The Issue The issue in this case is whether the Hardee Power Station and its associated facilities, including the corridors for the directly associated transmission lines and the natural gas pipeline, should receive certification.
Findings Of Fact Ultimate Site Capacity for Hardee Power Station Project The site for the proposed Hardee Power Station electric generating equipment is a 1,300 acre site located at the Polk and Hardee County lines approximately 9 miles northwest of the City of Wauchula in Hardee County. The Hardee Power Station electrical generating structures will be located primarily in Hardee County; a major portion of the 570 acre cooling reservoir is located in Polk County. Co-applicants have proposed in their Site Certification Application an ultimate nominal capacity of 660 megawatts, and certification of the electric generating equipment, associated cooling reservoir, associated natural gas pipeline, and three associated transmission lines, described in paragraphs 2 through 7 above. In March of 1989, the Florida Public Service Commission issued an initial need order based on SECI's application for a need determination for construction of two 220 megawatt combined cycle facilities. The PSC order confirmed the following: 1) SECI's need for 450 megawatts of back-up generation capacity; 2) the three interconnection points for the three 230 kV transmission lines; and 3) that a combined cycle plant was SECI's least costly alternative to constructing this electric generation capacity. Thereafter, SECI contracted with Teco Power Services Corporation for, among other things, the construction of the combined cycling units. In December of 1989, the PSC issued a final need order. Hardee Power Station Project Co-applicants propose to construct and operate a combined cycle power plant and associated transmission lines and natural gas pipeline facilities. The Hardee Power Station project will consist of combined cycle electric generating facilities with an ultimate nominal capacity of 660 megawatts to be constructed in two phases. In phase 1-A, one 220 megawatt (nominal) combined cycle unit will be built along with one 75 megawatt (nominal) combustion turbine, resulting in a total of 295 megawatts (nominal), to begin commercial operation in January of 1993. In phase 1-B of the project, an additional 75 megawatt (nominal) combustion turbine and a 70 megawatt (nominal) heat recovery steam generator will be added to the facility resulting in an additional 145 (nominal) megawatt combined cycle facility, the capacity of which is scheduled to be on line in January of 2003. Phase 2 of the project is the addition of a third 220 megawatt (nominal) combined cycle facility at an unspecified future date. Associated with the Hardee Power Station electrical generating plant will be a cooling reservoir to cool the steam in the heat recovery steam generator so that water can be reused in the system. The cooling water will be returned to the reservoir which is designed to discharge water in excess of the 10-year, 24-hour storm event. The Hardee Power Station will also have associated oil storage and handling facilities, water treatment facilities, a control building and warehouse, and an administrative building. Power generated from the Hardee Power Plant will be distributed to the Pebbledale, Vandolah and Lee County substations via three 230 kV transmission lines. One line, owned by Tampa Electric Company, heads north from the plant site and terminates at the Pebbledale substation. A preferred corridor and an alternate corridor have been proposed for this line. The other two transmission lines, owned by SECI, will head south from the Hardee Power Station facility and follow their respective corridors, one terminating at the Vandolah substation and the other at the Lee County substation. The corridors running north from the plant site to the Pebbledale substation are approximately 16 miles in length with a corridor width of approximately 1/2 mile but varying in sections from 1/4 of a mile to 1 mile. The transmission line heading south from the plant site to the Vandoloah substation will be approximately 8 miles in length and generally 1/2 mile in width with variations from 1/2 mile to 3/4 of a mile. The transmission line running south from the plant site to the Lee County substation will be approximately 78 miles in length with a width generally of 1/2 mile with variations from 150 feet to approximately 1 mile. The transmission line structures will encompass only the rights-of-way within the corridors. The right-of-way for a typical H frame structure ranges from 100 to 150 feet while the right-of-way for a single pole structure ranges from 75 feet to 100 feet. The H-frame structures consist of two vertical poles having a typical out-of-ground height of approximately 65 feet with cross-arm assemblies holding porcelain insulators. The single pole structure consists of a single vertical structure with a typical out-of-ground height of 95 feet with insulator sets holding the conductors in place. Construction and maintenance activities with respect to these structures will require the construction of access roads. The proposed power plant facility will include a natural gas pipeline which will connect into the existing Florida Gas Transmission pipeline system north of Polk City. The pipeline will route south past Polk City, Auburndale, and Bartow to State Road 60. The pipeline will then continue past Pierce and Bradley Junction until it meets County Road 630 where the pipeline heads east until it reaches County Road 663 where it turns south to the plant site. The natural gas pipeline will be an 18-inch diameter pipe which will be buried three feet underground with a length of approximately 49 miles. The purpose of the pipeline is to transport natural gas, the primary fuel for the facility, to the plant site. The DER published notices of the March 6, 1990 land use hearing in the Herald-Advocate (Hardee County) on January 18, 1990 in the Tampa Tribune, the Mulberry Press (Polk County), and the Ledger (Polk County) on January 15, 1990; and in the DeSoto County Times on January 17, 1990. Notice of the March 6, 1990 hearing was also published in the Florida Administrative Weekly on January 19, 1990. Co-applicants published notice of the May 3, 1990 continuance of the March 6, 1990 land use hearing in the April 18, 1990 editions of the Lakeland Ledger, the Tampa Tribune, the DeSoto County Times, the Ft. Myers News-Press (Lee County), the Cape Coral Daily Breeze, the Bradenton Herald, and the Charlotte Sun/Herald-News. On April 18, 1990, the Hearing Officer reviewed Co- applicants' Notice of Resumption of Land Use and Zoning Hearing and found it sufficient to provide notice to all parties and the public of the continuation of the land use hearing. Polk County Aspects of the power plant and associated facilities, including preferred and alternative corridors, to be located in Polk County include: (a) a portion of the cooling reservoir; (b) a 230 kV transmission line extending from the plant to the Pebbledale substation; (c) a natural gas pipeline extending from the plant to Florida Gas Transmission Company's main gas line north of Polk City; and (d) miscellaneous appurtenances and accessories, including access roads. The land use plan that governs the Hardee Power Station and associated linear facilities located in Polk County is the Polk County Comprehensive Plan as adopted by the Board of County Commissioners on June 26, 1979. The applicable zoning regulation is the 1983 Polk County zoning ordinance. Polk County has not adopted a land-use plan map and thus there are no land use plan designations encompassed by the site or its associated facilities in Polk County. With respect to Polk County's Comprehensive Plan, the Polk County Chief of Current Planning, ron Borchers, on January 20, 1989, confirmed that the cooling reservoir, transmission line, and natural gas pipeline complied with Polk County's Comprehensive Plan. Expert testimony also demonstrated that the proposed project is consistent and in compliance with the zoning ordinance and land use plan of Polk County. The Polk County Zoning category for the Hardee Power Station generating facility site and the cooling reservoir site is RC (rural conservation). The transmission line corridor crosses four zoning categories in Polk County: RC (rural conservation district); GI (general industrial district); R3 (rural residential district); and R2 (rural residential district). The gas pipeline corridor crosses the following zoning categories within Polk County: R1, R2, and R3 (residence districts); RE1 and RE2 (rural estates districts); SF1 (single family district); SF1M (single family district); RC and RC2 (rural conservation districts); C2 (commercial district for a multi- neighborhood commercial); C3 (commercial district for regional commercial; C4 (commercial district for heavy commercial; GI (general industrial district; and PUD (planned unit development district. In Polk County gas pipelines are classified as Class I essential services and are permitted in all zoning districts. By letter dated January 24, 1989, Zoning Administrator Gerald Martin confirmed that the plant site and associated facilities are in compliance with the Polk County Zoning Ordinance, stating: Specifically, transmission lines and gas pipelines are Class I essential services; and the power plant's cooling reservoir is a Class II essential service. Class I essential services are permitted in all zoning districts. The site of the proposed cooling reservoir in Polk County is zoned Rural Conservation (RC) which permits Class II essential services. Therefore, these proposed facilities are in compliance with the Polk County Zoning Ordinance. Expert testimony also demonstrated that the power plant site and associated linear facilities are in compliance and consistent with Polk County's Zoning Ordinance. Co-applicants have entered into a stipulation with Polk County in which the County confirms that the site of the power plant and associated facilities, including preferred and alternative corridors, to be located in Polk County are consistent and in compliance with Polk County's existing Land Use Plan and Zoning Ordinance. Hardee County Aspects of the power plant and associated facilities, including preferred and alternative corridors, to be located in hardee County include: (a) the power plant facility; (b) a portion of the cooling reservoir; (c) a portion of the 230 kV transmission line extending from the plant to the Pebbledale substation in Polk County; (d) a 230 kV transmission line from the plant to the Vandolah substation in Hardee County; (e) a 230 kV transmissionline extending from the power plant to the Lee County substation; (f) a portion of the natural gas pipeline extending to Florida Gas Transmission Company's main gas line north of the power plant in Polk County; and (g) miscellaneous appurtenances and accessories including access roads. The land use plan that governs the Hardee Power Station in Hardee County for purposes of this hearing is the future land use plan element of the Hardee County Comprehensive Plan. The applicable zoning regulation is Hardee County Zoning Ordinance No. 82-2 as codified in the Hardee County Land Development Code T. The zoning category for the site of the Hardee Power Station generating facility located within Hardee County is I-1 (light industrial). The light industrial district, as described in the Hardee County zoning ordinance, includes "public and semi-public plants" in an enumeration of authorized "principle uses and structures", and authorizes the proposed power plant. The Hardee County Board of Commissioners rezoned the planned location of the plant site to I-1 on May 11, 1989 to authorize construction of the plant. The transmission line corridors cross the following zoning categories in Hardee County: I-1 (light industrial); A-1 (agricultural); C-2 (general commercial); FR (farm residential); and C-1 (neighborhood commercial). These linear facilities are authorized uses in all districts pursuant to 2.3G of the hardee County zoning ordinance, which states that "local public utility distributing and collecting structures such as pipes and transmission lines" are "permitted in all zoning districts." Hardee County has not adopted a land use plan map and thus there are no land-use plan designations affected by the site or associated facilities. The Hardee County Building and Zoning Department staff report on the April 17, 1989 rezoning application confirms that the proposed power plant is in compliance with Hardee County's Comprehensive Plan. Expert testimony was presented demonstrating that the proposed Hardee Power Station is consistent and in compliance with Hardee County's land use plan and zoning ordinance. On November 2, 1989, co-applicants and Hardee County entered into a stipulation in which the County confirmed that the proposed site of the power plant and associated facilities, including preferred and alternate corridors, are consistent and in compliance with Hardee County's existing land use plan and zoning ordinance. This stipulation was authorized by the Hardee County Board of County Commissioners on September 21, 1989. DeSoto County The associated linear facility located in DeSoto County is an approximately 23 mile portion of a 230 kV transmission line, including miscellaneous appurtenances and accessories, extending from the plant to an existing substation in Lee County. The land use plan that governs the proposed linear facility is the DeSoto County Ordinance No. 81-3 adopted on June 25, 1981. The applicable zoning regulations are contained in the DeSoto County Zoning Ordinance No. 81- 10. DeSoto County has not adopted a land-use plan map and thus there are no land use categories crossed by the transmission line corridor in DeSoto County. Expert testimony demonstrated that the proposed transmission line corridor associated with the Hardee Power Station does not contravene the policies or objectives of the DeSoto County Comprehensive Plan. The transmission line corridor crosses the following zoning categories in DeSoto County: A-5 (rural agriculture); A-10 (agriculture district); E (estate district); IL (industrial light district); CG (commercial general district); RSF-3 (residential signle family district); COS (conservation open space district); TTRVC (travel trailer recreational vehicle and campground district); MHC (mobile home conventional district); and RMF-6 (residential multifamily district). Section 8-8 of the DeSoto County zoning ordinance provides that "electric cables" are "permitted uses" and "allowed as a matter of right" in all zoning districts; thus, the proposed transmission line corridor does not contravene the DeSoto County Ordinance. On November 2, 1989, a stipulation was entered into between DeSoto County and the Co-applicants confirming that the zoning officials of DeSoto County have reviewed the Co-applicants' site certification application, are familiar with the proposed site of the associated linear facility, and that the proposed facility is consistent and in compliance with DeSoto County's existing land use plan and zoning ordinance. This stipulation was authorized by the DeSoto County Board of Commissioners on September 12, 1989. Charlotte County The associated linear facility located in Charlotte County includes approximately 22 miles of a 230 kV transmission line, including miscellaneous appurtenances and accessories, extending from the plant to an existing substation in Lee County. The land use plan that governs the associated linear facility to be located in Charlotte County is the future land use element of the December 16, 1988 Charlotte County/City of Punta Gorda Comprehensive Plan. The applicable zoning regulations are contained in the Charlotte County zoning regulations adopted by the Board of County Commissioners on December 8, 1981, including the June 30, 1989 amendments to the Charlotte County zoning regulations enacted pursuant to Ordinance No. 89-34. In Charlotte County, the transmission line corridor crosses the following land use plan categories: agriculture 1 and 2; agriculture conservation; preservation; public; semi-public; commercial; residential estates; mobile home; and low density residential. The transmission line corridor also crosses two overlay districts which include surface water protection districts for Alligator Creek, Prairie Creek, and Shell Creek. The Charlotte County land use plan does not specifically address placement of electric transmission lines. The Charlotte County Comprehensive Plan includes objectives that contemplate ensuring the availability of suitable land for utilities facilities necessary to support development; that the County, in conjunction with private utility franchises, coordinate efforts in identifying appropriately located environmentally suitable land to meet those needs; and that land suitable for utility facilities necessary to support future development be acquired by either the County or the private utility. The land use plan provides that development is permissible in preservation areas "as may be provided within the land development regulations'. Thus, to the extent that such development is permitted within preservation areas under the zoning ordinance, it similarly is authorized under the land use plan. In Charlotte County, the transmission line corridor crosses the following zoning categories: AE (agriculture estate); AG (agriculture general); CG (commercial general); CI (commercial intensive); ES (environmentally sensitive); MHC (mobile home conventional); MHP (mobile home park); PD (planned evelopment); RE-5 (residential estate); RMF-10 (residential multi-family); RSF- 3.5 (residential single family); and RE-1 (residential estate). The Charlotte County zoning ordinance traditionally has been applied as authorizing transmission lines without the requirement of obtaining a special exception permit. Unrebutted expert testimony confirmed that this interpretation comports with the language of the zoning ordinance. Charlotte County has entered into a stipulation in this proceeding confirming that the proposed site of the associated linear facility is consistent and in compliance with Charlotte County's existing land use plan and zoning ordinance. This stipulation was authorized by the Charlotte County Board of Commissioners on September 26, 1989. Lee County The associated linear facility located in un-incorporated Lee County is a five mile length of a 230 kV transmission line, including miscellaneous appurtenances and accessories, extending from the plant to an existing substation in Lee County. The land use plan that governs the linear facility to be located in Lee County is section A of the Lee County Comprehensive Plan (entitled "the Lee Plan") adopted by the lee County Board of County Commissioners on January 31, 1989. The applicable zoning regulations are Lee County's official Zoning Ordinance (Ordinance 86-17) and amendments thereto. In Lee County, the transmission line corridor crosses four land-use plan categories which include open lands, resource protection transition zones, rural, and central urban. Expert testimony demonstrated that the associated linear facility does not contravene any of the policies or objectives contained in the Lee County Land Use Plan. The transmission line corridor corsses the following zoning categories in Lee County: AG-2 (agricultural district); C-2 (commercial district); MH-1 (residential uses); and MH-2 (residential uses). The associated linear facility is an "essential service facility" under Sections 1001.13 and 202.12 of the Lee County zoning ordinance and is permitted in all zoning districts within Lee County. Lee County has entered into a stipulation in this proceeding confirming that the proposed site of the associated linear facility is consistent and in compliance with Lee County's land use plan and zoning ordinance. This stipulation was authorized by the Lee County Board of Commissioners on February 7, 1990. City of Cape Coral The associated linear facility located in the City of Cape Coral is approximately a 3.2 mile portion of a 230 kV transmission line, including miscellaneous appurtenances and accessories, extending from the plant to an existing substation in Lee County, located east of the City of Cape Coral. The land use plan that governs the proposed linear facilities in Cape Coral is the February 13, 1989 City of Cape Coral Comprehensive Plan. The applicable zoning regulations are the City of Cape Coral Land Development Regulations, as amended February 1990 by Ordinance No. 7-90. The transmission line corridor crosses three land-use plan categories: mixed use; parks and recreation; and single family. There are no references to transmission line corridors in the Cape Coral land use plan; however, expert testimony was presented that the proposed transmission line corridor does not contravene the City of Cape Coral's land use plan. The transmission line corridor primarily crosses the agricultural (AG) zoning category in the City of Cape Coral; moreover, the outer fringes of the corridor briefly intersect with a portion of land zoned R1 (single family residential district) where it enters the City of Cape Coral. On February 12, 1990, the City of Cape Coral amended its zoning ordinance to provide, among other things, that the transmission was a permitted use in areas zoned "Agricultural". To the extent a transmission line structure intersects with the R-1 district, it would be authorized under section 2.7.1 of the zoning ordinance. Expert testimony demonstrated that the proposed transmission line is an authorized use under the City of Cape Coral's zoning ordinance. On February 16, 1990, Co-applicants and the City of Cape Coral entered into a stipulation in which the County confirmed that the Co-applicants' proposed transmission line corridor traverses through an area of the City of Cape Coral that is zoned Agricultural and that, therefore, the transmission line is an authorized use under the City of Cape Coral zoning ordinance. Furthermore, the County stipulated that the proposed site of the transmission line is consistent and in compliance with the City of Cape Coral's land use plan. City of Auburndale The associated linear facility to be located in the City of Auburndale is a portion of a natural gas pipeline that extends from approximately one mile north of Polk City where it interconnects with the existing Florida Gas Transmission 18 inch St. Petersburg lateral and continues south to the Hardee Power Station. The land use plan that governs the proposed corridor of the natural gas pipeline through the City of Auburndale is the June 1977 City of Auburndale Comprehensive Plan. The applicable zoning regulation is the City of Auburndale's zoning ordinance codified in Chapter 25 of the City of Auburndale Code. In Auburndale, there are two future land use maps for the City of Auburndale contained in its comprehensive plan. One of these land use plan maps covers an area where the pipeline corridor crosses three land use plan categories: agricultural; medium-density residential; and low-density residential. The City of Auburndale Comprehensive Plan does not mention gas pipelines. Expert testimony demonstrated that the proposed pepeline corridor does not contravene the land use plan of the City of Auburndale. Within the City of Auburndale, the proposed gas pipeline corridor crosses the zoning category CH (commercial highway). The City of Auburndale's zoning ordinance defines essential services to include gas facilities and indicates they can be located in any zoning district after review and approval by the City Commission. That review and approval occurred on April 2, 1990 as reflected in the City Commission resolution. On May 3, 1990, the City of Auburndale entered into a stipulation with Co-applicants wherein the County confirmed that the proposed natural gas pipeline corridor is consistent and in compliance with the City of Auburndale's existing land use plan and zoning ordinance. City of Bartow The associated linear facility located in the City of Bartow is a portion of a natural gas pipeline that extends from approximately one mile north of Polk City where it interconnects with the existing Florida Gas Transmission 18 inch St. Petersburg lateral and continues south to the Hardee Power Station. The land use plan that governs the proposed natural gas pipeline associated with the Hardee Power Station is the 1979 City of Bartow Comprehensive Plan. The applicable zoning regulations are the City of Bartow's zoning ordinance, Ordinance No. 981-A. The City of Bartow has not adopted a land use plan map so there are no land use plan categories crossed by the pipeline corridor in the City of Bartow. The City of Bartow's comprehensive plan does not mention gas pipelines. Expert testimony demonstrated that the proposed natural gas pipeline will be consistent and in compliance with the City of Bartow's land use plan. In the City of Bartow, the proposed pipeline crosses the following zoning categories: R1 and R1A (residential districts); C3 (highway commercial); P1 (professional office); and I-1 and I-2 (industrial districts). The City of Bartow's zoning ordinance defines gas pipelines as public service structures which are permitted in all zoning districts after review by the Zoning Commission. That review occurred on March 22, 1990 where the Zoning Commission recommended approval of the proposed gas pipeline. The recommendation was subsequently adopted by the City Commission. On May 3, 1990, the City of Bartow and the Co-applicants entered into a stipulation in which the City confirmed that the proposed natural gas pipeline corridor is consistent and in compliance with the City of Bartow's existing land use plan and zoning ordinance (Ordinance No. 981-A, as amended). City of Polk City The associated linear facility to be located in Polk City is a portion of a natural gas pipeline that extends from approximately one mile north of Polk City where it interconnects with the existing Florida Gas Transmission 18 inch St. Petersburg lateral and continues south to the Hardee Power Station. The land use plan that governs the proposed natural gas pipeline associated with the hardee Power Station is the Town of Polk City Comprehensive Plan adopted by the City Commission on September 4, 1980. The applicable zoning regulations are contained in Polk City Ordinance 89-11. In Polk City, the pipeline crosses two land-use categories, commercial and agricultural. The Polk City Comprehensive Plan does not mention natural gas pipelines. Expert testimony demonstrated that the natural gas pipeline corridor will be consistent and in compliance with the City of Polk City's land use plan. Within Polk City, the proposed natural gas pipeline corridor crosses one zoning category, C1 (commercial restricted). The Polk City zoning ordinance is silent on the matter of gas pipelines. However, the City Commission in Polk City, pursuant to a request by the Co-applicants, approved the proposed natural gas pipeline as an allowable use under the City's zoning ordinance. On May 3, 1990, Co-applicants and Polk City entered into a stipulation wherein the City confirmed that the proposed natural gas pipeline corridor is consistent and in compliance with Polk City's existing land use plan and zoning ordinance (Ordinance No. 89-11, as amended).
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Governor and cabinet, sitting as the Siting Board, enter a Final Order finding that the site of the Hardee Power Station electric generating facilities and cooling reservoir, the site of the associated natural gas pipeline; and the site of the corridors for the directly associated transmissionlines, as proposed in the Site Certification Application, are consistent and in compliance with existing land use plans and zoning ordinances. DONE AND ENTERED this 6th day of June, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1990. Copies Furnished to all persons shown in Appendix A APPENDIX A APPEARANCES Hamilton S. Oven, Jr., P.E. Administrator, Siting Coordination Section Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Richard Donelan, Esquire Gary C. Smallridge, Esquire Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 G. Stephen Pfeiffer, Esquire Steve Hall, Esquire Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Edward B. Helvenston, Esquire Catherine D'Andrea, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899 Sarah Nall, Esquire South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416-4680 Susan P. Clark, Esquire Suzanne S. Brownless, Esquire Florida Public Service Commission 101 East Gaines Street Fletcher Building, Suite 212 Tallahassee, FL 32399-0863 Lawrence N. Curtin, Esquire Samuel J. Morley, Esquire P. O. Drawer 810 Tallahassee, FL 32302 William H. Green, Esquire James S. Alves, Esquire P. O. Box 6526 Tallahassee, FL 32314 Eugene E. McClellan, Jr., Esquire Dept. of Natural Resources 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 William Powell, Esquire City of Cape Coral Attorney P. O. Box 150027 Cape Coral, FL 33915-0027 Gary Vorbeck, Esquire DeSoto and Hardee County Attorney 207 East Magnolia Street Arcadia, FL 33821 Sandra Augustine, Esquire Beth A. Sullivan Esquire Charlotte County Attorney 18500 Murdock Circle Port Charlotte, FL 33948-1094 Mark F. Carpanini, Esquire Polk County Attorney P. O. Box 60 Bartow, FL 33830 H. Hamilton Rice, Jr., Esquire Jeffrey N. Steinsnyder, Esquire Manatee County Attorney 1112 Manatee Avenue West, Suite 969 P. O. Box 1000 Bradenton, FL 34205 James V. Antista, Esquire Kenneth McLaughlin, Esquire Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, FL 32399-1600 Rivers H. Buford, Jr., Esquire Dept. of Transportation 605 Suwannee Street, M.S.-58 Tallahassee, FL 32399-0458 Alton Roane, Director Lee County Division of Planning P. O. Box 398 Ft. Myers, FL 33902-0398 David Emerson Bruner, Esquire Southwest Florida Regional Planning Council 1114-B North Collier Boulevard Marco Island, FL 33937 David C. Holoman, Esquire City of Arcadia Attorney P. O. Drawer 592 Arcadia, FL 33821 James Q. Duane, Executive Director Ralph Artigliere, Esquire Central Florida Regional Planning Council P. O. Box 3 Lakeland, FL 33802-0003 Thomas W. Reese, Esquire Manasota-88 123 Eighth Street, North St. Petersburg, FL 33701 Michael P. Haymans, Esquire P. O. Box 2159 Port Charlotte, FL 33952 APPENDIX B RULINGS ON PROPOSED FINDINGS OF FACT (DOAH Case No. 89-3560) The proposed findings of fact contained in the Joint Proposed Recommended Order filed on behalf of the Co-Applicants and the Department have been substantially adopted in Findings 1-93. The following rulings are made on proposed findings of fact contained in the Proposed Recommended Order filed on behalf of the Florida Game and Fresh Water Fish Commission: 1-2. Adopted in Finding 70. Adopted in Finding 71. Adopted in Findings 72, 73. Adopted in Finding 76. Adopted in Finding 77. Adopted in Finding 78. Adopted in Finding 79. Adopted in Finding 80. Adopted in Finding 81. Adopted in Finding 82. Adopted in Finding 83. The following rulings are made on proposed findings of fact contained in the Proposed Recommended Order filed on behalf of Intervenors Slack and Katzen: 1-2. Adopted in Finding 1. 3-6. Rejected as unnecessary since this is not in dispute. 7. Adopted in Finding 46. 8-10. Adopted in Finding 12, but otherwise Rejected as not based on competent substantial evidence. Adopted and Rejected in Findings 71-73. Adopted in Finding 90. 13-14. Rejected as not based on competent substantial evidence 15-16. Adopted in Finding 45. Adopted in Finding 48. Adopted in Findings 64, 65. Adopted in Findings 46, 71. Adopted and Rejected in Findings 46, 75. 21-26. Rejected in Findings 75-83, and as not based on competent substantial evidence. 27. Rejected in Findings 76, 80, 83, and as not based on competent substantial evidence. 28-30. Adopted in Finding 12, but otherwise Rejected as immaterial and unnecessary. Rejected in Finding 84, and otherwise as not based on competent substantial evidence. Adopted in Finding 84. Adopted in Finding 85. Rejected as not based on competent substantial evidence and immaterial. Adopted in Finding 46. 36-37. Rejected in Findings 71-73. Adopted in Findings 53, 54. Rejected in Finding 53, and otherwise as not based on competent substantial evidence. Adopted in Finding 53. 41-42. Rejected as immaterial and irrelevant. 43-44. Adopted in Finding 70. Adopted in Findings 75-83. Rejected as a conclusion of law and not a proposed finding of fact. 47-48. Rejected as unnecessary and cumulative. 49. Adopted and Rejected in Finding 79. 50-53. Rejected as unnecessary, immaterial and irrelevant. 54-55. Rejected in Finding 84 and otherwise as not based on competent substantial evidence. 56-57. Adopted in Finding 70. 58. Rejected as speculative, irrelevant, and as not based on competent substantial evidence. 59-60. Adopted in Finding 70. Rejected in Finding 84 and otherwise as not based on competent substantial evidence. Adopted and Rejected in Finding 78. 63-64. Adopted and Rejected in Findings 76-80. 65. Rejected as not based on competent substantial evidence 66-71. Adopted in Findings 74, 76 and 79, but otherwise Rejected in Finding 80 and as unnecessary. Rejected as unnecessary. Rejected as not based on competent substantial evidence Rejected in Findings 73, 75. Rejected as unnecessary. Rejected in Finding 77. 77-78. Rejected as irrelevant and immaterial. APPENDIX C * CONDITIONS OF CERTIFICATION * NOTE: THE REMAINING APPENDIX CONTAIN MAPS AND OTHER UNSCANABLE MATERIAL WHICH ARE AVAILABLE FOR REVIEW IN THE DIVISION'S CLERK'S OFFICE.
Findings Of Fact The Resource Recovery Facility The purpose of the proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,352 tons of refuse each day, and generate up to 62.5 megawatts of electrical power. The ultimate capacity of the facility is 3,300 tons of refuse each day, and a generating capacity of 96.1 megawatts. The proposed RRF complex will include a gatehouse and weigh station, refuse receiving and handling building, turbine generator building, administrative building and two landfills for the disposal of ash residue and non- processable solid waste. The site development plans for the project contemplate that solid waste will be delivered by truck to the enclosed refuse and receiving building. All waste will be stored and processed inside the main facility. The Site The site for the proposed RRF is a predominantly undeveloped 248-acre parcel of land situated at the southeast intersection of US 441 (State Road 7) and State Road (SR) 84, an unincorporated area of Broward County. The site is bounded on the north by the right-of- way for I-595, the northerly part of its east boundary by the proposed Ann Kolb Park, the southerly part of its east boundary and the south by the South Fork of the New River Canal (New River Canal), and the west by US 441. The uses surrounding the site are mixed. Located east of the site, and south of the proposed Ann Kolb Park, is a large fossil fuel electric generation facility owned by Florida Power & Light Company (FP&L). To the south, across the New River Canal, is a mixed residential- commercial area of single family residences, duplex residences, and marine-oriented businesses (marinas and fish wholesalers). To the west of US 441 is a mixture of light, medium, and heavy industry, including industrial office space, auto salvage facilities and prestressed concrete pouring yards. North of the right-of-way for I- 595, and SR 84, is a mixture of strip commercial and residential usage. Although the site itself is predominantly unoccupied pasture land, some of its lands have been developed. The southern portion of the site, abutting the New River Canal, is occupied by a marine engineering firm which operates dry dockage and related facilities (heavy industrial use). The other uses currently existing on the site are for a nursery and the sale of prefabricated sheds. Bisecting the site is a parcel of land presently being developed by the City of Fort Lauderdale (City) for a sludge composting facility. Broward County proposes to locate the RRF south of the City's facility, and the landfills north of the City's facility. Consistency of the site with local land use plans and zoning ordinances Broward County has adopted a Comprehensive Plan, pursuant to Chapter 163, Florida Statutes, which establishes guidelines and policies to promote orderly and balanced economic, social, physical, environmental and fiscal development of the area. Pertinent to this proceeding are the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan (the land use plan element of the comprehensive plan) and Broward County's zoning ordinances. The proposed site is designated industrial under the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan. The proposed RRF, with attendant land fill, is a utility for solid waste disposal and, as such, an allowable use under the industrial designation of both plans. Prior to rezoning, various portions of the site were zoned A-I Limited Agricultural, B-3 General Business, M-3 General Industrial, and M-4 Limited Heavy Industrial. Permitted uses ranged from cattle and stock grazing (A-1) to asphalt paving plants, junk yards and the storage of poisonous gas (M-4). On March 16, 1984, the Board of County Commissioners of Broward County approved the rezoning of the site to a Special Use Planned Unit Development District (PUD), and approved the RRF conceptual site plan. The proposed RRF, and attendant landfill, constitute a Planned Special Complex under Broward County's PUD zoning ordinances and, as such, are permitted nonresidential uses. The Department of Community Affairs, the Department of Environmental Regulation, and the South Florida Water Management District concur that the proposed RRF appears to be consistent and in compliance with existing land use plans and zoning ordinances. The Public Service Commission did not participate in this land use portion of the power plant siting process. South Broward Citizens for a Better Environment, Inc. (SBC) was the only party to contest the consistency of the proposed RRF with existing land use plans and zoning ordinances. SBC asserted that the proposed RRF violates: (1) the coastal zone protection element of the Broward County Comprehensive Plan, because the environmental impact assessment required by that element of the plan was inadequate or not done, (2) the urban wilderness inventory guidelines of the Broward County Comprehensive Plan, because the environmental effects of the proposed RRF on the area proposed to be designated as an urban wilderness area (proposed Ann Kolb Park) would outweigh the benefits of the project, and (3) Section 13 of Ordinance numbers 84- 6(2) and 84-7(2), which approved the rezoning for the site, because the impact assessment required by the Ordinances had not been prepared. While the coastal zone protection element and urban wilderness inventory guidelines of the Broward County comprehensive plan were germane to Broward County's decision to rezone the site and approve the development, they are not pertinent to this land use hearing. Broward County's decision is final, and these proceedings do not provide a forum to collaterally attack it. The relevance of SBC's assertions aside, the evidence presented established that the proposed RRF did not violate the coastal zone protection element, the urban wilderness inventory guidelines, or any other element of the Broward County Comprehensive Plan. SBC's assertion that the proposed RRF will violate Section 13 of the rezoning ordinances is ill- founded. Section 13 provides: PRIOR TO LANDFILL DEVELOPMENT, AN IMPACT ASSESSMENT SHALL BE PREPARED BY THE RESOURCE RECOVERY OFFICE OF BROWARD COUNTY TO ADDRESS THE POTENTIAL HYDROLOGICAL IMPACTS OF THE DEVELOPMENT OF THE LANDFILL ON ANN KOLB PARK. DATA AND INFORMATION UTILIZED TO OBTAIN FDER PERMITS WILL BE USED TO CONDUCT THIS ASSESSMENT. IN THE EVENT POTENTIALLY SIGNIFICANT IMPACTS ARE IDENTIFIED, A MANAGEMENT PLAN SHALL BE DEVELOPED TO OFFER RECOMMENDATIONS AND MITIGATIVE ACTIONS TO INSURE THE INTEGRITY OF ANN KOLB PARK. (Emphasis supplied) The evidence is clear that an impact assessment is only required before development commences. Consequently, the proposed RRF does not violate the rezoning ordinances. Notice of the land use hearing was published in the Fort Lauderdale News/Sun-Sentinel, a daily newspaper, on July 4, 1985, and also in the Florida Administrative Weekly on June 28, 1985.
Findings Of Fact The Department is a state land planning agency charged with responsibility to administer and enforce the provisions of Chapter 380, Florida Statutes, and the rules promulgated thereunder, concerning the regulation of real estate development as pertinent hereto. See Sections 380.031(18) and 380.032(1), Florida Statutes (1989). The land development regulations enacted by local governments in the Apalachicola Bay ACSC, such as County Ordinance No. 89-7, are subject to approval by the Cabinet of the State of Florida, sitting as the Florida Administration Commission; and the Department is authorized by Sections 380.05(13) and 380.11(2)(a), Florida Statutes (1989), to institute administrative Proceedings to require counties to Properly administer land development regulations. Most of the County, including the subject real Property, is designated as the Apalachicola Bay ACSC, pursuant to Section 380.0555, Florida Statutes. The County, through its Board of County Commissioners, is a local government within the Apalachicola Bay ACSC, as designated Pursuant to Section 380.0555, Florida Statutes, and is responsible for the adoption and implementation of County Ordinance No. 89-7, a land development regulation applicable in the ACSC. The Saunders are the owners and Developers of approximately 39 acres of real property in Lanark Village, Franklin County, Florida, known as "Deer Run Estates". In February of 1989, the Saunders Purchased the subject property as an undivided tract of land, described by metes and bounds. In March of 1989, the Saunders secured a permit from the County authorizing the clearing of underbrush and dead trees from the subject Property. They secured a second permit on May 11, 1989, authorizing the construction of a road on the Property. Finally, they Secured a permit shortly thereafter authorizing the erection of a real estate sales sign on the property. On May 11, 1989, Respondent, Christina Saunders, filed a plat of the Deer Run Estates subdivision with the County Planner. The plat divided the subject property into 37 one-acre lots. As of May 11, 1989, the only actual development activity conducted on the property by the Saunders was land clearing. The plat filed by Ms. Saunders was accepted by the County planner, Allen Pierce, pursuant to Article VI, Section 6.2, of County Ordinance No. 89-7, exempting "Partially-developed subdivisions" from the requirements of that ordinance. The County planner accepted all plats filed with the planning office, including that for Deer Run Estates, without actually conducting a site inspection to determine the amount and type of existing development in a given subdivision. None of the plats accepted by the County planning department were rendered to the DCA for review. Soon thereafter, on May 16, 1989, the Board of County Commissioners adopted County Ordinance No. 89-7, repealing the prior subdivision Ordinance No. 74-1. Ordinance No. 89-7 was approved by the Florida Administration Commission and became effective on August 28, 1989. Ordinance No. 89-7 established more specific standards for improvements and established a procedure for obtaining subdivision approval, which consists of submission of a sketch plat, preliminary plat, and final plat review. Ordinance No. 89-7, Article VI, Section 6.2, provides: Land shall be subdivided and developed only in accordance with the requirements of this ordinance. Development permits for land requiring subdivision approval shall not be issued except when the land has been properly subdivided. Lot owners wishing to develop their lot or lots within a recorded subdivision shall be denied a building permit until the subdivision has been approved and recorded. However, unapproved, but partially developed subdivisions filed with the Franklin County planning department prior to the approval of this ordinance by the administration commission shall be exempt from the provisions of this ordinance and the county shall not be under any obligation to provide subdivision improvements. When Ordinance No. 89-7 became effective, the entire 39-acre parcel of property was owned by the Saunders, jointly. No written contract for the sale of any of the property was entered into until October 23, 1989, when the Developers accepted a purchase money deposit on a lot from a Mr. Massey. The County issued a building permit to Mr. Massey authorizing the construction of a single-family residence. This was the first structure to be erected on the subject property since its abandonment as an Army post in the 1940's. Construction of the Massey residence began in late December of 1989 or early January of 1990. This property had been used as the military base known as "Camp Gordon Johnson" during World War II but was later abandoned by the military; and the improvements on the property were dismantled and sold. During the ensuing years, the property was cleared a number of times by various owners; however, no permanent structures or improvements were built. There was no recognized use of the property between the late 1940's and approximately 1988 or 1989, a period of approximately 40 years. Thereafter, in March of 1989, the Developers secured the permit authorizing the clearing of the underbrush and dead trees, the permit authorizing the construction of a road on the property, and the permit related to the real estate sales sign. As of May 11, 1989, the only development activity being conducted on the subject property by the Saunders was some land clearing of underbrush and dead trees. The Developers have not yet installed water lines or sewer lines, and water service is not yet available to the individual lots in the Deer Run Estates subdivision. No roads have yet been constructed or paved within the subdivision, and no storm water management plan has been submitted for approval. Neither have the Saunders obtained a sketch plat or preliminary approval for the subdivision nor have they obtained final plat approval from the County Commission in a public hearing process, as required by the provisions of Ordinance No. 89-7. The roads which presently exist within the subdivision, F Street, Doe Lane, and Buck Lane, are not constructed in accordance with the standards identified in Ordinance No. 89-7. Rather, they are leftover, abandoned roads dating back to World War II, when they served the installations constituting Camp Gordon Johnson. The roads are substandard and were in a deteriorated condition as of the date of approval of the ordinance on August 28, 1989, having been abandoned for some 40 years. Piles of limerock have been placed on the property preparatory to roadwork; brush has been cleared; and the Massey residence may have been started as of late 1989 or early 1990. Although the Developers have filed a plat and divided the property by survey into individual lots, the property remains under the ownership and possession of the original Developers, the Saunders, with the exception of the lot sold by contract of sale to Mr. Massey, upon which he constructed a single- family residence. No infrastructure consisting of water or sewer lines and service, ditches, drainage swales, or other means of handling surface runoff and storm waters, the paving of any existing roads and construction of new roads or streets, or any activity associated with "development", in terms of Section 380.04, Florida Statutes, in its definition of development, have been conducted on the subject property, with the exception of the clearing of underbrush and dead trees and the piling of limerock on the property preparatory to doing roadwork. These items involve alteration of the land and clearing of land as an adjunct of construction (if, indeed, the land clearing was an adjunct to the construction, which was not proven), but the Department's expert witnesses established that, although such activity may be acts within the definition of development, they do not, at the state of completion reached as of the time the ordinance became effective, and for some time thereafter, constitute a "partially-developed" subdivision. It was established that "partially developed" means that at least some infrastructure, such as construction of roads, water and sewer utility service, and storm water management plans and construction, should have been accomplished. Substantial progress had not been made in installing these various, basic component parts of a subdivision which are necessary to allow residences to be constructed and occupied, with ingress and egress routes at least under substantial construction. No such infrastructure necessary for a subdivision to operate had been installed, or even substantially begun, at the time of the effective date of Ordinance No. 89- 7, and even at the time of hearing. Consequently, the Deer Run Estates subdivision was not "partially developed" at the time pertinent hereto, when the ordinance became effective, or before, when the plat thereof was filed with the County planning office. The fact that several deteriorated roads or streets, as well as 20 concrete slabs, left over from the military use of some 40 years ago, does not constitute an element of partial development. Those concrete slabs, or some of them, might be usable in developing future residences; however, the concrete slabs and relict streets were installed for a very different type of development some 40 years ago and abandoned since then. The fact that they still exist on property, which essentially receded back to property of a rural, undeveloped character, cannot serve to vest the subdivision as a partially developed one, exempting it from compliance with the land use regulation or ordinance at issue. Neither the deteriorated military roads nor the concrete slabs were clearly shown to have been useful in their present condition for the proposed residential development and, thus, cannot be considered to constitute elements of a "partially developed" subdivision for purposes of the exemption involved in this proceeding.
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 Department requiring the following corrective actions: That the Saunders cease any and all development in and upon the property known as "Deer Run Estates" other than those activities which are required in order to comply with the County Ordinance No. 89-7 and that only development in compliance with all its requirements be conducted after the necessary immediate steps are taken by the Developers to comply. That the County cease issuing development permits authorizing development activity in Deer Run Estates, except for those activities which are required in order to meet the requirements of Ordinance No. 89-7. That the County properly administer and enforce its land development regulations in accordance with the provisions of Section 380.0555(9), Florida Statutes, with regard to the parties and subdivision at issue. DONE AND ENTERED this 31st day of May, 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 Administrative Hearings this 31st day of May, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-5028 Petitioner's Proposed Findings of Fact 1-25. Accepted. Respondents' Proposed Findings of Fact (Respondent, Franklin County, adopted the Respondents Sanders' proposed findings of fact. 1-3. Accepted, but not dispositive of material issues presented for adjudication. Accepted. Accepted, but not dispositive of material issues presented for adjudication. Accepted, but not dispositive of material issues presented for adjudication. Accepted, but not dispositive of material issues presented for adjudication. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accord with the preponderant weight of the evidence. Accepted, but not itself dispositive of the material issues presented. Accepted, but not itself dispositive of the material issues presented. Accepted, but not itself dispositive of the material issues presented. COPIES FURNISHED: William E. Sadowski Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399 G. Steven Pfeiffer, Esq. General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399 L. Kathryn Funchess, Esq. Julia L. Johnson, Esq. Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Walter Smith, Esq. P.O. Box 603 Apalachicola, FL 32320 Alfred O. Shuler, Esq. SHULER AND SHULER P.O. Box 850 Apalachicola, FL 32320
The Issue The issue is whether the Evaluation and Appraisal Report (EAR) amendments for the Bay County (County) Comprehensive Plan (Plan) are in compliance.
Findings Of Fact The Parties Diane C. Brown resides and owns property within the County, and she submitted written and oral comments to the County during the adoption process of Ordinance No. 09-36. The County is a local government that administers its Plan and adopted the Ordinance which approved the changes being contested here. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The EAR Process The County's first Plan was adopted in 1990 and then amended through the EAR process in 1999. As required by law, on September 5, 2006, the County adopted another EAR and in 2007 a Supplement to the EAR. See County Ex. 1C and 1D. The EAR and Supplement were found to be sufficient by the Department on December 21, 2007. See County Ex. 1E. After the EAR-based amendments were adopted by the County and transmitted to the Department for its review, the Department issued its Objections, Recommendations and Comments (ORC) report. After making revisions to the amendments in response to the ORC, on October 20, 2009, the County enacted Ordinance No. 09-36, which adopted the final version of the EAR-based amendments known as "Charting Our Course to 2020." See County Ex. 1B. On December 15, 2009, the Department issued its notice of intent determining that the EAR-based amendments were in compliance. See County Ex. 1F. Notice of this determination was published in the Panama City News Herald the following day. See County Ex. 1G. The EAR is a large document comprised of five sections: Overview Special Topics; Issues; Element Reviews; Recommended Changes; and a series of Maps. Section 163.3191(10), Florida Statutes, requires that the County amend its comprehensive plan "based" on the recommendations in the report; subsection (2) also requires that the County update the comprehensive plan based on the components of that subsection. The EAR-based amendments are extensive in nature, and include amendments to all 13 chapters in the Plan. However, many provisions in the 1999 version of the Plan were left unchanged, while many revisions were simply a renumbering of a provision, a transfer of a provision to another element, a change in the format, or an otherwise minor and non-substantive change. Although the EAR discusses a number of issues and concerns in the first three sections of the report, the EAR- based amendments must only be based on the recommended changes. See § 163.3191(10), Fla. Stat. Therefore, it was unnecessary for the County to react through the amendment process to the discussions in the Issues and Element Reviews portions of the EAR. For example, the EAR discusses air quality and mercury but made no specific recommendations to amend the Plan to address either subject. Also, nothing in chapter 163 or Department rules requires that the County implement changes to the Plan that parrot each specific recommendation to the letter. So long as the revisions are "based" on an area of concern in the recommendations, the statutory requirement has been satisfied. Section Four of the EAR contains the "Recommended EAR- Based Actions and Corrective Measures Section 163.3191(2)(i)." See County Ex. 1C, § 4, pp. 1-9. Paragraph (2)(i) of the statute requires that the EAR include "[t]he identification of any actions or corrective measures, including whether plan amendments are anticipated to address the major issues identified and analyzed in the report." Section Four indicates that it was intended to respond to the requirements of this paragraph. Id. at p. 1. Finally, the only issue in this proceeding is whether the EAR-based amendments are in compliance. Therefore, criticisms regarding the level of detail in the EAR and Supplement, and whether the County adequately addressed a particular issue in those documents, are not relevant. A determination that the EAR was sufficient in all respects was made by the Department on December 21, 2007. In her Amended Petition, Petitioner raises numerous allegations regarding the EAR-based amendments. They can be generally summarized as allegations that various text amendments, including entire elements or sub-elements, are inconsistent with statutory and rule provisions or are internally inconsistent with other Plan provisions, and that the County failed to properly react to changes recommended in the EAR. Because this is a challenge to an in-compliance determination by the Department, Petitioner must show that even though there is evidence to support the propriety of these amendments, no reasonable person would agree that the amendments are in compliance. See Conclusion of Law 90, infra. Objections Administrative Procedures - Chapter 1 Petitioner contends that new policy 1.4.1(4) is inconsistent with sections 163.3181 and 187.201(25)(a) and (b)6., which generally require or encourage effective citizen participation, and rule 9J-5.004, which requires a local government to adopt procedures for public participation. She also contends the County should not have deleted policy 1.4.2, which required the County to provide notices (by mail and sign postings) beyond those required by chapter 163. The new policy simply provides that notice of public hearings be provided for in accordance with chapter 163. There is no statutory or rule requirement that more stringent notice requirements be incorporated into a plan. The new notice requirements are consistent with the above statutes and rule. It is fairly debatable that the changes to the Administrative Procedures part of the Plan are in compliance. Future Land Use Element (FLUE) - Chapter 3 Petitioner has challenged (a) one policy that creates a new planning area; (b) the County's failure to adopt new energy standards in the FLUE; and (c) the adoption of new development standards for two land use categories in Table 3A of the FLUE. Table 3A describes each land use category in the Plan, including its purpose, service area, designation criteria, allowable uses, density, intensity, and development restrictions. See County Ex. 1A, Ch. 3, pp. 3-5 through 3-17. These contentions are discussed separately below. Southport Neighborhood Planning Area New FLUE policy 3.4.8 creates the Southport Neighborhood Planning Area (Southport), a self-sustaining community with a functional mix of uses. See County Ex. 1A, Ch. 3, pp. 3-20 and 21. The effect of the amendment is simply to identify Southport as a potential planning area that includes a mixture of uses. This follows the EAR recommendations to create "new areas where residents are allowed to work, shop, live, and recreate within one relatively compact area while preserving the rural and low density land uses in the area[,]" and to create "higher density rural development." County Ex. 1C, § 4, p. 2. Southport is located north of the greater Panama City area in an unincorporated part of the County near or adjacent to the proposed new intersection of County Road 388 and State Road 77. Southport is also identified in new policy 3.2.5(8) as a Special Treatment Zone (STZ) that is designated as an overlay on the Future Land Use Map Series. Id. at p. 3-5. (There are seven STZs in the Plan that act as overlay districts on the FLUM. Overlays do not convey development rights.) Petitioner contends that policy 3.4.8 is inconsistent with sections 163.3177(6)(a) and (d), (8), and (9)(b) and (e), and rules 9J-5.005(2), (5), and (7), 9J-5.006(5), and 9J-5.013. More precisely, Petitioner generally contends that the amendment will encourage urban sprawl; that there is no need for the additional development; that there are no central water and wastewater facilities available to serve that area; that there is no mechanism for monitoring, evaluating, and appraising implementation of the policy; that it will impact nearby natural resources; that it allows increased density standards in the area; and that it is not supported by adequate data and analysis. Most of the data and analysis that support the establishment of the new planning area are in the EAR. They are found in the Introduction and Overview portion of Section One and the FLUE portion of Section 3 of the Element Reviews. The County Director of Planning also indicated that the County relied upon other data as well. Although the new policy allows an increase in maximum residential density from five to 15 dwelling units per acre, paragraph (b) of the policy specifically requires that "all new development [be] served by central water and sewer." Petitioner's expert opined that the new community will create urban sprawl. However, Southport is located within the suburban service area of the County, which already allows densities of up to five dwelling units per acre; it is currently developed with low-density residential uses; and it is becoming more urban in nature. Given these considerations, it is fairly debatable that Southport will not encourage urban sprawl. The new STZ specifically excludes the Deer Point Reservoir Protection Zone. Therefore, concerns that the new policy will potentially threaten the water quantity and quality in that reservoir are not credited. In addition, there are other provisions within the Plan that are designed to protect the reservoir. Petitioner criticized the County's failure to perform a suitability analysis before adopting the amendment. However, a suitability study is performed when a land use change is proposed. Policy 3.4.8 is not an amendment to the FLUM. In fact, the Plan notes that "[n]othing in this policy shall be interpreted as changing the land use category of any parcel of the [FLUM]." County Ex. 1A, Ch. 3, p. 3-21. In determining the need for this amendment, the County took into consideration the fact that except for the Beaches STZ, the EAR-based amendments delete residential uses as an allowed use in commercially-designated lands. The number of potential residential units removed from the commercial land use category far exceeds the potential number of residential units that could be developed at Southport. Thus, the new amendment will not result in an increase in residential units. Petitioner also contends that the County should have based its needs analysis using Bureau of Economic and Business Research (BEBR) estimates. The County's population projections are found in the Introduction portion of the EAR and while they make reference to BEBR estimates, they are not based exclusively on those data. See County Ex. 1C, § 1, pp. 2 and 3. However, there was no evidence that the estimates used by the County are not professionally acceptable. Where there are two acceptable methodologies used by the parties, the Department is not required to evaluate whether one is better than the other. See § 163.3177(10)(e), Fla. Stat. ("the Department shall not evaluate whether one accepted methodology is better than another"). The County's estimates are professionally acceptable for determining need. The other objections to the amendment have been considered and found to be without merit. Therefore, it is at least fairly debatable that the amendment is in compliance. Neighborhood Commercial - Table 3A The purpose of this commercial category is to "provide areas for the convenience of residential neighborhoods so as to generate a functional mix of land uses and reduce traffic congestion." County Ex. 1A, Ch. 3, p. 3-15. Allowable uses include, among others, supermarket centers, restaurants, public facilities, and other similar uses. The County amended the intensity standard for this category by allowing development that is "[n]o more than 50-feet in height." Id. Petitioner asserts that the new 50-foot height limitation for commercial buildings results in the amendment being inconsistent with rule 9J-5.006 because it is not based on adequate data and analysis. Petitioner further argues that the standard is internally inconsistent with FLUE objective 3.9 and policy 3.9.1 and Housing Element objective 8.5, which relate to compatibility. Finally, Petitioner alleges that it will cause unsustainable density in the category and create new demands for public services. The EAR contains a section that analyzes data regarding residential development in commercial land use categories. See County Ex. 1C, § 2. There is, then, data and analysis that support the amendment. The 50-foot height limitation actually limits the intensity that would normally be allowed under current Land Development Regulations (LDRs) if this limitation were not in the Plan. Therefore, it will not increase the intensity of development within this district. Because the Plan specifically provides that the category is for "areas [with] low-intensity commercial uses that will be compatible with adjacent or surrounding residential uses," and such uses must be located "outside subdivisions . . . unless intended to be included in the subdivisions," compatibility issues with adjacent residential areas should not arise. Petitioner failed to establish beyond fair debate that the amendment is not in compliance. Seasonal/Resort - Table 3A This land use category is designed for transient occupancy (temporary seasonal visitors and tourists) under chapter 509, rather than permanent residents. It is limited to areas with concentrations of accommodations and businesses that are used in the tourist trade. See County Ex. 1A, Ch. 3, p. 3- The category includes a new intensity standard for buildings of "[n]o more than 230-feet in height." Id. Petitioner contends that this intensity standard is inconsistent with section 163.3177(6)(d), (8), and (9) and rules 9J-5.005(2) and (5), 9J-5.006, and 9J-5.013. These provisions require that an amendment protect natural resources, that it be based on the best available data and analysis, and that it be internally consistent with other Plan provisions. Petitioner also points out that the land use category is located in or adjacent to the Coastal High Hazard Area, that the amendment allows an increase in density, and this results in an inconsistency with statutes and rules pertaining to hurricane evacuation zones. Prior to the adoption of the EAR-based amendments, there was no intensity standard in the Plan for this land use category and all development was governed by LDRs. Pursuant to a recommendation by the Department in its ORC, the new standard was incorporated into the Plan. Before making a decision on the specific height limitation, the County considered existing condominium construction on the beach, current LDR standards for the district, and whether the new standard would create an internal inconsistency with other Plan provisions. Therefore, it is fair to find that adequate data were considered and analyzed. The new height limitation is the same as the maximum height restriction found in the Seasonal Resort zoning district, which now applies to new construction in the district. Because condominiums and hotels that do not exceed 230 feet in height are now allowed within the district, and may actually exceed that height if approved by the County, the amendment is not expected to increase density or otherwise affect hurricane evacuation planning. Historically, transient visitors/tourists are the first to leave the area if a hurricane threatens the coast. Petitioner also contends that the amendment will create compatibility problems between existing one- or two-story residential dwellings in the district and high-rise condominiums, and that the County failed to adequately consider that issue. However, before a condominium or other similar structure may be built, the County requires that the developer provide a statement of compatibility. It is fairly debatable that the new intensity standard is in compliance. Energy Issues Petitioner alleges that the new amendments do not adequately address energy issues, as required by section 163.3177(6)(a). That statute requires, among many other things, that the FLUE be based upon "energy-efficient land use patterns accounting for existing and future electric power generation and transmission systems; [and] greenhouse gas reduction strategies." However, amendments to objective 3.11 and policy 3.11.5, which relate to energy-efficient land use patterns, adequately respond to these concerns. See County Ex. 1A, Ch. 3, pp. 3-27 and 3-28. In addition, new Transportation Element policy 4.10.3 will result in energy savings and reduce greenhouse gases by reducing idle times of vehicular traffic. See County Ex. 1A, Ch. 4, p. 4-12. It is fairly debatable that the energy portions of the Plan are in compliance, and they promote energy efficient land use patterns and reduce greenhouse gas emissions, as required by the statute. Transportation Element - Chapter 4 The EAR contains 14 recommended changes for this element. See County Ex. 1C, § 4, pp. 2-4. Item 2 recommends generally that bike paths be installed in or next to certain areas and roadways. Id. at p. 2. Petitioner contends that this recommendation was not implemented because it is not included in the Recreation and Open Space Element. However, one section of the Transportation Element is devoted to Bicycle and Pedestrian Ways and includes objectives 4.14 and 4.15 and policies 4.14.1 and 4.15.1, which respond to the recommendation. See County Ex. 1A, Ch. 4, pp. 4-14 and 4-15. In addition, the General Strategy portion of the element requires the County to install alternative transportation systems where a demonstrated need exists. Id. at p. 4-1. Petitioner contends that by limiting bike paths only to where there is a demonstrated need, the County has not fully responded to the recommendation. This argument is illogical and has been rejected. It is fairly debatable that the above amendments are in compliance. Groundwater Aquifer Recharge - Chapter 5F As required by section 163.3177(6)(c), the County has adopted a natural groundwater aquifer recharge element. See County Ex. 1A, Ch. 5F. The goal of this sub-element, as amended, is to "[s]afeguard the functions of the natural groundwater recharge areas within the County to protect the water quality and quantity in the Floridan Aquifer." County Ex. 1A, Ch. 5, p. 5F-1. The EAR contains three recommended changes for this part of the Plan: that the County update its data and analysis to identify areas of high and/or critical recharge for the Floridan aquifer; that it include in the data and analysis an examination of existing LDRs which affect land uses and development activities in high recharge areas and note any gaps that could be filled through the LDRs; and that it include within the data and analysis a study of potential impacts of increased development in high recharge areas, including reasonable development standards for those areas. See County Ex. 1C, §4, pp. 4-5. Petitioner contends that "the objectives and policies pertaining to protecting water recharge areas" are inconsistent with sections 163.3177(6)(d) and 187.201(7) and rules 9J-5.5.011 and 9J-5.013, which require that the Plan protect groundwater; that they violate section 163.3177(8) and rule 9J-5.005(7), which require measurable objectives for monitoring, evaluating, and appraising implementation; and that the County violated section 163.3191(10) by failing to respond to the recommended changes in the EAR. In response to the EAR, in July 2009, the County prepared a watershed report entitled "Deer Point Lake Hydrologic Analysis - Deer Point Lake Watershed," which was based on a watershed management model used by County expert witness Peene. See County Ex. 4. The model used for that report is the same model used by the Department of Environmental Protection (DEP) and the United States Army Corps of Engineers. The study was also based on data and analysis prepared by the Northwest Florida Water Management District. The purpose of the analysis was to look at potential future land use changes in the Deer Point watershed and assess their ultimate impact upon the Deer Point Reservoir, which is the primary public water supply for the County. The model examined the entire Deer Point watershed, which is a much larger area than the Deer Point Lake Protection Zone, and it assumed various flows from rain, springs, and other sources coming into the Deer Point Reservoir. The study was in direct response to a recommendation in the EAR that the County undertake a study to determine if additional standards were needed to better protect the County's drinking water supply and the St. Andrews estuary. See County Ex. 1C, § 4, p. 5. Another recommendation was that the study be incorporated by reference into the data and analysis of the Plan and be used as a basis for any amendments to the Plan that might be necessary. Id. at p. 6. Pursuant to that recommendation, the report was incorporated by reference into Objective 5F.1. See County Ex. 1A, Ch. 5, p. 5F-1. The evidence supports a finding that the report is based on a professionally accepted methodology and is responsive to the EAR. The model evaluated certain future land use scenarios and predicted the level of pollutants that would run off of different land uses into the Deer Point Reservoir. Based on this analysis, Dr. Peene recommended that the County adopt certain measures to protect the groundwater in the basin from fertilizers, stormwater, and pesticides. He also recommended that best management practices be used, that septic tanks be replaced, and that any new growth be on a centralized wastewater treatment plant. Petitioner's expert criticized the report as not sufficiently delineating the karst features or the karst plain within the basin. However, the report addresses that issue. See County Ex. 4, p. 2-36. Also, Map 13 in the EAR identifies the Karst Regions in the County. See County Ex. 1C, § 5, Map 13. One of the recommendations in the EAR was to amend all goals, policies, and objectives in the Plan "to better protect the Deer Point watershed in areas not included within the Deer Point Reservoir Special Treatment Zone, and [to] consider expanding the zone to include additional areas important to preserving the quantity and quality of water entering the reservoir." County Ex. 1C, § 4, p. 6. Besides amending the sub-element's goal, see Finding of Fact 31, supra, the County amended objective 5F.1 to read as follows: By 2010 protect groundwater resources by identifying and mapping all Areas of High Aquifer Recharge Potential to the Floridan Aquifer in Bay County by using the data and analysis contained in the Deer Point Lake Hydrologic Analysis - Deer Point Watershed, prepared by Applied Technology and Management, Inc., dated July 2009. In addition, policy 5F-1.1 requires that the County use "the map of High Aquifer Recharge Areas to establish an Ecosystem Management overlay in the Conservation Element where specific land use regulations pertaining to aquifer water quality and quantity shall apply." Also, policy 5F-1.2 requires the identification of the Dougherty Karst Region. Finally, the EAR and Map 13A were incorporated by reference into the Plan by policy 1.1.4.4. These amendments sufficiently respond to the recommendations in the EAR. While Petitioner's expert criticized the sufficiency of the EAR, and he did not believe the report adequately addressed the issue of karsts, the expert did not establish that the study was professionally unacceptable or otherwise flawed. His criticism of the County's deletion of language in the vision statement of the sub-element that would restrict development density and intensity in areas known to have high groundwater aquifer potential is misplaced. An amendment to a vision statement is not a compliance issue, and nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to limit "density and intensity" in high aquifer recharge areas. On this issue, the EAR recommended that the County's drinking water supply be protected by using "scientifically defensible development standards." County Ex. 1C, § 4, p. 5. The amendments accomplish this result. Petitioner also contends that while new policy 5F.3 and related policies are "good," the County should have collected additional data and analysis on the existence of swallets, which are places where streams flow underground. Again, nothing in chapter 163 or chapter 9J-5 requires the County to consider swallets. Also, a contention that policy 5F3.2 allows solid waste disposal facilities in high recharge areas is without merit. The policy requires that the County continue to follow chapter 62-7 regulations (implemented by DEP) to protect water quality of the aquifers. In addition, a moratorium on construction and demolition landfills has been adopted, and current LDRs prohibit landfills within the Deer Point Reservoir Protection Zone. Petitioner also criticized the sufficiency of policy 5F.4, which requires the implementation of LDRs that limit land uses around high aquifer recharge areas. The evidence establishes that the new policy is sufficient to achieve this purpose. It is at least fairly debatable that the new amendments protect the natural resources, are based on the best available data and analysis, include measurable objectives for overseeing the amendments, and respond to the recommended changes in the EAR. Conservation Element - Chapter 6 The purpose of this element is to conserve the natural resources of the County. Petitioner contends that "many of the amendments [to this chapter] are not consistent with applicable rules and statutes, and that a number of recommendations in the EAR pertaining to the Conservation Element were not implemented as required by Section 163.3191(10)." These contentions are discussed below. Air pollution While the EAR discusses air pollution, there were no specific recommendations to amend the plan to address air quality. See County Ex. 1C, Element Reviews, Ch. 6, pp. 1 and Petitioner contends, however, that current Plan objective 6.3, which was not amended, is not protecting air quality and should have been revised to correct major air quality problems in the County, including "the deposition of atmospheric mercury caused by fossil fuel burning power plants and incinerators." Objective 6.3 requires the County to maintain or improve air quality levels, while related policies 6.3.1 and 6.3.2 require that the County's facilities will be constructed and operated in accordance with state and federal standards. The policies also require that the County work through state and federal agencies to eliminate unlawful sources of air pollution. Notably, the County does not regulate emissions or air pollution, as that responsibility lies within the jurisdiction of other state and federal agencies. It is fairly debatable that the County reacted to the EAR in an appropriate manner. Policies and Objectives in Chapter 6 Petitioner contends that policy 6.1.1 is inconsistent with section 163.3177(8) and rule 9J-5.005(2) because: it is not supported by adequate data and analysis; it does not implement the EAR recommendations, as required by section 163.3191(10); it is inconsistent with section 163.3177(9)(b) and (f) because it results in "inconsistent application of policies intended to guide local land use decision[s]"; it is inconsistent with sections 163.3177(6)(d) and 187.201(9) and (10) and rule 9J- 5.013 because it fails to adequately protect natural resources, including isolated wetlands; and it is internally inconsistent with other Plan provisions. Policy 6.1.1 provides that as a subdivision of the State, the County "will, to the maximum extent practicable, rely upon state laws and regulations to meet the conservation goals and objectives of this Plan." Item 9 in the recommended changes recommends that the County should resolve the ambiguities and inconsistencies between various policies and objectives which rely on the jurisdiction of state laws and regulation on the one hand, and objective 6.11 and implementing policies, which appear to extend wetland jurisdiction to all wetlands, including isolated wetlands not regulated by the Northwest Florida Water Management District. See County Ex. 1C, § 4, p. 6. The real issue involves isolated wetlands, which at the time of the EAR were not regulated by the Northwest Florida Water Management District. The EAR did not recommend a specific solution, but only to resolve any apparent "ambiguity." Through amendments to policy 6.11.3, which implements objective 6.11, the County reacted to the recommendation. These amendments clarify the Plan and provide that wetlands in the County will be subject to the Plan if they are also regulated by state and federal agencies. Any ambiguity as to the Plan's application to isolated wetlands was resolved by the adoption of new rules by the Northwest Florida Water Management District, which extend that entity's jurisdiction to isolated wetlands. See Fla. Admin. Code Ch. 62-346. This was confirmed by County witness Garlick, who explained that the Plan now defers to the wetland regulations of state and federal agencies. Therefore, any inconsistencies or ambiguities have been resolved. Petitioner contends that objective 6.2 and implementing policy 6.2.1 are inconsistent with statutes and a rule which require protection of natural resources because they focus on "significant" natural resources, and not all natural resources. With the exception of one minor change to the policy, the objective and policy were not amended, and the EAR did not recommend that either be revised. Also, testimony established that existing regulations are applied uniformly throughout the County, and not to selected habitat. Finally, the existing objective and related policies already protect rare and endangered species in the County. Objective 6.3 requires that the County "maintain or improve air quality levels." For the reasons cited in Finding of Fact 45, the objective is in compliance. Objective 6.5 requires the County to maintain or improve estuarine water quality consistent with state water quality standards, while policy 6.5.1 delineates the measures that the County will take to achieve that objective. See County Ex. 1A, Ch. 6, pp. 6-4 and 6-5. Except for one minor change to paragraph (3) of the policy (which is not in issue), neither provision was revised. Also, the EAR did not recommend any changes to either provision. Notwithstanding Petitioner's contention to the contrary, the County was not required to revise the objective or policy. Policy 6.5.2 requires that the County "protect seagrass beds in those areas under County jurisdiction" by implementing certain enforcement measures. County Ex. 1A, Ch. 6, p. 6-5. The policy was only amended in minor respects during the EAR process. Petitioner contends that the County failed to amend the policy, as required by the EAR, and this failure results in no protection to natural resources. However, the EAR only discusses the policy in the Issues section. See County Ex. 1C, § 2, p. 7. While the EAR emphasizes the importance of seagrass beds to marine and estuarine productivity, it has no recommended changes to the objective or policy. Even so, the County amended policy 6.5.2(5) by requiring the initiation of a seagrass monitoring program using Geographic Information System (GIS) mapping by 2012. See County Ex. 1A, Ch. 6, p. 6-6. It is at least fairly debatable that the objective and policy are in compliance. Objective 6.6 requires the County to "protect, conserve and appropriately use Outstanding Florida Waters, Class I waters and Class II waters." County Ex. 1A, Ch. 6, p. 6-6. Its purpose is to ensure the quality and safety of the County's primary drinking water supply. Id. The objective was not amended and remains unchanged since 1999. Except for a recommendation that the County give a land use designation to water bodies, there were no recommended changes for this objective or related policies in the EAR. Because land use designations are for land, and not water, the County logically did not assign a land use to any water bodies. Petitioner contends that the objective and related policies are not based on the best available data and analysis and are not measurable, and that they fail to protect Lake Powell, an Outstanding Florida Water, whose quality has been declining over the years. Because no changes were recommended, it was unnecessary to amend the objective and policies. Therefore, Petitioner's objections are misplaced. Notably, the Plan already contains provisions specifically directed to protecting Lake Powell. See, e.g., policy 6.6.1(1), which requires the County to specifically enforce LDRs for Lake Powell, and objective 6.21, which requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." County Ex. 1A, Ch. 6, pp. 6-6 and 6-24. Petitioner's expert also criticized the objective and related policies on the ground the County did not adequately identify karst areas in the region. However, nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to collect new data on the existence of karst areas. Petitioner also points out that objective 6.6 and policy 6.6.1 are designed to protect Deer Point Lake but were not amended, as required by the EAR, and they fail to adequately protect that water body. For the reasons expressed in Finding of Fact 55, this contention has been rejected. Objective 6.7, which was not amended, provides that the County "[c]onserve and manage natural resources on a systemwide basis rather than piecemeal." County Ex. 1A, Ch. 6, p. 6-8. Related policies, which were not amended except in one minor respect, require that the County implement programs in "Ecosystem Management Areas." These areas are illustrated on Map 6.1 of chapter 6. Petitioner contends that even though they were not amended, the objective and policies are not supported by adequate data and analysis, they fail to contain measurable standards, and they are not responsive to a recommendation in the EAR. Because no changes were made to these provisions, and the EAR does not recommend any specific changes, the contentions are rejected. The 17 water bodies comprising the Sand Hill Lakes are identified in policy 6.9.1. Policy 6.9.3, which also implements objective 6.9, continues the practice of prohibiting development with a density of greater than one unit per ten acres on land immediately adjacent to any of the Sand Hills Lakes outside designated Rural Communities. See County Ex. 1A, Ch. 6, p. 6- (The three Rural Communities in the County have been designated as a STZ and are described in FLUE policy 3.4.4.) The policy has been amended by adding new language providing that "[p]roposed developments not immediately adjacent to, but within 1320 feet of a Sand Hill Lake, and outside of a designated Rural Community, will provide, prior to approval, an analysis indicating that the development will not be too dense or intense to sustain the lake." Id. Other related policies are unchanged. The amendment was in response to a recommendation in the EAR that all goals, objectives, and policies be amended to more clearly define the area around the Sand Hill Lakes within which densities and intensities of land must be limited to ensure protection of the lakes. See County Ex. 1C, § 4, p. 6. Petitioner contends that the amended policy is inconsistent with various statutes and rules because it contains no specific standards for site suitability assessment and does not restrict density bordering on the lake; it does not implement the EAR; it is not based on EAR data and analysis; and it does not contain procedures for monitoring and evaluating the implementation of all policies. Policy 6.9.3 applies to agricultural areas outside of rural communities where the maximum density is now one dwelling unit per ten acres, and to properties that are designated as agriculture timber, which allows one dwelling unit per 20 acres. Contrary to Petitioner's assertion, it does not change the established densities on those land use categories. Before a property owner can convert a land use affected by the policy, the applicant will be required to provide an analysis that the new development will not be too intense or dense to sustain the lake. It is at least fairly debatable that the amendment responds to the EAR recommendation, that it will not increase density, that it is based on sufficient data and analysis in the EAR, and that adequate standards are contained in the policies to ensure proper implementation. Objective 6.11 requires the County to "[p]rotect and conserve wetlands and the natural functions of wetlands." County Ex. 1A, Ch. 6, p. 6-14. A challenge to an amendment to policy 6.11.3(3), which relates to setbacks or buffers for wetlands, has already been addressed in Case No. 10-0859GM. Policy 6.11.3 provides that in order "[t]o protect and ensure an overall no net loss of wetlands," the County will employ the measures described in paragraphs (1) through (6) of the policy. Petitioner contends that by using the standards employed by state and federal agencies for wetlands in paragraph (2), the County has abdicated its responsibility to protect natural resources. However, as previously discussed, the recent assumption of jurisdiction over isolated wetlands by the Northwest Florida Water Management District allows the County to extend these measures to all wetlands in the County. Petitioner also contends that the term "no net loss" in policy 6.11.3 is not measurable. Through its GIS system, though, the County can monitor any loss of wetlands. This was confirmed by County witness Garlick. In addition, the County will know at the development order phase whether any federal or state agency requires mitigation to offset impacts to wetlands. It is at least fairly debatable that the amendments to policy 6.11.3 will protect all wetlands, including isolated wetlands. Objective 6.12 requires that by the year 2012, the County will "develop a GIS layer that provides baseline information on the County's existing wetlands. This database will be predicated on the USFWS [United States Fish and Wildlife Service] National Wetlands Inventory (Cowardin et al 1979) hierarchy of coastal and inland (wetlands) represented in North Florida. This inventory shall be developed through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands." County Ex. 1A, Ch. 6, p. 6-15. Related policies 6.12.1, 6.12.2, and 6.12.3 require that the County (a) use the GIS database to identify, classify, and monitor wetlands; (b) adopt LDRs which further the objective and policies; and (c) track in the GIS database the dredge and fill permits issued by DEP. Id. Petitioner criticizes the County's decision to wait until 2012 to develop a GIS layer; contends that policy 6.12.2 improperly defers to LDRs; asserts that the policy lacks meaningful standards; and contends it is not responsive to the EAR. The evidence presented on these issues supports a finding that it is at least fairly debatable that the amendments are in compliance. The EAR-based amendments deleted objective 6.13, together with the underlying policies, which related to floodplains, and created new provisions on that subject in the Stormwater Management Sub-Element in Chapter 5E. This change was made because the County concluded that floodplain issues should more appropriately be located in the stormwater chapter. The natural resource values of floodplains are still protected by objective 5E-9 and related policies, which require that state water quality standards are maintained or improved through the County's stormwater management programs. See County Ex. 1A, Ch. 5E, p. 5E-7. Also, "flood zones" are retained as a listed "significant natural resource" in Conservation Element policy 6.2.1. See County Ex. 1A, Ch. 6, p. 6-3. It is at least fairly debatable that the transfer of the floodplain provisions to a new element does not diminish protection of that resource. Finally, Objective 6.21 (formerly numbered as 6.23) requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." Except for renumbering this objective, this provision was not amended, and there is no specific recommendation in the EAR that it be revised. Therefore, the contentions that the existing policy are not in compliance are not credited. Coastal Management Element - Chapter 7 The recommended changes for this element of the Plan are found on pages 7 and 8 of Section 4 of the EAR. In her Proposed Recommended Order, Petitioner contends that the entire element is inconsistent with section 163.3191(10) because the County did not follow the recommendations in items 1, 2, and 4. Those items generally recommended that the County update the data and analysis supporting the element to reflect current conditions for, among other things, impaired waters. This was done by the County. Accordingly, the County adequately responded to the recommendations. Petitioner also contends that policy 7.1.1 improperly deferred protection of coastal resources to the LDRs. The policy reads as follows: 7.1.1: Comply with development provisions established in the [LDRs] for The Coastal Planning Area (Chapter 10, Section 1003.2 of the Bay County [LDRs] adopted September 21, 2004) which is hereby defined as all land and water seaward of the landward section line of those sections of land and water areas seaward of the hurricane evacuation zone. County witness Crelling established, however, that there are numerous other policies in the element that govern the protection of natural resources. Petitioner contends that no changes were made to provide additional guidance in policy 7.2.1 (formerly numbered as 7.3.1) to improve estuarine water quality even though multiple water bodies are listed as impaired. Except for a few clarifying changes, no revisions were made to the policy. Policy 7.2.1 does not reduce the protection for impaired waters. The minor rewording of the policy makes clear that the protective measures enumerated in the policy "will be taken" by the County to maintain or improve estuarine water quality. It is fairly debatable that the element and new objectives and policies are in compliance. Petitioner contends that amended objective 7.2 (formerly numbered as 7.3) will lead to less protection of water quality. The objective requires the County to "[m]aintain or improve estuarine water quality by regulating such sources of pollution and constructing capital improvements to reduce or eliminate known pollutants." County Ex. 1A, Ch. 7, p. 7-2. Its purpose is to regulate all known potential sources of estuarine pollution. The evidence fails to establish that the amended objective will reduce the protection of water quality. Policy 7.3.1 was amended to delete the requirement that areas with significant dunes be identified and mapped and to provide instead that the County may impose special conditions on development in dune areas as a part of the development approval process. See County Ex. 1A, Ch. 7, p. 7-4. This change was made because the EAR recommended that a requirement to map and identify dune systems be deleted due to the "extremely dynamic nature of beach and dune systems." County Ex. 1C, § 4, p. 7. A similar provision in the Conservation Element was transferred to the Coastal Management Element to respond to the recommended change. The County adequately responded to the recommendation. Petitioner contends that amended policy 7.3.2 (formerly numbered as 7.4.1) does not include sufficient standards to protect significant dunes. The amended policy requires that where damage to dunes is unavoidable, the significant dunes must be restored and revegetated to at least predevelopment conditions. It is at least fairly debatable that the standards in the policy are sufficient to protect dunes. In summary, the evidence does not establish beyond fair debate that the revisions to chapter 7 are not in compliance. Housing Element - Chapter 8 Petitioner contends the entire element is inconsistent with section 163.3191(10) because the County failed to react to recommendations in the EAR; and that new objective 8.16 and related policies 8.16.1, 8.16.2, and 8.16.3 are inconsistent with section 163.3177(9)(e) and rules 9J-5.005(6) and (7) because they fail to identify how the provisions will be implemented and thus lack specific measurable objectives and procedures for monitoring, evaluating, and appraising implementation. Petitioner focused on item 4 in the Recommended Changes for the Housing Element. That recommendation reads as follows: 4. The revised data and analysis should also include a detailed analysis and recommendations regarding what constitutes affordable housing, the various state and federal programs available to assist in providing it; where it should be located to maximize utilization of existing schools, medical facilities, other supporting infrastructure, and employment centers taking into consideration the costs of real property; and what the likely demand will be through the planning horizon. The objectives and policies should then be revised consistent with the recommendation of the analysis, including the creation of additional incentives, identification on the Future Land Use Map of areas suited for affordable housing, and, possibly amending the County Land Development Regulations to require the provision of affordable housing if no other alternatives exist. County Ex. 1C, § 4, p. 8. Item 1 of the Recommended Changes states that "[t]he County should implement those policies within the Housing Element which proactively address affordable housing, and in particular Policy 8.15.1 outlining density bonuses, reduced fees, and streamlined permitting, to provide incentives for the development of affordable housing." Id. Policy 8.15.1 was amended to conform to this recommendation. The new objective and policies address incentives for the development of affordable housing. While item 4 is not specifically addressed, the new objective and policies address the County's housing concern as a whole, as described in the Recommended Changes. Also, the new objective and policies contain sufficient specificity to provide guidance to a user of the Plan. It is fairly debatable that the element as a whole, and the new objective and policies, are in compliance. Intergovernmental Coordination Element - Chapter 10 Although discussed in the Element Reviews portion of the EAR, there are no recommended changes for this element. See County Ex. 1C, § 3, pp. 1-5. Petitioner contends that because the County deleted objective 10.5, the entire element conflicts with the EAR recommendations, and it is inconsistent with two goals in the state comprehensive plan, sections 163.3177(6)(h)1. and (9)(b) and (h), and rules 9J-5.015 and 9J-5.013(2)(b)8. The deleted provision required the County to "establish countywide resource protection standards for the conservation of locally significant environmental resources." Besides deleting this objective, the County also deleted objective 10.1, which provided that the County "will take the lead role toward the creation of an 'intergovernmental forum' as a means to promote coordination between various jurisdictions and agencies." County Ex. 1A, Ch. 10, p. 10-1. To support her argument, Petitioner relies upon a concern in the Issues part of the EAR that states that "countywide resource protection standards have not been established" and that "consistency of regulation between jurisdictions" must be observed. See County Ex. 1C, § 2, p. 45. Mr. Jacobson, the County Planning and Zoning Director, pointed out that the County currently has numerous interlocal agreements with various municipalities and does not require authorization from the Plan to adopt these agreements. Objective 10.5 was deleted because the County cannot implement its regulations in the various municipalities, and protection of natural resources is addressed in other portions of the Plan. He also noted that the "intergovernmental forum" discussed in deleted objective 10-1 is not required by any statute or rule. It is at least fairly debatable that the element is in compliance and does not violate any statute or rule. (i) Capital Improvements Element - Chapter 11 Petitioner contends that the County failed to implement three recommended changes in the EAR and therefore the entire element is in violation of section 163.3191(10). Those recommendations include an updating of information on the County's current revenue streams, debts, commitments and contingencies, and other financial matters; a revision of policy 11.6.1 to be consistent with Recreation and Open Space Element policy 9.71 with regard to recreational levels of service (LOS); and the development of a five-year schedule of capital improvements. See County Ex. 1, § 4, p.9. Policy 11.6.1 has been substantially revised through the EAR process. Table 11.1 in the policy establishes new LOSs, including one for local parks, regional parks, and beach access points. The County has also adopted an updated five-year Capital Improvement Plan. See County Ex. 36. That exhibit includes a LOS Analysis for recreational services. The same exhibit contains a breakdown of financial matters related to capital improvements. It is fairly debatable that the element is in compliance. Petitioner also contends that objective 11.1 and policy 11.1.1 are not in compliance. Both provisions remain unchanged from the 1999 Plan, and the EAR did not recommend that either provision be amended. The contention is therefore rejected. Other Issues All other issues not specifically addressed herein have been considered and found to be without merit, contrary to the more persuasive evidence, or not subject to a challenge in this proceeding.
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 determining that the EAR-based amendments adopted by Ordinance No. 09-36 are in compliance. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2011.
