope and effect of the County's decision not to schedule stormwater improvements until residents demand such public facilities. Nothing in the Plan allows the informed reader to learn whether the County's undisclosed drainage LOS standards have adequately blended the objective of natural-resource protection with the objective of flood control. Nothing in the Plan allows the informed reader to learn of the extent to which the County must apply these undisclosed drainage LOS standards to development, redevelopment, and unchanged land uses (i.e., retrofitting). The effect of the omission of drainage LOS standards from the Plan is heightened by certain water-quality trends during the ten-year period ending in 1989, coupled with the County's reduction in water-quality monitoring during the ensuing ten years. Map LU-92 in the Conservation data and analysis identifies 24 "estuarine bays" from the Lee County line south to Everglades City. These bays include Clam Bay, which is just north and west of the terminus of Pine Ridge Road; Doctors Bay, which is immediately north of Naples; Naples Bay, which is immediately south of Naples and receives water from the Gordon River and Haldeman Creek; Rookery Bay, which is south of Naples about midway between Naples and Marco Island and receives water from Henderson Creek; and Faka Union Bay and Fakahatchee Bay, which are roughly midway between Marco Island and Everglades City. According to the Conservation data and analysis, the worst water quality reported by the Department of Environmental Protection in a 1994 statewide assessment of water quality was the estuarine portion of the Gordon River, which violated water quality standards for conductivity and dissolved oxygen. Rated as "threatened or moderately impaired" in this study, Naples Bay violated water quality standards for conductivity. A portion of the Henderson Creek Canal violated water quality standards for conductivity and dissolved oxygen. The Conservation data and analysis note that the County assessed available data collected from 1979 through 1989 and determined that, during this period, surface waters may have experienced an increase in nutrients. Inland-water data indicate that nutrient levels (nitrogen, phosphorus, or both) increased from 1979 through 1989 in the Gordon River Extension, Henderson Creek, Main Golden Gate Canal, and Faka Union Canal. Although there are less estuarine nutrient data, the data for Clam Bay reveal a steep increase in nitrogen and a slower increase in phosphorus. The sediments of numerous inland waterways contain organochlorine pesticides. Although polycyclic aromatic hydrocarbons are not widespread in estuarine sediments, they were detected among 80 percent of samples taken in Naples Bay in 1992. Among inland sediments, they are very high in the Gordon River Extension. Heavy metals are at very slightly elevated levels in urbanized estuaries, which include Naples Bay. The Golden Gate data and analysis predict "substantial population increases" for Golden Gate Estates. However, the Golden Gate data and analysis indicate that only a 4 square-mile area is served by central sewer; the same area is the only area served by central water. The Golden Gate data and analysis of the relevant drainage facilities report that the drainage basin for Golden Gate Estates is the 107 square-mile Golden Gate Basin and the 185.3 square-mile Faka Union Canal System Basin. The Faka Union Canal System Basin discharges into the Faka Union Bay, and the Golden Gate Basin appears to discharge into Naples Bay. Given the role of drainage in preserving or restoring the health of bays and estuaries, maintaining or improving natural recharge of the aquifer on which the County depends for its drinking water, and maintaining or restoring viable wetlands habitat for a variety of terrestrial and marine wildlife and plant life, and the historic exacerbation of flooding and fire by poorly planned artificial drainage facilities, DCA has proved by a preponderance of the evidence that the data and analysis do not support the Plan amendments that repealed Golden Gate Policy 2.2.3 and replaced it with Golden Gate Policy 2.1.4, so as to restrict the coverage of pre-existing restrictions on site alterations that substantially impact the drainage of South Golden Gate Estates. Issue 6 Conservation Objective 1.1 provides: By August 1, 1994, the County will complete continue with the development and implementation of a comprehensive environmental management and conservation program that will ensure that the natural resources, including species of special status, of Collier County are properly, appropriately, and effectively identified, managed, and protected. Species of special status are defined as species listed in the current "Official Lists of Endangered and Potentially Endangered Fauna and Flora in Florida," published by the Florida Game and Fresh Water Fish Commission. Conservation Policies 1.1.1 and 1.1.2 respectively provide: By August 1, 1989, appoint and establish operational procedures for Continue with using a Technical Advisory Committee to advise and assist the County in the activities involved in the development and implementation of the County Environmental Resources Management Program. By the time mandated for the adoption of land development regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto[,] incorporate the Goals, Objectives, and Policies contained within this Element into the County's land development regulations as interim environmental resources protection and management standards. Conservation Objective 1.3 provides: By August 1, 1994, complete Continue with the phased delineation, data gathering, management guidelines and implementation of the County Natural Resources Protection Areas (NRPA) program by implementing the Board- approved process for nominating potential areas for review. The purpose of Natural Resources Protection Areas will be to protect endangered or potentially endangered species (as listed in current "Official Lists of Endangered and Potentially Endangered Fauna and Flora in Florida," published by the Florida Game and Fresh Water Fish Commission) and their habitats. Conservation Policy 1.3.1 specifies the components of the NRPA program. Specific requirements include identifying NRPAs on the Future Land Use Map (FLUM), establishing development standards applicable within NRPAs to maintain functioning natural resources and restore or mitigate natural resources within NRPAs that are already degraded, identifying an NRPA review process, and deferring development within NRPAs through purchase, tax incentives, and transfer of development rights. Conservation Appendix D, which is part of the data and analysis, is devoted to Natural Resource Protection Areas (NRPAs). The issue is not what the County did or did not provide DCA during the review and adoption process. This historical fact is superseded by the opportunity presented to both sides to present data and analysis at the de novo hearing. Conservation Appendix D states that the Board of County Commissioners approved on March 1, 1994, a process for identifying NRPAs and establishing management plans for NRPAs. The process requires initial Board approval before the process commences. Appendix D identifies 33 criteria to be considered in designating NRPAs. Nearly all of the criteria involve environmental factors. The criteria represent a comprehensive range of environmental factors. Appendix D notes that, on February 28, 1995, the Board of County Commissioners approved Clam Bay as a NRPA and directed staff to begin the preparation of a management plan for Clam Bay. Clam Bay is a wetland area within an approved development of regional impact. Clam Bay was the site of a considerable mangrove die- off in 1992 and 1995. County staff appear to believe that there is a problem with flushing and possibly high water levels, as well, so the County is seeking a permit to dredge the pass. Historically, Clam Pass was connected to Vanderbilt Pond to the north, but land development severed this connection. Clam Bay is the only NRPA that the Board of County Commissioners has designated. DCA contends that the data show that the NRPA process does not adequately protect wetlands, wildlife, and wildlife habitat. Intervenors likewise argue that the NRPA is ineffective, and the County's ineffectual implementation of the NRPA program deprives Conservation Objective 1.3 of support from the data and analysis. The issue of whether these two objectives and three policies are supported by data and analysis requires consideration of their purpose and the efficacy of the programs to be established to help attain these objectives and realize their purpose. Conservation Objective 1.1, with its policies, establishes the Environmental Resources Management Program, whose purpose is to identify, manage, and protect "properly, appropriately, and effectively" natural resources, including species of special status. Conservation Objective 1.3, with its policy, establishes the NRPA program, whose purpose is to protect endangered or potentially endangered wildlife and plant life. The broader scope of the Environmental Resources Management Program is offset by its offer of only conditional protection, as disclosed by the three quoted adverbs. The highly conditional promise of Conservation Objective 1.1 means that this objective and its policies do not require much in the way of supporting data and analysis. For this reason, DCA and Intervenors have failed to prove that Conservation Objective 1.1 and Policies 1.1.1 and 1.1.2 are not supported by data and analysis. The focus of Conservation Objective 1.3 and Policy 1.3.1 is narrower--limited to endangered species and potentially endangered species--and its promise of protection is unconditional. A fair definition of potentially endangered species is threatened species and species of special concern, so this recommended order shall use the phrase, "listed species," to describe the species covered by Conservation Objective 1.3 and Policy 1.3.1. In determining the extent to which Conservation Objective 1.3 and Policy 1.3.1 are supported by data and analysis, it is necessary to consider the County's role in providing habitat to listed species, any trends in wildlife habitat and listed species, the treatment of listed species by other Plan provisions, and the County's use of NRPAs. In 1994, the Florida Game and Fresh Water Fish Commission published Closing the Gaps in Florida's Wildlife Habitat Conservation System (Closing the Gaps). This report divides Florida into geographic regions; Southwest Florida comprises Sarasota, Charlotte, Lee, Collier, Glades, and Hendry counties. Closing the Gaps cites this region as "the most important region in Florida" in terms of "maintaining several wide-ranging species that make up an important component of wildlife diversity in Florida . . .." Closing the Gaps, page 173. Most prominent in Southwest Florida are the only stable panther population east of the Mississippi River; the only stable black bear population south of Interstate 4; the greatest populations of Audubon's crested caracara in the United States; core populations of sandhill cranes, swallow-tail kites, and burrowing owls; important foraging and nesting habitats for colonies of many species of wading birds; and favorable conditions for several species of tropical plants that are rare elsewhere in Florida. Closing the Gaps states that most of the County hosts at least seven "focal species." "Focal species" are 40 species-- many of which are listed--selected for their role as indicators of natural communities or requirement of large areas for habitat. Closing the Gaps, page 8. Although most of this area is within Big Cypress and other publicly owned lands, it extends through Golden Gate Estates and into extreme west Collier County. A land-cover map in Closing the Gaps shows that the largest contiguous area of cypress swamp occupies Golden Gate Estates. Another map depicts this area as a large area of "strategic habitat" that runs to the north and northeast to link with strategic habitat running through central Hendry County and eventually to the western half of Glades County. Closing the Gaps, page 172. "Strategic habitat" is intended to provide habitat to species "lacking adequate representation in current conservation areas." Closing the Gaps, page 7. Closing the Gaps divides Collier County into two geographic areas for more detailed analysis. One area is north of Golden Gate Estates, reaching the Lee County line. The other area is west of Fakahatchee Strand and occupies South Golden Gate Estates and the remainder of Golden Gate Estates to the north. The more northerly area consists of cypress swamp, hardwood swamp, dry prairie, and pineland and "represents one of the most important wildlife areas remaining in Florida." Closing the Gaps, page 174. This area includes Lake Trafford, which is the highest part of the County and the only area supplying relatively high, natural aquifer recharge, and provides strategic habitat for the Florida panther, Florida black bear, wood stork, and American swallow-tailed kite. The more southerly area provides strategic habitat for the Florida panther, Florida black bear, red-cockaded woodpecker, and several rare wading birds that nest elsewhere. South Golden Gate Estates provides strategic habitat for the American swallow- tailed kite, southern bald eagle, eastern indigo snake, and several plant species. Central Golden Gate Estates provides strategic habitat for the American swallow-tail kite, red- cockaded woodpecker, gopher tortoise, eastern indigo snake, and several plant species. Both the northerly and southerly areas provide the "largest contiguous blocks of high-quality habitat . . . outside of conservation areas" for Florida bears. Closing the Gaps, page The County hosts the largest black bears in Florida and one of the largest groups of bears. Closing the Gaps asserts that bear habitat in the County "appears to be of the potentially greatest importance to black bears and many other rare species." Closing the Gaps, page 62. Coastal Collier County also provides strategic habitat for numerous species, including the southern bald eagle, gopher tortoise, loggerhead turtle, least tern, snowy plover, Florida black bear (Rookery Bay), peregrine falcon (Rookery Bay and Cape Romano), yellow-crowned night heron, brown pelican, Florida burrowing owl, American oystercatcher, and Florida scrub lizard. An aquatic mammal of prominence is the West Indian manatee, which frequents the waters of the County. The greatest number of citings throughout the year are in the Faka Union Canal and around Marco Island. During the winter months, the animals congregate in the Faka Union Canal. Manatees are under considerable stress. According to Conservation data and analysis, the number of manatee deaths in the County was 71 in 1996, the last year for which data were available. This was 25 percent of the total manatee deaths recorded for the preceding 22 years and was five less than the total for the preceding five years. The other large mammal under stress is the Florida panther. In 1993, the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, Department of Environmental Protection, and National Park Service published Florida Panther Habitat Preservation Plan: South Florida Population (Panther Plan). The purpose of the Panther Plan is to identify actions to assure the long-term preservation of habitats that are essential for maintaining a self-sustaining population of panthers in South Florida. Data indicate that a minimum self- sustaining population in this area is 50 adult panthers. The reproducing South Florida panther population occupies only Collier, Dade, Hendry, and Lee Counties. Although estimates vary, approximately 30-50 adult panthers probably remain in the South Florida area. In 1990, an estimated 46 panthers (of all ages) roamed the Big Cypress basin. During the study period of 1979 through 1991, 46.9 percent of panther deaths were due to highway collisions, mostly along State Road 29 and Old Alligator Alley (State Road 84), which are both in Collier County. Range demands of the panther are substantial. Males panthers require 180-200 square miles with minimal overlap with other males. Females require 75-150 square miles and tolerate overlapping territories with other females. The vast area in public ownership represented by Big Cypress Preserve and Everglades National Park offer lower-quality habitat for the panther, which prefers drier land, as does the bear, although it is less demanding than the panther in terms of habitat type. The northern 53 percent of the South Florida panther range is in private ownership, but the higher soil fertility and forested habitat characteristic of this land allow it to accommodate over half of the adult panthers, who are healthier and more productive than their counterparts in the southern portion of the South Florida range. Partly for these reasons, the vast publicly owned lands can support only 9-22 of the adult panthers in South Florida. Publicly owned lands in the South Florida range are probably at their limit in supporting panthers. The first two recommendations of the Panther Plan are to develop "site-specific habitat preservation plans" for land south of the Caloosahatchee River, which comprises 75 percent of known panther range and contains 39 of the 41 panthers studied between 1981 and 1991, and for land north of the Caloosahatchee River, which offers superior habitat that may in the future become more available for settlement by panthers. Other Plan provisions address wildlife and wildlife habitat. Conservation Policy 1.3.2 is to continue management guidelines for wildlife and wildlife habitat, but the guidelines are deferred and relegated to the land development regulations. Moreover, a County witness conceded at the hearing that staff was having difficult preparing these management guidelines. Conservation Objective 6.1 is to prepare development standards for all important native habitats, but the Plan Amendments extended the deadline for doing so another six years, until June 1, 1998, and largely deferred and relegated to the land development regulations. However, Conservation Objective 6.1 incorporates Policies 6.4.6 and 6.4.7 until the County prepares the development standards. For new residential developments greater than 2.5 acres in the Coastal Area or 20 acres in the coastal urban area, Policy 6.4.6 requires the retention of a minimum percentage of viable, naturally functioning native habitat. However, this policy is undermined by vagueness concerning "Coastal Area," "coastal urban area," and "viable, naturally functioning native habitat"; the emphasis on the preservation of sample habitats, rather than contiguous wildlife habitat; and the County's practice of allowing compliance with this requirement through total landclearing following by replanting. For all new development, Policy 6.4.7 addresses contiguous habitat, but only by encouraging, not requiring, preservation, and without specifying a minimum area to be preserved. Conservation Policy 7.2 is to maintain the average annual number of deaths of manatees from boat collisions at 3.2, although this is a small fraction of the total annual manatee deaths. Conservation Policy 7.3.3 is to prepare management guidelines in the land development regulations to inform landowners of the proper ways to reduce disturbances to red- cockaded woodpeckers, Florida panthers, other listed species, eagle nests, and wood stork habitat. Pending the preparation of these land development regulations, Conservation Policy 7.3.4 is for the County to "evaluate and apply applicable recommendations" of two governmental agencies regarding the protection of listed species. Lastly, the County will designate unspecified portions of known panther habitat as Areas of Environmental Concern on the FLUM. There is no explanation in the record why the County has designated only Clam Pass as an NRPA. However, the record does not support an inference that the NRPA program has had any effect whatsoever in addressing the needs of wildlife and habitat. In 1993 and 1994, County staff recommended 10-12 areas as NRPAs, including Belle Meade, Cap Key Strand (which runs from Immokalee and Lake Trafford south to the Florida Panther National Wildlife Refuge), and South Golden Gate Estates. These areas, which the County declined to designate as NRPAs, provide considerably more wildlife habitat and more wildlife habitat of higher quality than does Clam Pass, whose designation seems to reflect a reaction to mangrove dieoffs and possibly water quantity, but not habitat or even water quality. Considering the County's role in providing crucial wildlife habitat to listed species, weak Plan provisions concerning wildlife and wildlife habitat, and ineffective utilization of the NRPA program (at least for the purpose of protecting wildlife habitat), DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 1.3 and Policy 1.3.1 are not support by data and analysis. Issue 7 Conservation Objective 12.1 is: Continue to Eencourage the undertaking of activities necessary to attain maintain by 1994, hurricane evacuation clearance time for a Category 3 storm at a maximum of 28 hours as defined by the 1987 1996 Southwest Florida Regional Planning Council Hurricane Plan Evacuation Study Update, and by 1999, 27.2 hours. Activities will include on-site sheltering for mobile home developments, increased shelter space, and maintenance of equal or lower densities of the Category 1 hurricane vulnerability zone Coastal high hazard area in the land use plan. Conservation Policy 12.1.1 states: Land use plan amendments in the Category 1 hurricane vulnerability zone Coastal high hazard area shall only be considered if such increases in densities provide appropriate mitigation to reduce the impacts of hurricane evacuation times. shall be re-evaluated within three years and may change to a density level consistent with the Future Land Use Element. Conservation Objective 12.1 is not to maintain or reduce evacuation times; it is not even to encourage the maintenance of evacuation times. Objective 12.1 merely encourages activities that are necessary to maintain evacuation times. Additionally, Conservation Objective 12.1 refers to the misdefined Coastal High Hazard Area, as discussed in Issue 8. These two flaws in Conservation Objective 12.1 mean that this objective has not responded to the Conservation data and analysis, including Conservation Appendix E, which discusses hurricane evacuation times. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 12.1 and Policy 12.1.1 are not supported by data and analysis and Objective 12.1 is inconsistent with a criterion to maintain or reduce hurricane evacuation times. Issues 8 and 15 Following amendment, Conservation Policy 12.2.5 defines the Coastal High Hazard Area as the area "lying within the Category 1 Evacuation Zone as determined by the Emergency Management Director." The County amended the FLUM to depict the coastal high hazard area, as defined in Conservation Policy 12.2.5. The "Category 1 Evacuation Zone as determined by the Emergency Management Director" omits areas within the category 1 hurricane zone, as established in the 1996 Southwest Florida Regional Planning Council Hurricane Evacuation Study Update, which is the regional hurricane evacuation study applicable to the County. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Policy 12.2.5 and the conforming FLUM amendment reflect a Coastal High Hazard Area that is not the category 1 hurricane zone, as established by the regional hurricane evacuation study applicable to the County. Issue 9 Conservation Objective 6.3 states: A portion of the viable, naturally functioning transitional zone wetlands defined by State and Federal permitting requirements shall be preserved in any new non-agricultural development unless otherwise mitigated through the DER State and the ACOE permitting process and approved by the County. Conservation Objective 6.3 does not state what portion of the transitional zone wetlands shall be preserved, nor does it define "viable, naturally functioning transitional zone wetlands." Each of these concepts--viable, naturally functioning, and transitional zone--requires definition. There is thus no way to evaluate the success of the policies under the objective or that attainment of this objective marks progress toward a stated goal. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 6.3 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. Issue 10 Conservation Objective 7.3 states: By January 1, 1992, The County shall continue to develop and implement programs for protecting fisheries and other animal wildlife by including measures for protection and/or relocation of endangered, threatened, or species of special concern of status. The effect of the amendment of Conservation Objective 7.3 is to remove the deadline by which the County was to develop and implement programs to protect wildlife, including listed species. There is thus no way to evaluate the success of the policies under this objective or that attainment of this objective marks progress toward a stated goal. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 7.3 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. Issues 11, 12, 13, and 14 Conservation Objective 9.4 is: By September 30, 1989, the County shall establish The County shall implement the existing a local storage tank compliance program to protect ground and surface water quality including site inspections and information transfer. Conservation Objective 9.5 is: By August 31, 1989, the The County shall adopt implement construction, pretreatment, monitoring, and effluent limit requirements of the Collier County Ground Water Protection an Ordinance regulating the use of septic tanks serving industrial and manufacturing activities. Conservation Objective 10.6 is: By August 1, 1990, tThe County shall continue to implement the Coastal Barrier and Beach System Management Program by conserving the habitats, species, natural shoreline and dune systems contained within the County coastal zone. FLUE Policy 3.1.d is: Protect potable water wellfields and aquifer recharge areas. This shall be accomplished through the creation and implementation of a wellfield protection ordinance. The ordinance shall establish cones of influence based on groundwater travel times, restrict land uses and activities within the cones of influence and establish development standards for those activities beyond the cones of influence which may endanger the wellfields and aquifer recharge areas based on their potential for pollution. The Groundwater Protection Ordinance shall be implemented to protect existing and future wellfields, natural aquifer recharge areas and groundwater resources through standards for development involving the use, storage, generation and disposal of hazardous waste products, disposal of sewage and effluent, stormwater management, earthmining, petroleum exploration, solid waste and other related aspects of land use and development within the mapped wellfield protection zones. Groundwater Policies 1.2.1 and 1.2.2 are: The [Groundwater Protection] Ordinance [to be adopted by August 1, 1989, under Groundwater Objective 1.2] will address both existing and projected future land use and surface activities. Apply action criteria specified in the Collier County Ground Water Protection Ordinance to both existing and future regulated development according to procedures specified in the Ordinance to protect the County's ground water resources. The [Groundwater Protection] Ordinance will continue Apply criteria for ground water protection specified in enforcement procedures specified in the Ordinance to provide an appropriate level of protection to sensitive recharge areas. Conservation Objective 9.4 promises the implementation of a storage tank program that is contained in the land development regulations, which are not incorporated by reference into the Plan. Because these land development regulations are not themselves subject to the compliance determinations that are the subject of this case, Conservation Objective 9.4 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. This deferral and relegation to the land development regulations leaves no way of evaluating the success of the policies under this objective or that attainment of this objective marks progress toward a stated goal. The same deficiencies characterize Conservation Objectives 9.5 and 10.6, FLUE Policy 3.1.3, and Groundwater Policies 1.2.1 and 1.2.2, except that, for the policies, this deferral and relegation to the land development regulations leaves no way of identifying the way in which the County will conduct programs and activities to achieve identified goals. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objectives 9.4, 9.5, and 10.6, are not specific, measurable, intermediate ends that are achievable and mark progress toward a goal. DCA and Intervenors have proved by a preponderance of the evidence that FLUE Policy 3.1.d and Groundwater Policies 1.2.1 and 1.2.2 do not identify the way in which the County will conduct programs and activities to achieve identified goals. Issue 15 Section 187.201, Florida Statutes, sets out the State comprehensive plan. Section 187.201(8)(b)2 is to "[I]dentify and protect the functions of water recharge areas and provide incentives for their conservation." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Groundwater Objective 1.2 and Policies 1.2.1-1.2.4 and FLUE Policy 3.1.d. Section 187.201(8)(b)9 is to "[p]rotect aquifers from depletion and contamination through appropriate regulatory programs and through incentives." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 9.5, Groundwater Objective 1.2 and Policies 1.2.1-1.2.4, and FLUE Policy 3.1.d. Section 187.201(8)(b)10 is to "[p]rotect surface and groundwater quality and quantity in the state." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 6.3, FLUE Policy 3.1.d, Groundwater Objective 1.2 and Policies 1.2.1-1.2.4, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(8)(b)12 is to "[e]liminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 9.5, FLUE Policy 3.1.d, Groundwater Policies 1.2.1 and 1.2.2, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(9)(b)4 is to "[p]rotect coastal resources, marine resources, and dune systems from the adverse effects of development." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 6.3, 7.3, 9.4, 9.5, and 10.6 and Policy 12.2.5; FLUE Policy 3.1.d; Drainage Policy 1.1.2; and Golden Gate Policy 2.1.4. Section 187.201(9)(b)9 is to prohibit development that disturbs coastal dune systems. In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 10.6 and Policy 12.2.5. Section 187.201(10)(b)1 to "[c]onserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3, and 9.5 and Policy 1.3.1; Drainage Policy 1.1.2; and Golden Gate Policy 2.1.4. Section 187.201(10)(b)3 is to "[p]rohibit the destruction of endangered species and protect their habitats." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3, 9.5, and 10.6 and Policy 1.3.1; and Golden Gate Policy 2.1.4. Section 187.201(10)(b)7 is to "[p]rotect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 6.3 and 9.5, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(26)(b)7 is to ensure the development of local government comprehensive plans that implement and reflect state goals and policies and that address issues of particular concern to a region. In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3 10.6, and 12.1 and Policies 1.3.1, 12.1.1, and 12.2.5; Golden Gate Policy 2.1.4; and ICE Policy 1.2.6.
Recommendation It is RECOMMENDED that the Administration Commission enter a final order determining that the Plan Amendments are not in compliance. DONE AND ENTERED this 19th day of March, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1999. COPIES FURNISHED: Shaw P. Stiller Colin M. Roopnarine Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Thomas W. Reese 2951 61st Avenue South Saint Petersburg, Florida 33712 Marjorie M. Student Rodney C. Wade Assistant County Attorneys 3301 East Tamiami Trail Naples, Florida 34112 Richard D. Yovanovich Roetzel & Andress 850 Park Shore Drive Naples, Florida 34103 Donna Arduin, Secretary Executive Office of the Governor 1601 Capitol Tallahassee, Florida 32399-0001 David Schwartz, Esquire Executive Office of the Governor 209 Capitol Tallahassee, Florida 32399-0001
The Issue The issues in this proceeding are whether Santa Rosa County Comprehensive Plan Amendment 2007-R-047 adopted by Ordinance No. 2008-16, section 2, attachment A, on May 22, 2008 (Plan Amendment), is "in compliance," as that term is defined by Section 163.3184(1)(b), Florida Statutes, and, more specifically, whether the Plan Amendment is "internally consistent" with Objectives 7.1.B and 7.1.F and Policy 7.1.F.8 of the Santa Rosa County Comprehensive Plan (Plan) and supported by adequate data and analyses.1
Findings Of Fact Parties Petitioner, Belle Mer Owners Association, Inc. (Belle Mer), is the condominium association for the Belle Mer Condominium, which occupies a waterfront parcel of land immediately east of the Property. The Belle Mer condominium consists of 16 floors and 61 dwelling units and has a southwest orientation toward the Gulf of Mexico. PE 7 at 1, 3-4; CE 1-2. The parties stipulated that Belle Mer is an "affected person" as defined in Section 163.3184(1)(a) Florida Statutes, which owns property in the County and timely submitted comments and objections to the Board of County Commissioners of Santa Rosa County (Board) with regard to the Plan Amendment. Santa Rosa County is a local government subject to the requirements of the Local Government Comprehensive Planning and Land Development Regulations Act, Section 163.3161 et seq., Florida Statutes. Intervenors are the owners of the Property that is the subject of the Plan Amendment. The Intervenors possess leases from the County for each of the seven platted lots in Summer Place Subdivision, the location of the Property. In 1967, the relevant leases provided for the development of "multi-unit dwellings or light commercial." In 1987, the leases were amended to provide for the development of "up to 50 condominium units." In 1993, the lease was further amended at the lessee's request to provide a framework for the development of a single-family subdivision. The present lease issued by the County for these lots restricts the use of the lots to single-family residential. The Property and Vicinity The Property consists of 1.89 acres of gulf front property located on Navarre Beach, Santa Rosa County, Florida. There are four single-family homes and several vacant lots on the Property, with a total of seven residential lots. PE 7 at 5; CE 1-2. Since 1989, the Property has been zoned High Density. Prior to approval of the Plan Amendment, the FLUM designated the Property as NBLDR. The FLUM was adopted after adoption of the zoning map and after the Property had been subdivided and leased for single-family lots. The NBLDR designation reflected the existing land use of the Property. The Belle Mer property, including the condominium, is adjacent to and east of the Property and is designated NBHRD on the FLUM. The property to the east of the Belle Mer condominium contains approximately 84 condominium units (Navarre Towers), with a southeast orientation. T 54-55; PE 7 at 2; CE 1-2. The property immediately to the west of the Property, also designated NBHDR on the FLUM, contains 45 condominium units known as Emerald Surf or Emerald Shore. Under current regulations and subject to change, a 17-floor condominium could be developed on this property. PE 7 at 5; CE 1-2. The Navarre Beach Commercial Core Area is defined in the County's Land Development Code (LDC), Section 6.07.00. Prior to approval of the Plan Amendment, the Property was not included in the Commercial Core Area. All the land on Navarre Beach subject to the Plan is owned by the County and either leased to individuals or entities, or held by the County. Navarre Beach acreage that is designated Conservation/Recreation on the FLUM is owned by the County and has not been leased. However, the County is not prohibited from leasing this land to individuals. The County is also not prohibited from modifying current leases to allow a different land use. The Plan Amendment and Change in Density The Plan Amendment changes the FLUM designation of the 1.89-acre parcel from NBLDR to NBHDR. The maximum theoretical density permitted in the area designated NBLDR is four dwelling units per acre. The current density of the Property (1.89 acres) is approximately seven units. The maximum theoretical density permitted in the area designated NBHDR is 30 dwelling units per acre. The Plan Amendment increases the maximum theoretical density allowed on the Property from seven units to 56 units, an increase of 49 units. While subject to change, under the current County Land Development Regulations (LDRs), the footprint for any building constructed on the Property cannot exceed 19 percent of the Property size, assuming all other LDR requirements are met, including setback requirements. T 227-231. The maximum theoretical density permitted in the area designated Navarre Beach Medium Density Residential (NBMDR) is ten dwelling units per acre. Consideration of the Plan Amendment by the County and the Department The Board of County Commissioners of Santa Rosa County (Board) voted to transmit the Plan Amendment at their meeting on September 27, 2007.2 On November 29, 2007, the Board voted to transmit other plan amendments that had also been approved by the Local Planning Board. On December 14, 2007, the Department received the County's proposed plan amendments, including the Plan Amendment. On February 12, 2008, the Department completed its review of several plan amendments adopted by the Board including the Plan Amendment, and issued its Objections, Recommendations, and Comments Report (ORC), raising concerns with the Plan Amendment. The Department objected to the Plan Amendment "based on internal inconsistencies with the [County's Plan] by proposing high density development outside of the Navarre Beach commercial core, directing population concentrations to Navarre Beach, and by increasing evacuation times on Navarre Beach." JE 4. County staff developed a response to the Department's ORC and an updated staff analysis that were presented to the Board during the adoption hearing. JE 5. In response to the Department's first objection and prior to the adoption of the Plan Amendment, the County amended its LDC to expand the boundaries of the Commercial Core Area on Navarre Beach to include the Property and additional acreage. See endnote 4; PE 4. The County had to expand the boundary of the Commercial Core Area because the NBHDR designation is permitted only within the Commercial Core Area. JE 1 at 3-10, Policy 3.1.A.8 16)(The NBHDR "category shall only be located within the commercial core area of Navarre Beach."). The Department also commented in the ORC that the Plan Amendment was inconsistent with Plan Coastal Management Element Objective 7.1.B, which states that "[t]he County shall direct population concentrations away from Navarre Beach and the entire Coastal High Hazard Area" (CHHA) and Policy 7.1.F.8, which states that "[a]mendments to the [Plan] on Navarre Beach shall not be approved which will result in an increase in hurricane evacuation times without mitigation of the adverse impact to evacuation times."3 The Department suggested that "[s]hould the County decide to increase the density on the amendment site, the County should coordinate with the West Florida Regional Planning Council to draft a professionally acceptable hurricane evacuation analysis, based on maximum development potential of the site, demonstrating that the County evacuation time will [be] maintained." On May 22, 2008, the Board approved both the change to the LDC text, which included the Property and other parcels within the Navarre Beach Commercial Core Area,4 and the Plan Amendment. On June 23, 2008, Belle Mer submitted a detailed letter to the Department, with attachments, stating objections to the Plan Amendment. On August 27, 2008, the Department had published a NOI to find the Plan Amendment "in compliance." Internal Inconsistencies and Data and Analysis Petitioner alleges that the Plan Amendment is inconsistent with Objectives 7.1.B and 7.1.F and Policy 7.1.F.8 of the Plan and is not supported by adequate data and analysis. Objective 7.1.B Objective 7.1.B states that "[t]he County shall direct population concentrations away from Navarre Beach and the entire Coastal High Hazard Area." When Objective 7.1.B of the Plan was adopted, all of Navarre Beach, including the Property, was within the CHHA. As a result of a 2006 change in state law, see Chapter 2006-68, Section 2, Laws of Florida, amending Section 163.3178(2)(h), Florida Statutes, and as applied to the Property, the Property is not located in the CHHA. It also appears that very little of Navarre Beach is currently in the CHHA. T 198-200. Also, when the Plan was adopted, no state rule required the County to direct population concentrations away from areas other than the CHHA. The intent appears to "reflect the requirement of the state to direct populations away from the" CHHA and was not intended to apply to areas of Navarre Beach outside of the CHHA. In order to interpret the intent of Objective 7.1.B in areas of Navarre Beach outside of the CHHA, it is appropriate to consider Policy 7.1.B.1 that states: "At least 45% of the developable land within the Navarre Beach Zoning Overlay District shall remain within the Low Density Residential and Conservation/Recreation Future Land Use Map Designations."5 The persuasive evidence indicates that the Plan Amendment is not inconsistent with this policy. In response to the Department's second ORC comment, County staff advised the Board that Objective 7.1.B6 "is implemented by Policies 7.1.B.1, 7.1.B.2 and 7.1.B.3." County staff determined that the Low Density Residential and Conservation/Recreation FLUM designated areas on Navarre Beach comprise 48.02 percent without the Plan Amendment. The addition of the 1.89 acres reduced the percentage to 47.77 percent, a change of .25 percent. JE 5 at 5. Policy 7.1.B.2 states: "The County shall limit the densities and intensities of land use as defined within this Plan. Such limitations will assure generalized low density use of land within the majority of the Coastal High Hazard Area of Santa Rosa County." County staff determined that the County "is a coastal county with three bay systems, a 20 mile long peninsula, and more than 125 miles of shoreline, most of which falls within the CHHA. The subject property has approximately 200 feet of shoreline, and is less than two acres in size. The [FLUM] clearly shows that the vast majority of shoreline in [the County] is designated for low density development between 1 and 4 units per acre, and much of the CHHA is designated as Conservation/Recreation on the FLUM. This amendment, which accounts for approximately 0.03% of the County's CHHA shoreline, will not result in a perceptible change in the generalized low density use within the majority of the CHHA as required by Policy 7.1.B.2." After also considering Policy 7.1.B.3, staff concluded that while the Plan Amendment increased "the total number of potential dwelling units on Navarre Beach by 49 units, it is not inconsistent with Objective 7.1.B or it's [sic] implementing policies." JE 5 at 5-6. Since at least 1996, the Department has consistently determined that any increase above current density levels increases the population concentration in the CHHA. T 241-242. If the property under review is located in the CHHA, the Department's "review is very much heightened with regard to the" CHHA, but not applicable to the Property because it is not located in the CHHA. T 261-262. The Department has no rule or policy to address directing population concentrations away from areas not in the CHHA. T 265. (Within the last three years, the County has approved FLUM amendments within the CHHA, but has not approved an increase in density within the CHHA. In each case, the County directed population increases away from the CHHA and the County's action is consistent with the Department's prior determinations.) The Department's position is credible, but not applicable to the Property, which is not in the CHHA, and in light of Policy 7.1.B.1. Ms. Poplin testified she knew of no way to interpret a comprehensive plan objective, e.g., Objective 7.1.B, without considering it in context with the implementing policies, e.g., Policy 7.1.B.1, and this position is consistent with the Department's definition of "policy." See endnote 7. In other words, the Plan objectives should not be read in isolation without consideration of implementing policies. T 243-244.7 Each relevant Plan objective and policy must be considered. However, they are not considered as stand alone requirements as suggested by Belle Mer. See Petitioner's PRO at 27, ¶ 97. At the time the County adopted the original comprehensive plan and FLUM (approximately 2003), densities allowed on Navarre Beach were reduced by more than 600 residential units. T 216, 225-226. Ms. Faulkenberry did not recall any additional reductions since that time. The County considers an area as a whole in evaluating the direction of population densities rather than on an acre-by- acre basis. The County also does not require any density off- set to occur concurrently with a density increase. T 217. See Lee County and Leeward Yacht Club, Inc., Case No. 06-0049GM (DOAH August 25, 2006, at ¶¶ 42-45; Admin. Comm. November 15, 2006, at ¶ 8). It was not proven that the increase in maximum theoretical density that may occur on Navarre Beach as a result of the Plan Amendment is inconsistent with Objective 7.1.B as implemented, in part, by Policy 7.1.B.1 and is not otherwise supported by adequate data and analysis. Objective 7.1.F Objective 7.1.F states that "[t]he County shall maintain or reduce hurricane evacuation times by implementing Policies 7.1.F.1 through 7.1.F.11, among others."8 Policy 7.1.F.3 states: "The County shall maintain a minimum medium response roadway clearance time for hurricane evacuation of 12 hours on roads under local jurisdiction." Roads under local jurisdiction mean roads within the unincorporated area of the County, including state and Interstate roads, but excluding roads outside the County. The County uses this policy when evaluating the hurricane evacuation times from Navarre Beach and to determine whether the specific numerical criteria have been met. Policy 7.1.F.8 states: "Amendments to the [Plan] on Navarre Beach shall not be approved which will result in an increase in hurricane evacuation times without mitigation of the adverse impact to evacuation times." The persuasive evidence indicates that the over-all reduction in densities on Navarre Beach since the Plan was adopted is adequate mitigation. There is no persuasive evidence that the Plan Amendment is likely to adversely impact (increase) hurricane evacuation times beyond 12 hours. In the ORC, the Department suggested that "[s]hould the County decide to increase the density on the amendment site," that it "coordinate with the West Florida Regional Planning Council to draft a professionally acceptable hurricane evacuation analysis, based on maximum development potential of the site, demonstrating that the County evacuation time will [be] maintained." The Department does not usually examine evacuation times for plan amendments for property not located in the CHHA. The Department raised an issue regarding the evacuation times because Policy 7.1.F.8 refers to Navarre Beach and the requirement of mitigation of the adverse impact to evacuation times. T 268-269.9 County staff contacted the West Florida Regional Planning Council and determined that the latest study was the Northwest Florida Hurricane Evacuation Study Technical Data Report, July 1999 (Study). (The Department was not aware of models (to study hurricane evacuate times) other than as prepared by the regional planning councils. T 270.) There is no statute or rule that requires the County to use "every detail" of the Study. Mr. Crumlish advised that he would expect the County to modify the Study over time. A spreadsheet to aid in calculating clearance evacuation time was distributed with the Study by the U.S. Army Corps of Engineers. The County utilized the spreadsheet produced by the 1999 Corps Study. The spreadsheet is used by the County each year to perform an annual update of hurricane evacuation times, but had not been used by the County in conjunction with a land use change request before it was used during the evaluation of the Plan Amendment. The spreadsheet incorporates various factors contained in the Study and is driven by assumptions and conclusions in the Study.10 There are assumptions made in the Study that when the number of units increases, other numbers may change in relationship to the change in dwelling units. T 149. The spreadsheet is set up so that the County staff may only change or input three columns of data: number of single family units; number of mobile home units; and number of tourist units. Otherwise, "[t]he program is locked." Actual units are counted, e.g., a house, not platted lots without a unit. The spreadsheet also does not allow the County to update road improvements. "Another unknown is the response rate of the population to evacuation orders: rapid, medium or long." According to the County, the spreadsheet is the only and best available data. If other data were used, other than dwelling units described above, the spreadsheet received from the Corps would be altered. Each year the County updates the spreadsheet and accounts for all dwelling units constructed within the County as of the update. Except for consideration of the Plan Amendment, the information was not updated from June 2007 through May 22, 2008. There could have been a change and a significant difference in the number of dwelling units in the County between June 2007 and May 22, 2008, T 99-100, although the number of additional, existing dwelling units during this time period was not quantified. When using the spreadsheet, the County planning staff added 49 units (accounting for the additional units that could be generated by the Plan Amendment) to the annual run of the spreadsheet that was last completed in June 2007. For the purpose of computing the hurricane evacuation time in light of the Plan Amendment, the County did not input any other data into the spreadsheet for the purpose of assessing the hurricane evacuation times.11 County staff provided data and analysis indicating that "the clearance times for critical segments in the County remain less than 12 hours for Cat 1 - 3 hurricanes with the [Plan Amendment]. For Cat 4 - 5 hurricanes, the clearance times already exceeded 12 hours at the following critical segments: US 90 east of Milton, Pensacola Bay Bridge, and I-10 eastbound, but the increased density with the amendment showed no increase in clearance times. The clearance time on SR 87 south of I-10 increased from 9.57 hours to 9.60 hours (again, the widening of that roadway is not factored in). Overall, the effect of the [Plan Amendment] was three hundredths of an hour or less on the critical segments. Therefore, we conclude that County evacuation times will be maintained with the amendment." JE 5 at 6. The County did not assess whether the hurricane evacuation times would increase based on the County's redefinition of the Commercial Core Area other than the Property. According to the County, the changes to the Commercial Core Area were not relevant to its consideration of the Plan Amendment because it did not involve any other plan amendments or changes in density that would impact the hurricane evacuation analysis. T 272. Overall, it was not proven that adverse impacts resulted from the Plan Amendment or that the Plan Amendment was inconsistent with the Plan's objectives and policies referred to herein and not based on appropriate data and analysis. Impact of the Plan Amendment on Potential Loss of View and Financial Impacts on Belle Mer Condominium Unit Owners Petitioner presented two witnesses who own Belle Mer Condominium units, units 1602 and 904 (PE 7 at 4), and who testified regarding their potential loss of view if the Plan Amendment is approved and also that their property values would be reduced. These issues were raised in the JPS at pages 2-3, but not expressly raised in the Petition. See, e.g., T 31-37, 73- 75; see also Petition at 3, ¶¶ 9-12. Assuming for the sake of argument that the two issues were timely raised and may be considered, resolution of the issues is speculative at best given the nature of this proceeding. Notwithstanding the lay testimony of what might be constructed on the Property in the event the Plan Amendment is approved, such as a "needle" or "high rise," T 41-42, the nature, scope, and extent of the loss of view and financial impact can not be readily determined without, among other information, a site plan showing the actual development of the Property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued determining that the Plan Amendment 2007-R-047, adopted by Santa Rosa County in Ordinance No. 2008-16, section 2, attachment A, on May 22, 2008, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 7th day of April, 2009, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2009.
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered by the Commission dismissing the Department's petition for the reasons set forth above. DONE AND ENTERED this day of September, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of September, 1997. COPIES FURNISHED: Anne Longman, Esquire Lewis, Longman and Walker, P.A. 125 South Gadsden Street, Suite 300 Tallahassee, Florida 32302 Steven H. Parton, Esquire Dennis Silverman, Esquire Division of Legal Services 625 Larson Building Tallahassee, Florida 32399-0333 Robert S. Cohen, Esquire Pennington, Moore, Wilkinson and Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Elsie Crowell, Chairperson Commission on Hurricane Loss Projection Methodology Larson Building, Fifth Floor Tallahassee, Florida 32399-0300
