The Issue The issue for determination in this matter is whether Petitioner, Robert A. Mason, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to undertake development of certain real property located in Clay County should be issued by Clay County, notwithstanding that part of such development will not be in accordance with the Clay County Comprehensive Plan.
Findings Of Fact The Property The Applicant, Petitioner Robert A. Mason, is the owner of real property located in Clay County, Florida. The Applicant's property is known as "Cypress Landing," containing 5.977 acres, which consists of a rectangular tract 200 feet by approximately 841 feet in the Hollywood Forest Subdivision, bounded on the east by the west shore of the St. Johns River, and on the west by the right-of-way for Peters Avenue, now known as Harvey Grant Road. The Applicant acquired the property on July 25, 1958, by warranty deed from Victor M. and Ruth C. Covington recorded in Official Records Book 3, page 250, public records of Clay County, Florida. The property was the south 1/2 of Lot 12, Lot 12-A, and Lot 13, and the north 1/2 of Lot 14 of Hollywood Forest, a platted subdivision on Fleming Island in Clay County. At the time Petitioner acquired the property, the applicable zoning district permitted the development of the property for single- family residential at a maximum density of three units per acre. When the Applicant originally acquired the property in 1958, he and his wife had intended at some future time to live on the property and use the property for their own purposes, including recreation, keeping horses, and retirement. At the time the Applicant acquired the property there was an existing dock extending from the property into the river. Due to subsequent changes in his employment circumstances, the Applicant did not build a residence on the property. The Applicant is a registered forester who retired from the Georgia Forestry Commission after 32 years of service. The Applicant and his wife currently reside in Georgia. Cypress Landing contains a multitude and variety of trees, including magnolia, Florida holly, live oak and cypress, many of which are more than 200 years old and have diameters in excess of 36 inches. The Applicant has taken great care and followed specific conservation measures to identify and preserve the historic trees on the property. Development of the Property In 1982-1983, the Applicant prepared a development plan for the Cypress Landing property which comprised a single-family residential development. The planned development consisted of a total of seven single-family lots, two of which faced the river, and the other five which were 122 feet by 200 feet and lay side by side between the road and the waterfront lots. The development plan included an easement (the "Road Easement") for ingress, egress, drainage and utilities along the northern waterfront lot into the southern waterfront lot. From the east end of the Road Easement, an additional pedestrian easement was provided along the northern ten feet of the southern waterfront lot for pedestrian access to the river. The Applicant employed a surveyor, McKee, Eiland & Mullis, Land Surveyors Inc., of Orange Park, Florida. The Applicant instructed the surveyor to plat the property in accordance with the development plan and all existing codes. The property was thereafter subdivided into seven lots, identified as Lots A, B, C, D, E, F, and G. Lots A through E are the inland lots and each measure 122 feet by 200 feet with a 30 feet non- exclusive easement for ingress, egress, drainage and utility purposes. Lots A through E are inland lots. Lots F and G are the waterfront lots which are slightly larger than the other five lots and not as uniform in configuration. Lot F has approximately 116 feet of water frontage and Lot G has approximately 97 feet of water frontage. In 1984, relying on the applicable zoning regulations, the Applicant contracted with Robert Bray to install a roadway which is 30 feet in width and 866 feet in length running along Lots A through E and ending at Lot F. The roadway was constructed with specific concern for the protection and preservation of the trees on the property. A pre-cast concrete curb running the entire length of the roadway was installed to protect the trees from runoff. Porous rock was used as the foundation of the roadway to promote proper drainage. The roadway was also constructed with an ellipsis at Lot C to protect a historic tree. The design of the roadway, as well as the materials used in building the roadway, met all Clay County code requirements at the time of construction. In 1984, the Applicant reconstructed the dock on the property. The dock had previously been damaged due to storms. The dock was reconstructed by Duke Marine Construction in accordance with all appropriate regulations. Covenants have been executed to allow for use of the dock as a community dock for all lot owners. The community dock is 300 feet in length. Also in 1984, the Applicant erected a sign indicating the entrance to Cypress Landing. The sign was later vandalized and removed. In 1988, the Applicant contracted with Jacksonville Electric Authority for the installation of an underground electric distribution system in Cypress Landing. The underground utilities distribution system was designed specifically to protect and preserve the existing trees on the property, and was installed by boring under the trees to place a conduit to protect the established roots. The underground electrical distribution system was installed in accordance with the Clay County code at that time. On May 29, 1987, the Applicant sold Lot A to Robert M. and Mary Wasdin. Clay County issued a building permit for the construction of a residence on Lot A. A house has been constructed on Lot A. On September 1, 1989, the Applicant sold Lot E to Robert G. and Marva Lou Widhalm. Clay County issued a building permit for the construction of a residence on Lot E. A house has been constructed on Lot E. Applicant's Expenses The applicant expended approximately $4,609.45 on topographical surveys, tree location surveys, and engineering plans which were prepared for the mapping and platting of Cypress Landing. The surveying expenses were paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant incurred significant expenses in the design and construction of the roadway. Additional costs were incurred by the Applicant for the construction of the roadway in an environmentally sensitive manner which protected and preserved the historic trees on the property. The total amount expended in 1984 by the Applicant for the construction of the roadway was $6,880, all of which was paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant expended $19,540 for the reconstruction of the community dock in 1984, which was paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant expended $7,101.87 for the installation of the underground electrical distribution system in 1988 and 1989. This amount included an additional cost of $1,209.87 paid to JEA, which was the difference in cost between the underground system and an equivalent overhead electrical distribution system. This amount also included a cost of $5,502 paid to Allstate Electrical Contractors, Inc. of Jacksonville, Florida, for the boring and installation of the PVC conduits to protect the historic trees on the property. The expenses were paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant expended $363.58 for costs associated with the Cypress Landing entrance sign and a security fence. The expenses were paid prior to the adoption of the Clay County 2001 Comprehensive Plan. Rights that will be Destroyed In 1991 Clay County originally adopted the Clay County 2001 Comprehensive Plan pursuant to Chapter 163, Part II, Florida Statutes. The Clay County 2001 Comprehensive Plan is now known as the Clay County 2015 Comprehensive Plan. Under the Comprehensive Plan, Cypress Landing was designated with a land use designation in the plan of "Rural Fringe." Policy 2.10 of the Clay County 2015 Comprehensive Plan provides that if land is divided into three or more lots, any three of which are 9.9 acres or less in size, then such land must be platted in accordance with the County's regulations, and all lots must be provided access to a road improved to meet County paved road standards. The County's Subdivision Regulations were amended after 1990. Section 16(1)(d)1.a.i. thereof now requires a minimum width for subdivision streets of 60 feet. The regulations further require that such streets be paved. The Cypress Landing Road Easement is only 30 feet wide. Moreover, new surface water runoff requirements require retention areas for rainwater. To comply with the post-1991 Clay County land use regulations would require a reconfiguration of the lots in Cypress Landing. Reconfiguration is not possible because two of the lots have been sold to new owners. Policy 2.9 of the Clay County 2015 Comprehensive Plan restricts any easement that provides access to multiple lots to a length of 1,000 feet, and limits to five the number of lots that may utilize the same for access. While the Cypress Landing Road Easement is less than 1,000 feet in length, the number of lots within the Cypress Landing development exceeds the maximum that can access the Road Easement. The Petitioner would be precluded from selling or developing the remaining lots within the Cypress Landing development without reconfiguration and loss of one or more lots. Moreover, because Lots "A" and "E" have already been sold, the Petitioner cannot add additional right-of-way width to the Road Easement in order to comply with the County's Subdivision Regulations regarding minimum right-of-way width. The Applicant would have been entitled to statutory vested rights if 50 percent of the lots had been sold prior to 1992. Procedural Requirements The procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition for Establishment of the Tolomato Community Development District (Petition). The local public hearing was for the purpose of gathering information in anticipation of rulemaking by FLWAC.
The Issue At issue in this proceeding is whether PAM 98-01, a small scale amendment to the future land-use map ("FLUM") of the Lee County Comprehensive Plan (the "Lee County Plan" or the "Plan"), changing the future land-use designation of approximately 9.9 acres of land on Pine Island from Rural to Outlying Suburban, complies with the requirements of the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: Parties Petitioners, Barbara Dubin and William Dubin, are residents and property owners on Pine Island in the portion of Lee County affected by PAM 98-01. Ms. Dubin testified that she and her husband timely participated in the adoption process and made their objections before the Lee County Local Planning Agency (the "LPA") and the Board. No evidence was offered to contest Ms. Dubin’s testimony on this point. Therefore, the Dubins are each "affected persons" as that term is used in Sections 163.3184(1)(a) and 163.3187(3)(a), Florida Statutes, and have standing to file a petition challenging the adoption of PAM 98-01. Ms. Dubin is a member of the Civic Association and knowledgeable regarding its activities. She testified that the Civic Association has been incorporated as a not-for-profit corporation in the State of Florida for at least the past ten years. The purpose of the Civic Association is the preservation and protection of the environment and quality of life of Pine Island. The Civic Association has between 130 and 160 members, all of whom reside on Pine Island. Ms. Dubin testified that the Civic Association owns land and a building on Pine Island, at the intersection of Pine Island Road and Stringfellow Road, near the 9.9-acre parcel that is the subject of PAM 98-01. The Civic Association uses this building for its meetings, conducted monthly for ten months of the year with a break during the summer months. The Civic Association collects member dues within Lee County, and has a bank account in Lee County. It conducts educational activities, monthly meetings, publishes a monthly newsletter containing educational information concerning Pine Island land-use and quality of life issues, and participates in governmental meetings concerning Pine Island. Through members who spoke on its behalf, the Civic Association participated in the adoption process and objected to PAM 98-01 at the LPA hearing and the Board meeting at which the amendment was adopted. The Civic Association is an "affected person" as that term is used in Sections 163.3184(1)(a) and 163.3187(3)(a), Florida Statutes, and has standing to file a petition challenging PAM 98-01. Respondent, Lee County, is the local government whose land-use plan amendment is at issue in this proceeding. Intervenor, Gregory Eagle, is the owner of the real property that is the subject of PAM 98-01, and has standing to participate as a party in this proceeding. Pine Island The Greater Pine Island Area is located in Lee County west of the City of Cape Coral, south of the open waters of Charlotte Harbor, east of Captiva Island, North Captiva Island and Cayo Costa Island, and north of Sanibel Island. The Greater Pine Island Area consists of Pine Island, Little Pine Island, and the historic community of Matlacha, which is located on the Pine Island Road Causeway across the Matlacha Pass Aquatic Preserve between Little Pine Island and the Lee County mainland. The waters surrounding the Greater Pine Island Area are the waters of the Matlacha Pass Aquatic Preserve to the east, San Carlos Bay to the south, the Pine Island Sound Aquatic Preserve to the west, and Charlotte Harbor to the north. Pine Island is a long, narrow, roughly rectangular island, with the long sides running north and south. The island is roughly 16 miles long and two miles wide. Existing communities and residential development on Pine Island are essentially confined to five parts of the island. At the far north end of the island is the fishing community of Bokeelia, where the Dubins live. A golf course sits just south of Bokeelia. A residential development called Pineland is situated on the island’s northwest coast, between Bokeelia and Pine Island Road. At the center of the island, at the junction of Pine Island Road and Stringfellow Road, is the Pine Island Center, which is the main urban area of the island. A residential development called Flamingo Bay is situated between the Pine Island Center and the south end of the island. At the south end of the island is the small fishing village of St. James City. Matlacha is a small historic village that grew up around the Pine Island Causeway, which was built in the early decades of this century to connect Pine Island to the mainland. Lee County has designated parts of Matlacha as an historic district. Lee County statistics indicate a total of 26,393 acres on Pine Island, 13,693 acres of which are reserved for conservation uses. The existing land-uses of the remaining approximately 12,700 acres are as follows: 6,032 acres are vacant or undeveloped; 3,273 acres are used for active and passive agricultural activities; 2,084 acres are used for residential activities, including 822 acres classified as rural; 138 acres are used for commercial activities; 24 acres are used for industrial activities; and 1,148 acres are allocated for public uses. The current permanent population of Pine Island is 10,511 persons, and the seasonal population is 15,900 persons. There are currently 5,954 dwelling units on Pine Island. In 1990, the population of Pine Island was 7,300 persons, and the number of dwelling units was 5,520. The Lee County Plan recognizes and gives priority to property rights previously granted for about 6,800 additional dwelling units in Policy 14.2.2, set forth infra in the discussion of Transportation Need Projections. Lee County Plan In 1984, Lee County adopted its first official FLUM as an integral part of the Lee County Plan. On that initial FLUM, Intervenor’s property was divided into two land-use categories: Urban Community and Rural. The maximum standard density for the Urban Community designation established by the 1984 Plan was six dwelling units per acre (du/ac). Maximum density for the Rural designation was 1 du/ac. In 1985, the Florida Legislature passed the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes. In 1987, the Civic Association hired a professional planner to study the Greater Pine Island Area and prepare recommendations that Lee County could incorporate in its 1989 revision of the Lee County Plan, pursuant to the 1985 legislation. In 1988, the Civic Association issued the resulting study, which provided a description of the population, generalized land-use and zoning patterns, historic and archaeological resources, the area’s transportation network, and the availability of public services such as potable water and sewer facilities as of 1987. The "development suitability" of Intervenor’s property was discussed in relation to the listed items as well as hurricane evacuation and the condition of Pine Island and Stringfellow Roads. The study made extensive recommendations to amend the Lee County Plan, and was used by the Civic Association as the basis for initiating amendment PAM/T 88-07 to the Lee County Plan. Lee County staff analyzed and evaluated the recommendations of the study, and incorporated many of them into the 1988/89 update of the Lee County Plan, including what is now Goal 14 relating to Greater Pine Island. As to the property at issue in this proceeding, staff recommended that the land-use category be changed to all Rural. The FLUM was indeed amended to include all of the subject property in the Rural category. William Spikowski, who was the Lee County planner in charge of preparing the 1988/89 update to the Lee County Plan, testified that the intent was to limit most industrial and commercial development on the island to the Pine Island Center, which was given the Urban Community designation allowing the greatest number of mixed and nonresidential uses. Mr. Spikowski testified that the lines around this area were tightly drawn to clearly separate urban from rural uses, with some exceptions where the intensities "stepped down" to recognize existing development. PAM 98-01 Since about 1992, Intervenor has owned 58 acres of vacant land approximately 3/4 of a mile south of the intersection of Pine Island Road and Stringfellow Road. The 9.9-acre property that is the subject of PAM 98-01 is a portion of this 58-acre parcel, and is currently zoned CC and CG, both commercial zoning designations. The 58-acre parcel has been considered for a change in land-use classification three times since 1989, when it was excluded from the adjacent urban center of Pine Island and given a Rural designation. This parcel was the only commercially-zoned property adjacent to the urban center that was excluded from the urban center in 1989. Prior to 1989, as noted above, the subject parcel was designated as Urban Community in the Lee County Plan. The change of the parcel from Urban Community to Rural in 1989 was not challenged at the time it was adopted. On two prior occasions, the Board has considered but not approved proposals that would have returned the full 58-acre parcel to an urban land-use designation; on another occasion, the Board rejected a proposal that would have effectively locked the parcel out of any urban use designation. Greg Stuart, an expert in land-use planning who sits on the LPA, testified that the county’s concern with the earlier proposals was a reluctance to change the entire 58-acre parcel to an urban land-use and thus increase population capacity on the island. PAM 98-01 was in part an attempt to satisfy this concern by proposing a change for a smaller portion of the tract, and to the least intense urban use available. Matt Noble, Lee County’s principal planner, also testified that he believed the smaller area and less intense classification were factors in the Board’s decision to approve PAM 98-01. He added that another factor in the Board's approval of PAM 98-01 was that this property "appears to have been singled out" in the 1988 amendment cycle, in that it was the only commercially-zoned property adjacent to the Pine Island Center not to have been included in the Pine Island Center. Immediately south of the 58 acre parcel is a vacant Rural designated parcel with AG-2 and RM-2 zoning. South of this vacant parcel are three parcels (two Rural designated, one Wetlands designated) owned by the Greater Pine Island Water Association. The Water Association has constructed a reverse osmosis ("RO") plant on one of the Rural parcels. Immediately south of the RO plant site is the Island Acres Subdivision, with a Rural designation. On June 5, 1995, the Board approved a rezoning of this property to RPD, which permits the development of 31 single-family residential dwellings on lots ranging from just over one acre to just over 1/2 acre, the excavation of a 12.23-acre lake, and an 8.55-acre wetland preserve area. As of the submission of the Staff Report on April 13, 1999, the internal roads of Island Acres Subdivision had been constructed but no dwellings had yet been built. Immediately east of Intervenor’s 58-acre parcel are vacant lands designated Rural and Wetlands. To the west is Stringfellow Road, and on the west side of Stringfellow Road is a 134-acre vacant parcel designated Rural. Additional vacant land designated Rural is on the west side of Stringfellow Road. To the north of and abutting Intervenor’s 58-acre parcel is a developed property with a Huntington Bank building. This property is zoned CC and CG, and is split between Urban Community and Rural land-use designations. To the north of the Huntington Bank parcel is a Winn-Dixie Shopping Center, zoned C-1A and located within the Urban Community of Pine Island Center. In summary, while Intervenor’s parcel is the only commercially-zoned property adjacent to the Pine Island Center that does not also have an Urban land-use designation, it is also the case that the only urban or commercial development in the vicinity is to the north of Intervenor’s property, with the exception of the RO plant. Mr. Noble testified that Intervenor’s parcel is served by public services at least to the same extent as the nearby properties included in the Pine Island Center designation. Mr. Noble agreed that the Staff Report’s notation that there is no sewer service available to Intervenor’s property was not a unique characteristic of this property; in fact, there is no central sewer service on Pine Island that property owners at large may tap into. As noted above, there are over 600 acres of land in the Greater Pine Island Area with commercial zoning. This acreage includes vacant land in the Pine Island Center with a current land-use designation of Urban Community, which indicates "a mixture of relatively intense commercial and residential uses," "distinctly urban" but developed at "slightly lower intensities." PAM 98-01 would change the land-use designation of Intervenor’s vacant 9.9-acre parcel from Rural to Outlying Suburban, increasing the permissible residential density from 1 du/ac to 3 du/ac, an increase of 20 dwelling units, assuming the entire parcel is developed residentially. Intervenor’s application proposed 25,000 square feet of commercial development on three acres of the parcel, and 21 dwelling units on the remaining acreage. The Staff Report pointed out, however, that Lee County cannot condition the requested change in land-use designations to limit development potential to this proposed scenario. Therefore, the Staff Report applied the most intensive scenario of retail commercial uses that could occur on the property. At the hearing, Mr. Noble, Lee County’s lead planner on this application, testified that while the staff’s conclusions were based on commercial uses, the residential aspects of the project were also evaluated in the section of the Staff Report dealing with population accommodation. The Staff Report concluded as follows: The subject property has had quite a long history concerning it’s [sic] future land-use designation. The property’s owners have consistently been requesting an increase in density and intensity, while the citizens of Pine Island, just as consistently, have been opposed. This request is the smallest in area to date, with the least intensive increase in density and intensity. The owner argues that, under the current designation, the property is not developable. This contention would appear to be invalid, given the development of the Island Acres subdivision, immediately to the south of the RO plant. Pine Island is a unique place with considerable constraints to development as an urban area. With no increase in land-use designation, the level of service on Pine Island Road and Stringfellow Road will operate below the adopted standard before the year 2020. The thresholds established by Policy 14.2.2 will be exceeded by the year 2005. Limited access and it’s [sic] location in regards to hurricane vulnerability make it difficult to entertain or justify increases in density and/or intensity. There are ample areas currently designated on the island to accommodate the proposed development scenario. The full range of urban services, such as sanitary sewer and mass transit, are not and will not be available to this site. This would be the first land-use amendment on Pine Island since the 1988 Pine Island Land-use Study was incorporated into the Lee Plan. Even though a considerable amount of time has passed since the study’s completion, few changes in the condition of the island have occurred. Staff concludes that there are viable uses allowed on this property. Staff can see no compelling reason to support this proposed land-use amendment. While the impact of ten acres changing from a Rural designation to the Outlying Suburban category, when looked at on a county wide basis, is minimal, the unique circumstances on Pine Island do not support this change. The LPA voted against adoption of PAM 98-01 by a vote of 4-1, with two members (including Mr. Stuart, who worked on the project for Intervenor) abstaining. The LPA adopted the findings of fact set forth in the Staff Report, and added its concern with maintaining the current line of separation between urban and suburban uses. One LPA member did comment that "if there is another shopping center site on Pine Island, it’s probably this property," and in the "long run" there may be a need for another shopping center on Pine Island. The Board voted 3-2 to adopt PAM 98-01, finding that "the request would result in minimal impacts to such services as transportation, public safety, schools, and population accommodation." The petition filed by Petitioners, as amended, raised the following issues of fact and law: Data and Analysis: that PAM 98-01 is unsupported by data and analysis for increased residential and commercial designation on Pine Island and thus is not in compliance with Section 163.3177(8) & (10)(e), Florida Statutes, and Rules 9J- 5.005(2), 9J-5.006(2)(b) & (c), and 9J- 5.006(5)(a) & (g), Florida Administrative Code. Coastal Hazard: that PAM 98-01 is not in compliance with Section 163.3178(2), Florida Statutes, and Rules 9J-5.006(2), 9J- 5.012(3), and 9J-5.012(3)(b)6., Florida Administrative Code, because it directs population to the known or predictable coastal high hazard area. Land-use Suitability: that PAM 98-01 is unsupported by data and analysis supporting the suitability of land for increased residential density or intensity of commercial development and thus is not in compliance with Section 163.3177(6)(a), Florida Statutes, and Rules 9J-5.006(2), 9J- 5.006(2)(b), and 9J-5.006(5)(a) & (g), Florida Administrative Code. Internally Inconsistent: that PAM 98-01 is internally inconsistent with the following Lee County Plan goals, objectives, and policies: Policy 5.1.2 prohibiting residential development where physical constraints or hazards exist, or requiring the density and design to be adjusted accordingly. Constraints or hazards include flood, storm, or hurricane hazards, and environmental limitations. Goal 14 requiring that the management of growth on Pine Island maintain the island’s unique natural resources and character, and insure that island residents and visitors have a reasonable opportunity to evacuate when a hurricane strike is imminent. Objective 14.1 requiring that Pine Island have no unnecessary loss of native upland vegetation or habitat. Policy 14.2.2, set out in full above, concerning future development regulations to limit future development approvals when traffic reaches certain thresholds. Objective 14.3 requiring that county regulations, policies and discretionary actions to recognize "certain unique characteristics" of Greater Pine Island justifies different treatment of existing and future residential areas than in mainland Lee County. Goal 75 protecting human life and developed property from natural disasters. Objective 75.1 and Policies 75.1.2 and 75.1.4 concerning densities in coastal high hazard areas. Objective 77.2 and Policies 77.2.3 and 77.2.6 concerning protection of natural plant communities. Policy 77.4.4 restricting the use of protected plant and wildlife species habitat to that which is compatible with the requirements of endangered and threatened species and species of special concern. Policy 77.8.1 concerning the protection of gopher tortoise burrows. Goal 79 and Objectives 79.1 and 79.2 concerning evacuation times and shelter capacity. Inconsistent with State Plan: that PAM 98-01 is inconsistent with Section 187.201(7)(b)23, Florida Statutes, which concerns protecting life and property from natural disasters such as hurricanes, and Section 187.201(10)(a), Florida Statutes, which concerns protecting natural habitats and ecological systems. Suitability In 1989, Lee County’s Department of Community Development prepared the Pine Island Commercial Study, in response to a general directive by the Board to develop a means of identifying future commercial sites throughout Lee County, and in direct response to issues emerging from the review of two specific commercial zoning cases on Pine Island. The Commercial Study was initiated to research, analyze, and quantify commercial zoning needs for Pine Island, and then identify suitable locations for potential future development. The Commercial Study concluded that in 1989 there were over 600 acres of commercially-zoned property on Pine Island, and that this acreage was "far in excess of any possible need, even at build-out, of Pine Island." The study went on to say: However, it is recognized that not all the lands currently zoned commercially are in advantageous locations, nor are they in appropriate land-use categories. In fact, properties in locations with strong market demand and good transportation access and suitable lot sizes are relatively limited. The Commercial Study also concluded that much of the land already zoned for commercial use was zoned C-1 and C-1A, "carryover" categories from older Lee County ordinances based on "pyramid" zoning, i.e., they also allowed residential uses. The study found that the most desirable solution to this problem would be to rezone these properties to non-commercial categories, but recognized the prohibitive cost of such a "relatively massive undertaking." It recommended the more practical option of modifying zoning regulations to make it clear that retail commercial uses can only be located within "designated commercial nodes," regardless of their zoning categories. The Commercial Study also concluded that additional retail uses would be needed on Pine Island as the population grows, although current uses were adequate to meet existing needs "until the year 2000," and that commercial development should be concentrated in the Pine Island Center, with possible convenience store sites at St. James City and Bokeelia. Approximately 236 acres were identified in the Commercial Study as appropriate commercial areas. The Commercial Study stated that this was more than four times the amount needed for 1990 retail and general commercial uses. Mr. Spikowski testified that it is typical for more property to be zoned commercial than is actually needed, because land owners are attempting to maximize the value of their property. He testified that a "slight surplus," in the range of 15 to 25 percent, is appropriate to avoid giving a few land owners a monopoly on future development. The property at issue in this proceeding was not included in the 236 acres deemed appropriate for commercial development. Despite several efforts from 1990 through 1993, no amendment establishing these commercial nodes was ever adopted by the Board. Ultimately, the Civic Association itself withdrew its support for the commercial nodes plan, stating that the plan as proposed would promote commercial strip development and commercial sprawl. In 1993, the Board adopted Policy 14.4.3, which would have required Lee County staff to update the Commercial Study in 1995. However, no such update was ever undertaken, and in 1998 the Board amended the Lee County Plan to delete Policy 14.4.3. The staff report recommending deletion of the policy noted that current demand for commercial sites had been minimal and did not warrant a full scale update of the Commercial Study, and concluded that the 1989 Commercial Study was "still a current document" not in need of an update. The Lee County Plan incorporates a "planning community" concept through an overlay, commonly referred to as the "FLUM 2020 Overlay," that establishes certain acreage allocations for uses that can occur within 20 discrete planning areas before the year 2020. Pine Island is one of these planning areas. The FLUM 2020 Overlay is intended to allocate development throughout the county and prevent excessive development in particular land-use categories beyond the projected need. The FLUM 2020 Overlay allocates development on Pine Island through the year 2020 as follows: Category Allocation (in acres) Intensive Development (for Residential Development) 5 Urban Commercial (for Residential Development) 526 Suburban (for Residential Development) 636 Outlying Suburban (for Residential Development) 466 Rural (for Residential Development) 1,129 Outer Island (for Residential Development) 37 Wetlands (for Residential Development) 88 Commercial 165 Industrial 64 j. Public 1,722 k. Active Agriculture 2,313 l. Passive Agriculture 960 m. Conservation 13,693 n. Vacant 4,586 Total 26,390 Below this list of allocations is a table called "Non Regulatory Allocations," which shows a total of 26,393 acres, slightly different from the total derived above. The "Non Regulatory Allocations" table lists 13,738 acres as conservation lands, leaving 12,700 acres. An additional 4,586 acres are designated "Vacant" in the "Non Regulatory Allocations," but their land-use designation is not identified. The FLUM 2020 Overlay provides for 165 acres of commercial development on Pine Island by the year 2020. Mr. Spikowski testified that Lee County’s database indicated that as of 1997 there were 138 acres developed commercially on Pine Island, leaving a need of 27 acres of vacant land for commercial development before the year 2020. Mr. Noble, the principal planner for Lee County, testified that his conclusion, reflected in the Staff Report, was that there is no need for additional commercial or urban lands on Pine Island, and that approval of PAM 98-01 would cause unnecessary commercial development on Pine Island. He testified that these conclusions were largely based on the findings of the 1989 Commercial Study of Pine Island. Mr. Noble also testified that, despite his conclusion as to the lack of need for commercial development, the FLUM 2020 Overlay allocates sufficient acreage to accommodate the property involved in PAM 98-01 without requiring an amendment to the overlay. Mr. Noble testified that no effort was made to update the findings of the 1989 study, because none was needed. He testified that there has been very little rezoning or development activity on Pine Island since 1989 aside from some clearing for agricultural uses, and therefore the 1989 study represents the best available data. Mr. Spikowski agreed with this assessment, testifying that while the 1989 study is somewhat out of date, it still provides good information on how much commercial development is needed to serve the community. Mr. Spikowski testified that the study still provides more information than exists for other parts of Lee County regarding the relationship between commercial development and commercial zoning. Mr. Noble admitted that the county’s capabilities in collecting and categorizing data have improved since 1989, but did not agree that revising the study would result in improved information, because the county’s zoning information is so inaccurate that one could not rely on the existing land-use data base to update the study. Thus, despite the fact that the county’s data base is now linked to the property appraiser’s records on a parcel by parcel basis, an accurate revision of the study would require verification of each parcel, and the lack of activity on Pine Island indicated to Mr. Noble that such an expenditure of resources was not needed to assess this application. Mr. Noble testified that the staff recommendation against approval was not a statement that approval of PAM 98-01 would be illegal. Mr. Noble also agreed there was a difference between opining that there is no need for more commercial and urban classifications, and holding that more such classifications are not allowed. He attended the meeting at which the Board approved the amendment, and believed the Board understood staff’s presentation and considered all relevant information in arriving at its decision. Mr. Noble testified that the Lee County Plan is currently in compliance with all applicable legal requirements, and he did not think that PAM 98-01 would place the plan out of compliance. Mr. Stuart, Intervenor’s planner, testified that once he began to understand that Lee County staff had concerns with overcommercialization of Pine Island based on the 1989 study, he took a hard look at that data. He testified that the 602 acres of commercial property set out in the Commercial Study did not appear correct "when you look at the map." Mr. Stuart testified that he performed a specific land- use study using the Lee County Division of Planning geographic information system resources. Mr. Stuart began by looking at the 1989 study, and noted that no information was available to show how the county derived the 602-acre figure. The only thing available in the county’s files was a single sheet aggregating the numbers into a total, without explanation of how the constituent numbers were derived. Mr. Spikowski, who was Lee County’s head planner in 1989, testified that the 602-acre figure was calculated "very carefully," but offered no detail to illumine that conclusory statement. Mr. Stuart testified that, though he suspected the total was inflated, he assumed that it was reasonably accurate for purposes of his analysis. Mr. Stuart considered the currently expected population of Pine Island based upon currently available data, the county’s planning conversion ratio of 2.09 persons per household on Pine Island, the county’s conversion ratio adjusting Pine Island’s population for seasonal residents, and then calculated the projected need for commercial development expressed in acres, using the same ratios that Lee County uses in planning for this purpose. Mr. Stuart also developed a computer table, with the assistance of county staff, of all the commercially-zoned property on Pine Island. He then adjusted the output to correct data entry errors and approximated the commercial acreage determined to be available in the 1989 Commercial Study. Mr. Stuart next examined the properties parcel by parcel to delete those commercially-zoned properties that have already been put to non-commercial use, that are wetlands unlikely to be commercially developed, that are in use as public facilities, and those that may not be developed because they are designated with outdated zoning categories that are restricted under the Lee County Land Development Code. This process derived an estimate of the number of commercially-zoned acres on Pine Island that are either in commercial use or are available for commercial use. Mr. Stuart’s analysis concluded that there is actually a deficit on Pine Island of 69 acres of commercially-zoned property that may as a practical matter be put to commercial use, when the projected demand for such property to serve the projected population of Pine Island is taken into account. In summary, it is found that Petitioners failed to demonstrate by a preponderance of the evidence that the increase in residential density and commercial intensity contemplated by PAM 98-01 is not suited to accommodate the population of Pine Island. The most conservative estimate rendered by the data and analysis indicates a need for an additional 27 acres of commercial development. No amendment of the FLUM 2020 Overlay is needed to effect this small-scale FLUM amendment. Mr. Stuart’s analysis is credited to the extent it supports a finding of substantial need. Petitioners offered no competent substantial evidence regarding residential allocations and the lack of any need for additional residential density, and thus failed to overcome the presumption that the Board’s action in adopting PAM 98-01 was correct on this point. Transportation Vehicular access from the mainland to Pine Island is provided solely by way of Pine Island Road, a two-lane road that proceeds over Matlacha Pass, through the Matlacha community, and over Little Pine Island by a series of bridges and causeways. North/south access on Pine Island is by way of Stringfellow Road, a two-lane road that runs from the community of Bokeelia at the north end of Pine Island to the community of St. James City at the south end of Pine Island. William Spikowski, a planner who testified on behalf of Petitioners, stated that widening the narrow, two-lane Pine Island Road to accommodate more traffic would be at best a difficult and expensive proposition. He testified that the right-of-way through most of the Matlacha community is only about 66 feet wide, and the buildings are often located directly adjacent to the right-of-way. He testified that if the right-of- way were widened to 90 feet to accommodate extra lanes, 75 buildings would have to be removed and several other businesses would lose their parking lots. Mr. Spikowski concluded that Pine Island Road is the biggest limitation on the island’s development. The Lee County Plan designates Pine Island Road as a constrained roadway as it passes through Matlacha, due to the narrow right-of-way and scenic, aesthetic, and environmental considerations. Matt Noble, a Lee County planner, testified that there were no improvements scheduled for Pine Island Road for the next three years, and that the road is projected to operate at Level of Service "F" in the year 2020 based on the applicant’s analysis. Level of Service "F" is below the standard adopted by the Lee County Plan. Mr. James Banks, a professional engineer expert in transportation engineering and planning, testified that the predictive methodology employed by county staff, i.e., assuming no road improvements while loading the system with future traffic demands, would result in a Level of Service "F" rating for nearly every major roadway in Lee County for the year 2020. He testified that this was an improper method for reviewing development permits. Mr. Banks testified that the proper method is to look at the roadway’s capacity at the time of the development application to determine whether there is available capacity today. If there is no capacity available, then the developer must devise a way to mitigate the impact, alleviating any degradation below the road’s adopted level of service. The permitting system is "first come, first serve," meaning that if the capacity is available today, then the permit is issued. Mr. Banks testified that there is no data indicating that the capacity of Pine Island Road will be exceeded by the year 2005. The sole hurricane evacuation route from the Greater Pine Island Area is by way of Stringfellow Road to Pine Island Road, then north on Burnt Store Road. Burnt Store Road is also the evacuation route for the City of Cape Coral. Several Pine Island residents testified as to their concerns that any increase in development on the island will further compromise the ability to evacuate the island in the event of a hurricane. There are no hurricane shelters on Pine Island, and no public services on the island during hurricanes. The Lee County Staff Report for PAM 98-01 raised similar concerns, concluding that the applicant is "seeking to increase density thereby increasing the number of persons at risk, impacting evacuation routes and shelter space." At the hearing, Matt Noble, Lee County’s principal planner and the lead planner working on the Staff Report, testified that the quoted statement in the Staff Report assumed that the development on the 9.9-acre parcel would be residential. He further testified that commercial development of the property would have no effect on evacuation times, which are based on the number of residents attempting to leave the island. Mr. Noble’s testimony on this point conflicts somewhat with the Staff Report’s statement that the application was reviewed using the most intensive scenario of retail commercial uses occurring on the property. However, given that the proposed plan amendment could not limit the development that could ultimately be requested on the property, it was not arbitrary for the county staff to consider both residential and commercial uses as potential development scenarios. James Banks, Intervenor’s transportation planning expert, testified that if residential demand on Pine Island exceeds the capacity of commercial development to satisfy it, there would be an increase in traffic on Pine Island Road as residents leave the island to do their basic shopping. Conversely, if enough commercial development occurs on the island to consume the residential demands, the number of off-island trips would be reduced. Mr. Noble agreed that there might be an increase in trips off the island if there were insufficient commercial development to serve the residents on Pine Island. He testified that there is a planning principle supporting integrated and coordinated land-use development, and part of that principle is to capture as many trips as close to residential development as possible to avoid urban sprawl. Mr. Noble testified that the Board considered this principle in its deliberations, and that one Commissioner expressly stated that having additional commercial capacity on Pine Island might improve the transportation flow on Pine Island Road by decreasing the number of trips off the island. Policy 14.2.2 of the Lee County Plan states as follows: In order to recognize and give priority to the property rights previously granted by Lee County for about 6,800 additional dwelling units, the county shall consider for adoption development regulations which address growth on Pine Island and which implement measures to gradually limit future development approvals. The effect of these regulations would be to appropriately reduce certain types of approvals at established thresholds prior to the adopted level-of- service standard being reached, as follows: When traffic on Pine Island Road between Burnt Store Road and Stringfellow Boulevard reaches 810 peak hour, annual average two-way trips, the regulations shall provide restrictions on further rezonings which would increase traffic on Pine Island Road. When traffic on Pine Island Road between Burnt Store Road and Stringfellow Boulevard reaches 910 peak hour, annual average two-way trips, the regulations shall provide restrictions on the further issuance of residential development orders (pursuant to the Development Standards Ordinance), or other measures to maintain the adopted level of service, until improvements can be made in accordance with this plan. Lee County has not actually adopted regulations restricting rezonings and/or development orders based upon the 810/910 peak hour traffic thresholds on Pine Island Road between Burnt Store and Stringfellow Roads. Mr. Noble testified that the main reason for the adoption of Policy 14.2.2 was the county’s concerns regarding hurricane evacuation. He agreed that, even if the prescribed regulations had been adopted, they would restrict rezonings and development orders, not amendments to the comprehensive plan. Mr. Noble testified that the 810 and 910 vehicle limits are not standard calculations derived by the Department of Transportation, and cannot be mathematically derived from any planning model. Mr. Spikowski testified that the 810 and 910 vehicle per hour thresholds were based on roughly 80 percent and 90 percent, respectively, of the level of service proposed by either the Civic Association or Lee County staff at the time of the policy’s adoption. He further testified that the 810 trip per hour threshold has already been reached. James Banks, Intervenor’s expert in transportation planning, agreed with Mr. Noble that the 810 and 910 vehicle limits were essentially arbitrary thresholds adopted by the Board, and further testified that these thresholds are unrelated to the actual capacity of the road. Mr. Banks testified that Lee County’s own Concurrency Management Inventory and Projections indicate that the actual capacity of Pine Island Road between Burnt Store and Stringfellow Roads is 2,170 vehicles per hour at Level of Service "E", and that the road is currently operating at Level of Service "A," the highest designation. Mr. Banks testified that under any possible development scenario involving the parcel at issue in this proceeding, the impact would be no worse than Level of Service "B" for this portion of Pine Island Road, still well below the road's capacity. In summary, Petitioners failed to demonstrate by a preponderance of the evidence that PAM 98-01 will compromise evacuation of Pine Island in the event of a hurricane, or that the development that might ultimately be allowed pursuant to the Outlying Suburban designation will strain the operating capacity of Pine Island Road in the critical areas described above. Even assuming the additional traffic generated will push trips per hour beyond the 810 threshold and toward the 910 trip per hour threshold, Policy 14.2.2 by its terms places no restrictions on development; rather, it provides that the Board will consider adopting development regulations "to gradually limit future development approvals." Coastal High Hazard Area Closely related to the transportation and evacuation concerns is the issue of development limitations on barrier islands such as Pine Island. Goal 75 of the Lee County Plan and its implementing objectives and policies addresses development in coastal high- hazard areas. Objective 75.1 limits new development on barrier islands to densities that meet required evacuation standards, and states that allowable densities for undeveloped areas within the coastal high hazard areas will be considered for reduction. Mr. Noble testified that other Outlying Suburban lands and proposed residential development on Pine Island have been found to comply with Objective 75.1, but that there have only been a "couple" of such projects due to the sparse development activity on the island. Policy 75.1.2 prohibits rezonings to allow higher densities on barrier and coastal islands if the capacity of critical evacuation routes would be exceeded. Mr. Spikowski conceded that approval of three homes per acre on the seven acres proposed for residential development by Intervenor would not exceed the Lee County Plan’s stated evacuation times, but argued that taking a narrow view of this project in a vacuum is "the antithesis of planning," which calls for a view of the "big picture" rather than the individual project. Policy 75.1.4 states that density reductions for undeveloped areas within the coastal high-hazard areas will be considered, but does not require such reductions. In 1993, the Florida Legislature amended Section 163.3178(2)(h), Florida Statutes, to require that coastal elements of comprehensive plans designate "coastal high-hazard areas," defined as Category One evacuation zones, i.e., areas that must be evacuated for a Category One hurricane. Rule 9J- 5.003(17), Florida Administrative Code, was subsequently amended to reflect the statutory change. Petitioners contend that PAM 98-01 cannot be adopted at this time because the Lee County plan amendments defining the coastal high hazard area have not been finally adopted. Petitioners contend that adoption of PAM 98-01 would violate Rule 9J-5.002(8), Florida Administrative Code, which provides: Effect of Rule Amendments. No amendment to this chapter shall have the effect of causing plans or plan amendments which were adopted prior to the effective date of the amendment to become not in compliance. Minimum criteria contained in any amendment to this chapter shall be addressed in the first subsequent transmitted plan amendment which is directly related to or requires the application of those criteria. Petitioners contend that the quoted rule provision operates to give effect only to such plan amendments dealing with potential "coastal high-hazard areas" as were adopted prior to the amendment of Rule 9J-5.003(17), Florida Administrative Code. Petitioners argue that until the mandated definitions are finally adopted, PAM 98-01 would render the Lee County Plan out of compliance. Petitioners' reading of the quoted rule is strained and not persuasive. They are correct that the first sentence operates to grandfather plan amendments adopted prior to a given rule amendment. The language of the second sentence requires the local government to address rule amendments "in the first subsequent transmitted plan amendment." By its terms, the rule would have the practical effect of prohibiting interim plan amendments dealing with the subject matter of the rule amendments, as urged by Petitioners, because such an interim plan amendment would by definition not be the "first subsequent transmitted amendment." However, the second sentence does not address the situation presented here, of a small-scale plan amendment that is not formally "transmitted" to the Department of Community Affairs for review pursuant to Section 163.3184(3), Florida Statutes. "Transmittal" of a plan amendment triggers an array of procedural requirements that Section 163.3187(1)(c), Florida Statutes, is specifically designed to avoid. Petitioners’ argument on this point would effectively tie the small-scale plan amendment process irrevocably to the more cumbersome "large-scale" amendment process each time the Department of Community Affairs chooses to amend Chapter 9J-5, Florida Administrative Code, in such a way as to require compliant local plan amendments. This would defeat the Legislature’s purpose in disengaging small-scale amendments from many of the formalities of the plan amendment process. In any event, no party to this proceeding seriously contended that the property in question in fact lies outside of the coastal high-hazard area. The Staff Report, while acknowledging that the property is not yet "technically included" in the coastal high-hazard area, expressly treated the property as if it were, applying Goal 75 of the Lee County Plan in its analysis of the project. The Intervenor did not contest this treatment. These findings of fact accept that the subject property lies within the coastal high-hazard area, and that the property was treated by both Lee County staff and the Board as lying within the coastal high-hazard area, rendering moot Petitioners’ procedural arguments regarding the formal adoption of the new statutory definition. In summary, Petitioners failed to establish by a preponderance of the evidence that PAM 98-01 does not comply with statutory, rule, or Lee County Plan provisions dealing with development in coastal high-hazard areas. Natural Resources Intervenor’s 9.9 acre parcel, a pine flatwood community dominated by slash pine in the canopy with an understory of saw palmetto and other upland species, contains protected plants and animals. Uniformly distributed over the parcel are 551 beautiful pawpaws, as counted in the survey of the property conducted by Boylan Environmental Consultants on behalf of Intervenor. Petitioners did not dispute this count of the beautiful pawpaws on the site. The beautiful pawpaw has been designated an endangered species by the United States Fish and Wildlife Service and the Florida Game and Freshwater Fish Commission (now called the Florida Fish and Wildlife Conservation Commission). Lee County has designated the beautiful pawpaw as a protected species. Beautiful pawpaws are small plants with deep tubers, and are difficult to relocate. The beautiful pawpaws on the 9.9- acre parcel are currently healthy and viable. Intervenor’s 9.9-acre parcel also contains 10 active, 21 inactive, and 22 abandoned gopher tortoise burrows, as counted by Boylan Environmental Consultants and not disputed by Petitioners. Gopher tortoises are listed as a species of special concern by the Florida Fish and Wildlife Conservation Commission, and are listed as a protected species by Lee County. Gopher tortoise burrows are also appropriate habitat for indigo snakes and gopher frogs, both of which are listed as protected species by Lee County. Betsie Newton Hiatt, a senior environmental planner with Lee County and an expert in environmental planning, testified that she made a "cursory inspection" of the subject property and observed the beautiful pawpaws and gopher tortoise burrows on the site. She did not actually count the plants or burrows, but testified that she observed enough to consider the counts made by Boylan Environmental Consultants to be accurate. Ms. Hiatt testified that a management plan would be necessary prior to development of the parcel, and that it would be possible to submit a detailed management plan meeting all Lee County Land Development Code requirements for property that has beautiful pawpaws and gopher tortoise burrows and that lies within an Outlying Suburban land-use category. Ms. Hiatt testified that part of her duties is the implementation of Policy 77.2.6 of the Lee County Plan, which requires avoidance of needless destruction of upland vegetation communities through consideration during the site plan review process of alternative layouts of permitted uses. She testified that this policy is implemented in the Lee County Land Development Code through open space and indigenous preservation requirements. She finally testified that it would be possible to meet the open space requirement while developing the parcel at issue in this proceeding. Ms. Hiatt testified that the policy requires that approximately one third of the beautiful pawpaws found on a site be preserved in place, one third may be relocated in preservation areas, and one third may be removed. She testified that the open space requirement for commercial use of a 9.9-acre site would be about three acres, and that about 380 beautiful pawpaws could survive in this area. This would be about 69 percent of the 551 beautiful pawpaws found on the site, slightly more than the requisite two-thirds that must be preserved. Rae Ann Boylan, the expert in environmental land-use planning whose company performed the species survey on the property, testified that allowing the site to lay fallow would be as bad for the beautiful pawpaws as development, because other shrubs would eventually overgrow them without management of the site. Ms. Boylan also testified that a management plan would be required prior to development to accommodate the listed species. She testified that Lee County requires a developer to excavate the tortoises that can be found and place them out of harm’s way. She further noted that Policy 77.8.1 of the Lee County Plan provides for off-site mitigation, if unavoidable conflicts make on-site protection of the tortoises infeasible. Policy 5.1.2 of the Lee County Plan prohibits residential development where physical constraints or hazards exist, including hurricane hazards and environmental limitations. Mr. Noble of Lee County testified that residential development has been approved on Pine Island under this policy, and that the decision whether this policy applies to a given project is made at the time of development or site plan approval. Mr. Spikowski agreed that Policy 5.1.2 is a limitation on development, but argued that now is the time to evaluate the matter. He testified that if there are physical constraints or hazards that should stop approval of additional subdivisions on Pine Island, the county should not wait for the development order stage to draw the line. Mr. Spikowski explained that, as a practical matter, the development order stage consists of arguments about the details of the development, not whether it will occur at all. Mr. Spikowski's testimony is credited as a valid statement of planning philosophy, but not as stating a legal barrier to the Board's decision in this matter. In summary, Petitioners failed to demonstrate by a preponderance of the evidence that PAM 98-01 by its terms will have any adverse impacts on native upland vegetation, wildlife habitat, natural plant communities, or protected plant and wildlife habitat. Even after PAM 98-01 is enacted, the Lee County Plan provisions protecting all these natural resources will remain in place. Any subsequent development will be required to comply with the provisions of the Lee County Plan and the State Comprehensive Plan establishing protection of the resources. Data and Analysis Section 163.3177(8), Florida Statutes, requires that all elements of a comprehensive plan be based upon data appropriate to the element involved. Rule 9J-5.005(2)(a), Florida Administrative Code, provides in relevant part: All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of the adoption of the plan or plan amendment at issue. The local government is not required to engage in original data collection, but the data used must be the best available. Rule 9J-5.005(2)(b) and (c), Florida Administrative Code. Rule 9J-5.006(2)(c), Florida Administrative Code, provides that the Future Land-use Element, including the FLUM and amendments thereto, must include an analysis of the amount of land needed in each category of land-use to accommodate the projected population. This analysis must estimate the gross acreage needed by land-use category and their densities and intensities, and describe the methodology used to arrive at those estimates. The preponderance of the evidence establishes that there was sufficient data and analysis to permit the Board to conclude that PAM 98-01 was justified. As found above, even the most conservative estimate of Mr. Spikowski, the expert retained to oppose the amendment, conceded that the data indicated there remains a need for 27 acres of vacant land for commercial development on Pine Island before the year 2020. The Commercial Study relied upon by Petitioners also concedes that much of the property currently zoned for commercial uses is not in fact appropriate for such uses. The evidence establishes that Lee County itself has historically recognized this fact but has declined to expend the resources needed to update the zoning on Pine Island, largely due to the overall paucity of development activity on the island. The evidence in this proceeding establishes that the property at issue is the only commercially-zoned property adjacent to the Pine Island Center that was not included in that center during the 1989 Plan update process, presumably because it was vacant property at the time. Despite all the testimony regarding properties on Pine Island having inappropriate commercial zonings, not one witness suggested that the property at issue should not be zoned commercially. At least one member of the LPA recognized the appropriateness of this property for development "in the long run," but the LPA voted against the amendment to preserve the clear demarcation between urban and rural uses in the current FLUM. However, even Mr. Spikowski conceded that the clear line between urban and rural uses was compromised at the outset to allow for existing uses, and that the FLUM change contemplated by PAM 98-01 would merely add another "blip" to a line on the map that already contains breaks and changes between urban and rural uses. Mr. Spikowski’s argument that PAM 98-01 would create urban sprawl is thus overstated. PAM 98-01 does not designate uses in excess of demonstrated need. It does not appreciably compromise the clear separation between rural and urban uses. It does not discourage or inhibit infill development. In fact, PAM 98-01 could just as plausibly be said to constitute infill in the vicinity of the Pine Island Center; at the very least, it does not leap over undeveloped lands that are available and suitable for development. The subject property lies between commercial uses to the north and a public facility use, the RO plant, to the south. PAM 98-01 does not fail to protect environmentally sensitive habitat, because the beautiful pawpaws and the gopher tortoise burrows on the site will be dealt with as provided in the Lee County Plan during any subsequent development and site planning of the property. Mr. Spikowski’s ultimate opinion that PAM 98-01 is "illegal" is based on his view, also expressed in the Staff Report, that there is "no compelling reason" to adopt the requested amendment. Mr. Spikowski testified that, because Pine Island has an overallocation of commercial land, anyone wishing to add to the total has "a really high burden to show that this is so much better located than the existing land, or [that] other land should be eliminated in favor of this land, and that burden hasn’t been met." As explained in the conclusions of law below, this is not the standard for judging the legality of a small scale development amendment. Mr. Spikowski’s policy disagreement with the Board’s action has been noted and fully considered, but his judgment that PAM 98-01 is "illegal" cannot be credited. In summary, Petitioners failed to demonstrate by a preponderance of the evidence that PAM 98-01 is not supported by relevant and appropriate data and analysis as required by Section 163.3177(8), Florida Statutes, and Rule 9J-5.005(2), Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding small scale development amendment PAM 98-01 to be in compliance. DONE AND ENTERED this 27th day of December, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 27th day of December, 1999. COPIES FURNISHED: Thomas W. Reese, Esquire 2951 61st Avenue, South St. Petersburg, Florida 33712 Thomas L. Wright, Esquire Timothy Jones, Esquire Assistant County Attorneys Lee County, Florida 2115 Second Street Post Office Box 398 Fort Myers, Florida 33902 Pete Doragh, Esquire Annis, Mitchell, Cockey, Edwards & Roehn, P.A. Post Office Box 60259 Fort Myers, Florida 33906-6259 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
Findings Of Fact The proposed addition to the existing commercial docking facilities in the Pine Island Sound Aquatic Preserve would consist of approximately 5,000 square feet of additional overwater structure. The effects of such a facility on the marine ecosystem were described in expert testimony. The structure would cut off penetration of light to the bottom and the organisms living below. The resultant change in the biota under the dock would reduce the number of sedentary species, that is to say those species that remain essentially stationary in a given area, and would increase the number of errant species, that is to say those species which move from place to place. This change in the existing ecosystem directly affects the food chain and ultimately adversely affects commercial and sports fishing. Other negative impacts on the area due to the proposed construction would be increased boat traffic, sewage, introduction of petroleum products into the waters and an increase in the number and size of boats docking in the area thereby expanding the shaded area beyond that of the dock itself. Though the actual amount of damage to the preserve from both the shading effect and usage as a whole cannot be quantified without appropriate natural asset inventroy and study, some amount of damage would occur to the biological integrity of the area. The proliferation of docks within the Aquatic Preserve along with the cumulative impact of such construction must be considered as a potential threat to the Preserve. The cumulative impact and extent of damage which might occur as a result of the proposed construction must be determined through the conduct of a study developing a management plan for the Preserve, balancing present and future needs and values. Each individual Petitioner owns waterfront property within the Pine Island Sound Aquatic Preserve. Because of the potential negative impact of the proposed project and its cumulative impact with other projects on waterfront property, each Petitioner would be materially affected by the granting of this lease. No use or management criteria, ultimate or incipient, for the Pine Island Sound Aquatic Preserve have been adopted. However, since December, 1975, DNR has been engaged in the process of adopting such rules for the Biscayne Bay Aquatic Preserve. Once adopted, these rules will serve as a model for rules to be promulgated for the other aquatic preserves including Pine Island Sound Aquatic Preserve. No studies have been conducted by DNR of Pine Island Sound Aquatic Preserve. There is no inventory of available commercial docks, boat traffic, ingress or egress within the Preserve. The proposed rules for the Biscayne Bay Aquatic Preserve are not presently being applied to aquatic preserve leases.
The Issue At issue in this proceeding is whether a fence constructed by Charles and Kathleen Moorman (Moormans), as owners, and Your Local Fence, Inc. (Your Local Fence), as contractor, in the Big Pine Key Area of Critical County Concern, Big Pine Key, Monroe County, Florida, was contrary to the provisions of Chapter 380, Florida Statutes.
Findings Of Fact Background Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, including Areas of Critical State Concern, and all rules promulgated thereunder. Monroe County is a local government within the Florida Keys Area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implemen-tation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Most of Monroe County, including the Big Pine Key Are of Critical County Concern discussed infra, is contained within the Florida Keys Area of Critical State Concern. Respondents, Charles and Kathleen Moorman (Moormans) are the owners of Lots 15, 16, and half of Lot 17, Block D, Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property is located within the Big Pine Key Area of Critical County Concern, as well as the Florida Keys Area of Critical State Concern, and consists of native pine lands, which are natural habitat for the Key Deer. Respondent, Your Local Fence, Inc. (Your Local Fence), is a business engaged in constructing fences in Monroe County, and is owned by Mr. Moorman. On March 20, 1991, Monroe County issued to the Moormans, as owners, and Your Local Fence, as contractor, building permit No. 9110002231 to construct a fence on the foregoing property. As permitted, the fence would be constructed of wood to a height of 6 feet and, except for a setback of 25 feet, would completely enclose the Moormans' property. So constructed, the fence would measure 125 feet along the front and rear of the property and 75 feet along the side property lines for a total of 400 linear feet. Pertinent to this case, the Moormans' permit was not effective until 45 days after it was rendered to the Department (the "appeal period"), which period accords the Department an opportunity to review the permit and decide whether to contest its issuance by filing an appeal with the Florida Land and Water Adjudicatory Commission (FLWAC), and , if appealed, its effectiveness is stayed until after the completion of the appeal process. Section 380.07(2), Florida Statutes, and Section 9.5-115(a), Monroe County Land Development Regulations (MCLDR). Here, the Department, pursuant to the provisions of Section 380.07, Florida Statutes, filed a timely appeal with FLWAC to contest the issuance of such permit. Notwithstanding the Moormans' express knowledge that their permit was not effective until expiration of the Department's appeal period and, if appealed, resolution of the appeal process, the Moormans erected the fence on their property. Such action was contrary to the provisions of the Monroe County land development regulations and Chapter 380, Florida Statutes. Sections 9.5- 111(a) and 9.5-115(a), MCLDR, and Section 380.07(2), Florida Statutes. By separate recommended order to FLWAC, bearing Case No. 91-4110DRI, 91-5966DRI, 91-5968DRI, and 91-6603DRI (the "FLWAC Cases"), it was found, for reasons hereinafter discussed, that building permit No. 9110002231, issued by Monroe County for the construction of the Moormans' fence in the Big Pine Key Area of Critical County Concern was not consistent with the Monroe County comprehensive plan and land development regulations. Accordingly, it was recommended that FLWAC enter a final order reversing Monroe County's decision to issue such permit and to deny the Moormans' application for such permit. Consistency of the Moorman permit with the Monroe County comprehensive plan and land development regulations Big Pine Key is the primary habitat of the Key Deer, an endangered species, and Monroe County has designated most of Big Pine Key, including the properties at issue in these proceedings, as an area of critical county concern. 1/ Pertinent to this case, Section 9.5-479, Monroe County Land Development Regulations (MCLDR), provides: Purpose: The purpose of the Big Pine Key Area of Critical County Concern is to establish a focal point planning effort directed at reconciling the conflict between reasonable investment backed expectations and the habitat needs of the Florida Key Deer which is listed as endangered under the Federal Endangered Species Act. Focal Point Planning Program: Monroe County shall initiate a focal point planning program for the Big Pine Key Area of Critical County Concern that considers the following: The reasonable investment backed expec- tations of the owners of land within the Big Pine Key Area of Critical Concern; The habitat needs of the Florida Key Deer; The conflicts between human habitation and the survival of the Florida Key Deer; The role and importance of freshwater wetlands in the survival of the Florida Key Deer; Management approaches to reconciling the conflict between development and the survival of the Florida Key Deer; and Specific implementation programs for the Big Pine Key Area of Critical County Concern. The focal point planning program shall be carried out by the director of planning, in cooperation with the officer in charge of the National Key Deer Refuge. The planning program shall include a public participation element, and shall provide for notice by publication of all public workshops or hearings to the owners of land within the Big Pine Key Area of Critical County Concern. The focal point planning program for the Big Pine Key Area of Critical County Concern shall be completed within twelve (12) months of the adoption of this chapter, and the director of planning shall submit a report together with recommended amendments to the Monroe County Comprehensive Plan and this chapter within thirty (30) days after the completion of the focal point planning program for the Big Pine Key Area of Critical County Concern. Interim Regulations: Notwithstanding any other provisions of this chapter, no development shall be carried out on the Big Pine Key Area of Critical County Concern prior to the completion of the focal point planning program required by subsection C of this section and the adoption of amendments to the Monroe County Comprehensive Plan and this chapter except in accordance with the following: No development shall be carried out in the Big Pine Key Area of Critical County Concern except for single-family detached dwellings on lots in the Improved Subdivision District or on lots having an area of one (1) acre of more. And, Section 9.5-309, MCLDR, provides: It is the purpose of this section to regulate fences and freestanding walls in order to protect the public health, safety and welfare. * * * Big Pine Key Area of Critical County Concern: No fences shall be erected here until such time as this chapter is created to provide for the regulation of fences within this ACCC. The foregoing land development regulations were adopted by Monroe County to further and implement the standards, objectives and policies of the Monroe County comprehensive plan. Here, such regulations further the plan's "Generic Designations and Management Policies," contained within the plan's "Criteria for Designating Areas of Particular Concern," to maintain the functional integrity of habitat and, more particularly, the requirement that: Development within areas identified as Key Deer habitat shall insure that the continuity of habitat is maintained to allow deer to roam freely without impediment from fences or other development. Rule 28-20.020(8), Generic Designations, subparagraph 4, Florida Administrative Code. Over the course of the past five years, Monroe County has discussed design criteria for fences on Big Pine Key but has not yet adopted a regulation that would provide for fences within the Big Pine Key Area of Critical County Concern, as mandated by Section 9.5-309, MCLDR, nor has Monroe County amended Section 9.5-479, MCLDR, to permit, pertinent to this case, any development except single-family detached dwellings on lots in the Big Pine Key Area of Critical County Concern. Under such circumstances, it was concluded in the FLWAC Cases, and is concluded here, that the permit issued by Monroe County for the construction of the Moorman fence in the Big Pine Key Area of Critical County Concern is not consistent with the Monroe County comprehensive plan and land development regulations. Other considerations At hearing, Mr. Moorman offered proof that the Department had failed to appeal every fence permit issued by Monroe County in the Big Pine Key Area of Critical County Concern, and contended, as a consequence of such failure, that the Department should be precluded from contesting the issuance of his permit, or maintaining this enforcement action. Mr. Moorman's contention was not found persuasive in the FLWAC Cases, and is not found persuasive in this case. Here, the proof demonstrates that the Department's Key West Field Office, to which Monroe County renders its permits, was established in 1983, and that from January 1, 1984 to September 15, 1986, the Monroe County land development regulations did not regulate fences on Big Pine Key and the Big Pine Key Area of Critical County Concern (BPKACCC) did not exist. Effective September 15, 1986, the Monroe County land development regulations were adopted in their current form and, among other things, created the BPKACCC and prohibited fencing within such area. Accordingly, prior to September 15, 1986, there was no prohibition against erecting fences in the BPKACCC, and no reason for the Department to question the propriety of such develop-ments. Since the effective date of the current regulations, the Department has, as contended by Mr. Moorman, failed to appeal some permits for fencing in the BPKACCC. Such failure was, however, persuasively shown to have occurred as a consequence of severe understaffing, which inhibited the Department's ability to review all permits issued by Monroe County in a timely fashion (i.e., before the appeal period expired), and the breach of a memorandum of understanding entered into between the Department and Monroe County, and not as a consequence of any position adopted by the Department that fencing in the BPKACCC was permissible. Accordingly, the Department's appeal of the Moorman permit is not inconsistent with any position it has previously taken with regard to the propriety of fencing in such area. 2/ Moreover, neither the Moormans nor Your Local Fence made any inquiry of the Department as to why some permits were appealed and others were not, or requested that the Department waive its appeal period, prior to erecting their fence. Under such circumstances, it was found in the FLWAC cases, and is so found here, that the proof fails to support the conclusion that the Department misled the Moormans or Your Local Fence so as to bar it from contesting the propriety of their permit or, here, from maintaining this enforcement action. 3/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department of Community Affairs enter a final order directing the respondents, Charles Moorman, Kathleen Moorman, and Your Local Fence, Inc., to remove the 400 linear foot fence constructed on the Moorman property, and that the respondents not construct, reconstruct, enlarge or expand a fence on the subject property unless and until such time as the Monroe County Board of County Commissioners adopts, and the Department of Community Affairs approves, a comprehensive plan and land development regulations which specifically authorize such development. Removal of the subject fence shall occur within thirty (30) days after the entry of the final order. RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of April 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April 1992.
Conclusions WHEREAS, Respondent appealed her termination to the Pinellas County Sheriff's Civil Service Board (the “Board”); and WHEREAS, the appeal was transmitted to the Department of Administrative Hearings Administrative Law Judge for evidentiary hearing and recommended order; and WHEREAS, the Respondent, Pamela L. Wilson, voluntarily forfeited her right to appeal by letter to the Department of Administrative Hearings Administrative Law Judge dated September 23, 2013; and WHEREAS, Petitioner, Pinellas County Sheriffs Office, filed a Motion to Dismiss; and WHEREAS, in response to that Motion to Dismiss, the Administrative Law Judge issued an order (attached hereto and incorporated by reference) closing its file on the appeal and relinquishing jurisdiction to the Board; and “WHEREAS, Petitioner requested this Board take final agency action to accept the Administrative Law Judge’s disposition of the appeal; and WHEREAS, on October, 9, 2013, the Pinellas Board met at a duly noticed meeting to hear Petitioner’s request and reviewed the Respondent’s September 23, 2013 letter, the Petitioner’s Motion to Dismiss and the Administrative Law Judge’s Order Relinquishing Jurisdiction and voted to dismiss Pamela Wilson’s appeal by a vote of 5 to 0. NOW, THEREFORE, it is ordered and adjudged that: 1. The Board, by a unanimous vote of five (5) members, hereby dismisses the appeal of Pamela Wilson. Page 1 of 2 2. The parties are hereby notified of the right to appeal this Final Order to the Second District Court of Appeal by filing notice of intent to do so upon the Clerk of Court and the Pinellas County Sheriffs Civil Service Board within thirty (30) days of the date of this Order. IT IS SO ORDERED this_//zyw_ day of October, 2013. Lt. Col. Neal A. White, Chairman Pinellas County Sheriff’s Civil Service Board CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above Final Order has been furnished by U.S. Regular Mail to: Paul G. Rozelle, Associate General Counsel Ms. Pamela Wilson Pinellas County Sheriff's Office 518 Still Meadows Circle West 10750 Ulmerton Road Palm Harbor, FL 34683 Largo, FL 33778 this | xe day of October, 2013. p Carole Sanzeri Senior Assistant County Attorney 315 Court Street, 6" Floor Clearwater, FL 33756 Phone: 727-464-3354 / Fax: 727-464-4147 Attorney for the Sheriff's Civil Service Board Copy to: Members of the Sheriff’s Civil Service Board Lizzie F. Bogan, Administrative Law Judge HAUSERS\ATYKB03\WPDOCS\CS\SHERIFF CIVIL SERVICE BOARD\APPEALS\WILSON PAMELA\FINAL ORDER.DOCX Page 2 of 2
Conclusions This matter, having come before the Pinellas County Sheriff's Civil Service Board, sitting as a quasi-judicial body, and the Board having reviewed the Administrative Law Judge’s July 21, 2014 Order Closing File And Relinquishing Jurisdiction, and being otherwise advised in the premises, it is: ORDERED AND ADJUDGED that: 1. The Board, by a unanimous vote of five (5) members finds that Respondent Adrian Nenu engaged in prohibited conduct in that Respondent violated Petitioner’s General Order 3-1.1, Rule and Regulation 5.4, (Duties and Responsibilities) and General Order 3-1.3, Rule and Regulation 3.36 (Omission of Information). 2. The seven day suspension of Respondent’s employment with the Pinellas County Sheriff's Office is upheld. 3. The parties are hereby notified of the right to appeal this Final Order to the Second District Court of Appeal by filing notice of intent to do so upon the Clerk of Court and the Pinellas County Sheriffs Civil Service Board within thirty (30) days of the date of this Order. DONE AND ORDERED this /@ zyw_ day of September, 2014. Page | of 2 Lt. Col. (R) Neal A. White, Chairman Pinellas County Sheriff's Civil Service Board CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above Final Order has been furnished by email to Adrian Nenu at anenu@pcsonet.com and Regular U.S. Mail to Paul G. Rozelle, Esq. at Pinellas County Sheriffs Office 10750 Ulmerton Road Largo, FL 33778 this (2 th day of September, 2014. Carole Sanzeri Senior Assistant County Attorney 315 Court Street, 6" Floor Clearwater, FL 33756 Phone: 727-464-3354/Fax: 727-464-4147 Attorney for Sheriffs Civil Service Board Copy to: Members of the Sheriff’s Civil Service Board Vicki Troesch HAUSERS\ATYKBO07\Carole\Sheriff's Civil Services Board\Nenu\Final Order Draft Nenu.docx Page 2 of 2
Findings Of Fact Exception to Finding of Fact Number 1 is accepted, but not materially dispositive of the issues presented. Intervenor suggests that the Hearing Officer erroneously found that the dispute arose "when the Board and DNR took a position that Clam Bayou . . . is a part of the Pine Island Sound Aquatic Preserve." The dispute arose when a DNR planning manager took the position that Clam Bayou was in the preserve. (Petitioner's Exhibit #4) This determination was made before the June 12, 1991 Cabinet Meeting, when the Board of Trustees ratified their intent to include Clam Bayou in the preserve when the preserve was created in 1970. This finding was made independently of the Hearing Officer's legal conclusions and, to the extent the Hearing Officer misstated the facts, the misstatement has no bearing on the ultimate issue of whether Clam Bayou is a part of the preserve. Exception to Finding of Fact Number 2 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (TR 96) Exception to Finding of Fact Number 5 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #13) Exception to Finding of Fact Number 6 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. Exception to Finding of Fact Number 7 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #`s 12 and 13) Exception to Finding of Fact Number 8 is accepted to the extent that between 1968 and 1972, Clam Bayou was physically connected to Pine Island Sound via Blind Pass. This exception has been incorporated into revised Finding of Fact 8. Exception to Finding of Fact Number 9 is accepted and the principles set forth in the exception have been incorporated into the amended Finding of Fact 9. Exception to Finding of Fact Number 10 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. 9. Exception to Finding of Fact Number 11 is accepted. 10. Exception to Finding of Fact Number 12 is accepted. 11. Exception to Finding of Fact Number 14 is accepted. 12. Exception to Finding of Fact Number 15 is accepted. 13. Exception to Finding of Fact Number 17 is accepted. Exception to Finding of Fact Number 18 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #3, 6-A, 6-B and 10-B) Exception to Finding of Fact Number 19 is rejected. The Hearing Officer's findings are supported by competent substantial evidence. (Petitioner's Exhibit #3, 6-A, 6-B and 10-B) Exception to Finding of Fact Number 20 is accepted. EXCEPTIONS TO CONCLUSIONS OF LAW EXCEPTION TO CONSIDERATION OF THE RECOMMENDED ORDER BY THE GOVERNOR AND CABINET Intervenor's exception to consideration of the Recommended Order by the Governor and Cabinet is rejected. The transcript of the June 12, 1991 Cabinet meeting clearly shows the Governor and Cabinet's intent to have the issues in this case determined by a hearing officer. Although Petitioners and Intervenors presented brief oral argument to the Cabinet, no evidence was received and the Cabinet did not review the resolution and legal description, or all of the maps, photographs, or various other exhibits presented at hearing. The Cabinet did not make any findings of fact or conclusions of law with regard to this agenda item, and did not reach a conclusion as to the proper interpretation of the legal description or as to a finding of the actual intent of the Board of Trustees at the time the resolution was adopted. EXCEPTIONS TO OTHER CONCLUSIONS OF LAW Intervenors have asserted several exceptions to the conclusions of law contained in the Hearing Officer's Recommended Order. This order will address those exceptions in the format as presented in Intervenor s exceptions. Ambulatory Boundaries. This exception is rejected without reaching the merits because a conclusion of law as to ambulatory boundaries is not necessary or applicable to the determination of this matter. Clam Bayou's Presence in the Aquatic Preserve in 1970 The "Headlands Rule". This exception is rejected without reaching the merits because, as recognized by the Hearing Officer, a conclusion of law as to the Headlands Rule is not necessary or applicable to the determination of this matter. The Hearing Officer recognized that the headlands rule was never intended to be applied to the aquatic preserve: [S]trict application of the "Headlands Rule" was never intended and should not be applied in this case in construing the entire boundary, else numerous of the coves, inlets, bays, and other water bodies opening into Pine Island Sound would be excluded from the preserve. The evidence ... concerning the Board's intent establishes that such a result was not intended. (Recommended Order, Conclusions of Law, p. 22) The "Separate Name" Theory. This exception is rejected without reaching the merits because a conclusion of law as to a Separate Name Theory is not necessary or applicable to the determination of this matter. Maps of the Preserve. This exception is rejected. There is competent substantial evidence in the record to support the Hearing Officers's conclusion that the intent of the drafters of the legal description was to exclude Clam Bayou from the preserve.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Respondent agency finding that Clam Bayou and the proposed construction site at issue and referenced in the above Findings of Fact be deemed to be without the boundaries of the Pine Island Sound Aquatic Preserve. DONE AND ENTERED this 9th day of December, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 91-3249R AND 91-3770 Petitioner's Proposed Findings of Fact 1-7. Accepted. 8. Accepted, except that the maps are not exactly identical since Petitioner's Exhibit No. 3 is a stippled or shaded map and the map recorded in the Lee County Public Records at Book 648, page 736, in evidence, is not actually shaded or stippled. 9-29. Accepted. Respondent's Proposed Findings of Fact 1-3. Accepted. Accepted, but not as being materially dispositive of the issues presented. Accepted. 6-12. Accepted. Accepted, but not in itself materially dispositive. Rejected, as not in accordance with the preponderant weight of the evidence. Accepted. 16-17. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant weight of the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant weight of the evidence. Accepted. Accepted, but not materially dispositive of the issues presented. Accepted, but not materially dispositive of the issues presented and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself materially dispositive of the issues presented. Accepted, but not itself materially dispositive of the issues presented. Accepted. Accepted, but not materially dispositive of the issues presented standing alone. Accepted, but not materially dispositive of the issues presented standing alone. Accepted, but not materially dispositive of the issues presented standing alone. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Intervenor's Proposed Findings of Fact (City of Sanibel) 1-2. Accepted. Accepted, but not materially dispositive in this de novo proceeding. Accepted, but not materially dispositive of the issues presented. Intervenor's Proposed Findings of Fact (Ralph Clark, et al.) Accepted, but not materially dispositive, given the de novo nature of this proceeding. Accepted, but not materially dispositive of the issues presented. Rejected, as not in accordance with the preponderant weight of the evidence. COPIES FURNISHED: Ken Plante, Esq. General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, FL 32399-3000 Kenneth G. Oertel, Esq. OERTEL, HOFFMAN, ET AL. 2700 Blair Stone Road P.O. Box 6507 Tallahassee, FL 32314-6507 John Costigan, Esq. Edwin Steinmeyer, Esq. Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Robert D. Pritt, Esq. City of Sanibel 800 Dunlop Road Sanibel, FL 33957 Mark A. Ebelini, Esq. HUMPHREY & KNOTT, P.A. 1625 Hendry Street Ft. Myers, FL 33901
