The Issue Whether Sugarloaf Shores Section C Extension is a "major development" as defined by Section 6-222, Monroe County Code, and (in connection with Intervenor's amended plat proposal and dredge and fill application) should undergo major development review pursuant to Chapter 6, Article VII, Monroe County Code.
Findings Of Fact Sugarloaf Shores Section C Extension is a subdivision located in Section 2, Township 67 South, Range 27 East, Sugarloaf Key, Monroe County, Florida. (Prehearing Stipulation, Para. (e), No. 1). The plat of Sugarloaf Shores Section C Extension, shows 76 residential building lots and five deadend canals (connecting to Upper Sugarloaf Sound or Cross Key Channel) and a canal of approximately 900 feet paralleling the mean high water line of Upper Sugarloaf Sound; it was approved by Monroe County on July 5, 1972, and is recorded in Monroe County Plat Book 6, page 93. The subdivision contains 38.9 plus acres. (Prehearing Stipulation, Para. (e), No. 2; Joint Exhibit No. 1). Lloyd A. Good, Jr., purchased Sugarloaf Shores Section C Extension on October 8, 1973, and is the current owner and developer of the subdivision. (Prehearing Stipulation Para. (e), No. 3). At the time of his purchase, the land had been cleared. An east-west canal of approximately 600' in length and 50' in width had been excavated but unopened to Upper Sugarloaf Sound. A north-south canal or borrow pit of approximately 200' in length and 50' in width had also been excavated. Fill obtained from these excavations had been placed on the property. He subsequently placed approximately 800 yards of additional fill on the Southeast corner of the property. (Testimony of Good) The platted subdivision is landward of the mean high water line and contains a mixture of upland and wetland vegetation. A berm rises along the front of the property between Allamanda Drive and the existing (plugged) canal. The northern part of the property contains white, black, and red mangroves, red grape, a hardwood hammock, and a salt water marsh characterized by key grass, salicornia, and white and black mangroves. The western part of the property contains fresh water wetlands characterized by spike rush. The area south of the existing canal contains more mangroves and is permeated by transitional wetland or fresh water wetland plant species, with the higher elevations containing Lower Keys hardwood hammock species such as poison wood, black tooth and Jamaican dogwood. The salt marsh and black mangroves are subject to inundation from tidal exchange; the fresh water wetlands are subject to rain water flooding. (Testimony of Dennis) In 1973, Lloyd Good was familiar with regulatory restrictions on the use of wetland areas. As a Philadelphia attorney, he had "practiced in wetland areas in New Jersey . . . and . . . knew that the concept of deadend canals at that time was not feasible." (TR.65) He had decided to amend the original plat (and change the development plan) even before he purchased Sugarloaf Shores Section C Extension because he believed that under existing environmental laws the platted deadend canals would not be permitted. (TR.65) So he hired engineers to design a development plan acceptable to the U.S. Army Corps of Engineers and other governmental agencies having regulatory jurisdiction over dredge and fill activities in wetland areas. Because of other business interests, he temporarily halted work on the project between late 1973 and 1975. From 1975 to 1980, he worked with permitting officials from federal, state, and local regulatory agencies in an effort to devise a development plan for Section C Extension which would meet regulatory standards. In 1980, he hired a consultant to obtain the necessary federal, state, and local permits needed to carry out his revised development plan. Monroe County permitting officials told him not to apply for any local dredge and fill, or land clearing permits until he first obtained the required federal and state permits. (Testimony of Good) In 1980, Lloyd Good applied for a joint U.S. Army Corps of Engineers/Florida Department of Environmental Regulation permit to perform the dredging and filling necessary to carry out his revised development plan. In 1983, after extensive negotiation, both agencies issued him the required dredge and fill permits. The Department of Environmental Regulation permit was conditioned on Mr. Good obtaining Monroe County approval of an amended plat of Sugarloaf Shores Section C Extension conforming to the federal and state permits. (Joint Exhibit No. 21, Testimony of Good) During his initial discussions with Monroe County officials in 1981, Lloyd Good proposed rezoning the property to permit multiple-family residences; if rezoned, he expected that the project would be required to undergo "major development" review as defined by the Monroe County Code. But after meeting with members of the Sugarloaf Property Owners Association and discovering that they were violently opposed to multi-family development," (TR.73) he decided to retain the single-family nature of the original development and not seek a zoning change. Monroe County officials told him that by retaining the original zoning his development activities would not be subject to the "major development" review process. (Testimony of Good) On May 10, 1983, Lloyd Good submitted an application to Monroe County for authorization to dredge 42,400 plus/minus cubic yards of submerged lands, wetlands and uplands for roads and fill needed to develop residential lots within the Sugarloaf Shores Subdivision in accordance with his newly revised development plan. His application conformed to the federal and state permits already issued. (Prehearing Stipulation Para. (e) No. 4; Joint Exhibits No. 2 and 6) Mark Robinson, the county biologist assigned to review the dredge and fill application and prepare a biological report, asked Lloyd Good to have the state and federal permits amended to address several of his concerns. Mr. Good obtained the requested permit amendments, then asked that the biological report be completed. (Testimony of Good) On August 25, 1983, Dr. Jeffrey M. Doyle, Director of the Monroe County Planning and Zoning Department, issued an administrative ruling declaring Sugarloaf Shores Section C Extension to be a "major development" under the Monroe County Code. As grounds, he cited Section 6-222(1), which defines a "major development" project as a subdivision containing five acres or more of land or water, and Section 6-222(7)(b), which grants discretionary authority to zoning officials and the County Commission to designate an activity or use as a "major development" project if it "reflects sufficient scope, scale and size to justify its being designated . . . in order to ensure its reasonable implementation, if approved, and its proper review prior to such approval." Under his administrative ruling, the dredge and fill application would be subject to the comprehensive review procedures which apply to "major developments." (Joint Exhibit Nos. 32, 5) On September 21, 1983, Lloyd Good appealed Dr. Doyle's administrative ruling to the Monroe County Board of Adjustment. The issue before the Board of Adjustment (and subsequently before the County Commission) was whether Mr. Good's proposed dredge and fill activity (for the purpose of constructing the revised subdivision) was a "major development" as defined by the Monroe County Code, and whether compliance with "major development" review procedures was required before county dredge and fill permits could be issued. (Prehearing Stipulation, Para. (e) No. 6; Joint Exhibit No. 8). On November 2, 1983, the Monroe County Board of Adjustment upheld Dr. Doyle's decision and determined that the Section C Extension subdivision (to be created by the dredging and filling) was a "major development" under Chapter 6- 222(7)(b), Monroe County Code. (Prehearing Stipulation, Para. (e) No. 7; Joint Exhibits No. 11 and 12). On November 23, 1983, Lloyd Good appealed the Board of Adjustment's decision to the County Commission. (Prehearing Stipulation, Para. (e) No. 8; Joint Exhibit No. 13). On January 27, 1984, the County Commission, sitting as the Board of Appeals, adopted Resolution No. 042-1984, reversing the Board of Adjustment's decision of November 2, 1983. The resolution (giving no specific reasons for the reversal) remanded the matter to the County Planning and Building Department for normal processing of the related dredge and fill permits. It did not grant or deny any development or dredge and fill permit; it simply ordered that Lloyd Good's dredge and fill application would be reviewed under normal permitting procedures, not the more comprehensive procedures applicable to "major development" projects. (Prehearing Stipulation, Para. (e), No. 9; Joint Exhibit No. 14) The DCA did not appeal this resolution to a circuit court (within 30 days of its adoption) or to the FLAWAC (within 45 days of its transmission). The DCA did not challenge or question the County Commission's decision (that the proposed dredge and fill activities would not undergo "major development review") until it appealed the Commission's subsequent resolution granting the dredge and fill permit. (Testimony of Good, Dennis) On June 4, 1984, Lloyd Good submitted to the Monroe County Building Department 13 copies of a proposed amended plat for the Sugarloaf Shores Section C Extension. The amended plat incorporated his new development plan and reflected the dredging and filling approved by state and federal permits. (Prehearing Stipulation, Para. (e), No. 10; Joint Exhibit Nos. 18 and 21). On July 13, 1984, the County Commission adopted Resolution No. 195- 1984 approving Lloyd Good's application to dredge and fill. The resolution was transmitted to the DCA on July 27, 1984, which appealed it to the FLAWAC by notice filed September 10, 1984. 1/ The appealed resolution directs that the applied-for permit be issued subject to Lloyd Good's subsequent filing of an amendment to the Sugarloaf Shores Section C Extension plat. (Prehearing Stipulation, Para. (e), Joint Exhibit No. 19) Thereafter, on September 7, 1984, the County Commission adopted Resolution No. 224-1984, approving an "Amended Plat for Sugarloaf Shores Section C Extension." The DCA also appealed this resolution to FLAWAC by separate notice filed October 31, 1984. (Prehearing Stipulation, Para. (e), No. 12; Joint Exhibit Nos. 21, 22) The amended plat approved by Resolution No. 224-1984, replaces the original plat with a fundamentally new and different development plan. It alters the location of roads; eliminates the proposed deadend canals (except for the existing "plugged" canal); provides for wetland preservation areas in Tracts A, B, C, D, and F, and for the construction of a six-acre boat basin fronting the property on Upper Sugarloaf Sound; and reduces the number of single family residential lots from 76 to 55. RU-1 zoning is retained. The new development plan is preferable to the original plan in terms of environmental impact. The amended plat was processed in the same manner as all new plats in Monroe County. (Joint Exhibits No. 1, 21; Testimony of Dennis) The record is devoid of any documented expenditures made by Lloyd Good in reliance on County Commission approval of the original or amended plat.
Recommendation Based on the foregoing it is RECOMMENDED that pursuant to Section 380.07(4), Florida Statutes (1983), the Florida Land and Water Adjudicatory Commission enter an order: Reversing Resolution Nos. 195-1984 and 224-1984, because these resolutions approved development activities prior to their undergoing the "major development" review required by Section 6-222(1) and (6), Monroe County Code, as incorporated by Rules 27F-9.06 and 27F-9.17, Florida Administrative Code; Declaring the proposed Sugarloaf Shores Section C Extension a "major development" within the meaning of Section 6-222(1) and (6), Monroe County Code, and requiring the two development activities which would create it to undergo "major development" review prior to any approval; and Declaring that after undergoing the required "major development" review, these development activities would be eligible for approval, but that the disposition of the appeals in the instant cases does not reach the substantive issue of whether the proposed development should ultimately be approved, or disapproved. See, Section 380.08(3), Florida Statutes (1983). DONE and ORDERED this 21st day of January, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1986.
The Issue The issue in this case is whether the amendment to the Lee County Comprehensive Plan adopted by Ordinance No. 05-20 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2005),1 for the reasons set forth in the Petition for Formal Administrative Hearing and Statement of Intent filed by the Department of Community Affairs ("the Department").
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. Lee County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Leeward is a Florida limited liability company that owns a portion of the real property that is the subject of the amendment at issue. The Amendment The amendment would change the future land use designation for 41.28 acres in the northeast quadrant of the Interstate 75 (I-75)/State Road 80 (SR 80) interchange from General Commercial Interchange to Urban Community, as shown on the FLUM. The General Commercial Interchange land use is described in the County Plan as “intended primarily for general community commercial land uses: retail, planned commercial districts, shopping, office, financial, and business.” It does not allow residential development. The Urban Community land use provides for a mix of residential, commercial, public, quasi-public, and limited light industrial uses. The standard density range for residential uses in the Urban Community category is one to six dwelling units per acre (du/a). The 41.28 acres affected by the amendment ("the amendment site") consist of 19.28 acres of lands along the Orange River owned by Leeward, a platted subdivision known as Dos Rios of approximately 11 acres, and the remaining acreage consists of right-of-way for SR 80 and I-75. Currently operating on Leeward's property is a vessel repair facility, a marina with wet and dry slips, and an ecotourism company. Leeward also has its office on the site. The Dos Rios subdivision includes 26 single-family lots. Apparently, only a few of the lots (the number was not established in the record) have been developed. Because residential land uses are not allowed in the General Commercial Interchange category, the Dos Rios lots were non-conforming uses. Maximum Allowed Density The County Plan provides residential density bonuses to promote various County objectives, such as the provision of affordable housing. With density bonuses, lands designated Urban Community can boost their density to a maximum of ten du/a. There was testimony presented by Leeward that the County has not often approved applications for density bonuses. Even if the practice of the County in approving density bonuses were relevant, the practice can change. It is reasonable for the Department to consider the maximum intensity or density associated with a future land use designation when determining whether a FLUM amendment is in compliance. Therefore, in this case, it is reasonable to consider the Urban Community land use designation as allowing up to ten du/a. The Department asserts that the amendment would allow the 41.2 acres affected by the amendment to have a total of 412 dwelling units (41.2 acres x 10 du/a). Leeward disputed that figure because the 41.2 acres includes road right-of-way and the Dos Rios subdivision. A hearing officer appointed to review a Lee County development order recently determined that right-of-way external to a development should not be included in calculating allowable units, and the County accepted the hearing officer's recommendation based on that determination. The definition of "density" in the County Plan supports the determination.2 Therefore, for the purposes of this case, the right-of-way in the northeast quadrant should not be included in calculating the maximum residential density that would result from the amendment. On the other hand, Leeward's argument that the Dos Rios subdivision acreage should not be included in the ten du/a calculation is rejected. For the purposes of an "in compliance" determination, it is reasonable for the Department to apply the maximum potential densities to all developable and re- developable acreage. Using 29 acres as the approximate acreage affected by the amendment when road right-of-way is subtracted, the amendment would create the potential for 290 residences in the northeast quadrant of the interchange. Adoption of the Amendment The amendment was initiated as part of the County's reexamination of the existing land use designations in the four quadrants of the I-75/SR 80 interchange. Following the County planning staff's completion of a study of the entire interchange, it recommended several changes to the County Plan, but no change was recommended for the northeast quadrant. Apparently, the amendment at issue was urged by Leeward, and, at a public hearing held on June 1, 2005, the Board of County Commissioners voted to adopt the amendment. Pursuant to Section 163.3184(6), Florida Statutes, the proposed amendment was forwarded to the Department for an "in compliance" review. Following its review, the Department issued its ORC Report on August 19, 2005. In the ORC Report, the Department objected to the proposed amendment based upon what it considered to be inappropriate residential densities in the coastal high hazard area (CHHA) and floodplain. The Department recommended that the County not adopt the proposed amendment. On October 12, 2005, another public hearing was held before the Board of County Commissioners to consider adoption of the amendment. At the public hearing, the County planning staff recommended that the land use designation in the northeast quadrant not be changed to Urban Community "due to the potential increase in density in the Coastal High Hazard Area." Nevertheless, the Board of County Commissioners approved the amendment. Representatives of Leeward appeared and submitted comments in support of the amendment at the public hearings before the Board of County Commissioners. On December 16, 2005, the Department issued its Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance, identifying three reasons for its determination: (1) inconsistency with state law regarding development in the CHHA and flood prone areas, (2) internal inconsistency with provisions of the County Plan requiring the consideration of residential density reductions in undeveloped areas within the CHHA, and (3) inconsistency with the State Comprehensive Plan regarding subsidizing development in the CHHA and regulating areas subject to seasonal or periodic flooding. On January 5, 2006, the Department filed its petition for formal hearing with DOAH. Coastal High Hazard Area The Florida Legislature recognized the particular vulnerability of coastal resources and development to natural disasters and required coastal counties to address the subject in their comprehensive plans. [I]t is the intent of the Legislature that local government comprehensive plans restrict development activities where such activities would damage or destroy coastal resources, and that such plans protect human life and limit public expenditures in areas that are subject to destruction by natural disaster. § 163.3178(1), Fla. Stat. The statute also requires evacuation planning. Until 2006, the CHHA was defined as the "category 1 evacuation zone." § 163.3178(2)(h), Fla. Stat. In 2006, the CHHA was redefined as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model."3 Ch. 2006-68, § 2, Laws of Fla. The County Plan defines the CHHA as "the category 1 evacuation zone as delineated by the Southwest Florida Regional Planning Council." Map 5 of the County Plan, entitled "Lee County Coastal High Hazard Area (CHHA)," shows the entire amendment site as being within the CHHA. Nothing on Map 5, however, indicates it was produced by the Regional Planning Council. Daniel Trescott, who is employed by the Southwest Florida Regional Planning Council and is responsible for, among other things, storm surge mapping, stated that the Category 1 evacuation zone is the storm surge level for the worst case scenario landfall for a Category 1 storm. He stated that the Category 1 storm surge for Lee County was determined by the SLOSH model to be 5.3 feet. Mr. Trescott stated that the 5.3 foot contour (shown on Plate 7 of the Regional Planning Council's "Hurricane Storm Tide Atlas - Lee County") more accurately delineates the CHHA than Map 5 of the County Plan. Although Mr. Trescott's testimony suggests a conflict between the County Plan's definition of the CHHA and Map 5's depiction of the CHHA, the two can be reconciled by a finding that Map 5 is a gross depiction of the CHHA for general public information purposes, but the precise location of the CHHA boundary is the one delineated by the Regional Planning Council, and the latter is controlling. Using the 5.3 contour on the amendment site, Leeward's witness, Michael Raider, estimated that there are approximately 16 acres of the amendment site within the CHHA. Applying the maximum allowable residential density under the Urban Community land use designation (with bonuses) of ten du/a means the amendment would result in a potential for 160 dwellings in the CHHA. Florida Administrative Code Rule 9J-5.012(3)(b)6. and Rule 9J-5.012(3)(c)7., respectively, require each local government’s coastal management element to contain one or more specific objectives that "[d]irect population concentrations away from known or predicted coastal high-hazard areas” and limit development in these areas. The parties' evidence and argument regarding whether the amendment was "in compliance" focused on these rules and the following goal, objective, and policy of the County Plan related to the CHHA: GOAL 105: PROTECTION OF LIFE AND PROPERTY IN COASTAL HIGH HAZARD AREAS. To protect human life and developed property from natural disasters. OBJECTIVE 105.1: DEVELOPMENT IN COASTAL HIGH HAZARD AREAS. Development seaward of the 1991 Coastal Construction Control Line will require applicable State of Florida approval; new development on barrier islands will be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion will not be permitted; and allowable densities for undeveloped areas within coastal high hazard areas will be considered for reduction. POLICY 105.1.4: Through the Lee Plan amendment process, land use designations of undeveloped areas within coastal high hazard areas will be considered for reduced density categories (or assignment of minimum allowable densities where ranges are permitted) in order to limit the future population exposed to coastal flooding. In the opinion of Bernard Piawah, a planner employed by the Department, the amendment is inconsistent with the goal, objective and policy set forth above because these provisions only contemplate possible reductions of residential densities in the CHHA and there is no provision of the County Plan that addresses or establishes criteria for increasing residential densities in the CHHA. Population Concentrations As stated above, Florida Administrative Code Rule 9J-5.012(3)(b)6. directs local governments to include provisions in their comprehensive plans to direct population concentrations away from the CHHA. The term "population concentrations" is not defined in any statute or rule. The term apparently has no generally accepted meaning in the planning profession. The word "population" has the ordinary meaning of "all of the people inhabiting a specific area." The American Heritage Dictionary of the English Language (1981). The word "concentration" has the ordinary meaning of "the act or process of concentrating." Id. The word "concentrate" means "to direct or draw toward a common center." Id. In the context of Florida Administrative Code Rule 9J-5.012, the term "population concentrations" suggests a meaning of population densities (dwelling units per acre) of a certain level, but the level is not stated. Leeward argues that, because there is no state guidance on the meaning of the term "population concentrations," surrounding land uses should be examined to determine whether a proposed density would be "proportionate to its surroundings." According to Leeward, in order to be a population concentration, the density under review would have to be greater than the surrounding density. This comparative approach is rejected because the overarching Legislative objective is protection of life, which plainly calls for a straightforward consideration of the number of lives placed in harm's way. The Department, in its Proposed Recommended Order, states: By assigning either zero residential density to land by virtue of an Open Space land use designation, or a maximum density of one unit per acre by assigning a low density land use designation, the County Plan fulfills the mandates of State law that development be limited in and residential concentrations be directed away from the CHHA. Thus, not surprisingly, the Department does not consider one du/a to be a population concentration. A density of ten du/a is an urban density, as indicated by the fact that it is the maximum density allowed in the Urban Community land use designation and the highest density within the "standard density range" for the County's Central Urban land use designation. It is a generally known fact, of which the undersigned takes notice, that urban areas are areas where populations are concentrated. It is a another generally known fact, of which the undersigned takes notice, that ten dwelling units on one acre of land amounts to a lot of people living in a small space. Leeward, itself, described the residential density allowed under the Urban Community designation as "relatively intense." Leeward's Proposed Recommended Order, at 7. Whether measured by density alone (ten du/a) or by Leeward's estimate of 160 residences on 16 acres, the amendment places a population concentration in the CHHA. Offsets in the CHHA Leeward presented evidence that the County has been reducing residential densities, sometimes referred to as "down- planning," in other areas of the CHHA in Lee County. The reduction in dwelling units in the CHHA over the past several years may be as high as 10,000 units. The Department did not present evidence to dispute that there has been an overall reduction in dwelling units in the CHHAs of Lee County. Leeward argues that these reductions "offset" the increase in dwelling units in the CHHA that would result from the amendment and this "overall" reduction in densities in the CHHA must be considered in determining whether the amendment is "in compliance" with state law and with provisions of the County Plan related to directing population concentrations away from the CHHA. At the hearing and in its Proposed Recommended Order, the Department argued that the consideration of offsets in the CHHA was improper and unworkable, but that argument conflicts with the Department's actual practice and official position as described in the January 2006 "Department of Community Affairs Report for the Governor's Coastal High Hazard Study Committee." In that report, the Department acknowledged there is no statutory or rule guidance regarding what the maximum density should be in the CHHA. The Report notes that some local governments have established maximum densities for the CHHA (e.g., Pinellas County, 5 du/a; Franklin County 1 du/a). The Department states in the report that it reviews amendments to increase density in the CHHA on a "case by case" basis, and explains further: When a Comprehensive Plan Amendment in the CHHA proposes a density increase, DCA's review considers the amount of the density increase, the impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" (generally accomplished through public acquisition). One of the visual aides used in conjunction with the 2006 report to Governor's Coastal High Hazard Study Committee, entitled "Policy Issue #2 - Densities in High Hazard Areas," also describes the Department's practice: Without locally adopted density limits, DCA conducts a case by case review of amendments without any defined numeric limit. DCA considers amount of density increase, impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" in other areas of the CHHA. These statements use the phrase "there will be a corresponding offset," which suggests that for an offset to be considered, it would have to be proposed concurrently with an increase in residential density on other lands within the CHHA. However, according to the director of the Department's Division of Community Planning, Valerie Hubbard, offsets in the CHHA do not have to be concurrent; they can include previous reductions. Furthermore, although the Department pointed to the absence of any criteria in the County Plan to guide an offset analysis, Ms. Hubbard said it was unnecessary for a comprehensive plan to include express provisions for the use of offsets. To the extent that this evidence of the Department's interpretation of relevant law and general practice conflicts with other testimony presented by the Department in this case, the statements contained in the report to the Governor's Coastal High Hazard Study Committee and the testimony of Ms. Hubbard are more persuasive evidence of the Department's policy and practice in determining compliance with the requirement that comprehensive plans direct population densities away from the CHHA and limit development in the CHHA. As long as the Department's practice when conducting an "in compliance" review of amendments that increase residential density in the CHHA is to take into account offsets, the Department has the duty to be consistent and to take into account the County's offsets in the review of this amendment. The County planning director testified that he believed the applicable goal, objective, and policy of the County Plan are met as long as there has been a reduction in residential densities in the CHHAs of the County as a whole. The Department points out that the planning director's opinion was not included in the County planning staff's reports prepared in conjunction with the amendment. However, it necessarily follows from the Board of County Commissioners' adoption of the amendment that it does not interpret Objective 105.1 and Policy 105-1.4 as prohibiting an increase in residential density in the CHHA. Although these provisions make no mention of offsets, the Department has not required offset provisions in a comprehensive plan before the Department will consider offsets in its determination whether a plan amendment that increases density in the CHHA is in compliance. The wording used in Objective 105.1 and Policy 105-1.4 requiring "consideration" of density reductions in the CHHA can be harmonized with the County planning director's testimony and with the County's adoption of the amendment by construing these plan provisions consistently with the Department's own practice of allowing increases in the CHHA when the increases are offset by overall reductions in dwelling units in the CHHA. Seeking to harmonize the amendment with the provisions of the County Plan is the proper approach because, as discussed later in the Conclusions of Law, whether an amendment is consistent with other provisions of the plan is subject to the "fairly debatable" standard which is a highly deferential standard that looks for "any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction." Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Shelter Space and Clearance Time Prior to the hearing in this case, Leeward moved to strike certain statute and rule citations in the Department's petition related to shelter space and clearance time4 because they were not included in the Department's ORC Report. The motion was denied because, although Section 163.3184(8)(b), Florida Statutes, limits the Department's petition to issues raised in the "written comments" in the ORC Report, the statute does not indicate that the Department is barred from citing in its petition, for the first time, a rule or statute that is directly related to the written comments. The CHHA is defined in the County Plan as the category one "evacuation zone." It is the area most in need of evacuation in the event of a severe coastal storm. Shelter space and clearance time are integral to evacuation planning and directly related to the Department's comment in the ORC Report that the amendment would, "expose a substantial population to the dangers of a hurricane." Therefore, the Department was not barred from presenting evidence on shelter space and clearance time in support of this comment. The Department's practice when reviewing an amendment that increases residential density in the CHHA, described in its 2006 report to the Governor's Coastal High Hazard Area Study Committee, is to consider not only dwelling unit offsets in the CHHA, but also the effect on shelter space and clearance time. That report did not elaborate on how shelter space and clearance time are considered by the Department, but evidence that a comprehensive plan amendment would have a significant adverse effect on shelter space or clearance time could presumably negate what would otherwise appear to the Department to be an acceptable offset of residential density in the CHHA. On this record, however, the Department did not show that a significant adverse impact on shelter space or clearance time would be caused by this particular amendment.5 Special Planning Areas Leeward argues that, even if the amendment were determined to be inconsistent with Objective 105.1 and Policy 105-1.4, that inconsistency should be balanced against other provisions in the County Plan that are furthered by the amendment, principally the provisions related to the Caloosahatchee Shores Community Planning Area and the Water- Dependent Use Overlay Zone. There is no authority for such a balancing approach that can overcome an inconsistency with an objective or policy of the comprehensive plan. Therefore, whether the amendment furthers the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area, Water-Dependent Use Overlay Zone, or other subjects is irrelevant to whether the amendment is consistent with Objective 105.1 and Policy 105-1.4. On the other hand, the Department's contention that the amendment is inconsistent with the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area is contrary to the more credible evidence. 100-Year Floodplain The amendment site is entirely within the 100-year floodplain. In its Statement of Intent, the Department determined that the amendment was not in compliance, in part, because the amendment site's location in the 100-year floodplain made it unsuitable for residential development. In addition, the Department determined that the amendment caused an internal inconsistency with the following policies of the County Plan related to development in the floodplain: POLICY 61.3.2: Floodplains must be managed to minimize the potential loss of life and damage to property by flooding. POLICY 61.3.6: Developments must have and maintain an adequate surface water management system, provision for acceptable programs for operation and maintenance, and post-development runoff conditions which reflect the natural surface water flow in terms of rate, direction, quality, hydroperiod, and drainage basin. Detailed regulations will continue to be integrated with other county development regulations. According to Mike McDaniel, a growth management administrator with the Department, "we try to discourage increasing densities in floodplains and encourage that it be located in more suitable areas." The policies set forth above are intended to aid in the achievement of Goal 61 of the Community Facilities and Service Element "to protect water resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters.” Plainly, Goal 61 is directed to regulating construction and surface water management systems. There is no mention in this goal or in the policies that implement the goal of prohibiting all development or certain kinds of development in the 100-year floodplain. The Department's argument in this case regarding development in the 100-year floodplain is rejected because it ignores relevant facts and law. First, substantial portions of Lee County and the State are within the 100-year floodplain. Second, there is no state statute or rule that prohibits development in the 100-year floodplain. Third, the Department of Environmental Protection, water management districts, and local governments regulate development in the floodplain by application of construction standards, water management criteria, and similar regulatory controls to protect floodplain functions as well as human life and property. Fourth, there has been and continues to be development in the 100-year floodplain in Lee County and throughout the State, clearly indicating that such development is able to comply with all federal, state, and local requirements imposed by the permitting agencies for the specific purpose of protecting the floodplain and the public. Fifth, the Department "discourages" development in the floodplain but has not established by rule a standard, based on density or other measure, which reasonably identifies for local governments or the general public what development in the floodplain is acceptable to the Department and what development is unacceptable. Finally, the Department's practice in allowing offsets in the CHHA, as discussed previously, necessarily allows for development in the 100-year floodplain in that particular context.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Land and Water Adjudicatory Commission determining that the amendment adopted by Lee County in Ordinance No. 05-10 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 25th day of August, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2006.
The Issue The issues are whether the following decisions of the Director of Development Services of Citrus County on May 9, July 21, and July 25, 2000, are correct: (1) that the Brown School of Florida, Inc.'s proposed use of certain property in Citrus County, Florida, did not constitute a change in use as described in Sections 2021 through 2023 of the Citrus County Land Development Code and is consistent with Rezoning Ordinance No. 86-A38; and (2) that the proposed construction of a fence on the property complied with the Citrus County Land Development Code.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The property which is the subject of this dispute is located at 2804 West Marc Knighton Court, one mile north of the intersection of County Roads 486 and 491, and just south of the community of Beverly Hills in Citrus County, Florida. Appellee, the Brown Schools of Florida, Inc. (the Brown Schools), has entered into a contract to lease the land from its owner for the purpose of operating a State-licensed "residential child-caring facility." Appellants, Black Diamond Homeowner's Association, Inc., Black Diamond Properties, Inc., Jerry and Ann Kerl, and Marvin Query, have objected to the proposed use on numerous grounds. As residents or owners of property adjacent to the subject property, Appellants have standing to bring these appeals. The property was originally zoned agriculture. In 1986, Community Care Systems, Inc. (Community Care), which then had a contract to purchase the property from a principal of Black Diamond Properties, Inc., applied to Appellee, Citrus County (County), to rezone 30.9 acres from "A-1 General Agriculture" to a "Planned Development-Commercial" land use classification. The stated purpose of the application was to permit the construction and operation of a private psychiatric hospital for alcohol and drug rehabilitation. The application reflected that the owner's sole intended use of the property was as a 60,000 square feet psychiatric hospital licensed under Chapter 381, Florida Statutes, which would "provide comprehensive psychiatric treatment for people of all ages." Under the 1986 version of the County's Land Development Code (Code), private hospitals were only authorized in the commercial land use districts. There was no separate "Institutional" land use district. Thus, the Code dictated that the original facility could only be used as a private psychiatric hospital in a commercial zone. Since an application for straight commercial rezoning on the property would have been inconsistent with the County's then existing land use plan, the only way in which the property could be used for a private psychiatric facility was if the property was classified and zoned as "Planned Development-Commercial." Although the Code was amended in 1990 to include new land use districts, including a "Public/Semi-Public/Institutional" district, hospitals are permitted only in a "General Commercial distict, while "Institutional" uses that are not hospitals are not allowed in a "General Commercial" District. In any event, the 1986 ordinance and final development plan were not amended by the changes to the Code in 1990. The Brown Schools points out that at the time the rezoning application was filed, the 1986 Code contained a Commercial, Residential, Institutional and Office (CRIO) land use district which allowed, among other things, the construction of "public or private hospitals," if they met certain conditions, and "[a]dult congregate living facilities and other group homes, supervised living facilities meeting all county and State requirements." However, in its rezoning application, Community Care did not seek an institutional use nor request a CRIO use. Thus, the cited provision has no application here, and there is no indication in the record that it was even considered by the County in making the decisions under appeal. When the rezoning application was filed, Community Care held Certificate of Need No. 2870 issued in 1984, which authorized construction of a facility with 51 short-term psychiatric beds and 37 long-term substance abuse beds for the treatment of adults, including geriatric patients. The minutes of the Citrus County Board of County Commissioners (Board) meeting held on August 26, 1986, at which the zoning modification was approved, reflect that concerns were raised by abutting citizens of Beverly Hills, who belonged to a group known as United Residents of Beverly Hills (URBH), relative to the facility's future uses. To achieve the necessary zoning approvals, Community Care expressly reassured URBH members by letter dated July 7, 1986, that it would not accept court commitments, "criminally insane," or special problem cases such as "fire setters"; that admissions would be voluntary or by short term civil commitment papers; that patient referral would be by direct request of the patient (self-referral), by physician or other local health professional, by transfer from local general hospitals, and by law enforcement if no charges are pending against the patient; that the property would not be used to house onsite felons or violent patients; and that the building would be low profile and without bars, windows, fences, or gates. Thus, it is clear from Community Care's own acknowledgement that the facility was never intended to be used to accept law enforcement referrals, court commitments, or other non-voluntary commmitments, much less the violent or criminally insane individuals. Having received the above representations from the applicant, the Board incorporated both a URBH letter and the Brown Schools' letter of July 6 as a part of Ordinance No. 86- A38, which approved the zoning change application (Z-86-29) subject to certain conditions. That Ordinance expressly limited and conditioned the uses allowed on the property to the uses approved in the Ordinance. The operative section at issue regarding this appeal is Condition 2, which required that: 2. Approval be limited to a 60,000 square foot (88 bed) psychiatric care facility in accordance with state guidelines. Thereafter, a facility was constructed and Community Care operated a psychiatric care hospital on the property under various names until sometime in 1997, when Community Care (then operating the facility under the name of Heritage Hills Hospital of Beverly Hills) voluntarily ceased to provide services and vacated the premises. By operation of law, the Certificate of Need automatically expired when it was returned to the Agency for Health Care Administration (AHCA) on June 12, 1998. The property was sold in 1999 to BCK of Ocala, LLC. That owner then entered into a lease of the property with the Brown Schools on an undisclosed date in 1999 or early 2000. On March 23, 2000, the Brown Schools filed a "Pre- Application Review" with the County's Community Development Division and met with County staffers in an effort to gain approval for their facility. A preapplication is filed "before submittal of an application for development order," and once one is filed, under Section 2210 of the Code a preapplication conference is then held with County staffers to acquaint the applicant with substantive and procedural requirements of this LDC, provide for an exchange of information regarding the applicable elements of the Comprehensive Plan, the LDC, and other development requirements, arrange such technical and design assistance assistance as will aid the applicant in interpretation of requirements, and to otherwise identify policies and regulations that create opportunities or pose significant constraints for the proposed development. The same section provides that the purpose of the conference is "not to grant any preliminary approval except to agree that the proposed use of the property is appropriate according to the Comprehensive Plan and to determine whether it is reasonable to expect that the proposed development can be accommodated on the site in full compliance with requirements of this LDC." The preapplication reflected that the project name was "The Brown School Locked Adolescent Facility." Also, a handwritten notation by a County staffer at the bottom of the preapplication indicates that "no change of use/no construction [is] contemplated," and that the applicant "must meet conditions of Z-86-29 - copy given to applicant." An Email prepared by a County staffer on March 14, 2000, or shortly before the preapplication was filed, reflected that the intended use of the property was a "[l]ocked facility for children and adolescents." On May 5, 2000, the Brown Schools notified the County by letter that "[w]e are aware of the original conditions in which the facility was permitted and we will not be changing its use." In response to that representation, by letter dated May 9, 2000, the County's Director of the Department of Development Services (Director), who reviews both preapplications and development order applications, advised in part as follows: Pursuant to the preapplication meeting of March 23, 2000, and your correspondence of May 5, 2000, please accept this letter as confirmation that the proposed change does not constitute a Change of Use as described in Sections 2021 through 2023. As noted in your letter, the Brown Schools of Florida are bound by the original planned development approved conditions. Should at a future date you desire to modify the structure, grounds, operation, or any of the conditions, a new review by Citrus County will be needed and may warrant a public hearing as provided in Section 2224 of the LDC. In reaching those conclusions, it is assumed the Director considered Section 2021 of the Code, which defines a "change in use" as "any change of the purpose or activity for which a piece of land or its buildings is designed, arranged, or intended, or for which it is occupied or maintained." The letter also specifically refers to the Brown Schools' plan to operate the property as a "psychotherapeutic hospital for children," and it asked that the applicant provide a copy of its "Florida DC&F permit/authorization . . . for inclusion in [the County's] file as confirmation that [the] operation is approved by the State as well." At that point in time, however, no documentation had been submitted in the process concerning the Brown Schools' operations and programs to support the decision made by the County, although such information had been submitted to the Department of Children and Family Services (DCF), the state agency which licenses adolescent facilities. In information submitted to DCF to obtain a license, the Brown Schools expressly stated that they would be accepting sexual offenders, in addition to juveniles charged with felonies. In fact, one of the criteria under the client profile for those admitted to the Brown Schools' sexual offenders program is that the individual "[m]ay have completed more intensive levels of acute care, hospitalizations, had multiple failed residential placements or may have failed at outpatient services." The documents submitted to DCF also reflect that the Brown Schools is not operating a "psychiatric hospital," as originally represented to the County, but rather it is operating something more akin to a juvenile detention center. Indeed, one of its stated missions is to "[e]nhance the public safety by providing protection for the community from juveniles charged with felonies." A part of the facility will be dedicated to providing services under a contract with the State of Florida for competency restoration. Such a prerequisite is necessary for admission to the Brown Schools' competency restoration program. Under this program, clients or their parents do not decide when they can leave, and the clients are only discharged when they are determined to be competent to stand trial, or when it is determined that they will never gain such competency. This lack of freedom illustrates that the intended use of the facility is as a detention facility, and not as a private psychiatric hospital. Obviously, the Brown Schools is not licensed, nor does it meet the statutory requirements for operation, as a psychiatric hospital. On June 5 and 6, 2000, Appellants in Case Nos. 01-1119 and 01-1120 filed separate, but similar, appeals of the May 9 letter under Section 2500 of the County Land Development Code (Code) and asked for "an interpretation of the intended, described Brown School use." On June 9, 2000, the Director requested an opinion from the County Attorney on whether his May 9 letter constituted action which triggered the provisions of Section 2500. In a memorandum dated July 17, 2000, the County Attorney concluded that it did not for the following reasons: It is my opinion that since no application has been filed nor development order issued or a request for determination made that your letter of May 9th is non-appealable by the terms of the Land Development Code. Section 2210 entitled Preapplication is merely a conference held before submittal of an application for a development order. * * * It is not an action taken by the Director which could lead to an appeal pursuant to Section 2500. Based on this advice, the Director took the position that he had not made a final determination on the Brown Schools' compliance with the zoning conditions and therefore refused to accept the appeals. Thus he did not forward the two appeals of the May 9 letter to a local hearing officer to begin the appeals process. By letter dated June 7, 2000, and in direct response to the concerns raised by Appellants, the Director provided the Brown Schools with a copy of the Appellants' appeals and requested that Appellee provide him with a copy of the DCF license, contracts, and any other supporting documents. Also, for the first time, the Director specifically requested documentation on the planned operation and programs at the facility since Appellants had questioned whether "the facility will be in compliance with the original zone change compliance conditions." In response to the Director's letter, on June 9, 2000, the Brown Schools provided the Director with a copy of its DCF license, contract with the State of Florida, and revised program information. The program information was revised (from that described in the application) after the appeals were taken to reflect a change in program titles and other terminology from that originally used. For example, the "Sexual Offender Program" was changed to "Sexual Abuse Treatment (SAT) Program," but the substance of the program remains the same. In order to receive a license to operate its institution from the DCF, the Brown Schools was required to demonstrate that it had received final zoning approval. Even though the Director represented in his June 7, 2000, letter that final zoning approval had not been made, the Brown Schools represented to the DCF that it had received final zoning approval by submitting the May 9 letter. In reliance on that letter, on May 30, 2000, the DCF issued the Brown Schools a license to operate a residential child-caring facility. The license was issued under Section 409.175, Florida Statutes (1999), which specifically provided that "child-caring facilities do not include hospitals." Beginning on July 1, 2000, the Brown Schools began placing juvenile offenders at their facility, and these residents have remained there during the pendency of these appeals. On July 21, 2000, the Director issued a 3-page letter which constituted his final determination on the matter. That letter is found in three exhibits, including Exhibit 18. The Director concluded that the Brown Schools' proposed use of the property was consistent with the applicable zoning conditions. In his letter, the Director focused on Condition 2 of the zoning ordinance, and whether the intended use was in conformity with the requirement that the property be used only for a "60,000 square foot (88-bed) psychiatric care facility in accordance with State guidelines." Of relevance here were the following conclusions: [Condition 2] specifically utilizes the term "facility" and not hospital, and the term "State guidelines" rather than specific Florida statutes, administrative codes, or state programs. This is a significant distinction and a core basis of this determination. The County cannot administratively expand, contract, or modify the language or intent of the condition when it uses plain and obvious terms. (Rinker Mat. Corp. vs. City of N. Miami). The Board's limitations to the zone change were those spelled out in the adopted conditions - not those discussed either within or outside the public hearing process by the applicant at that time. The second core issue is whether the proposed Brown operation can be considered a psychiatric care facility. The original developer, Community Care Systems, Inc., provided comprehensive psychiatric treatment for people of all ages with acute emotional, behavioral, and chemical dependency problems. The facility operated as a hospital and so was governed by the then Florida Department of Health and Rehabilitative Services as a hospital, subject to the provisions of the Health Facility and Services Development Act. These regulations served as the state guidelines referenced in Condition 2. The Brown Schools of Florida proposed operation for the Marc Knighton Court facility is a residential child caring facility as licensed by the Florida Department of Children and Families. Florida Statute (Chapter 409) provides the definition of a residential child caring agency (facility implied within the definition) that is broad in scope recognizing a number of types, including maternity homes, group homes, emergency shelters, and wilderness camps. Therefore, unlike the DHRS license obtained by Community Care Systems, Inc., which clearly established compliance with Condition #2, obtaining of the DCF license does not in and of itself serve the same role. To ascertain compliance with the psychiatric care definer of Condition #2, I must look to the Brown Schools' proposed program and the draft contract with the DCF. The program summary from the Brown Schools of Florida lists four program types: Sexual Abuse Treatment Program, Child and Adolescent Residential Treatment [P]rogram (male and female], and Residential Treatment Program for Developmentally Delayed Youth. They all share the use of an inter- disciplinary treatment team centered around the psychiatric evaluation, treatment and community integration of the client(s). This is similar in scope to some of the original hospital's programs, though in the Brown Schools case it is oriented to children referred/placed by the State as opposed to private placement. The draft contract, specifically Attachment 1, Section A, 2d, reaffirms these programs and the desired goals. While there is a difference from the original Community Care Systems operation, the fact remains that the supporting documentation provided by the Brown Schools of Florida clearly establishes that psychiatric care is a principle (sic) component of their operation and, as such, must be taken as face value compliance with Condition #2 of the Zone Change. Much has been made of the fact that the Brown School operation will treat youth who have been found incompetent to proceed. This is an issue outside the purview of land use and, in fact, the attorney representing the original applicant in 1986 made the same observation that these types of issues were not land use related. The determination of incompetency lies solely within the State of Florida through its judicial officers or their designees. It is neither feasible nor appropriate for local government through its police powers to try to regulate these matters. Secondly, much has been made of the potential for the Brown Schools program to evolve into a juvenile detention facility, whole or in part due to the generality of the DCF license. Whether this can occur is open to debate, but Florida case law on this matter is clear. Conetta vs. City of Sarasota has established that one cannot presume violations of the Code for the purpose of denial. Rather, the appropriate approach on this issue is to take corrective enforcement action after a documented violation occurs. Timely appeals of this letter were filed by Appellants. By letter dated July 21, 2000, the Brown Schools requested a "minor modification to [the] Land Development Code" for the installation of a 10-foot high chain link fence with two-foot overhead fencing at a 45-degree angle. Although suggested otherwise by Appellants, the fence was not a perimeter fence around the entire facility, but only a fence to enclose a play yard, since a perimeter fence between at least part of the facility and the adjacent property had already been constructed by one of the Appellants. On July 25, 2000, a County staffer responded to this request by holding that the fence "shall be considered a minor modification of the approved Plan Development No. Z-86-29 in accordance with the provisions of Section 2224.B of the Citrus County Land Development Code." The cited Section of the Code allows the Director to approve "minor changes in the . . . previously approved Planned Developments (PD) as long as they are in harmony with the originally approved . . . PD." After a site plan was submitted, the County issued a permit for the fence. This decision has also been appealed by Appellants on the grounds that the original site plan contained no fences, and the Board approved the zoning change in 1986 only after the applicant represented that no fences would be erected. The construction of the fence has been stayed during the pendency of these appeals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Director of Development Services reconsider his decisions of May 9, July 21, and July 25, 2000, for the reasons expressed in this Recommended Order. DONE AND ENTERED this 15th day of August, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2001. COPIES FURNISHED: Gary W. Maidhof, Director Department of Development Services Citrus County 3600 West Sovereign Path Lecanto, Florida 34461-8070 Julie Hions O'Kane, Esquire Drage, deBeaubien, Knight, Simmons, Mantzaris & Neal, P.A. Post Office Box 87 Orlando, Florida 32802-0087 Clark A. Stillwell, Esquire Brannen, Stillwell & Perrin, P.A. Post Office Box 250 Inverness, Florida 34451-0250 James A. Neal, Jr., Esquire James A. Neal, Jr., P.A. 452 Pleasant Grove Road Inverness, Florida 34452-5746 David C. Ashburn, Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301-7703 Carl E. Kern, Esquire 3600 West Sovereign Path, Suite 267 Lecanto, Florida 34461-7726
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 09-GM-262 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this [b- day of Tn y) , 2009. Aauled ’ 7 va Paula Ford Agency Clerk By U.S. Mail The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 John D. Cassels, Jr., Esquire 400 NW Second Street PO Box 968 Okeechobee, Florida 34973 - 0968 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs
