The Issue Whether Respondent, Richman Property Services, Inc. (Respondent), committed an unlawful employment practice as alleged in the Amended Petition for Relief filed with the Florida Commission on Human Relations (FCHR), and, if so, what relief should Petitioner, Jessica A. Lamarre (Petitioner), be granted.
Findings Of Fact Petitioner is an African-American, who denotes her race as Black. At all times material to the allegations of this case, Petitioner was employed by Respondent in Brevard County, Florida. Respondent is a property management company doing business in Florida. Respondent manages an apartment complex identified in this record as Manatee Cove Apartments (Manatee Cove) located in Melbourne, Florida. In November of 2008, Respondent’s regional manager, Gilda Fernandez, interviewed Petitioner for the job of property manager for Manatee Cove. Petitioner had several years of experience as a property manager in South Florida and was interested in the position at Manatee Cove. Although Heather Garden, Respondent’s Senior Vice President, normally interviewed prospective property managers, her schedule did not allow her to personally interview Petitioner. Instead, Ms. Garden interviewed Petitioner by telephone. At the time of the telephone interview, Ms. Garden did not know Petitioner’s race. Although Petitioner had hoped to give her employer at the time more notice, Respondent required that Petitioner begin her duties at Manatee Cove early. Instead of starting December 1, 2008, Petitioner agreed to begin work at Manatee Cove in November 2008. Before Petitioner started, Ms. Fernandez told Petitioner that the regional manager for Manatee Cove would be another supervisor, Marlene Williams. Ms. Williams was a newly hired regional manager for Respondent, who did not participate in the hiring of Petitioner. From the outset, Ms. Williams and Petitioner did not have a sound working relationship. Despite the fact that Ms. Williams initially advised Ms. Fernandez that she liked Petitioner, the relationship between Ms. Williams and Petitioner deteriorated over time. At the time of Petitioner’s hire, Respondent’s employee handbook required training and mentoring for new employees of the company. Although Petitioner had several years of leasing experience in similar apartment complexes, she was not fully trained in the Respondent’s way of doing business. Respondent did not exhaust training procedures with Petitioner, nor did they initially provide her with trained support staff to help her tackle the problems at Manatee Cove. Prior to Petitioner’s arrival at Manatee Cove, the complex experienced a low rate of occupancy that Respondent asked Petitioner to address. Additionally, Manatee Cove had a number of delinquent leases that Respondent expected Petitioner to resolve. To Petitioner’s credit, both areas of concern were addressed and improvements were made. More critical to the company, however, was an upcoming audit that Manatee Cove faced. A third party was scheduled to audit Manatee Cove for compliance with regulations related to affordable income properties. Because Manatee Cove participated in the program, Respondent was required to maintain records pertaining to the program guidelines. Much of Petitioner’s effort during her time at Manatee Cove related to preparing for the audit. When the audit was passed with flying colors, Petitioner was praised for her work. After Ms. Williams became Petitioner’s supervisor, several issues with Petitioner’s performance were identified by Respondent. For example, Petitioner was required to open the office at a certain time. When Petitioner worked late into the night she failed, on a couple of occasions, to open the office on time. Respondent’s exaggeration of this alleged problem was unwarranted. Respondent also claimed that Petitioner did not submit end-of-the-year invoices timely. Petitioner was timely with the invoices. Any error in not timely filing invoices for the security vendor was attributable to other employees. Despite requests for additional training and assistance, Respondent gave Petitioner only a cursory training opportunity. In contrast, Respondent trained Petitioner’s successor, a Caucasian female, more thoroughly. Further, the person Respondent allegedly sent to assist Petitioner did little to actually help her. Instead, she spent her time compiling minute details of how Petitioner did not do things the Respondent's way. At one point, when advised of the alleged problems at Manatee Cove, Ms. Garden advised Ms. Williams to fire all of the employees there. Curiously, only Petitioner was terminated. On February 9, 2009, Ms. Williams discharged Petitioner without specifying grounds for the action. Later, Ms. Williams claimed Petitioner’s failure to timely pay invoices was the basis for the action. To the contrary, Petitioner timely presented for payment all invoices over which she had control. The invoices that were unpaid were for a vendor (the security company), who was hired before Petitioner came on the property, for whom the appropriate information had not been put into the system, and for whom the Respondent failed or refused to assist Petitioner input the appropriate data. Simply stated, the failure to timely pay the security vendor was not Petitioner’s error. Respondent replaced Petitioner with a less experienced Caucasian female. Petitioner was hired at a salary of $40,000, with a free apartment as additional compensation. When she was terminated, Petitioner was advised to vacate her apartment at Manatee Cove. Petitioner worked to improve the leasing productivity at Manatee Cove. She was professional and experienced in her job. The women who conspired to terminate Petitioner’s employment with the company did so without considering the positive contributions Petitioner made to the Manatee Cove property. Respondent did not have a sound business reason for terminating Petitioner. Instead, Respondent terminated Petitioner because she did not fit the corporate image. Ms. Williams and Ms. Garden wanted Petitioner to do everything the Respondent's way. When Petitioner showed success managing the complex her way, trouble ensued. Less than one percent of the over 300 employees Ms. Garden supervises are Black managers. Ms. Garden did not sit down with Petitioner to train her; did not verify others had appropriately trained her; and did not include Petitioner in what could have been constructive conversations regarding Petitioner’s work. Instead, she and Ms. Williams along with Ms. Christy Starr (Petitioner’s eventual replacement), spent their time chronicling superficial errors and complaints against Petitioner. Petitioner had been employed less than a month when Respondent’s employees started writing negative comments regarding Petitioner’s work performance. Many of the comments were generated during a time when Petitioner had little or no help to run the office, and little or no training. All of the negative comments started after Ms. Garden met Petitioner (and obviously observed her ethnicity). The table below demonstrates the time frame for Petitioner’s first month of employment with Respondent: Date: Event: November 2008 Petitioner interviewed for job by Ms. Fernandez. November 2008 Petitioner interviewed by phone for job by Ms. Garden. December 1, 2008 Date Petitioner was to start job; per employment agreement. November 24, 2008 Date Petitioner started job to accommodate Respondent; Ms. Fernandez met with Petitioner approximately 1-2 hours to get her started. Early December 2008 Ms. Fernandez and Ms. Garden visit Petitioner; Ms. Garden meets her for first time in person; Ms. Garden initially likes Petitioner. December 12, 2008 Petitioner meets Ms. Williams for first time; Petitioner expresses need for help; Ms. Williams tells Ms. Fernandez she likes Petitioner. After December 12, 2008 Ms. Williams e-mails Ms. Fernandez to state she has issues with Petitioner. Mid December 2008 Respondent tells Petitioner to get invoices in to be paid by end-of-year. Mid December to late December 2008 Petitioner asks for assistance with invoices; specifically with regard to security vendor for whom paperwork incomplete. During the first month, Petitioner worked the property without great assistance from the Respondent. The following chart depicts the remainder of Petitioner’s employment with the company: On or about January 6, 2009 Ms. Card hired to be Petitioner’s assistant. Early January, shortly after she was hired Ms. Card sent for “training” at another property managed by Respondent; training turned out to be a session to allow Respondent’s employees to criticize Petitioner’s work. January 14, 2009 Ms. Garden wrote to express disappointment that Petitioner had not reached an occupancy goal despite improvement. January 15, 2009 Ms. Garden complains that Petitioner does not answer e-mail quickly enough. January 19-21, 2009 Ms. Starr sent to Manatee Cove to assist; instead does little and produces a report critical of Petitioner. January 21, 2009 Ms. Garden advises Ms. Williams should look for whole new staff for Manatee Cove. On or about January 21, 2009 Ms. Williams suggests Ms. Garden consider Ms. Starr for Petitioner’s job. January 26, 2009 Ms. Williams issues a disciplinary report to Petitioner; report allegedly written in December 2008, but Ms. Williams claimed she could not print it until this date. January 26, 2009 Petitioner given a copy of the job description for manager. January 30, 2009 Petitioner handles the audit conducted by third party and passes without any violations or issues. Subsequent to audit Petitioner praised for good work on audit. Early February 2009 Ms. Williams discovers security company not paid before new year. February 9, 2009 Ms. Williams fires Petitioner. On February 10, 2009, Ms. Starr replaced Petitioner as manager at Manatee Cove. Petitioner has been unemployed since her termination from Manatee Cove. Although qualified, Petitioner has not actively pursued job opportunities outside the Central Florida market. Instead, Petitioner enrolled as a full-time student. Petitioner filed a Complaint of Discrimination on or about December 2, 2009. Subsequently, Petitioner retained counsel and filed the instant administrative petition on or about October 8, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding cause for an unlawful employment practice as alleged by Petitioner, and awarding Petitioner no more than six months back pay. DONE AND ENTERED this 6th day of April, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 6th day of April, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas A. Groendyke, Esquire Douberley & Cicero 1000 Sawgrass Corporate Parkway, Suite 590 Sunrise, Florida 33323 John M. Finnigan, Esquire Finnigan Law Firm 1700 Maitland Avenue Maitland, Florida 32751 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachaee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Background Petitioner is incorporated in the State of Florida as a not-for-profit corporation. The corporate purpose of Petitioner includes the improvement of environmental health. Petitioner's activities in this regard are especially focused upon Manatee and Sarasota Counties, including the City of Bradenton (Bradenton). Petitioner has about 2500 members. Members of Petitioner reside in Bradenton. These persons use the water and roads adjacent to Perico Island. Insubstantial evidence suggests that Petitioner, through its members, submitted oral objections to Bradenton at anytime during the planning process. Petitioner mailed a letter dated March 7, 1989, to the Department of Community Affairs (DCA) with a copy sent to Bradenton. The letter clearly constitutes written objections to the proposed plan. Bradenton initially received the March 7 letter on March 9. It is difficult to determine whether Bradenton received a copy of the March 7 letter after the issuance of the Objections, Recommendations, and Comments (ORC) by DCA. Even if Bradenton received a copy of the March 7 letter prior to the issuance of the ORC, it is impossible to determine if Bradenton received another copy of the letter with the ORC, which may contain numerous attachments consisting of the comments of other parties. The ORC was not introduced into evidence. The only indication in the record, including pleadings, of the date of the ORC is in Exhibit 2 attached to the Deposition of Robert Pennock, which itself is City Exhibit 6. Exhibit 2, which is a letter from DCA to Bradenton, mentions the ORC dated March 17, 1989. This date would be at the outside of the range for DCA to submit an ORC in response to a proposed plan transmitted, as in the present case, on November 23, 1988. 9/ By Request for Admission served November 21, 1990, Petitioner requested Bradenton to admit: "that [Petitioner] submitted written objections to [Bradenton's plan] which [Bradenton] received after it received DCA's ORC report." Bradenton's response to the request, in its entirety, states: The City has received a copy of the correspondence relating to possible "objections" to the City's Plan that were mailed directly to [DCA]. The date of that correspondence was March 7, 1989 and addressed to Robert G. Nave, Chief, Bureau of Local Planning, and was written by Attorney Thomas W. Reese. By date stamp on the copy of the correspondence in the possession of the City, it is believed that the document was received on March 9, 1989. The City does not admit that the correspondence of March 7, 1989 from Mr. Reese to Mr. Nave meets the intent of the statute for establishing standing and to the contrary, does not comply and does not establish such standing. The response ignores the portion of the request directed toward the factual question of the order in which Bradenton received the March 7 letter and the ORC. The significance of the chronology, as opposed merely to the acknowledgement of receipt of the March 7 letter, may have been lost upon Petitioner's counsel, who inexplicably asserted in opening statement that the ORC was issued on December 19, 1988. Transcript, page 57. Given the probable chronology of events recited in the preceding footnote, one of the few certainties concerning this matter is that the ORC was not issued on December 19, 1988. Intervenor is a Delaware corporation that owns property in Bradenton. Intervenor owns the western peninsula of Perico Island, which is described in detail below. Intervenor submitted oral or written objections to Bradenton not later than the transmittal hearing on November 23, 1988. Prior to transmitting the proposed plan to DCA, Bradenton removed the coastal high hazard designation from much of the western peninsula of Perico Island and changed the designation of the affected land to ten units per acre. Bradenton is a municipality located in western Manatee County. The city, which straddles the mouth of the Braden River to the east, generally lies along the southern bank of the Manatee River less than three miles upstream from where it empties into lower Tampa Bay. Wares Creek runs from south to north through the center of Bradenton and empties into the Manatee River. Palma Sola Bay divides the majority of the city from Perico Island. The southern half of Perico Island, which consists of eastern and western peninsulas, is within the city limits. Perico Island, which is generally bounded on the west by Anna Maria Sound and Sarasota Pass, is located between Tampa Bay to the north and Sarasota Bay to the south. Barrier islands to the west, most notably Anna Maria Island, tend to protect Bradenton from direct Gulf waves. On August 1, 1989, Bradenton adopted its comprehensive plan (Plan). As Bradenton noted accurately in its cover letter to DCA, no DCA representative attended the final adoption hearing on July 26, 1989, although Bradenton had requested that DCA send a representative to the hearing. 10/ On September 16, 1991, DCA issued a notice of intent to find the Plan in compliance. Designation of Coastal High Hazard Area Data and Analysis The Data and Analysis 11/ contains a Coastal Area Map, which is on page 150 of the Plan. The map depicts those areas below two feet elevation as the Coastal High Hazard Area. The map shows that the Coastal High Hazard Area includes about one-half of the western peninsula of Perico Island and relatively thin strips along the south and east borders of the eastern peninsula of Perico Island. The only other portions of Bradenton designated as Coastal High Hazard Area are parts of islands in the Braden River and two small parcels on the west bank of the Braden River. The Data and Analysis does not further address the Coastal High Hazard Area. In particular, the Data and Analysis fails to explain why the two-foot elevation was selected to define the Coastal High Hazard Area. The Data and Analysis does not mention the location of the Federal Emergency Management Agency velocity zone (V-zone) or the Department of Natural Resources Coastal Construction Control Line. The portion of Perico Island within the city is bounded on the north by State Road 64. Immediately north of State Road 64, the remainder of Perico Island is in unincorporated Manatee County. The Manatee County comprehensive plan designates the entire island north of the road as coastal high hazard area. However, the county plan notes extends the coastal high hazard area to the five- foot contour. The county plan also divides the coastal high hazard area into two areas: the more critical area, which corresponds to the V-zone, that is subject to wave action and the less critical area that is subject to storm- induced damage. Some testimony suggests that the Manatee County plan has more stringent land use constraints for land uses within the V-zone than for land uses elsewhere within the county's coastal high hazard area. Nothing in the record indicates the extent of the V-zone over any part of Perico Island. Early in the consideration by the City Council of the proposed plan, the coastal high hazard area included all land seaward of four feet elevation. The four-foot contour had been selected because of data suggesting that the "spring high tide" runs to an elevation of 3.62 feet, which was rounded up because Bradenton had only one-foot contour maps. By letter dated November 16, 1988, a representative of Intervenor complained that the four-foot contour was "scientifically unjustified and legally unsupportable." The letter states: Only a portion of the westerly peninsula is in the [V-zone] and even that portion of the property could be partially used with proper construction safeguards. The staff position of four feet seems to be based upon the fact that spring high tide occurs at elevation 3.56 feet but no one knows where that elevation occurs on this property nor does anyone know where the elevation 4.0 feet occurs on this property. The relationship between spring high tide and coastal high hazard is likewise unestablished. Bradenton's Chief of Planning and Zoning, Margaret Swanson, testified that the two-foot contour line "definitely" includes the entire V-zone. Deposition of Margaret Swanson, page 48. Jerry West, Bradenton Planning and Development Director and Ms. Swanson's supervisor, testified likewise at the hearing. Transcript, page 90. Petitioner produced no contrary evidence as to the location of the V- zone or the Coastal Construction Control Line. Likewise, there is no evidence that either peninsula has historically experienced destruction or severe damage from storm surge, waves, erosion, or other manifestations of rapidly moving or storm driven water. The spring high tide appears to be an unusual event, perhaps even occurring less often than annually. The evidence fails to link the spring high tide with destruction or severe damage from rapidly moving or storm driven water anywhere in Bradenton. Plan Provisions Coastal Management/Conservation Element (Coastal) Goal 5 states: Use of coastal areas in a way which preserves natural systems, provides for public access, and minimizes storm and flood hazards to population and property, including public facilities. Objective 1: Severely limit development in low lying coastal areas. Policy 1: A coastal high-hazard area shall be established through the Land Use and Development Regulations to include all coastal lands along the Braden and Manatee Rivers and Palma Sola Bay which are below 2 feet in elevation. Policy 2: Establish a conservation zone including all conservation lands as shown on the Future Land Use Map and all undeveloped areas below the Coastal High Hazard Line (2-foot contour line) and prohibit construction of building, roadways and parking areas in that zone except to provide shoreline access points as determined necessary or of overriding public interest by City Council. . . . Policy 3: Prohibit the filling of coastal areas below the 2-foot contour line except in cases where such lands are completely separated from the shoreline by land of higher elevation or where determined necessary or of overriding public interest by City Council. Policy 4: The City shall not locate infrastructure in the Coastal High Hazard Area (below the 2-foot contour line) except as determined necessary or of overriding public interest by City Council. * * * Objective 5: Keep population and investment low in areas vulnerable to coastal flooding. Policy 1: Designate undeveloped coastal acreage with areas below the 8-foot elevation contour line as PDP (planned development project) and limit residential development to low density below the 8-foot contour. Limit non-residential development below the 8-foot contour line to water dependent uses. Policy 2: Locate all public facilities outside of the coastal high hazard area. * * * Policy 4: Discourage the location of high density residential projects, public housing, housing for the elderly, mobile homes and group homes in high priority hurricane evacuation zones through the Land Use and Development Regulations. The Future Land Use Map (FLUM) designates as Conservation all of the land on Perico Island below the two-foot contour. According to Policy 1 under Objective 1 of the Future Land Use Element (FLUE), the "Recreational/Conservation" designation is for "[p]arks, designated open areas and conservation." No residential uses are permitted in the Recreation/Conservation category. The only FLUE goal is: A land use pattern which promotes the well being of the community in regard to compatibility of adjacent uses, building types and residential densities, efficiency of utilities and roadways, harmony with the natural environment and protection from natural hazards. Objective 1: Location of new development and redevelopment in a manner conducive to compatibility of land uses, sensitive to natural resources and natural hazards and consistent with the availability of public facilities. * * * Housing Element (Housing) Policy 1 under Objective 1 is: Designate vacant tracts of land for residential use on the future land use map except where unsuitable for that use because of incompatible adjacent existing uses, inappropriate elevation or drainage conditions or other safety hazard. State Plan Provisions There are no relevant provisions of the State Plan with which the Coastal High Hazard Area is arguably inconsistent. Designation of Ten Units Per Acre on Western Peninsula of Perico Island Data and Analysis The Data and Analysis identifies Perico Island and the islands of the Braden River as the two areas of major environmental concern in Bradenton. The Data and Analysis states: The value of these lands is that they are coastal lands with abundant sea life and habitat. In an urbanized area where much of the natural shoreline has been destroyed, these remaining lands should be protected because of their intrinsic value as well as because of their dwindling supply. Plan, page 157. The Data and Analysis notes that Perico Island is entirely within the 100-year flood zone and is less than five feet above sea level with "large areas" below the mean high water line. The western peninsula of Perico Island is lower than the eastern peninsula. The highest elevation on the western peninsula is five feet, which is within 100 feet of State Road 64. The elevation of most of the upland beyond 100 feet of the road is less than three feet. The elevation of much of the interior of the eastern peninsula is 3-4 feet. Although Perico Island contains Australian Pine and Brazilian Pepper, which are nuisance exotics, the Data and Analysis explains that valuable natural habitat remains: A great diversity of animal and plant life is found on the island[, including roseate spoonbills, brown pelicans, osprey, and an occasional bald eagle]. The mangrove swamps, mud flats, and marine grass flats fringing Perico Island support a variety of marine life including commercial and game fishing species such as mullet, trout, redfish, and snook, as well as shellfish. Plan, page 158. The habitat of the endangered West Indian Manatee includes the coastal areas in question. In addition to the above-noted animal species that are listed as endangered, threatened, or of special concern, the threatened butterfly orchid is also found on Perico Island. The Data and Analysis reports that Palma Sola Bay is a Class II waterbody, which means that it is suitable for shellfishing. Although it has not been approved for such purpose, its waters regularly satisfy Class II standards with only an occasional violation of the Class II bacteriological standards. According to the Data and Analysis, Palma Sola Bay has been designated as part of the Sarasota Bay Estuary of National Significance. Plan, page 98. Both Anna Maria Sound and Palma Sola Bay are part of the Sarasota Bay estuarine system and, as such, are Outstanding Florida Waters. 12/ Concluding its discussion of the two areas of major environmental concern to Bradenton, the Data and Analysis states: As with Perico Island, the Braden River and its wetlands are an invaluable natural resource. Such tidal wetlands not only reduce water pollution by filtering pollutant-laden runoff, but also influence water quantity by retaining water during dry periods and absorbing it during flooding. Wetlands also stabilize the shoreline and act as a hurricane buffer. They provide essential breeding, nesting, resting areas for myriad fish and bird species and support a diverse food web extending to terrestrial animals as well. ... Plan, page 159. The Coastal Vegetation map shows that the portion of the western peninsula corresponding roughly with the Coastal High Hazard Area is vegetated by coastal wetlands with considerable mangrove growth. Plan, page 151. Perico Island is one of "three areas where future development will impact the coastal area." Plan, page 160a. The Data and Analysis notes that an historic shell mound on the western peninsula must be "protect[ed from r]esidential development." However, the designation of the western peninsula at ten units per acre, as necessarily conceded by Mr. West, is not a low density. The Data and Analysis surmises that the impact of future development on at least the eastern peninsula of Perico Island is largely unavoidable: Because of a Development Order issued on a 1975 Development of Regional Impact application, the conditions of development are established and little can be done to modify them to meet the policies of this plan. Id. The Data and Analysis describes the 1975 development order as: authoriz[ing] 1512 dwelling units and a neighborhood commercial center and call[ing] for the preservation of lands below the 1.5 foot elevation and in an historic shell mound on the western peninsula of the site. Development of the western peninsula was prohibited by the approval stipulations. Plan, page 158. At the time of the application for what is known as the Spoonhill Bay DRI, Intervenor or an affiliate of Intervenor owned both peninsulas. After obtaining the development order, Intervenor sold all or part of the eastern peninsula to developers, but retained the western peninsula. The application for development approval was for a total of 1776 units on 102.6 acres. The entire land area was about 546 acres with 171 acres of mangroves conservation, 200 acres of marine conservation, 10 acres of historic preservation, almost 2 acres of neighborhood commercial, 26 acres of lakes, and 35 acres of other open space and recreation. The map accompanying the application shows two sites for historic conservation, both evidently above the two-foot contour line. According to the DRI application, both peninsulas of Perico Island contain about 184 acres above the 1.5-foot contour. The western peninsula encompasses 114 acres with about 10-16 acres higher than 1.5 to 2 feet in elevation. According to the application, the dwelling units per gross acre would be 3.2 and the dwelling units per net acre would be 9.7. The gross acreage density is based on total acres, including mangroves, lakes, and marine conservation. The net acreage density is impossible to calculate from the information provided. 13/ The development order, which was approved May 28, 1975, by the Bradenton City Council, approves the development subject to the following conditions: The developer shall initiate a positive program for the long run protection of the ecologically important undeveloped areas of the site. . . . * * * 3. The applicant shall work in consultation with the State Division of Archives, History and Records Management to insure the protection and preservation of the two sites of historical and archaeological significance found on the project site. Protection of the Indian Mound area shall be by deed, dedication, or other appropriate legal instrument to insure that such sites are preserved in perpetuity. * * * 5. With respect to responsibility for roadway improvements outlined in the transportation section of the DRI report: * * * (d) To further reduce traffic impact of the project, no residential development as originally proposed by the developer will be carried out on the westerly peninsula of the developer's property. ... Total number of residential units as proposed shall be reduced by 15% from 1,778 units to 1,512 units, all to be located on the easterly peninsula. * * * 7. Developer shall furnish at no cost to City not less than one acre site to accommodate governmental services that will be generated by the development, e.g., fire, police, etc. Site location shall be subject to approval of both parties. The Data and Analysis includes among "acreage not presently slated for development . . . 10 acres, western peninsula, Perico Island[,] includes Mangrove areas, low-lying areas and an Indian shell mound." Plan, page 12. However, the Data and Analysis determines that this area is "suitable for development," which means that the land is "above mean high water line and is served by public facilities." Plan, page 14. The soils map shows that the entire western peninsula, as well as the western half of the eastern peninsula, is characterized by nearly level, very poorly drained sandy and organic soils in tidal mangrove swamps. Plan, page 13. The soils of the western peninsula and western half of the eastern peninsula of Perico Island, as well as the soils of the Braden River islands, are the only soils in Bradenton that are generally "very poorly drained" and account for very little of the land area of the city. Both peninsulas of Perico Island are identified as Neighborhood 12.04 in the Plan. In the discussion of Neighborhood 12.04, the Data and Analysis states that a condition of the development order "was that the smaller of the two peninsulas is not to be developed because of environmentally sensitive and historically significant areas as well as traffic impacts." Plan, page 97. The Data and Analysis notes that the two shell middens, which date from "prehistoric times," have been damaged by erosion and amateur excavation. But the Data and Analysis recommends that the Indian mounds be professionally excavated or protected "because of their potential value in adding to the small amount of information available about prehistoric settlements in this area." Plan, page 97. The Data and Analysis notes that approved development has provided 600 units through 1986 at a density of 6.3 units per acre. As of that time, 116 acres were in residential use, one acre in commercial use, and 70 acres were vacant. The Data and Analysis projects that 800 units will have been constructed by 1990. In discussing Neighborhood 12.04, the Data and Analysis reports that no public recreation areas are proposed for the development, which will be served exclusively by private recreation areas. In addition, State Road 64 is the hurricane evacuation route for Perico Island as well as Anna Maria Island, which is also served by another escape route. The discussion of Neighborhood 12.04 concludes with several recommendations. Among them are the following: Require the preservation of and protection of the historic shell middens on the western peninsula if the peninsula is ever developed. Strictly enforce the flood protection ordinance for development of the island. Require mangrove and water quality protection as part of development approvals. Hurricane evacuation and traffic impacts on State Road 64 shall be considered as an important issue in review of applications for development approval. Any applications by property owners to increase the density of development in the neighborhood shall be denied. Participate in the studies of Sarasota and Palma Sola Bays under the National Estuary Program and utilize the recommendations coming forth from that program to the extent possible. Nothing in this Plan shall limit or modify the rights of any person to complete any development that has been authorized as a development of regional impact pursuant to Chapter 380 or who has been issued a final local development order, and development has commenced and is continuing in good faith. Any amendments to the development order for the Development of Regional Impact shall comply with or require compliance with all of the policies of this plan particularly those concerning protection of environmentally and historically sensitive lands, the coastal high hazard area and hurricane vulnerability zone. Plan, pages 98-99. The Evacuation Map shows that all of Perico Island is in Evacuation Zone A. Plan, page 153. This is the highest priority evacuation zone in Bradenton. This zone also encompasses bands of land along the Manatee River and both shorelines of the Braden River. Additional data and analysis are included in the Surface Water Improvement and Management Program for Tampa Bay published on August 30, 1988 (SWIM Plan). The SWIM Plan notes that the Tampa Bay estuary, of which Anna Maria Sound, Palma Sola Bay, and the Manatee and Braden Rivers are a part, suffers from interconnected problems, including habitat destruction (e.g., dredging, filling, hardened shorelines); water quality inclusive of eutrophication (e.g., point and non-point stormwater runoff, municipal and industrial effluents, septage); [and] altered freshwater inputs (e.g., dams, withdrawals). SWIM Plan, page 1. Addressing the functions of area wetlands, the SWIM Plan states: In addition to their contributions to the biology of the marine ecosystems, coastal and estuarine wetlands play an important role in modifying the geologic and hydrographic characteristics of the area. Acting as baffles, roots and leaves reduce the velocity of water over the bottom causing suspended particles to settle out and become trapped at the base of the plants. In this way mangroves, marshes, and seagrasses reduce turbidity, increase sedimentation rates, stabilize sediments, and attenuate wave action on adjacent shorelines. The binding and stabilization characteristics of these habitats are documented by reports of some coastal marshes and seagrass meadows surviving the destructive scouring forces of coastal storms and hurricanes in the Gulf states. SWIM Plan, page 23. However, these wetland systems "face increasing pressure from development of all types," notwithstanding the Warren S. Henderson Wetlands Protection Act of 1984. SWIM Plan, page 27. The water quality is directly threatened by the nutrients introduced into the water by, among other things, untreated stormwater runoff and the "extensive transformation of rural uplands to urban uses." SWIM Plan, pages 26-27. Plan Provisions The FLUM contains only two residential categories. All of Perico Island above the Coastal High Hazard Area is designated "Residential--maximum 10 units per acre." The other category permits up to 15 units per acre. FLUE Policy 1 under Objective 1 describes the Residential categories as follows: Residential with densities limited to 15 units per acre in the high density area and 10 units per acre in the moderate density area and limited by recommendations by neighborhood in this plan. . . . Neighborhood commercial uses permitted as part of the residential development plan. .. . FLUE Policy 2 under Objective 1 is: The recommendations for each neighborhood contained in this plan are hereby adopted as part of this plan and are to be adhered to in all land use decisions to be made by the City. FLUE Policy 3 under Objective 1 states: The future land use map, neighborhood recommendations and all other relevant policies under this plan are to be used as a basis for the revision of the land use and development regulations, including the zoning atlas. FLUE Objective 3 provides: Management of future development through adoption and enforcement of regulations which promote the use of land in a manner sensitive to public health and safety and to soils and topography. FLUE Objective 4 and relevant policies are: Objective 4: Limitation of population in first priority hurricane evacuation zones identified in the local and regional hurricane evacuation plan. Policy 1: Deny requests for increases in density on property approved for development if the property is located in the first priority regional hurricane evacuation zone. Policy 2: On the Braden River islands, designate as conservation area all lands below the 2 ft. contour line, and allow only recreational/open space or residential use at a gross density maximum of 3 units per acre on the uplands. Coastal Goal 2 is "[i]mprovement of surface water quality." Objective 1 is: "Preservation of water quality cleansing and erosion control capabilities of natural, vegetated shorelines." Policy 4 is to "[r]equire by ordinance by December 1, 1989 best management practices for erosion control during and after land alteration projects." Coastal Objective 2 under Goal 2 is: "Reduction of pollutant loads reaching waterways from urban stormwater." Policy 2 defers to land development regulations the job of establishing standards for new developments to "provide on-site detention and filtration of stormwater runoff to remove oils, silt, sediment, nutrients, and heavy metals, and [to] require erosion control during construction." Coastal Goal 4 provides: "Protection and enhancement of wildlife habitat and vegetation." Objective 1 deals with the Braden River estuary and islands and includes policies restricting development to uplands, generally prohibiting the removal of wetlands vegetation, and requiring that development proceed as a planned development project "to ensure site-sensitive planning and review." No similar provisions apply to Perico Island. Coastal Objective 2 under Goal 4 is: "Preservation of wetlands, including coastal wetlands vegetation, living marine resources and wildlife habitat." Policy 1 states: "[b]y December 1, 1989 adopt regulations to prohibit the removal of wetland vegetation except for limited access points." Policy 2 is, "[b]y December 1, 1989 require that development approvals for land with wetland area stipulate wetland protection measures to ensure that upland construction and land use do no affect the wetlands." Policy 3 states: "[b]y December 1, 1989 adopt regulations to require the identification of wildlife habitats as part of planned development project applications and . . . provide mechanisms to require protection of valuable habitat." Policy 5 provides: "[b]y December 1, 1989 adopt regulations to limit disturbance of seagrass beds by prohibiting development and land uses in seagrass areas and where they will result in an increase in boating in seagrass areas except where necessary to maintain existing facilities." Policy 7 is to develop with Manatee County a management plan for the Braden River estuary, Manatee River, and Palma Sola Bay. Policy 8 is to adopt by ordinance, within six months of their issuance, the recommendations of the Sarasota Bay National Estuary Program. Coastal Goal 6 is: "Fast evacuation prior to natural disasters such as hurricanes." Objective 1 is a "workable evacuation plan, geared toward maintaining present evacuation times." Goal 4 of the Public Facilities Element (PFE) provides: "Prevention of flood damage and improvement of surface water quality." PFE Objective 1 under Goal 4 sets forth the following provisions concerning drainage level of service standards. Policy 1a. The peak discharge rate from new development shall be equal to or less than the peak discharge rate that existed prior to development based on a 25-year frequency, 24-hour duration storm event. * * * Policy 1c. Internal or on-site drainage facilities of developments shall be designed to accommodate the stormwater resulting from a design storm of 10-year frequency, critical duration, based on the project site's time of concentration. Policy 2: The applicability of the level of service standards to various types and sizes of private development shall be set forth in the land use and development regulations adopted by December 1, 1989. PFE Objective 4 under Goal 4 is: "Nondegradation of capacity of natural drainage features." Policy 1 states: All new developments shall be required by land use regulations adopted by December 1, 1989 to provide stormwater retention and drainage facilities to curb increased runoff to natural drainage features. PFE Objective 5 under Goal 4 is: "Upgrading of existing drainage facilities to meet future needs." Policy 1 states: Stormwater facility improvements as proposed in the Comprehensive Stormwater Management Study, 1981 and subsequent updates shall be scheduled into the Capital Improvements program. 14/ State Plan Provisions The relevant provisions of the State Plan are set forth in Findings of Fact Paragraphs 74 et seq. Stormwater Provisions Plan Provisions Already cited above, PFE Goal 4; PFE Objectives 1, 4, and 5, as well as various policies under these objectives; Coastal Goal 2, Objective 2 under Goal 2, Policy 2 under Objective 2; and Housing Policy 1 under Objective 1 address stormwater and drainage. PFE Goal 1 is: Provision of public facilities in a manner which protects investments in existing facilities, promotes orderly, compact urban growth, and promotes the quality of natural resources, particularly surface waters. PFE Objective 1 and Policy 1 under Goal 1 are to maintain the applicable level of service standards for public facilities and not to issue development orders if the issuance would result in a violation of a level of service standard. PFE Objective 2 under Goal 4 is: "Correction of existing stormwater facility deficiencies by the year 2010." Policy 1 is: Stormwater facility improvements as proposed in the Comprehensive Stormwater Management Study 1981 hereby adopted as an appendix to this plan and subsequent updates shall be scheduled into the Capital Improvements program. PFE Objective 3 under Goal 4 is: "Water conservation through use of stormwater runoff for irrigation." SWIM Plan Provisions The SWIM Plan provides as follows with respect to water quality: Initiative 1. Reduce point and non-point source pollutant loadings to attain water quality necessary to restore and maintain healthy and productive natural systems, protect human health, and . . . attain the highest possible water use classification. * * * 1.c. Urban Stormwater Management Strategies: --Reduce the levels of nutrients and other contaminants in urban stormwater runoff by requiring, if feasible, that the quality of stormwater discharges be no worse than the State water quality criteria or the existing quality of the receiving water body, whichever is better. The feasibility of implementing this objective will be examined through a review of federal, state, District, and local rules pertaining to stormwater management. * * * --For all new upland development or redevelopment within the Tampa Bay watershed, runoff rates should not exceed those of natural, undisturbed conditions. The feasibility of implementing this objective will be examined through a review of federal, state, District, and local rules pertaining to stormwater management. Perico Island, Anna Maria Sound, and Palma Sola Bay, as well as the Manatee and Braden Rivers, are within the jurisdiction of the Southwest Florida Water Management District's SWIM program for Tampa Bay. State Plan Provisions Section 187.201(8) addresses water resources. The goal is to "maintain the functions of natural systems and the overall present level of surface and ground water quality." Policy 8 is to "[e]ncourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands and other natural floodplain features." Policy 12 is to "[e]liminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state." Section 187.201(9) addresses coastal and marine resources. The goal includes ensuring that development does not "endanger . . . important natural resources." Policy 4 is to "[p]rotect coastal resources [and] marine resources from the adverse effects of development." Policy 6 is to "[e]ncourage land and water uses which are compatible with the protection of sensitive coastal resources." Policy 7 is to "[p]rotect and restore long-term productivity of marine fisheries habitat and other aquatic resources." Section 187.201(16) addresses land use. The goal is to direct development to those areas that have, among other things, the "land and water resources . . . to accommodate growth in an environmentally sensitive manner." Policy 6 is to "[c]onsider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding." Section 187.201(22) addresses the economy. The goal is to "promote an economic climate which provides economic stability, maximizes job opportunities, and increase per capita income for its residents." Policy 3 is to "[m]aintain, as one of the state's primary economic assets, the environment, including clean air and water, beaches, forests, historic landmarks, and agricultural and natural resources." Historic Provisions Data and Analysis The Data and Analysis discloses that 85 structures in Bradenton were added to the Florida Master Site File following an historic survey in 1980. As a result of the survey, two historic districts were established: Downtown Bradenton and Old Manatee. The Data and Analysis reports that the Braden Castle ruins and Braden Castle Tourist Camp are included on the National Register of Historic Places. Plan Provisions The sole goal of the Historic Preservation Element (Historic) is: "To preserve Bradenton's architectural heritage as part of the effort to redevelop the old portions of the City." Historic Objective 1 is: "Disseminate information on the historic-architectural resources of the community and of the incentives for preservation and restoration of these resources." Historic Objective 2 is: "Restoration of historic structures and sites." Historic Objective 3 is: "Encourage other governmental agencies to consider historic and architectural value when taking actions affecting such properties in Bradenton and to modify their actions as to enhance rather than detract from these resources." Historic Policies include the dissemination of information pertinent to historic preservation, allowance of exemptions from the building code for certain historic rehabilitation, and cooperation with other governmental agencies in historic preservation efforts. Miscellaneous Provisions Plan Provisions Regarding Level of Service Standard for Recreational Facilities Recreation Element (Recreation) Objective 3 is: Provision of neighborhood parks located within walking distance of population served and having adequate acreage and facilities to serve the size and type of population served. Recreation Policies under Objective 3 include: Policy 1: One acre of neighborhood park per 500 people shall be the level of service standard for recreation. Policy 2: A neighborhood park shall be defined as a parcel of land of a half-acre or more located within a half-mile of the population served and having the following minimum improvements: benches, trees, open or grassy areas and play or exercise equipment facilities geared to the type of population served. Policy 3: Land use and development regulations adopted pursuant to this plan will require new residential development to provide recreation areas which meet the needs of that development based upon the adopted level of service standard for neighborhood parks. Such recreations shall serve in lieu of public neighborhood parks for new development. Plan Provisions Regarding Scheduling of Capital Improvements Necessary to Attain Level of Service D for Roads There are no roads identified in the Traffic Circulation Element (Traffic) for which Bradenton has jurisdiction that are projected not to achieve a level of service of D or better. The Data and Analysis states that seven road segments in Bradenton will attain a level of service standard worse than D during the planning timeframe. Plan, pages 125-27. However, the Data and Analysis indicates that the federal, state, or county has jurisdiction over each of these segments. Plan, page 114. Ultimate Findings of Fact Designation of Coastal High Hazard Area Petitioner has failed to prove to the exclusion of fair debate that the designation of the Coastal High Hazard Area is inconsistent with the criterion of supporting data and analysis. The Data and Analysis fails to indicate whether the Coastal High Hazard Area encompasses at least the V-zone or the land seaward of the Coastal Construction Control Line. However, Petitioner has failed to prove that the Coastal High Hazard Area excludes any part of the V-zone or the land seaward of the Coastal Construction Control Line. Testimony suggests that the Coastal High Hazard Area includes at least the V-zone. Petitioner has failed to prove to the exclusion of fair debate that the designation of the Coastal High Hazard Area is inconsistent with the criterion of the use of available appropriate data concerning historic damage and scientifically predicted damage of moving or storm driven water. The record contains no substantial evidence as to qualifying damage or destruction to areas outside the V-zone or landward of the Coastal Construction Control Line. Petitioner has failed to prove that the designation of the Coastal High Hazard Area is inconsistent with Plan provisions to protect coastal resources, protect the public from natural disasters, and maintain and hurricane evacuation times. Likewise, Petitioner has failed to prove that the designation of the Coastal High Hazard Area is inconsistent with provisions of the State Plan concerning housing, public safety, water resources, natural systems and recreational lands, land use, and governmental efficiency. As noted above, Petitioner failed to prove that the designation of the Coastal High Hazard Area is unsupported by data and analysis. Without proof that the designation of the Coastal High Hazard Area is incorrect, Petitioner is unable to prove the inconsistencies identified in the preceding Paragraph. Designation of Ten Units Per Acre on Western Peninsula of Perico Island Petitioner has proved to the exclusion of fair debate that the designation of up 10 units per acre is inconsistent with the criterion of supporting data and analysis, including a land use suitability analysis. The density of ten units per acre is, to the exclusion of fair debate, excessive under the circumstances. The soils are very poorly drained. The land above the Coastal High Hazard Area is very low. Except for 100 feet of frontage along the road, the entire upland will be flooded with the spring tide, which occurs with some regularity if not annually, as well as by flooding associated with hurricanes and tropical storms, even if the water is not storm driven. In the absence of an entirely elevated community, the spring tide and other coastal flooding will render inaccessible any interior residences, as well as inundate interior public facilities, unless natural drainage features and the mangrove fringes of the western island are significantly altered. The low elevation and very poorly drained soils increase the difficulty of effective stormwater management. At the same time, stormwater management is more critical on the island, which is surrounded by Outstanding Florida Waters and, in the case of Palma Sola Bay, Class II waters. The Spoonbill Bay DRI Development Order, which also serves as data and analysis, does not support the designation of ten units per acre for the western peninsula of Perico Island. The Development Order does not expressly transfer development rights from the western to the eastern peninsula. However, the Development Order rejects a request to develop the western peninsula at a density approximately equal to that accorded the western peninsula by the Plan. The Development Order expressly bases the denial upon transportation considerations. In light of other evidence, including quoted portions of the Data and Analysis, the cited transportation considerations probably included concerns as to the impact of transportation, including attendant stormwater runoff, upon the island's natural resources. In any event, Bradenton chose merely to designate up to ten units per acre on the western peninsula without addressing the bases for its denial, 15 years earlier, of approval to develop any portion of the western peninsula. Petitioner has proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with Coastal Goal 5, Objective 1 under Goal 5, Objective 5 under Goal 5, and Policies 1 and 4 under Objective 5. Goal 5 is to use coastal areas so as to preserve natural systems and minimize storm and flood hazards, among other things. Objective 1 is to limit development severely in low lying coastal areas. Objective 5 under Goal 5 is to keep population and investment low in areas vulnerable to coastal flooding. Policy 1 under Objective 5 is to limit residential development to low density below the eight-foot contour. Policy 4 is to discourage the location of high density residential projects in high priority hurricane evacuation zones, of which Perico Island is one. The Plan provisions set forth in the preceding paragraph preclude the designation of ten units per acre on the western peninsula. It is irrelevant whether the Plan's density designation is gross, so as to include some combination of Coastal High Hazard Area, mangrove fringe, wetlands, lakes, and Indian mounds, or net, so as to exclude all of such nonbuildable features of the land and waterscape characterizing the western peninsula. Even ten units per net acre is inconsistent with and repugnant to each of the provisions described above. 15/ Petitioner has proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with FLUE Objective 1; FLUE Objective 4; and Housing Policy 1 under Objective 1. Petitioner has not proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with FLUE Objective 3 or FLUE Policy 6 under Objective 1, which incorporates into the operative provisions of the plan Recommendation 6 for Neighborhood 12.04. FLUE Objective 1 is to locate new development in a manner sensitive to natural resources and natural hazards. FLUE Objective 4 is to limit population in the first priority hurricane evacuation zones. Housing Policy 1 under Objective 1 is to designate residential tracts except where unsuitable due to inappropriate elevation or drainage or other safety hazard. The designation of ten units per acre, even on a net acreage basis, is inconsistent with FLUE Objective 1 because the new development is not located in a manner sensitive to natural hazards and natural resources. The density designation is also inconsistent with FLUE Objective 4 to limit population in the first priority hurricane evacuation zones. There is no difference whatsoever between the density accorded the western peninsula, which is in Hurricane Evacuation Zone A, and the density accorded large areas of Bradenton, especially just east of Palma Sola Bay, although the latter areas are excluded on the Evacuation Map from any priority evacuation zone. The density designation is also inconsistent with Housing Policy 1 under Objective 1 due to the low elevation and poor drainage associated with the western peninsula. Policy 6 under FLUE Objective 1 incorporates the Recommendations for Neighborhood 12.04, which covers Perico Island. Recommendation 6 is to deny applications to increase the density of development in the neighborhood. FLUE Objective 3 is to manage future development through the adoption and enforcement of regulations to promote the use of land in a manner sensitive to the public health and safety and to soils and topography. Based on the Spoonbill Bay DRI Development Order, the density for the western peninsula may be viewed as zero. No evidence suggests what density the western peninsula may have arguably been accorded by a former comprehensive plan or zoning. However, it is possible to read Recommendation 6 as intending to incorporate the density given the western peninsula by the Plan, so Petitioner has not proved to the exclusion of fair debate that the density designation is inconsistent with Recommendation 6. Petitioner has failed to prove that the density designation is inconsistent with FLUE Objective 3 because of the latter's ineffectiveness. FLUE Objective 3 defers meaningful action to land development regulations and provides no upon real objective upon which an inconsistency determination could be based. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to coordinate coastal densities with the local hurricane evacuation plan. FLUE Objective 4 and Policy 1 under Objective 4 address this criterion. Petitioner has proved to the exclusion of fair debate that the Plan does not coordinate with the Spoonbill Bay DRI Development Order. As noted above, the density designation is consistent with Recommendation 6 of Neighborhood 12.04 only because it is assumed that the increased densities prohibited by Recommendation 6 are measured from the point of view of a former plan or former zoning, rather than the zero density accorded the western peninsula by the Development Order. In such a case, Recommendation 6 fails to coordinate with the Development Order. As noted above, the Data and Analysis fails to discuss why the Plan designates ten units per acre for the western peninsula when the Development Order prohibited any development. In effect, the Plan ignores the Development Order, and the resulting inconsistency is material in light of the impact of such a high density upon the natural resources of the peninsula and the public safety of future residents. However, the preceding two paragraphs are relevant only to consideration of the issue whether the density designation is supported by data and analysis. For reasons set forth in Conclusions of Law Paragraph 55, Rule 9J-5.006(3)(b)6., on which Petitioner relies, does not require an objective to coordinate with an DRI. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criteria of a policy to protect environmentally sensitive land and an objective to protect, conserve, or enhance remaining coastal wetlands, living marine resources, coastal barriers, and wildlife habitat. These criteria are addressed by Coastal Goals 2, 4, and 5 and their objectives, as well as PFE Goal 4, which is to "[p]revent. . . flood damage and improve. . . surface water quality." Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to direct population concentrations away from accurately defined coastal high hazard areas. For the reasons noted above, Petitioner has failed to prove that the Plan inaccurately defines the Coastal High Hazard Area for Bradenton, In the absence of such evidence, the Recreational/Conservation designation effectively addresses this criterion. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criteria of an objective to encourage land uses that are consistent with the community's character and future land use and a policy to provide for the compatibility of adjacent land uses. The FLUE Goal, FLUE Objective 1, and Housing Policy 1 under Objective 1 address these criteria. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to maintain or reduce hurricane evacuation times between the barrier island and mainland. Coastal Goal 6 and Objective 1 address this criterion, as do FLUE Objective 4 and Coastal Goals 1 and 6, although less directly. Petitioner has proved to the exclusion of fair debate that the Plan is inconsistent with the provisions of the State Plan, construed as a whole. The density designation given the western peninsula of Perico Island conflicts with various provisions of the State Plan designed to protect water, coastal and marine resources, and to promote efficient land uses compatible with land and water resources. Stormwater Provisions Petitioner has proved to the exclusion of fair debate that the stormwater provisions of the Plan are internally inconsistent with Plan provisions concerning water quality protection and improvement. Coastal Goals 2 and 5 protect water quality. Goal 2 is to improve surface water quality. Objective 2 under Goal 2 is to reduce pollutant loads reaching waterways from urban stormwater. Goal 5 is to use coastal areas so as to preserve natural systems. The stormwater provisions are inconsistent with the above-cited provisions protecting water quality because the level of service standard contains a serious loophole. PFE Goal 4, Objective 1, Policy 2 completely undermines the drainage level of service standard by providing that its applicability to "various types and sizes of private development" shall be as set forth in land development regulations adopted by December 1, 1989. For the reasons set forth in Footnote 15 above, relegating to land development regulations substantial provisions required by law to included in a plan is ineffective for reasons involving public participation and notice, compliance review, and enforceability. In effect, the applicability of the drainage level of service standard is subject to land development regulations. The evidence is insufficient to prove to the exclusion of fair debate the inefficacy of the stormwater provisions based on stormwater projects included in the Capital Improvements Schedule. The Data and Analysis discloses that Wares Creek has suffered most extensively from untreated stormwater runoff. However, Table 4 in the Capital Improvements Element discloses that most, if not all, of the scheduled stormwater projects will affect the Wares Creek drainage basin, as defined in the map of Storm Drainage Areas on page 208 of the Plan. 16/ For the reasons set forth in the preceding paragraph, Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of including in the Capital Improvements Schedule projects necessary to achieve treatment of stormwater sufficient to meet relevant water quality standards. Petitioner has proved to the exclusion of fair debate that the Plan is inconsistent with the criterion of a policy demonstrating how the local government will coordinate with the SWIM Plan, especially as to the latter's requirement that all stormwater discharge comply with relevant water quality standards. The Plan's drainage level of service standard, which is seriously undermined in the manner set forth above, is further hampered by the failure of the standard to include post- development water quality standards. As noted in the SWIM Plan data and analysis, the water quality of stormwater runoff is a key factor in preserving the health of the Outstanding Florida Waters that surround Perico Island and in restoring the health of other nearby waters. Due to the failure of the Plan submitted into evidence to contain as an appendix the Comprehensive Stormwater Management Study, 1981, Petitioner has failed to prove to the exclusion of fair debate that the scheduled capital improvements concerning stormwater projects fail to implement the SWIM Plan. In addition, the SWIM Plan does not generally impose project deadlines for various capital improvements. Petitioner has proved to the exclusion of fair debate that the stormwater provisions of the Plan are inconsistent with the provisions of the State Plan, construed as a whole. The failure to incorporate into the Plan an effective level of service standard for post-development runoff rate for all developments and the failure to incorporate any level of service standard for post-development runoff water quality are inconsistent with the above-cited provisions of the State Plan. Historic Provisions Petitioner has failed to prove to the exclusion of fair debate that the Historic Element is inconsistent with the criterion of supporting data and analysis; the Historic goal is internally inconsistent with the Historic objectives and policies; or the Historic provisions are inconsistent with the criteria that objectives be measurable and policies describe how programs and activities will achieve the goals. None of the Historic provisions contradicts any of the Data and Analysis concerning historic resources. The Historic objectives and policies are in no way inconsistent with the Historic goal of preservation. The Historic objectives are measurable, and the policies describe how programs and activities will achieve the goals. Miscellaneous Provisions Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of establishing a level of service standard for recreational facilities. Recreation Objective 3 and Policy 1 establish a level of service standard for recreation by acreage. Policy 2 addresses the facilities that must be constructed for each park used to satisfy the recreational level of service standard. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of including in the Schedule of Capital Improvements projects necessary to achieve a level of service D for roads. No roads for which Bradenton is fiscally responsible are predicted to attain a level of service standard more congested than D during the planning timeframe.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs submit the Recommended Order to the Administration Commission for entry of a final order determining that Bradenton's plan is not in compliance for the reasons set forth above. ENTERED this 13th day of February, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1992.
The Issue The issue for determination is whether Petitioner is liable for the costs and expenses incurred by Respondent in responding to a pollutant discharge, occurring on November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and for damages to natural resources resulting from the pollutant discharge.
Findings Of Fact On November 6, 1992, a DC-7 airplane crashed off the Atlantic Coast of Florida, more particularly, 100 yards from John Lloyd State Park, and one quarter of a mile north of Dania Pier in Dania, Florida. The DC-7 was a chartered cargo airplane and had departed from Miami International Airport. The DC-7 was chartered from Claudio Castillo by Miguel Delpino, United States General Manager of Aerochago Airlines, to carry cargo for Aerochago Airlines. Even though Aerochago Airlines owned aircraft, its aircraft was unavailable due to maintenance work being performed. During the flight from Miami International Airport, the DC-7 developed engine trouble, i.e., two of its engines failed. The aircraft began to lose altitude. In an attempt to regain altitude, the captain of the aircraft dumped 3,000 gallons of aviation fuel. However, the DC-7 failed to regain altitude and crashed. Remaining on the crashed aircraft were 3,000 gallons of aviation fuel and 150 gallons of motor oil. When the DC-7 crashed, only the crew and two passengers were on board. One of the passengers was Mr. Castillo. On the same day of the crash, the Florida Marine Patrol (FMP) of the Department of Natural Resources, now the Department of Environmental Protection (DEP), arrived at the crash scene at 3:20 a.m. and investigated the crash. The DEP had four employees investigating the crash: three FMP officers and one employee from the Office of Coastal Protection. The remaining aviation fuel and motor oil in the crashed DC-7 was discharging into the coastal waters. The DEP employees attempted to abate the discharge. The equipment necessary for the employees' investigation of the crash and abatement of the discharge and the cost for the equipment were the following: (a) a DEP vehicle at a cost of $7.00; (b) a twin engine vessel at a cost of $120.00; (c) an underwater sealant kit at a cost of $16.66; (d) scuba tanks at a cost of $9.00; and (e) photographs at a cost of $24.00. The total hours expended by DEP's four employees were 36 hours, at a cost of $685.84. Due to the DC-7 leaking aviation fuel and motor oil into Florida's coastal waters, removal of the aircraft from the Atlantic Ocean was necessary. DEP contracted with Resolve Towing and Salvage (RTS) to remove the DC-7. RTS is a discharge cleanup organization approved by DEP. RTS' contractual responsibilities included removal of the entire DC-7 aircraft and all debris within 100 yards of the center of the aircraft; disposal of the aircraft; plugging the engines to help stop the leakage; and removal and delivery of the engines which failed to the National Transportation Safety Board (NTSB) and the Federal Aviation Authority (FAA). Because the submerged DC-7 was located in an environmentally sensitive coral and sea-plant area, RTS was required to use extreme care in removing the aircraft. The contractual cost was fixed at $34,000.00 A DEP employee, Kent Reetz, was at the scene of the crash during RTS' cleanup. His responsibility was to monitor the removal of the DC-7 by RTS and to ensure that the aircraft's removal was in compliance with DEP's standards. During the removal of the DC-7 from the water, the fuselage ruptured, scattering debris which was dangerous to the public and to the coral and sea-plants. DEP determined that RTS was not responsible for the fuselage rupturing, but that the rupture was caused by several storms, prior to the aircraft's removal, and by the aircraft being submerged for an extended period in salt water. DEP contracted with RTS to remove the dangerous debris emitted when the fuselage ruptured. The contractual cost was fixed at $9,050.00 The total contractual cost between DEP and RTS was $43,050.00. DEP paid RTS from the Coastal Protection Trust Fund. In responding to the pollutant discharge, DEP incurred a total cost of $43,912.50. DEP assessed damages to the natural resources based upon the amount of pollutants discharged which were 3,000 gallons of aviation fuel and 150 gallons of motor oil. Using the statutory formula, DEP assessed damages to the natural resources in the amount of $57,898.72. Based upon the costs incurred by DEP in responding to the pollutant discharge in the amount of $43,912.50 and the damages to the natural resources in the amount of $57,898.72, DEP sought reimbursement and compensation from Mr. Castillo in the total amount of $101,811.22. DEP invoiced Mr. Castillo for reimbursement of the costs and for compensation for the damages. DEP provided Mr. Castillo with detailed and itemized expense documents for the costs that it had incurred in responding to the pollutant discharge. The documents showed the expenses incurred, what each expense represented, and the formula for computing each expense. Further, DEP provided Mr. Castillo with a document showing the amount of the damages to the natural resources, the formula for computing the damages, and how the damages were computed. The charter of November 6, 1992, was not the first time that Mr. Delpino had chartered the same DC-7 from Mr. Castillo. Prior to and, again, at the previous charter, Mr. Castillo represented to Mr. Delpino that he, Mr. Castillo, was the owner of the DC-7. The owner of a chartered aircraft is responsible for obtaining the aircraft's crew and insurance and for maintaining the aircraft. For the previous charter, Mr. Castillo was responsible for obtaining the DC-7's crew and the insurance and for maintaining the aircraft. Mr. Delpino had no reason to expect the charter for November 6, 1992, to be any different. Furthermore, Mr. Castillo did not inform Mr. Delpino that the responsibilities would be different. For the present charter, as before, Mr. Castillo handled all matters relating to the crew, insurance, and maintenance. Regarding the insurance, Mr. Castillo presented to Mr. Delpino an insurance certificate which, after the crash, was discovered to be false. Also, regarding maintenance, prior to the crash, the two engines which failed were to be removed and repaired, but, although they were removed, they were returned without being repaired. Mr. Castillo was the owner of the DC-7. Also, the crash of the DC-7 was investigated by several federal governmental agencies, including the FAA, the U.S. Coast Guard, and the NTSB. Both the Coast Guard and the NTSB issued reports on the crash, which identified Mr. Castillo as the owner of the DC-7. Mr. Castillo was responsible for the discharge of the 3,000 gallons of aviation fuel and 150 gallons of motor oil from the DC-7 into Florida's coastal waters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection (DEP) enter a final order assessing Claudio Castillo $43,912.50 for costs related to DEP responding to the pollutant discharge on November 6, 1992, at Florida's coastal waters off John Lloyd State Park, Dania, Florida, and $57,898.72 for damages to natural resources resulting from the pollutant discharge--all totaling $101,811.22. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997.
The Issue The issues to be determined in this case are whether the amendments to the Manatee County Comprehensive Plan adopted through Ordinance No. 11-01 (“Plan Amendments”), are "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2011).1/
Findings Of Fact The Parties Gulf Trust Development, LLC (“Gulf Trust”) is a Florida corporation doing business in Manatee County. Gulf Trust is the contract vendee of property owned by Robinson Farms, Inc. Robinson Farms, Inc., is a Florida corporation doing business in Manatee County and owning real property in the County. Manatee County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to section 163.3184. Standing John Neal, the owner and manager of Gulf Trust appeared and spoke at the May 5, 2011, transmittal hearing for the Plan Amendments and at a later work session of the Board of County Commissioners on the Plan Amendments. Neal testified that, on these occasions, he was speaking for Gulf Trust and for Robinson Farms. William Robinson, the president of Robinson Farms, confirmed that Neal was authorized in advance to represent Robinson Farms at the public meetings on the Plan Amendments. The County contends that there is no evidence that Neal represented any entity other than himself, but the testimony of Neal and Robinson constitutes evidence. The Plan Amendment All coastal communities must have a coastal management element of their comprehensive plans that, among other things, designates the coastal high-hazard area ("CHHA"). See § 163.3178(2)(h), Fla. Stat. The CHHA is defined in the statute as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model." The CHHA must be mapped in the comprehensive plan. See § 163.3178(9)(c), Fla. Stat. The Manatee County planning staff proposed the Plan Amendments as a response to the publication of the 2010 Statewide Regional Evacuation Study for the Tampa Bay Region ("Storm Tide Atlas") by the Tampa Bay Regional Planning Council. The Storm Tide Atlas is a public safety planning tool used to assist local governments with hurricane evacuation planning in a four-county region in the Tampa Bay Area, which includes Manatee County. It incorporates the SLOSH model to predict storm surge heights during hurricanes and includes storm tide zone maps depicting the landward extent of anticipated storm surge for the five categories of storms. The 2010 Storm Tide Atlas made use of a new mapping technique known as LIDAR, a remote-sensing laser terrain mapping system, which is more accurate than past technology used for topographic mapping. The Plan Amendments include an amendment to the definition of the CHHA, which brings the definition in line with the statutory definition. That change is not opposed by Petitioners. Petitioners' opposition focuses on the amended definition of Coastal Evacuation Area ("CEA") and the new maps of the CEA. The CEA is not a term used in chapter 163. The CEA is now defined in the Introduction and Definitions section of the Manatee Plan as follows: The evacuation for a Category 1 hurricane as established in the regional hurricane evacuation study applicable to Manatee County pursuant to Ch. [sic] 163.3178(2)(h), F.S. as updated on a periodic basis. The CEA is a tool for emergency management. It identifies the area where people must evacuate in the event of a category 1 hurricane. The purpose of the CEA is described in Policy 2.2.2.4.2 as follows: To limit population in the Category 1 hurricane evacuation area requiring evacuation during storm events. To limit the amount of infrastructure, both private and public, within the CEA Overlay District and thereby limit magnitude of public loss and involvement in mitigating for loss of private infrastructure to Manatee County residents. To, through exercise of the police power, increase the degree of protection to public and private property, and to protect the lives of residents within the CEA, and reduce the risk of exposing lives or property to storm damage. To accomplish shoreline stabilization along coastal areas by limiting development activity which may adversely impact shoreline stability. To protect coastal water quality by reducing impervious surface along coastal areas, thereby reducing the risk of incomplete treatment of stormwater runoff before discharge into coastal waters. To encourage, establish and maintain vegetative and spatial buffer zones, in order to maintain the capacity of natural vegetative communities in mitigating the negative effects of storm surge and tidal velocity, and the erosive effect of wave action. Policy 2.2.2.4.5 prohibits any amendment to the Future Land Use Map that would increase allowable residential density on lands within the CEA. Whether the CEA and the CHHA are the Same The Plan Amendments would change the definition of the CEA to remove the reference to section 163.31878(2)(h): Coastal Evacuation Area (CEA) - The evacuation Level A for a Category 1 hurricane as established in the hurricane evacuation study applicable to Manatee County, as updated on a periodic basis. Petitioners claim that the current definition of the CEA, cited in paragraph 11, above, makes the CEA identical to the CHHA and that by removing the reference to section 163.3178(2)(h), the CEA and the CHHA would be different for the first time. Although the definition of the CEA refers to section 163.3178(2)(h) where the CHHA is defined, the definition of the CEA does not express the proposition urged by Petitioners -- that the CEA and the CHHA are identical. As explained below, in order to map the CEA, the County begins with the map of the CHHA and then makes adjustments to it. Therefore, it is not illogical for the definition of the CEA to refer to section 163.3178(2)(h). The reference to the statute does not compel an interpretation that the CEA was intended to be identical to the CHHA. Another definition of the CEA appears in Policy 2.2.2.4.1 of the Future Land Use Element ("FLUE"). There, the CEA is defined as "the geographic area which lies within the evacuation area for a Category 1 hurricane." This definition of the CEA does not refer to section 163.3178(2)(h). Some of the testimony from County employees about the relationship between the CEA and the CHHA was ambiguous, but the ambiguity can be attributed to the way the witnesses were examined by Petitioners. Three County planners were each asked to admit that, because the definition of the CEA (in the definitions section of the Manatee Plan) refers to section 163.3178(2)(h), the CEA and the CHHA must be the same thing. The questions confused the witnesses. Kathleen Thompson, the Planning Manager, did not think the CHHA and the CEA are the same, Sharon Tarman, a planner, said they are. John Osborne, the Planning and Zoning Official, said the definition of the CEA "implied" that the CEA and CHHA are the same. A quick glance at the existing maps of the CHHA and the CEA in the Manatee Plan is sufficient to reveal that that the CHHA and the CEA are not the same. See Manatee County Exhibit 1, pages 232-234. The CHHA has irregular boundaries. The CEA is larger and has many regular (straight line) boundaries. Considering the two definition of the CEA, the ambiguous testimony of the County planners, and the CHHA and CEA maps, it is found that one definition of the CEA is ambiguous, but the County intended the CEA and the CHHA to be different and, as implemented, the CEA and the CHHA are different. The proposed change to the definition of the CEA in the definitions section to remove the reference to section 163.3178(2)(h) eliminates the ambiguity in the definition and makes it conform to the definition in FLUE Policy 2.2.2.4.1. It is not a substantive change. The CHHA is the area below a category 1 storm surge line as produced by a computer model. In contrast, the CEA is an evacuation zone. The Storm Tide Atlas states that emergency management officials use several factors in determining evacuation zones, not just storm surge data: [I]t is important to note that the storm tide boundaries are not the only data used in this determination. Local officials use their knowledge of the area and other data such as: areas of repetitive loss, surge depth, freshwater flooding, isolation issues and debris hazards, and typically choose known landmarks to identify boundaries for public warning and information. In Manatee County, emergency management officials started with the CHHA line, and then adjusted the boundaries to follow streets, natural geographical features, and parcel boundaries so that the resulting CEA provided a better tool for emergency management and public information. That is why the CHHA has irregular boundaries, but the CEA has many regular (straight line) boundaries. The proposed CEA includes 10,690 fewer acres than the existing CEA because of the substantial changes that resulted from using the newest generation of the SLOSH model and the new LIDAR technology. The proposed CEA includes 8,365 more acres than are within the proposed CHHA as a result of the adjustment of the CHHA line to coincide with nearby streets and other geographic features, and with parcel boundaries. Petitioners argue that the effect of the change in the definition of the CEA is to add 8,365 acres to the area which is subject to the prohibition in Policy 2.2.2.4.5 against increases in allowable residential density. However, because the change in the definition of the CEA is not substantive, the real effect of the new mapping of the CEA is to reduce the lands subject to the prohibition by 10,690 acres. Public Notice Petitioners contend that public notice requirements were not met for the public hearings for the Plan Amendments. That contention is based on the claim that the Plan Amendments cause 8,365 acres of land to be added to the area subject to the prohibition against future increases in allowable residential density. Because that claim is rejected, Petitioners public notice issues are also rejected. Furthermore, as discussed in the Conclusions of Law, allegations of inadequate public notice are irrelevant in a compliance determination. Data and Analysis Petitioners argue that the Plan Amendments are not based on relevant and appropriate data and analysis. The argument is based in large part on Petitioners' contention that the CEA and the CHHA used to be co-extensive, which is rejected above. Petitioners claim that the County failed to consider flooding, wave height, and other factors when mapping the CEA. The CEA boundaries were placed at streets and other physical landmarks as well as parcel boundaries, in order to make the area subject to evacuation clearer for emergency management officials and the public.2/ This is a sufficient basis to explain the boundaries of the CEA. The relevant data for such a purpose would be the location of the CHHA in relationship to nearby streets, other physical landmarks, and parcel boundaries. Petitioners did not show that any particular CEA boundary was illogical or inappropriate. Mitigation Petitioners contend that the Plan Amendments do not include the mitigation measures referred to in section 163.3178(9)(a). The statute states that a proposed amendment shall be found in compliance with the state coastal high-hazard provisions if: The adopted level of service for out-of- county hurricane evacuation is maintained for a Category 5 storm event as measured on the Saffir-Simpson scale; or A twelve hour evacuation time to shelter is maintained for a Category 5 storm event as measured on the Saffir-Simpson scale and shelter space reasonably expected to accommodate the residents of the development contemplated by a proposed comprehensive plan amendment is available; or Appropriate mitigation is provided that will satisfy Subparagraph 1 or Subparagraph 2 above. Appropriate mitigation shall include, without limitation, payment of money, contribution of land and construction of hurricane shelters and transportation facilities. Required mitigation may not exceed the amount required for a developer to accommodate impacts reasonably attributable to development. A local government and a developer shall enter into a binding agreement to memorialize the mitigation plan. These provisions are stated as alternatives. The mitigation measures referred to in subparagraph 3. are only applicable if the criteria stated in subparagraph 1. or 2. are not met. Petitioners did not prove that the County does not meet the standard described in subparagraph 2. Furthermore, as discussed in the Conclusions of Law, section 163.3178(9) does not require that the mitigation measures described in subparagraph 3. must be included in a comprehensive plan.
Recommendation Based on foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendments adopted by Manatee County Ordinance No. 11-01 are in compliance. DONE AND ENTERED this 2nd day of March, 2012, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2012.
The Issue The issue for determination in this proceeding is whether Respondent should issue a permit for coastal armoring to protect Petitioners' homes.
Findings Of Fact The Parties Petitioners are "property and/or riparian owner[s]" within the meaning of Section 161.053(5)(a). Petitioners own two single family residences situated on contiguous sites on highway A1A in Orchid Island, Indian River County, Florida. Each site fronts the Atlantic Ocean and extends landward from the mean high water line. Petitioners' homes are major habitable structures within the meaning of Florida Administrative Code Rule 16B- 33.002(54)(a) and 16B-33.005(3)(b) and (c). 2/ Each home is a two story residence that includes a garage, swimming pool, and patio. The foundation of each home is a nonconforming foundation within the meaning of Rule 16B-33.007(4). 3/ Petitioners' application for a coastal armoring permit was prepared and submitted in accordance with the requirements of Section 161.053(5), Rule 16B-33.008, and other agency requirements. Respondent determined that the application was complete on or before August 14, 1990. Respondent is the agency responsible for assessing applications for coastal armoring permits. Respondent recommends action to the Governor and Cabinet. The Governor and Cabinet sit as the agency head and take final agency action. Respondent was formerly known as the Department of Natural Resources ("DNR"). On July 1, 1993, the Department of Environmental Protection ("DEP") was created, and DNR was reorganized into DEP. 1993 Laws Of Florida, Chapter 93-21. Intervenors represent the interests of marine turtles and their nesting habitats. Intervenor, Center For Marine Conservation (the "Center"), is a nonprofit organization that researches marine life. The Center has 8,000 contributing members in Florida that enable it to conduct research and conservation activities. Intervenor, Donna Devlin, is an officer of the Center and citizen of the state. Intervenor, Caribbean Conservation Corporation ("CCC"), is a not-for-profit Florida corporation engaged in sea turtle research and conservation in Florida. The CCC receives support from private foundations and the contributions of its 5,000 members. Background Petitioners began construction of their homes prior to March 4, 1987. At the time construction began, the coastal construction control line defining that portion of the beach-dune system subject to fluctuations based on a 100 year storm surge (the "CCCL") 4/ was located seaward of Petitioners' homes. On March 4, 1987, the CCCL was reestablished and moved landward of Petitioners' homes. By that time, construction had progressed sufficiently, and both houses were grandfathered by applicable regulatory restrictions. The foundation of each home is a nonconforming foundation within the meaning of Rule 16B-33.007(4). The foundations are not designed to resist the predicted forces associated with a one-hundred-year storm event, do not elevate the support structures of the homes above the breaking wave crests or wave uprush projected for such a storm, and do not meet other applicable design criteria. On Thursday, March 9, 1989, a Northeast storm impacted the east central coast of Florida. The storm lasted approximately five days 5/ and eroded the shoreline in Indian River County including that portion in front of Petitioners' homes. The dune fronting Petitioners' homes was severely undercut by wave action from the storm. The dune in front of Petitioners' property suffered 10 feet of bluff line recession. On Saturday, March 11, 1989, Petitioner, Machata, telephoned Respondent at its Tallahassee office for authority to protect his home from the forces of the storm. Mr. Machata was referred to the Division of Emergency Management. Mr. Machata telephoned the Division of Emergency Management at 10:30 a.m. on March 11, 1989, and spoke with Mr. Bill Whiney. Mr. Whiney advised Mr. Machata that the Division was aware of the storm and had delegated emergency management to Mr. Douglas Wright, Director of Emergency Management, Indian River County. Mr. Wright conducted a site inspection within an hour of Mr. Machata's telephone call. The dune was being undercut, and waves were striking near the top of the dune. Mr. Wright did not get near the bluff line for fear that the dune would collapse. Mr. Wright authorized the temporary placement of large quarry rocks on the seaward side of the dune. The rocks were placed at the toe of the dune on Saturday and Sunday, March 11 and 12, 1989. Mr. Wright instructed Petitioners to contact Respondent on Monday, March 13, 1989, for a permit to construct a permanent rock revetment or other bulkhead. On Wednesday March 15, 1989, an inspector for Respondent confirmed that construction of a rock revetment had begun without benefit of a permit from Respondent. Respondent advised Mr. Machata to stop construction of the rock revetment pending application for, and approval of, a coastal armoring permit. Mr. Machata immediately ceased further construction. At that point, a rock revetment 110 feet long had been placed along the toe of the dune in front of Mr. Machata's house. On July 19, 1989, Petitioners filed an application for a permit to complete construction of the rock revetment. Following several meetings and correspondence between Petitioners and Respondent, Respondent determined that the proposed revetment failed to comply with applicable requirements. At the behest of Respondent, Petitioners agreed to apply for a permit to construct and maintain the steel sheet pile bulkhead at issue in this proceeding. Respondent agreed to recommend approval of the steel sheet pile bulkhead, in place of the rock revetment, if Petitioners demonstrated their homes are vulnerable to a 10 to 15 year return interval storm event (a "RISE"). The return interval of a storm is its statistical probability of occurrence. A lower return interval indicates a greater probability of occurrence and a higher rate of frequency. A high frequency storm is a storm with a return interval of 25 years or less. Storms with a return interval greater than 25 years are major storms with greater storm force. 6/ On April 17, 1990, Petitioners submitted an application for a permit to construct and maintain a vertical steel sheet- pile bulkhead 303 feet long. The proposed bulkhead is located as far landward as possible. It is 10 to 15 feet landward of the dune bluff line and vegetation line and 23 feet seaward of Petitioners' existing patios. All work on the bulkhead is to take place landward of the steel wall. The proposed bulkhead is designed to withstand the force of a high frequency storm with a return interval of 25 years. The design, engineering, and construction required to protect Petitioners' homes reflects the storm force associated with a high frequency storm. The steel wall will be constructed with 300 to 400 individual sheets of corrugated steel placed in the shore parallel direction. Each sheet is 25 feet long, 18-24 inches wide, 3/8 inches thick, and weighs approximately 1000 pounds. The sheet piles will be stockpiled on site and transported to the dune by a crane equipped with a vibratory hammer. The first sheet pile will be placed at one end of the proposed bulkhead and partially driven into the sand with the vibratory hammer. The next sheet pile will be threaded and interlocked with the first through the coupling joints and partially driven into the sand. After 50 feet of the proposed wall is put in place, the piles in that 50 foot section will be driven to their design depth. The remaining portion of the wall will be completed in 50 foot segments using the same procedure. Once the sheet piles are in place, 20 foot long steel tie rods will be placed through and connected to the piles near their top. The tie rods will be on the landward side of the piles arranged perpendicular to them. The tie rods will be spaced 15 feet apart, on center, along the entire length of the sheet pile wall. The tie rods will be encased in poured concrete. The other end of the tie rods will be secured to a concrete anchor buried in the soil (a continuous "deadman"). The deadman will run parallel to the sheet pile wall approximately 20 feet landward of the wall. The deadman is constructed with concrete formed and poured in place with reinforcing steel. The steel pile wall is connected to the deadman with tie rods to increase the stability of the sheet pile wall and to achieve the designed level of protection. Forty foot return walls at each end of the bulkhead will run landward of Petitioners' lot lines. The return walls ensure the stability of the bulkhead during storm attack by preventing erosion of sand landward of the bulkhead. A concrete cap will be poured in place on top of the sheet pile wall. The proposed bulkhead is less impactive than other rigid coastal armoring devices that provide equivalent protection. This form of armoring was proposed, in place of a rock revetment, at Respondent's request. It is uncontroverted that the design and construction of the proposed bulkhead meets all applicable engineering and structural design criteria. On May 22, 1990, Respondent issued a letter of intent to approve the proposed bulkhead and gave landowners adjacent to Petitioners' property notice of Respondent's intended action. Adjacent property owners did not object to the proposed bulkhead. Respondent's Division of Beaches and Shores recommended approval of Petitioners' application subject to stated conditions. On August 14, 1990, an agenda item recommending approval of Petitioners' application was considered by the Governor and Cabinet. The agenda item represented that Petitioners' homes are vulnerable to a 15 year RISE. After hearing arguments, the Governor and Cabinet denied Petitioners' application without explication. Immediately following the denial of Petitioners' application, the Governor and Cabinet directed Respondent's staff to develop a coastal armoring policy for the state. Armoring applications completed as of August 14, 1990, including Petitioners', were expressly exempt from the new policy. The Governor and Cabinet adopted a coastal armoring policy on December 18, 1990 (the "1990 policy"). The 1990 policy prohibits all coastal armoring within the Archie Carr National Wildlife Refuge. Petitioners' homes are located within the Refuge. A qualifying structure located outside the Refuge must be vulnerable to a five year RISE to qualify for coastal armoring. A notice of vulnerability caveat states that an applicant who constructs his or her home after the notice of the public hearing for the CCCL in the county in which the home is located is presumed to have notice of vulnerability and is disqualified from obtaining a coastal armoring permit. 7/ Since Petitioners' application was completed on or before August 14, 1990, the proposed bulkhead is expressly exempt from all of the provisions of the 1990 policy. No other applications were complete on or before August 14, 1990. A Final Order denying Petitioners' application for a coastal armoring permit was filed with Respondent's clerk on November 1, 1990. On November 19, 1990, Petitioners timely filed a petition for a formal administrative proceeding in accordance with Section 120.57(1). Agency Requirements Respondent consistently applies a multi-tiered test to assess applications for coastal armoring permits. The first tier consists of two parts. First, armoring must be proposed for a major habitable structure within the meaning of Rule 16B- 33.002(54)(a) and 16B-33.005(3)(b) and (c). Second, the applicant must state and "clearly justify" the "necessity" for protecting a major habitable structure, within the meaning of Rule 16B-33.005(1), and must show that the direct and cumulative impacts on the beach-dune system and marine turtles clearly justify the proposed armoring. If both requirements of the first tier are satisfied, Respondent then considers alternatives to the proposed armoring. Isolated rigid coastal armoring that does not close the gap in existing armoring, such as the proposed bulkhead, must be the only "feasible" means of protecting a major habitable structure. 8/ It is uncontroverted that Petitioners' homes are major habitable structures. Therefore, the issues for determination in this proceeding are whether Petitioners' have "clearly justified" the "necessity" for protecting their homes, whether the direct and cumulative impacts clearly justify the armoring, and whether the protection sought is the only "feasible" alternative. The phrase "clearly justify" is the test of both the "necessity" for armoring and the direct and cumulative impacts of armoring. Section 161.053(5)(a)3 requires Respondent to consider whether the direct and cumulative impacts on the beach-dune system clearly justify the proposed armoring. Rule 16B-33.005(7) states that: the proposed armoring may not have an adverse impact on the beach-dune system at the specific site; and a number of similar structures on the coast may not have a significant adverse cumulative impact. 9/ The cumulative impact doctrine has been applied as a policy of equitable distribution in permitting cases involving environmental control statutes. 10/ The doctrine is intended to distribute permitted activities without contravening applicable standards or the public interest. The cumulative impact of the proposed bulkhead on the beach-dune system and on marine turtles is not imposed in addition to other applicable requirements but is a factor to be considered in determining whether the proposed bulkhead is clearly justified within the meaning of Section 161.053(5)(a)3 and applicable rules. 11/ The terms "necessity", "clearly justify", and "feasible" are not defined in applicable statutes and rules. 12/ Respondent has issued written memoranda and uttered unwritten policy statements to provide guidance in defining the quoted terms. Respondent attempted to explicate the quoted terms in this proceeding. Necessity: Vulnerability To High Frequency Storms Under the 1990 policy, the "necessity" for armoring must be clearly justified by demonstrating vulnerability to a five year RISE. However, the proposed bulkhead is exempt from the specific RISE imposed by the 1990 policy. Respondent asserts that a 10 or 15 year RISE was used to assess vulnerability prior to the 1990 policy and should be applied in this proceeding. In order to ascertain the specific numeric standard of vulnerability applicable in this proceeding, if any, it is necessary to consider the emergence of the vulnerability requirement prior to the adoption of the 1990 policy. 13/ Emerging Vulnerability Requirement In November, 1984, a severe storm caused major erosion over wide expanses of the east coast of Florida (the "Thanksgiving Day storm"). A number of applications for coastal armoring followed. Respondent's staff prepared a report proposing specific policy directives to provide guidance in reviewing applications for coastal armoring. The policy directives were approved by the Governor and Cabinet on March 19, 1985. However, the Governor and Cabinet expressly directed staff to review armoring applications on a case-by-case basis and did not adopt a specific policy (the "1985 directive"). The first application for a coastal armoring permit to go before the Governor and Cabinet following the 1985 directive was filed by Seaplace Association, Inc. The application was for a buried, sloping rock revetment and returns seaward of the two- story Seaplace condominium. The Seaplace application was recommended for approval by Respondent and considered by the Governor and Cabinet as an agenda item on February 23, 1988. The agenda item prepared by Respondent stated that Seaplace was vulnerable to a RISE of less than 10 years. This was the first agenda item where vulnerability to a specific RISE was included in Respondent's justification for a proposed coastal armoring permit. At the time that the agenda item was considered, Respondent's director stated that Respondent imposed a 20 year RISE to assess vulnerability in coastal armoring applications. The Governor and Cabinet denied the Seaplace application without explication. Following the denial of the Seaplace application, a storm impacted the shoreline in front of Seaplace causing erosion and further threatening the condominium. After a meeting with Cabinet aides, Respondent recycled the prior agenda item to reprint the document with no changes and brought the item back before the Governor and Cabinet with the same stated vulnerability. The Governor and Cabinet approved the Seaplace application on May 24, 1988, without explication. In approving the Seaplace application, the Governor and Cabinet neither explicitly nor implicitly adopted a specific RISE as a numeric standard for assessing vulnerability prior to the 1990 policy. The agenda items considered by the Governor and Cabinet on February 23 and May 24, 1988, did not recommend that the Governor and Cabinet adopt a 10 year RISE as a numeric standard for assessing vulnerability in all armoring applications but merely stated that Seaplace was vulnerable to a 10 year RISE. When the Governor and Cabinet considered the Seaplace application, they were informed by Respondent's director that Respondent used a 20 year RISE as a numeric standard for assessing vulnerability. When the Governor and Cabinet intend to adopt a policy, notice is given to the public prior to consideration of the proposed policy. No such notice was given prior to approving the Seaplace application on May 24, 1988. On February 7, 1990, Respondent issued internal memorandum PM-27-90 as a policy statement to guide staff in assessing the justification for rigid coastal armoring structures. Memorandum PM-27-90 states: . . . Existing policy on the use of rigid coastal protection structures is contained in Subsection 16B-33.005(3), Florida Administrative Code. The general policy restricts use of such structures . . . and permits them only if they are fully justified as the only feasible means of protecti[on]. . . . This policy [PM-27-90] provides guidance on the determination of justification for such structures. 2. Threat determination * * * b) The structure proposed to be protected is . . . exposed to direct impacts from hydrodynamic forces associated with high frequency storms and in danger of imminent collapse from such storms. (emphasis supplied) Memorandum PM-27-90 did not prescribe a specific RISE as a numeric standard for assessing vulnerability in all coastal armoring applications. It merely required a qualifying structure to be exposed to direct impacts from "a high frequency storm." A high frequency storm can have any return interval up to 25 years. The requirement in PM-27-90 that a qualifying structure be in imminent danger of collapse imposes neither a specific RISE nor an additional requirement for assessing vulnerability. After PM-27-90 was issued, for example, Respondent agreed to recommend approval of the proposed bulkhead if Petitioners demonstrated that their homes are vulnerable to either a 10 or 15 year RISE. When Memorandum PM-27-90 was superseded by the 1990 policy, it lost any general applicability it may have had within the meaning of Section 120.52(16). Since Petitioners' applications are the only applications exempt from the 1990 policy, the applicability of PM-27-90, if any, is not general but is limited to this proceeding. 14/ Respondent required, under the emerging policy in effect prior to the 1990 policy, that qualifying structures be "exposed to direct impacts from . . . high frequency storms." No numeric standard narrowed the scope of a "high frequency storm" to a specific RISE. Nor was a specific RISE identified in final agency action taken on specific applications prior to the adoption of the 1990 policy. While Respondent wishes to deviate from the general requirement for vulnerability that was in effect prior to the 1990 policy by imposing a specific RISE in this proceeding, Respondent failed to explicate a justification for such a deviation. 15/ In cases involving an eroding shoreline, the selection of a specific RISE to assess vulnerability is not intended to determine whether coastal armoring is going to be permitted. Rather, it is intended to determine when such armoring will be permitted and perhaps what form the armoring will take. 16/ The shoreline in the area of the proposed project is an eroding shoreline. Between 1972 and 1992, the shoreline in front of Petitioners' homes eroded at an annual rate of 1.7 feet. Respondent conducted shoreline surveys by registered surveyors at Respondent's monuments R-25 through R-30 in Indian River County. Petitioners' homes are located between monuments R-27 and R-28 and are closest to R-27. The field survey data is more reliable than historic shorelines from 1880-1968 depicted on maps submitted by Respondent and Intervenors during the formal hearing. Between 1972 and 1992, the bluff line at R-27 receded 42 feet. There was 50 feet of bluff line recession at R-25, 40 feet at R-26, and 43 feet at R- Between June, 1986, and March, 1992, five to six feet of dune recession occurred at R-27 with no evidence of dune recovery during that period. Since 1972, a significant decrease in the bluff line near Petitioners' homes has been caused by storms. The Thanksgiving Day storm caused 15 feet of bluff line recession. The storm in March, 1989, caused 10 feet of recession. The bluff line at the northern boundary of the Machata home receded 10 feet between 1987 and 1989. The bluff line at the southern boundary of his home receded seven feet during the same period. While the bluff line and mean high water line generally recede at the same rate, the mean high water line at R-27 receded 19.7 feet, or 3.4 feet a year, between 1986 and 1992, and 14.71 feet, or 2.6 feet annually, at R-28. Inlets constructed by government agencies cause 85 percent of the erosion along Florida's southeast coast. The Sebastian Inlet is the principal cause of erosion of the shoreline in front of Petitioners' homes. The erosion rate of the shoreline in front of Petitioners' homes can be expected to fall below one foot a year only if the Sebastian Inlet Management Plan to transfer sand is fully implemented. No evidence was presented to show when the plan will be implemented, if at all. As the shoreline erodes from the effects of the Sebastian Inlet and natural erosion, Petitioners' homes will eventually be vulnerable to a five year RISE. In the absence of any intervening changes, Petitioners will then satisfy the vulnerability requirement in the 1990 policy. However, Petitioners are expressly exempt from the specific vulnerability requirement in the 1990 policy and should not be required to wait until they comply with that requirement. Petitioners do not have to wait until their homes are vulnerable to a five year RISE if vulnerability is assessed using a 25 year RISE. A 25 year RISE is consistent with the design life of the proposed bulkhead. Rule 16B- 33.007(6)(b) requires that armoring: . . . should be designed for the minimum wave loads which are applicable for the design storm conditions which justify the [armoring]. . . . The design life of the proposed bulkhead is 25 years, but Respondent asserts that Petitioners must show that their homes are vulnerable to a 10 or 15 year RISE to clearly justify the necessity for the proposed bulkhead. Respondent failed to explicate a justification for deviating from Rule 16B- 33.007(6)(b) either by accepting a design life that is inconsistent with Respondent's vulnerability requirement or by assessing vulnerability with a RISE that is less than the 25 year design life of the proposed bulkhead. Absent the requisite justification for Respondent's deviation, Petitioners need only show that their homes are vulnerable to any high frequency storm including a RISE of 25 years. 17/ Vulnerability Clearly Justified By Computer Models Assuming that a specific RISE applies in this proceeding, Respondent asserts that either a 10 or 15 year RISE should apply. Respondent presented conflicting evidence concerning the specific RISE that should be applied to assess the vulnerability of Petitioners' homes. One of Respondent's experts, a professional engineer and administrator within the Division of Beaches and Shore, testified that Respondent's policy requires vulnerability to a 10 year RISE. However, the Division Director testified that Respondent's policy requires vulnerability to a 15 year RISE. The testimony of the Division Director was credible, persuasive, and consistent with Respondent's original recommendation of approval. Respondent, without deviation, determines whether a qualifying structure is vulnerable to a specific RISE through the application of computer models. Computer models analyze certain scientific parameters to mathematically simulate storm surge elevation and erosion for a high frequency storm. 18/ If the computer model shows that the eroded profile of the storm would reach the foundations of Petitioners' homes, then their homes are vulnerable to the specific RISE assumed for the storm. Applicable statutes and rules do not prescribe the computer model to be used in assessing the vulnerability of a qualifying structure. Since 1988, Respondent has relied exclusively on the Dean erosion model for such purposes. The Dean erosion model is named for its developer, Dr. Robert Dean at the University of Florida. 19/ The original Dean model supporting Respondent's recommendation that the Governor and Cabinet approve the proposed bulkhead shows that the eroded profile of a 15 year RISE would reach the foundation of Petitioners' homes. Therefore, each home satisfies the 15 year RISE imposed by Respondent to assess vulnerability in this proceeding. Another computer model commonly used to assess vulnerability to a high frequency storm is the EDUNE erosion model. The EDUNE model utilized by Petitioners' coastal engineer shows that the eroded profile of a 10 year RISE would reach the foundations of Petitioners' homes. Therefore, each home satisfies the 10 year RISE imposed by Respondent to assess vulnerability prior to the 1990 policy. 20/ Since less severe storms occur more frequently, Petitioners' homes are necessarily vulnerable to more severe storms that occur less frequently including storms with return intervals of 15 to 25 years. Computer models must be calibrated for high frequency storm events in order to accurately predict the erosion limits of such storms. The results of an erosion model that has not been properly calibrated may not be reliable. The Dean erosion model has not been calibrated for high frequency storm events. Dr. Dean is currently under contract with Respondent to develop the data base necessary to calibrate the Dean erosion model for high frequency storm events in each county in Florida. Dr. Dean has not completed his calibration for all counties in Florida including the site of the proposed bulkhead. Both the EDUNE model utilized by Petitioners' expert and the original Dean model utilized by Respondent were calibrated using erosion data from the Thanksgiving Day storm. However, neither erosion model utilized local calibration factors for the proposed project site. No storm hydrograph for the Thanksgiving Day storm is available for Indian River County and no site specific data is available for the proposed site. In the absence of local calibration data, the accuracy of any erosion model depends on the selection of proper input variables. A change in any input variable can alter the results of the model and affect its accuracy. The principal input variables for the Dean and EDUNE computer models are: the existing beach profile; the scale parameter, or A factor; the storm surge hydrograph; the storm surge run-up; and the erosion factor. Other input variables include wave height and parameters defining the eroded profile above the storm surge elevation. Each input variable is a specific number. Applicable statutes and rules do not prescribe numeric values to be used in calibrating erosion models. Instruction manuals prescribe some, but not all, of the numeric values to be used in the absence of local calibration data. The selection of proper input variables, in the absence of local calibration data, requires the exercise of professional engineering judgment. The reasonableness and competency of the professional judgment used in selecting proper input variables directly affects the accuracy of computer model results. An erosion factor of 1.5 was properly used in the original Dean model which showed that the eroded profile of a 15 year RISE would reach the foundations of Petitioners' homes. The Bureau of Coastal Engineering applies the Dean model exclusively for Respondent to predict erosion from high frequency storms and to assess the level of vulnerability for a qualifying structure. An erosion factor of 1.5 is the erosion factor approved by the Bureau of Coastal Engineering and consistently used in the Dean model. Use of an erosion factor of 1.5 is consistent with reasonable and appropriate professional judgment and Respondent's long standing practice. Due to differences in computer models, an erosion factor of 2.5 was properly used by Petitioners' expert in his EDUNE model to show that the eroded profile of a 10 year RISE would reach the foundations of Petitioners' homes. This is the appropriate and reasonable erosion factor to be used for the EDUNE model in the absence of local calibration data. The A factor is another input variable used in erosion modeling. The A factor defines the shape of the shoreline profile. The A factor is determined by numerically fitting the shoreline to the depth of the nearshore breaking wave. A higher A factor produces less erosion in the computer model. If the shoreline steepens beyond the depth of the nearshore breaking wave and the A factor is determined by fitting the shoreline to a depth beyond the nearshore breaking wave, the A factor will be increased and the erosive force of the projected storm will be decreased. The A factors used in the original Dean model and the EDUNE model were properly determined by fitting the shoreline to the depth of the nearshore breaking wave. Respondent's manual states that an A factor between 0.14 and 0.16 is most reliable. Use of an A factor of 0.15 is consistent with Respondent's manual and reasonable and appropriate professional judgment. The Revised Dean Model Respondent prepared a revised Dean model for the formal hearing. The return frequency approach used in both the original Dean model and EDUNE model measures the predicted force of a storm by emphasizing its storm surge elevation. The volumetric approach used in the revised Dean model measures storm force by emphasizing the erosive force of a storm. Both storm surge elevation and erosive force are threats to Petitioners' homes. However, the storm surge of an actual storm may or may not be proportional to its erosive force. The Thanksgiving Day storm, for example, had a storm surge elevation equal to a high frequency storm with a return interval of 15 years but an erosive force 2.8 times greater than a major storm such as hurricane Eloise in 1975. 21/ If a computer model is calibrated for a greater erosive force, the model can be used to demonstrate that the storm surge elevation of a less severe storm, with a lower RISE, produces an eroded profile that reaches the foundations of Petitioners' homes. Conversely, if a computer model is calibrated for a lesser erosive force, the model can be used to demonstrate that the storm surge elevation of the same storm produces an eroded profile that does not reach the foundations of Petitioners' homes. The revised Dean model prepared by Respondent for the formal hearing used an erosion factor of 1.0 to project the eroded profile. It showed that the eroded profile of a 15 year RISE would not reach the foundations of Petitioners' homes. In the absence of site specific data including storm surge elevation and a storm surge hydrograph for the Thanksgiving Day storm, use of an erosion factor of 1.0 was inconsistent with reasonable and appropriate professional judgment, Respondent's long standing practice, and the terms of Respondent's instruction manual. 22/ The A factor of 0.19 used by Respondent in the revised Dean model was neither appropriate nor reasonable. Respondent determined the A factor in its revised Dean model by fitting the shoreline profile to a depth substantially beyond the depth of the nearshore breaking wave. The shoreline steepens beyond the depth of the nearshore breaking wave. As the shoreline steepens, the A factor increases. By determining the A factor on the basis of the steeper profile, Respondent overestimated the value of the A factor and underestimated the erosive force of a 15 year RISE. The revised computer model prepared by Respondent assumed an erosive force that was disproportionate to the actual storm used to calibrate all of the computer models. Both the original Dean and EDUNE models were calibrated with erosion data from the Thanksgiving Day storm. The Thanksgiving Day storm had an erosive force that was disproportionate to its storm surge elevation and 2.8 times greater than a major storm such as hurricane Eloise in 1975. To the extent the volumetric approach in the revised Dean model assessed vulnerability by a standard other than storm surge, Respondent deviated from the storm surge criteria in existing statutes and rules. The CCCL is statutorily intended to define that portion of the beach-dune system subject to a specific storm surge. 23/ Respondent's rules describe design criteria for coastal armoring 24/ and conforming foundations 25/ by reference to storm surge. Respondent's rules also describe design criteria for qualifying structures by reference to hydrostatic and hydrodynamic loads during a storm surge. 26/ Evidence presented by Respondent to explicate its deviation from storm surge criteria in assessing vulnerability was neither credible nor persuasive and failed to overcome credible and persuasive evidence supporting the results of the original Dean model and EDUNE model. 27/ Respondent's inability to replicate the results of the EDUNE model is not a reasonable and appropriate basis for relying upon the revised Dean model and rejecting both the EDUNE model and the original Dean model. It is not possible to replicate modeling results without knowing each and every input variable used in the model to be replicated. Respondent did not know all of the input variables used by Petitioners' expert in the EDUNE model. In attempting to replicate the results of the EDUNE model, Respondent used input variables not used by Petitioners' expert. Notice Of Vulnerability The 1990 policy adopted by the Governor and Cabinet includes a notice of vulnerability caveat. The caveat provides that an applicant who constructs his or her home after notice of the public hearing for the CCCL in the county in which the home is located is presumed to have notice of vulnerability and is disqualified from obtaining a coastal armoring permit. Petitioners' applications are expressly exempt from the 1990 policy. Since Petitioners are not substantially affected by the 1990 policy, within the meaning of Sections 120.535(2) and 120.57(1)(b)15, it is not necessary to determine whether the notice of vulnerability provisions in the 1990 policy are generally applicable within the meaning of Section 120.52(16). The 1990 policy was adopted by the Governor and Cabinet three years after Petitioners began construction of their homes. At the time construction began, Respondent had no rule or policy giving notice to Petitioners that their construction activities may adversely affect their future ability to obtain a coastal armoring permit. Respondent advised Petitioners by separate letters issued on April 13 and 14, 1987, that their homes were exempt from the permitting requirements of the revised CCCL. At the time the CCCL was reestablished on March 4, 1987, Respondent determined on the basis of actual site inspections that Petitioners' homes were under construction within the meaning of former Rule 16B-33.002(56). 28/ The letters from Respondent in April, 1987, notified Petitioners that the foundations of their homes were nonconforming foundations and included a caveat that Respondent's staff would not recommend approval of any applications for coastal armoring to protect Petitioners' homes. The letters did not represent that the Governor and Cabinet would not approve their applications for coastal armoring permits. Petitioners began construction of their homes long before the notice of vulnerability policy was adopted in 1990. By the time Petitioner, Machata, received Respondent's letter in April, 1987, the entire substructure of his home was complete including the placement of 20,000 cubic yards of fill, the pouring of all footers, piles, grade beams, and retaining walls. Some plumbing and structural steel for the slab had been installed. When Petitioner, Lanzendorf, received a letter from Respondent, construction of his home was 80-90 percent complete and over $460,000 had been expended. It was not economically or legally feasible for Petitioners to stop construction of their homes when they received the letters issued by Respondent in April, 1987. Petitioners had already expended substantial sums on construction of their homes, and it is improbable that the lending institutions would have allowed construction to stop. The caveats contained in the letters issued by Respondent in April, 1987, were not timely under the circumstances and should have been issued prior to the beginning of construction rather than after substantial construction occurred. Notwithstanding its caveats, Respondent recommended approval of Petitioners' applications after Petitioners demonstrated that vulnerability to a 15 year RISE, but the Governor and Cabinet denied the application. Direct And Cumulative Impacts On The Beach-Dune System The proposed bulkhead, existing armoring, and proposed similar structures will have no significant adverse direct or cumulative impact on the beach-dune system within the meaning of Section 161.053(5)(a)3. The proposed bulkhead, existing armoring, and proposed similar structures will neither degrade the beach-dune system along that segment of the shoreline nor threaten the beach-dune system and its recovery potential within the meaning of Rule 16B- 33.005(7). Construction Construction of the bulkhead will not adversely affect the stability of the dune and will not damage vegetation seaward of the sheet piles. The sheet piles will be placed 10-15 feet landward of the dune bluff line and landward of the vegetation line. All construction will take place landward of the sheet piles. Excavation required to construct the proposed bulkhead is minimal. No excavation is required for placement of the tie rods in front of the Machata home. Only minor excavation is required for the deadman in front of the Machata home. The seaward and landward faces of the deadman will be covered with sand and not exposed except for a portion of the deadman in front of the Lanzendorf home. Due to dune elevation differences at the Lanzendorf home, a portion of the landward face of the deadman will be exposed. After removal of the forms used for the cap, tie rods, and deadman, the area between the sheet pile wall and the deadman will be filled with sand to bring the area up to a finish grade of 17.5 feet N.G.V.D. 29/ Any sand excavated to construct the bulkhead will be kept on site and used to build the grade to finish grade. The area between the sheet pile wall and deadman will be planted with native vegetation following placement of the sand. Impacts to dune vegetation landward of the steel wall will be temporary. Planted vegetation will provide protection to the dune from windblown erosion within one growing season. By the second growing season, planted vegetation will be of sufficient density to eliminate the initial impacts of construction. Before construction begins, Petitioners will place beach compatible sand at a 2:1 slope along the entire frontal dune escarpment within the limits of their property lines. The sand will provide additional stability for the dune during construction of the bulkhead and is consistent with the dune restoration plan required as a condition of the permit. The dune restoration plan requires Petitioners to place sand and vegetation in prescribed areas within 90 days of completion of construction. Dune restoration is a standard condition required by Respondent for the issuance of armoring permits. Natural Fluctuation Of The Beach-Dune System The beach-dune system is a balanced, interrelated system in a constant state of fluctuation. Natural erosion and accretion of sediment takes place as a result of coastal winds, waves, tides, and storms. Features of the beach-dune system are subject to cyclical and dynamic emergence, destruction, and reemergence. 30/ The beach-dune system cyclically accretes and erodes as a result of both storm impacts and seasonal changes. During storm events, elevated water conditions carry storm waves inland. Sediment from upland property is eroded. Storm waves carry the eroded material offshore and form an offshore sand bar. The sand bar protects the upland portion of the beach-dune system by tripping incoming waves, causing them to break offshore, and reducing the wave attack on the shoreline. Recovery of the upland portion of the beach-dune system occurs when a milder wave climate returns after a storm. Material from the sand bar is carried back to the upland property by normal wave activity. After the sand is deposited on shore, it is carried upland by wind, trapped by dune vegetation, and the dune previously eroded by the storm is rebuilt. In addition to storm events, seasonal changes cause fluctuations in the beach-dune system. The shoreline typically accretes during the summer when milder waves occur and erodes during the winter when wave action intensifies. When summer returns, the shoreline again accretes. Active Erosion From Armoring Erosion may be passive or active. Passive erosion occurs when the shoreline migrates landward during the natural fluctuation of erosion and accretion. Passive erosion is not an impact of the proposed bulkhead. The proposed bulkhead excludes sand landward of the bulkhead from the natural fluctuation of the beach-dune system. The proposed bulkhead will prevent the loss of sand landward of the bulkhead during storm events with a return interval of 25 years or less. Sand landward of the proposed bulkhead will be released into the beach-dune system in the event of a storm with a return interval of at least 25 years and sufficient force to destroy the proposed bulkhead. The proposed bulkhead will not cause erosion of the beach-dune system during storms with return intervals of less than 25 years unless the bulkhead is exposed and interacts with wave forces. The proposed bulkhead is located 10-15 feet landward of the dune bluff line and, therefore, will not initially be exposed to wave forces. The current annual rate of shoreline erosion near Petitioners' homes is 1.7 feet. At that rate of erosion, the proposed bulkhead would be exposed to wave action in approximately five to ten years in the absence of any mitigating action by Petitioners. If erosion of the shoreline exposes the proposed bulkhead to wave action, active erosion in the form of "scour" and "downdrift" may occur. Scour Scour would be caused by the interaction of the steel wall with storm tides and waves. 31/ Scour associated with a seawall is greater due to increased wave velocity caused by reflection of the wave energy off the seawall. Scour may occur during a storm event in front of the exposed bulkhead. Sand lost to scour will move immediately offshore in front of the bulkhead, as part of the sand bar, and eventually be returned to the shore during the recovery of the beach-dune system. A portion of the scoured sand will be diverted from the sand bar by longshore currents during the storm and redistributed within the littoral system. Downdrift Downdrift erosion occurs when longshore sediment is not transported from updrift to downdrift properties. When downdrift erosion occurs, downdrift properties are deprived of sand that otherwise would be transported from updrift properties. Downdrift erosion may occur if the shoreline retreats landward of the proposed bulkhead, the bulkhead protrudes onto the active beach, and interacts with waves. If all of those circumstances occur, the proposed bulkhead will trap sand on the updrift side of the bulkhead and deprive downdrift properties of sand to the extent of any sand trapped on the updrift side. Downdrift erosion, if any, caused by the proposed bulkhead will be limited to the dune area of the beach and will not result in a loss of sand to the beach-dune system. The amount of decrease in sand on the downdrift side of the proposed bulkhead will equal the amount of increase in sand to the updrift location. Renourishment There are several million cubic yards of sand in the littoral system in Indian River County. Any sand eroded at the location of the proposed bulkhead will be insignificant in comparison to the total amount of sand in the littoral system. Current natural erosion of the shoreline fronting Petitioners' homes causes a significantly greater volume of sand loss than may be caused in the localized area of the proposed bulkhead. Government devices in the region, including the Sebastian Inlet, cause significantly greater erosion to the shoreline in Indian River County than any erosion which may occur from the proposed bulkhead. Petitioners will place sand on the beach to offset or mitigate the sand retention features of the proposed bulkhead. Sand placement will be sufficient to offset any adverse impacts from scour erosion and downdrift erosion. Sand placement is common in Indian River County after storm events. Petitioners will conduct yearly shoreline profile surveys and maintain the shoreline profile in front of the proposed bulkhead through annual sand placement. Sand placement effectively mitigates any direct and cumulative adverse impacts from the proposed bulkhead. The beach profile adjacent to Petitioners' homes showed some recovery of the shoreline in the two year period around 1990. That recovery would not have been prevented by the proposed bulkhead. Proposed Similar Structures Proposed similar structures, within the meaning of Section 161.053(5)(a)3 and Rule 16B-33.005(7), include similar armoring under construction, pending applications for similar armoring, and similar structures that may reasonably be expected in the future. No additional armoring is under construction "along that segment of the shoreline." 32/ No pending applications are exempt from the 1990 policy, under review, approved, or vested along that segment of the shoreline. The 1990 policy prohibits all armoring within the Archie Carr National Wildlife Refuge and requires qualifying structures outside the Refuge to be vulnerable to a five year return interval storm event. Accordingly, no similar projects may reasonably be expected in the future. Respondent prepared a cumulative impact analysis for the proposed bulkhead in support of its recommendation for approval of the permit. That original cumulative impact analysis concludes that there is no potential for increased armoring within one mile north or south of the proposed project site. Respondent's original cumulative impact analysis is credible and persuasive. Revised Cumulative Impact Analysis Respondent prepared a revised cumulative impact analysis for the formal hearing. Respondent attempted to define proposed similar structures to include, not only similar armoring under construction and pending applications for similar armoring, but also future armoring that may occur if approval of Petitioners' application creates a precedent for armoring similarly situated properties. Respondent assessed the cumulative impact on the beach-dune system from such potential future armoring and attributed the potential impact entirely to the proposed bulkhead. In addition, Respondent expanded the definition of "that segment of the shoreline" in Rule 16B- 33.005(7) from a two mile segment of shoreline in its original analysis to an 18 mile segment in its revised analysis. 33/ Respondent evaluated a five region area beginning from a point south of Vero Beach in Indian River County and running north to a point south of Melbourne in Brevard County. Region 1 contains the proposed project site and is slightly south of midway in the area evaluated. 34/ Region 2 is immediately south of Region 1. Region 3 is immediately south of Region 2. Region 4 is immediately north of Region 1, and Region 5 is north of Region 4. The area evaluated excludes a portion of state-owned shoreline between Regions 4 and 5, including the Sebastian Inlet State Park. 35/ The shoreline within the boundaries of the five regions is 21.5 miles or 113,520 feet. Excluding the state-owned shoreline between Regions 4 and 5, the shoreline evaluated within the five region area totals 92,000 feet or 18 miles. The length of the proposed bulkhead is 303 feet. Respondent determined that there are 87 major habitable structures similarly situated to Petitioners' homes and that 9.8 percent of the shoreline in the area evaluated will be armored. Respondent determined that approval of Petitioners' application would increase armoring by: 280 feet in Region 1; 3,260 feet in Region 2; 4,145 feet in Region 3; 850 feet in Region 4; and 2,510 feet in Region 5. Respondent's cumulative impact analysis is not a valid application of the cumulative impact doctrine. The cumulative impact doctrine requires Respondent to consider the ". . . cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future." 36/ (emphasis supplied) Assuming arguendo that all 87 structures are "similarly situated" with Petitioners' property, armoring of all 87 structures can not reasonably be expected in the future. Respondent did not apply the 1990 policy in its cumulative impact assessment for the proposed project. Regions 1, 2, 4, and 5 are within the Archie Carr National Wildlife Refuge. The 1990 policy prohibits all coastal armoring within the Refuge. If the Governor and Cabinet require compliance with the 1990 policy, the proposed project will not create a precedent for armoring within Regions 1, 2, 4, and 5. Any armoring that occurs will be a result of non-adherence to the 1990 policy rather than an impact of the proposed project. Respondent did not apply the 1990 policy to qualifying structures outside the Archie Carr National Wildlife Refuge in Region 3. There are no armoring applications pending for any of the 87 structures identified by Respondent in its cumulative impact assessment, and no applications for any of those structures were complete on or before August 14, 1990. Unlike the proposed project, none of the 87 structures identified by Respondent are exempt from the 1990 policy. More than half of the 87 structures would not be vulnerable to a five year RISE under the 1990 policy. The terms of the permit for the proposed project provide that the permit does not create a precedent for armoring similarly situated structures. Permits issued by Respondent for new structures seaward of the CCCL include a caveat that a particular permit may not be considered as precedent for future applications by similarly threatened structures. Even if Respondent's determination is accepted on its face, a 9.8 percent increase in coastal armoring will not create a significant adverse impact on the beach-dune system. Moreover, several considerations suggest that Respondent's cumulative impact analysis is exaggerated. Respondent has promulgated no criteria in any rule to establish the length of shoreline or the number or size of the regions that must be included in any cumulative impact analysis. Rule 16B-33.005(7) requires that the cumulative impact of the proposed bulkhead must be assessed "along that segment of the shoreline." The prescribed segment of shoreline was expanded from 2 miles, in Respondent's original cumulative impact analysis, to 18 miles in Respondent's revised cumulative impact analysis. 37/ During the formal hearing, Respondent suggested several alternatives for determining the segment of shoreline that should be evaluated in assessing the adverse cumulative impact of the proposed project. Alternatives included: the same general area of the applicants' property; the local area; the entire east coast; the limits of the undeveloped portion of the shoreline on either side of the proposed structure; Vero Beach to the south; two miles on either side of the proposed bulkhead; the coastal cell; the area between two major areas of armoring; areas with similar processes; anywhere on the coast; a two mile segment of shoreline; the area in close proximity; and more areas other than the regions actually used by Respondent in its cumulative impact analysis. In the revised cumulative impact analysis, Respondent included the entire width of the shoreline within the property boundary for each of the structures. Respondent does not allow armoring to extend the entire shoreline of the property on which the armoring device is located. The 87 structures identified by Respondent are not similarly situated to Petitioners' homes. Respondent defined similarly situated structures as those located at a distance from the vegetation line that is similar to the distance between Petitioners' homes and the bluff line. Such a definition fails to take into account actual site conditions for a particular structure. Respondent relied solely on aerial photographs of the five region area to determine the distance between the vegetation line and each of the 87 structures. Aerial photographs provide only an approximation of the distance between the structure and the vegetation line. Respondent did not physically verify distances under actual site conditions ("ground truth"). If Respondent had ground truthed its cumulative impact analysis, site specific variations in the beach-dune system would significantly reduce potential armoring projected by Respondent. By not ground truthing actual site conditions for the 87 structures, Respondent failed to identify those structures that are not vulnerable to a five year return interval storm event due to enhanced dune viability. Respondent could not consider whether the beach-dune system at a particular site provided a structure with more protection due to: greater dune height; the condition of the shoreline; and the viability of the beach-dune system. If the foregoing considerations are taken into account, only 860 feet of shoreline in the five region area, or 0.8 percent, is subject to potential armoring. The impact on the beach-dune system of armoring 0.8 percent of the coastline in the five region area is inconsequential and will not have a significant adverse cumulative impact. It is unlikely that coastal armoring structures will be placed on publicly owned land. The State of Florida owns approximately 11,400 feet, or 22 percent, of the shoreline in the Archie Carr National Wildlife Refuge. The Refuge is within the State of Florida Archie Carr Conservation and Recreational Lands ("CARL") Project. The Refuge is ranked 7th on the 1992 CARL priority list. The priority ranking assigned to the Refuge means that Respondent has sufficient funds to acquire properties within the CARL project. Respondent has $10 million a year for the acquisition of land within the Archie Carr CARL project. Respondent could purchase the entire 9.5 miles of coastline in six years. Respondent has already purchased four parcels within the Archie Carr CARL Project totalling 29.88 acres. Respondent is actively negotiating with property owners and continuing to purchase land within the Archie Carr CARL Project. On October 22, 1991, the Governor and Cabinet authorized the purchase of 7.28 acres of land within the Archie Carr CARL Project. The United States Fish and Wildlife Service is also acquiring property in the Archie Carr National Wildlife Refuge. Congress appropriated $2 million in 1991 and $1.5 million in 1992 for the acquisition of such property. At the formal hearing, Respondent claimed that it would have to be 100 percent certain that no additional permits for armoring would be issued as a result of the proposed bulkhead in order for there to be no cumulative impact. As a practical matter, such a standard has the effect of a complete ban on all armoring and is clearly more restrictive than the 1990 policy from which the proposed bulkhead is exempt. Applicable statutes and rules do not authorize such a ban. Such a ban contravenes, not only existing statutes and rules, but also the express exemption granted by the Governor and Cabinet. Direct And Cumulative Impacts On Marine Turtles Florida has the second highest incidence of marine turtle nesting in the world. Loggerhead, green, and leatherback turtles currently nest on Florida beaches. Green turtles are endangered species while leatherbacks and loggerheads are threatened species. Respondent conducts yearly surveys of marine turtle nesting beaches and compiles the information in nesting summary reports. Nesting densities for each species are generally expressed as nests laid per kilometer of shoreline. Actual leatherback nests surveyed from Canaveral to Key Biscayne totaled 114 in 1991. One was located in the Canaveral National Seashore area. Another 44 and 32 were located on Hutchinson Island and Jupiter Island, respectively. Three nests were located in Boca Raton. Four nests were located in Broward County. Thirty nests were located in the Juno/Jupiter area. 38/ It is improbable that leatherback turtles will nest on the beach-dune system in front of Petitioners' homes. No leatherback turtles have ever been found on the beach in front of Petitioners' homes. Nesting densities for leatherback turtles are greater in St. Lucie, Martin, and Palm Beach counties than leatherback nesting densities in Indian River County. The Wabasso Beach survey area covers eight kilometers and includes the proposed project site. 39/ Wabasso Beach is not a significant nesting area for leatherback turtles. Nesting densities for leatherback turtles in Wabasso Beach are very low. Only one leatherback nested along the eight kilometers in Wabasso Beach in 1989, resulting in a nesting density of 0.125. There were no nests in 1990. The nesting density in 1991 was 0.62. The number of leatherback turtles that may be found in front of Petitioners' homes, expressed as a percentage of 1991 nesting density for Wabasso Beach, is 0.006. Wabasso Beach is not a significant nesting area for green turtles. In 1990, 2,055 green turtle nests were laid on the beaches from Canaveral to Key Biscayne. Wabasso Beach ranked fourth in nesting quality behind Jupiter Island, Brevard County, and Juno Beach. The likelihood of a green turtle nesting in front of Petitioners' homes is low to very low. Green turtle nesting densities for Wabasso Beach from 1989-1991 were as follows: 14 nests or 1.75 nests per kilometer in 1989; 55 nests or 6.9 nests per kilometer for 1990; and 7 nests or 0.87 nests per kilometer in 1991. Expressed as a percentage of nesting density for Wabasso Beach, the number of a green turtle nests to be found in front of Petitioners' homes was 0.0175 in 1989, 0.069 in 1990, and 0.0087 in 1991. 40/ Wabasso Beach is not a significant nesting area for loggerhead turtles. In 1990, 55,935 loggerhead nests were laid on the beaches from Canaveral to Key Biscayne. Wabasso Beach ranked fourth in nesting density behind Jupiter Island, Juno Beach, and south Brevard County. The nesting density for loggerhead turtles in Jupiter Island and south Brevard County, respectively, was five and two times greater than the nesting density in Wabasso Beach. Loggerhead nesting densities for Wabasso Beach from 1989-1991 were as follows: 1,256 nests or 157 nests per kilometer in 1989; 1,155 nests or 144.4 nests per kilometer for 1990; and 1,758 nests or 219.7 nests per kilometer in 1991. Even though Wabasso Beach is not a significant nesting area for loggerheads, it is likely that loggerhead turtles will nest on the beach-dune system in front of Petitioners' homes. Eleven loggerhead nests were laid on the beach in front of Petitioners' homes in 1990. On average, 13.2 loggerhead nests are laid in front of Petitioners' homes each season. Even if all of the green turtle and loggerhead nests laid in front of Petitioners' homes are destroyed as a result of the proposed project, that unlikely loss would not have a significant adverse impact on the total population of green and loggerhead turtles. Based on the number of nests and the number of times a female nests each season, there are 750 to 1,000 female green turtles and 20,000 to 25,000 female loggerhead turtles in the area between Canaveral and Key Biscayne. The loss of anywhere from 0.0087 to 0.069 green turtle nests and the loss of 13.2 loggerhead turtle nests would be insignificant compared to the overall turtle population for each species. The number of loggerhead nests destroyed in front of Petitioners' home, for example, would be 0.00009 percent of the total nests laid in Florida. Nesting data indicates an upward trend for both green turtles and loggerheads. The proposed bulkhead will not have an adverse impact on the upward trend for either species. Marine turtles do not nest landward of the dune bluff- line or vegetation line. The proposed bulkhead is located landward of the dune bluff line and landward of the vegetation line. Construction activities will not take place in the area of the beach where turtles nest and will not occur during the nesting season. Construction activities will not adversely affect the dune, will not cause damage to the dune, and will not destabilize the dune. False Crawls Adverse impacts on marine turtles from the proposed bulkhead, if any, will not occur unless erosion of the dune is so extensive that the proposed bulkhead is exposed. Even an exposed bulkhead will not have an adverse impact on marine turtles if a dry sandy area in the mid to high beach seaward of the bulkhead is available for nesting. If a nesting turtle encounters an exposed bulkhead, she probably will not nest at that site. She will likely return to the ocean, move up or down the beach, find a more suitable nesting area, and make her nest. This process is referred to as a false crawl. A turtle that false crawls at the site of the proposed bulkhead will not have far to go to nest at an unarmored site. The proposed bulkhead is only 303 feet long. The 1990 policy adopted by the Governor and Cabinet prohibits all armoring in the Archie Carr National Wildlife Refuge. Marine turtles frequently false crawl for reasons that are not completely understood. False crawls that occur when the bulkhead is exposed, if any, may not be attributable to the exposed bulkhead. A false crawl is not an abnormal event for marine turtles and is not necessarily harmful to them. Loggerheads may false crawl 50 percent of the time. In Wabasso Beach in 1990, there were 1,114 false crawls associated with 1,155 nests laid. Even on undisturbed beaches, the percentage of false crawls is as high as 50 percent. Marine turtles can successfully nest on the beach in front of the proposed bulkhead. Turtles have a long history of nesting in front of armoring structures in the Town of Jupiter Beach. Since March, 1989, turtle nests have been laid in front of the partial rock revetment at the toe of the dune escarpment along the shoreline fronting the Machata home. There is no evidence that these nests have not been successful. The percentage of false crawls in front of Petitioners' homes has been similar to false crawls on the rest of Wabasso Beach. Marine turtles sometimes emerge at low tide and nest below that portion of the beach inundated by high tide. Such nests are destroyed by the ensuing high tide. Waves and storm action commonly destroy turtle nests even on undeveloped and unarmored beaches. Racoon predation is a significant cause of turtle hatchling and egg mortality. Predation poses a considerably greater threat to eggs and hatchlings than does the proposed bulkhead. Exposed roots at the dune escarpment in front of Petitioners' homes may cause false crawls in the absence of the proposed bulkhead. Natal Beach Marine turtles return to their natal beach to nest. The proposed bulkhead will not adversely affect the ability of marine turtles to return to their natal beach. Female turtles return to a geographic area to nest. They do not return to the specific beach where they are hatched. Female turtles may nest on widely disparate beaches. One loggerhead that nested in the Carolinas also nested in Melbourne Beach. No tagged hatchling has ever returned to the specific beach where it was hatched. There is no agreement among experts on a precise length of beach that comprises a natal beach. However, the length of the proposed bulkhead is considerably smaller than the beach area encompassed by any definition of a natal beach. A turtle that returns to its natal beach and encounters an exposed bulkhead in front of Petitioners' homes can nest in another portion of its natal beach with no adverse impact from the bulkhead. Nest Relocation Marine turtles can be protected from adverse impacts of the proposed bulkhead through nest relocation. Nest relocation has a high success rate. Relocated nests attain hatchling success similar to that enjoyed by natural nests. In some cases, the hatchling success of relocated nests is greater than that of natural nests. Respondent routinely permits the relocation of large numbers of turtle nests. Thousands of nests have been relocated for threatened inundation, beach renourishment projects, beach cleaning, in heavy use areas, where lighting is a threat, and for research activities. In 1988, Respondent authorized the relocation of 199 loggerhead turtle nests in Brevard County for use in hatchling disorientation studies. More recently, Respondent allowed the Rosenstiel School at the University of Miami to relocate 10 nests to study the affect of sand on hatch success of loggerhead turtles. In 1990, Respondent issued permits allowing the relocation of 857 loggerhead turtle nests, containing 94,322 eggs, that were laid on portions of the beach in the City of Boca Raton, Jupiter Beach, Volusia County, Manalipan, and Daytona Beach. While Respondent has issued permits authorizing governmental agencies to relocate many thousands of turtle nests, Respondent maintains that it does not issue permits authorizing private parties to relocate turtle nests. However, Respondent's Division of Marine Resources has approved nest relocation as part of a sea turtle protection plan in the coastal armoring permit for Suntide Condominium. Petitioners have provided reasonable assurances that nesting turtles and their hatchlings will be protected. Petitioners have agreed to a number of permit conditions including the following: implementation of a sea turtle protection plan; implementation of a dune restoration plan within 90 days of the date the proposed bulkhead is completed; removal of the bulkhead once the bluff line recedes to the landward limit of either return wall; locating the bulkhead as far landward as practicable; placement of sand at a 2:1 slope along the entire dune escarpment adjacent to the bulkhead to enhance the stability of the dune; and yearly restoration of the beach profile fronting the bulkhead if surveys indicate that the profile has eroded. Relocation of turtle nests as an element of the sea turtle protection plan and the absence of any significant adverse direct or cumulative impacts provide reasonable assurances that nesting turtles, their hatchlings, and their habitat will be protected within the meaning of Sections 161.053(5)(c) and 370.12, and that the proposed project will not result in a "take" within the meaning of Section 370.12(1)(c)1. Other Considerations: Imminent Collapse; Public Access; And Local Requirements Petitioners' homes are not within the zone of imminent collapse within the meaning of Federal Emergency Management Agency ("FEMA") rules. The state is not qualified to issue certificates of imminent collapse under Section 1306(c) of the National Flood Insurance Act, as amended. Special permit conditions recommended by Respondent assure public access in the event erosion of the beach results in little or no dry sandy beach for access between the water and the proposed bulkhead. Petitioners are required to provide written evidence that a restrictive notice has been provided in the deeds and covenants and restrictions and recorded with the Clerk of the Court for Martin County. The restrictive notice must provide for a perpetual public access easement across the entire shore parallel width Petitioners' property. The easement must provide appropriate means of access and egress and allow passage along the shoreline. Clearly designated signs advising the public of the easement must be appropriately placed on Petitioners' property. Respondent typically requires applicants to grant public access easements when Respondent issues an armoring permit that may interfere with public beach access. The existing rock revetment in front of Petitioners' homes satisfies local requirements regarding setback requirements or zoning or building codes. Respondent may condition its approval of the proposed bulkhead upon receipt of written evidence that the proposed bulkhead will not contravene local requirements. Respondent has done so in connection with an earlier application by CTP Realty, Inc. (a/k/a Pishock) for a coastal armoring permit in the same region as the proposed project. Only Feasible Alternative Once Petitioners have clearly justified the necessity for the proposed bulkhead and shown that the direct and cumulative impacts clearly justify the proposed bulkhead, Petitioners' must demonstrate that the proposed bulkhead is the only feasible alternative. Alternatives asserted by Respondent in this proceeding include: "do nothing"; sand placement; and home relocation. Do Nothing And Sand Placement Respondent asserts that Petitioners should do nothing and rely on the existing dune for protection against high frequency storms. The "do nothing" alternative is not technically feasible. The existing dune does not provide the necessary protection for Petitioners' homes. The receding bluff line, eroding shoreline, and threat from high frequency storms expose Petitioners' homes to a high level of risk. Respondent also asserts that Petitioners should restore the existing beach profile through sand placement. Sand placement that provides a level of protection equivalent to the proposed bulkhead is not economically feasible. Sand placement at that level would require the placement of sand at a rate of 1.7 to 2.0 cubic feet per foot of shoreline for one half mile on either side of Petitioners' homes and in front of the proposed bulkhead. Due to the eroding nature of the shoreline, sand placement would need to occur more than once a year and would be economically prohibitive. Relocation: Technical Feasibility It is not technically feasible to relocate the Machata home. The structural design of the Machata home is unique. It has a 35 foot clear story from the finish floor up to a major ridge beam that supports the entire roof structure. The ridge beam bears on a bearing wall at its south end and the vertical standing fireplace at its north end. The fireplace in the Machata home is a two story, 38 foot high structure. It is the main support for the entire roof system of the home. The fireplace is constructed with concrete masonry and stone veneer and weighs 250,000 pounds. The fireplace rests on a slab foundation and is supported by six to eight 25 foot long piles. The piles are an integral structural element of the fireplace. Girder trusses on the second floor are connected to both sides of the fireplace. The trusses accept the loading of the second floor framing. The fireplace in the Machata home is cantilevered at the second floor. A cantilever beam off the fireplace supports the second story of the fireplace. The cantilevered nature of the fireplace means the fireplace is top heavy, out of balance, and out of symmetry. In order to relocate the Machata home, it would be necessary to sever the piles from the fireplace support structure. The piles that must be severed bear the loading associated with the cantilevered nature of the fireplace. Severing those piles may cause the fireplace to collapse. If the fireplace collapses, the ridge beam will collapse, and a large portion of the home will be destroyed. There is a wide variation in structural loading in the Machata home. Structural loading exceeds a quarter million pounds at the center of the home. Perimeter wall loads are 3,000 pounds per square foot. Interior wall loads are 1,500 pounds per square foot. Variations in structural loading prevent the home from being moved without tilting. If the Machata home is tilted during relocation, the fireplace will tilt or move off center. Due to the cantilevered and top heavy nature of the fireplace, the center of gravity will shift from the center of the fireplace to a point outside the fireplace. A shift in the center of gravity will create bending stress on the fireplace. The fireplace is not reinforced and not designed to withstand bending forces. The fireplace may crack and break under bending forces and fail. If the fireplace fails, the ridge beam will collapse and a large portion of the home will be destroyed. Relocation of the Machata home will alter the location of the property securing the interest of the mortgagee. Under the terms of his mortgage, Mr. Machata can not damage or substantially change his property. Relocation: Economic Feasibility Relocation of Petitioners' homes is not economically feasible. The direct cost of relocating the Machata home and garage is $315,000. The direct cost of relocating the Lanzendorf home is $75,000. Direct costs of relocation do not include the cost of restoration after the move. Relocation costs include the reasonable cost of restoring Petitioners' homes to the condition they were in prior to relocation. Respondent failed to explicate a justification for not including such costs in its proposed alternative. Such costs include: rebuilding the swimming pools, patios, retaining walls, driveways, walkways, planters, terraces, and equipment enclosure walls; disconnecting, reconnecting, and refurbishing electrical, air conditioning, plumbing and septic systems; landscaping and repairing or replacing the irrigation systems; repairing or relocating fences; earthwork such as clearing and filling; constructing new foundations; and exterior and interior refinishing and reconditioning. The cost of restoring Petitioners' homes after relocation is: MACHATA LANZENDORF a. Exterior demolition 45,878 11,923 b. Interior demolition 12,375 0 c. Earthwork 88,727 46,033 d. Concrete for retaining walls, planters, equipment enclosure walls, footings, terrace and steps 84,909 5,600 e. Pilings 37,500 15,700 f. Rebuild interior fireplace 52,000 0 g. Exterior refinishing 74,770 10,800 h. House reconditioning 32,700 13,500 i. Pool area 23,500 26,500 j. Deck drain, flashing, water proofing 3,000 1,000 k. Electrical 12,665 8,400 l. Plumbing 12,500 8,500 m. Air conditioning systems 11,000 1,250 n. Site grading, irrigation, landscaping 33,192 14,000 o. Driveway 23,256 8,165 p. Temporary shoring and structural support 7,500 0 q. Consulting fees 12,500 3,500 SUBTOTAL 567,972 174,871 r. Contingencies, wastes, and unknowns 42,597 13,155 s. Overhead and profit 128,217 39,477 TOTAL 738,786 227,503 The cost estimates for restoration are reasonable and customary based on what a general contractor would typically submit on such a project. The cost of restoring the Lanzendorf home after relocation is $227,503. When this cost is added to the direct cost of relocation ($75,000), the total cost of relocating the Lanzendorf home is $302,503. The cost of restoring the Machata home after relocation is $738,786. When this cost is added to the direct cost of relocation ($315,000), the total cost of relocating the Machata home is $1,053,786. The patios and terraces at the Machata home are not moveable. The costs of relocating the Machata home, therefore, can not be reduced by moving the terraces rather than demolishing and rebuilding them. Estimated exterior demolition costs of $45,878 include the cost of demolishing the terraces, planter walls, pool steps, segments of the driveway and driveway access that would have to be removed to pour concrete runways on which the home would be rolled to its new location. The cost includes trucking and disposal of the demolition material. The pool at the Machata home can not be moved. It is a reinforced mesh, pencil rod structure, sprayed with gunite. The work reasonably necessary to relocate the Machata home and restore it to its condition prior to relocation would require the pool to be demolished and rebuilt. The estimated cost of $37,500 for constructing a new pile foundation for the Machata home includes pilings, steel reinforcing cages, transition caps, and grade beams. The cost of constructing a new foundation would be greater if Respondent requires the new foundation to comply with the requirements of the relocated CCCL. Estimated earthwork costs of $88,727 for the Machata home include: clearing the site; filling the site to elevate the relocated home to flood elevations required by local government and current elevation; and compacting the fill material. It would also be necessary to grade the site, redo the irrigation system, landscape the site and plant sod, and replace fences to restore the site to its condition prior to the relocation. The air conditioning system at the Machata home is a heat exchange system that utilizes two wells. One well is an artisan well. The other is a shallow well. There are numerous connections between the air conditioning equipment and the two wells. The two wells would have to be relocated and reconnected to the air conditioning system. The underground electrical service to the Machata home would have to be disconnected, relocated, and reconnected. Estimated costs of $12,655 include the disconnection and reconnection of all electrical equipment as well as replacement of numerous pool lights at the new location. The Machata home can not be relocated with the fireplace intact. To assure against the structural collapse of the Machata home during relocation, the home must be properly shored. The fireplace must be disassembled and reassembled after the home is relocated. The cost of demolishing and removing the fireplace, temporarily shoring the home, and rebuilding the fireplace, including masonry reinforcement, internal duct work, structural ties, and Kentucky stone facing, is $71,875. Competing Cost Estimates The estimated relocation costs submitted by Intervenors' expert witness were neither credible nor persuasive. The cost estimates were based on visual observation of Petitioners' homes from an adjacent lot. The witness did not enter Petitioners' property to determine the size or quality of various appurtenances including swimming pools, driveways, tile terraces, retaining walls, and landscaping. The witness did not review structural plans for the Machata home. He was not familiar with structural characteristics of the Machata home and did not know the type of air conditioning used. Relocation costs are based on the estimated weight of each house. Estimating the weight of a structure that exceeds 300,000 pounds is integral to a determination of the cost of relocating that structure. The Machata house weighs 1,200 tons. Intervenors' cost estimates for moving the Machata home are based on a projected weight of 300 to 350 tons. When a structure's weight exceeds 150 tons, an accurate weight projection is integral to an accurate determination of relocation costs. The cost estimates submitted by Intervenors are not formal bids. The cost estimates submitted by Petitioners were prepared as formal bids by an expert in marine construction engineering. The formal bids were based on engineering drawings of the bulkhead. Costs set forth in formal bids are more likely to reflect actual costs than costs set forth in a cost estimate prepared for the formal hearing. The cost estimates submitted by Intervenors unnecessarily exaggerate the cost of the proposed bulkhead. For example, the $5,000 estimate for clearing is unnecessary because no clearing will be conducted. The mobilization/demobilization cost of $10,000 in Intervenors' estimate would actually be $2,500. The $12,000 allotted for site restoration is high and could be completed for $3,000 to $4,000. The $10,000 added for the deadman with tie rods is already included in the square foot cost submitted by Petitioners. Considering these and other examples, the total cost estimates submitted by Intervenors are exaggerated by $100,000. The 2:1 Requirement For Economic Feasibility Respondent applies a 2:1 requirement to assess the economic feasibility of alternatives to coastal armoring. If the cost of relocation of the upland structure or dune enhancement does not exceed the cost of the proposed armoring by 2:1, then relocation or enhancement is considered to be economically feasible. Respondent requires compliance with the 2:1 requirement in all applications for coastal armoring, and the requirement has the direct and consistent effect of law. The 2:1 requirement is an agency statement of general applicability that implements, interprets, or prescribes policy, or imposes a requirement not included in existing statutes or rules and which has not been adopted in accordance with statutory rulemaking requirements (an "unwritten rule"). 41/ Respondent failed to explicate the reasonableness of selecting the 2:1 requirement over other means of assessing economic feasibility. Even if Respondent had justified its policy during the formal hearing, the cost of relocating Petitioners' homes is more than twice the cost of the proposed bulkhead and, therefore, is not economically feasible. The cost of constructing the proposed bulkhead is $136,000 including all labor, materials, and necessary equipment for the bulkhead and return walls. Of the total cost, $51,000 is attributable to the portion of the bulkhead related to the Lanzendorf home and $85,000 is attributable to the portion of the bulkhead related to the Machata home. The total cost of relocating the Machata home is $1,053,777. The total cost of relocating the Lanzendorf home is $302,464. Agency Requirements Satisfied Petitioners clearly justified the necessity for the proposed bulkhead in accordance with Rule 16B-33.005(1). Their homes are vulnerable to high frequency storms with return intervals as frequent as 10 to 15 years. Computer model results demonstrate that Petitioners' homes are vulnerable to high frequency storm events with return intervals as frequent as 10 to 15 years. The input variables used in the original and EDUNE computer models were reasonably related to Respondent's existing rules, the terms of Respondent's instruction manual, Respondent's long standing practice in all coastal armoring permits since 1988, and reasonable professional judgment. The direct or cumulative impacts on the beach-dune system and marine turtles clearly justify the proposed bulkhead within the meaning of Section 161.053(5)(a)3. The proposed bulkhead is adequately designed and will be properly constructed within the meaning of Rule 16B-33.005(3) and 16B-33.008. The proposed bulkhead is the only feasible alternative and will be located as far landward as possible within the meaning of Rule 16B-33.005(3)(c).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioners' application for a coastal armoring permit subject to conditions stated by Respondent on the record and imposed by the terms of this Recommended Order. DONE AND ENTERED this 16th day of February 1994, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1994.
The Issue Whether the application of Manatee Memorial Hospital, Inc. (CON 9170) to establish a 120-bed satellite hospital in eastern Manatee County should be granted?
Findings Of Fact The Parties Manatee Memorial Hospital, L.P. Manatee Memorial Hospital, L.P. ("Manatee Memorial") the applicant for Certificate of Need Number 9170, owns and operates Manatee Memorial Hospital. It acquired the hospital in 1995. Located at 206 Second Street East, Bradenton, Florida, Manatee Memorial is licensed at the site to operate 512 beds, 403 of which are for acute care. Of the remaining 109 beds, 24 are classified as adult psychiatric, 11 as adult substance abuse, 31 as child psychiatric, while 10 are in a skilled nursing unit, and 6 are NICU level 2 beds. Manatee Memorial is a wholly owned subsidiary of Universal Health Services, Inc. ("UHS"). UHS is a publicly traded company which currently owns 77 health care facilities, among them 28 acute care hospitals in various states, including Wellington Regional Medical Center, a 120-bed hospital in Palm Beach County, Florida. L. W. Blake Medical Center, Inc. Blake Medical Center is a 383-bed acute care hospital. With the exception of psychiatric care, Blake provides full care across the range of hospital services from obstetrics to open heart surgery. Opened in 1972, it is also located in Manatee County. Blake has provided acute care hospital services in Manatee County since 1972. Over the past 28 years, it has served the people of the county in other ways, too. The organization and its employees, for example, are actively engaged in community activities. Among many community activities, Blake supports the American Cancer Society, sports screening for local students, Legs for Life (a diabetes detection program), cardiac profiles, and Just for Girls, a mentoring program. The Agency for Health Care Administration The Agency for Health Care Administration is designated by statute as "the single state agency to issue . . . or deny certificates of need . . . in accordance with the district plans and present and future federal and state statutes." Section 408.034(1), Florida Statutes. Stipulated Facts Manatee Memorial and Blake entered a prehearing stipulation that contained "stipulated facts and law" stated below in findings 7 through 36. Manatee Memorial filed a timely and legally sufficient Letter of Intent for CON No. 9170 and subsequent Initial Application and Omissions response that were deemed complete by AHCA. Manatee Memorial filed a timely and legally sufficient Petition for Formal Hearing to challenge the initial denial of its application for CON No. 9170. Blake filed a timely and legally sufficient Petition to Intervene. Manatee Memorial is a disproportionate share Medicaid Provider. Manatee Memorial has demonstrated a history of providing quality of care and the ability to operate an acute care hospital. Manatee Memorial has the health care and administrative expertise to provide acceptable quality care. Manatee Memorial adequately demonstrated its history of serving persons who are HIV/AIDS infected. Manatee Memorial adequately demonstrated its intent to serve HIV/AIDS infected persons at the proposed Lakewood Ranch facility. Manatee Memorial and Blake are the only existing providers of acute care inpatient hospital services in Manatee County. Manatee Memorial is JCAHO accredited, with commendation, for all services, including home health care services. Manatee Memorial and Blake are currently Medicare and Medicaid certified. Manatee Memorial has demonstrated a history of providing quality of care. Manatee Memorial has the health care and administrative expertise to provide quality of care. The documents provided with the application indicate the ability to provide funding for the proposed Lakewood Ranch facility at the time of the application's filing. The proposed Lakewood Ranch project, at the schematic stage, conforms to Chapter 59A-3, Florida Administrative Code, and other applicable codes, including the Americans with Disabilities Act. The proposed construction cost of $133.74 per gross square foot compares favorably with the average cost of $138.45 for five new Florida hospitals completed since 1995. Construction time of twenty-four months is approximate although optimistic for the proposed facility. The approval of the proposed facility will reduce the bed count at Manatee Memorial's main campus. The reduction in bed count will allow the hospital to better organize its physical plant and free area to be demolished. The documents provided with the application indicate the ability to provide funding for the proposed Lakewood Ranch facility. During FY 1997, Manatee Memorial provided 12 percent of its total patient days to Medicaid patients and 3.5 percent of its total patient days to charity care and exceeded the district average for both Medicaid and charity care. Manatee Memorial is party to an agreement with the County of Manatee that requires it to provide a certain level of indigent care and provides some compensation for providing that care. Except for financing cost projections, the estimated project costs appearing on Schedule 1 are reasonable. The costs of equipping the proposed Lakewood Ranch facility are reasonable. Except for financing cost projections, the total project cost for the proposed Lakewood Ranch facility is reasonable. The letters of support contained in the application are authentic and accurate duplicate copies of letters. Manatee Memorial Hospital's past and proposed provision of services promotes a continuum of care in a multilevel health care system. Prior to filing its Petition in this case, Blake had not developed specific patient origin studies and demographic, financial, marketing, program feasibility and service feasibility studies or projects that discuss, analyze, or document a need for additional or relocated acute care beds in Manatee County. The Agency for Health Care Administration initially denied CON 9170. In the course of this litigation it filed a Notice of Change of Position. Blake Medical Center has a demonstrated history of providing quality of care. In 1995, 1997, 1998, and 1999, Blake Medical Center was named one of America's Top 100 Hospitals by AHCA. Blake Medical Center is Accredited with Commendation by the JCAHO. Manatee Memorial has satisfied the requirements of Section 408.039(2) and (3), Florida Statutes. The following statutory criteria are not at issue in this case: Sections 408.035(1)(c), 408.035(1)(f), 408.035(1)(g), 408.035(1)(j), and 408.035(1)(k), Florida Statutes (1997). The Subdistrict and Manatee Memorial's Primary Service Area Acute care health planning subdistrict 6-3 is comprised solely of Manatee County. Rule 59C-2.100, Florida Administrative Code. No zip codes in Manatee Memorial's existing primary service area are outside Manatee County. Accreditation and Quality of Care Manatee Memorial's JCAHO accreditation with commendation means it is rated in the top 15 percent or 16 percent of all JCAHO accredited hospitals. Manatee Memorial is also accredited and affiliated with the American College of Surgeons Commission on Cancer. Its Breast Cancer Center is accredited under the Mammography Quality Standards Act and by the American College of Radiology. Its laboratory is accredited by the Commission on Laboratory Accreditation of the College of American Pathologists. It has been designated by HCIA as one of the top 100 orthopedic hospitals in the country. Manatee Memorial has received the Bradenton Herald's Reader's Poll Best Hospital award for five consecutive years. Manatee Memorial is in partnership with Manatee County to deliver immunization, breast cancer screening and cancer screening in the workplace. As a result, the hospital and the county have been recognized by the National Association of Counties. Manatee Memorial is the only hospital that belongs to the West Coast Health Care Coalition. The Coalition is a group of employers in Southwest Florida whose mission is to evaluate hospital charges, assess outcomes and provide education to employers and employees on healthy lifestyles. Consistent with UHS' philosophical belief that hospitals are fundamentally community and local organizations, Manatee Memorial uses a citizen advisory board that directly participates in oversight of the medical staff organization, quality assurance and performance improvement plans. Manatee Memorial provides and has documented its ability to provide continuing education to its staff and physicians. The Proposed Project Manatee Memorial proposes to relocate 120 beds from downtown Bradenton to a new site within the planning subdistrict. Known as Lakewood Ranch, the site is approximately 17 miles southeast of Manatee Memorial, along the I-75 corridor in Manatee County. The proposal does more than relocate 120 beds. It also entails the delicensing of an additional 73 beds on the existing campus. The proposal, therefore, will not add any new beds to the subdistrict but will, in fact, result in a net loss of 73 beds in the subdistrict. The goal of the project is twofold. First, it is to provide easily accessible, affordable health care to a rapidly growing population in eastern Manatee County. Second, the goal of the project is to "decompress" Manatee Memorial's existing campus in order to modernize it and make it safer and more efficient. Decompression Notwithstanding the awards and accreditation for its operational excellence, Manatee Memorial has serious problems in the physical infrastructure of its existing campus. The main campus is bounded by major roadways and the Manatee River. Further expansion is precluded by the lack of available land on or near the site. The absence of space on the campus currently requires Manatee Memorial to lease space off campus for various non-clinical support functions, such as accounting and bookkeeping. The site is "in close proximity to . . . hurricane surge inundation zones." (Tr. 872). The entire hospital site is only 7 feet above sea level. All of the central plant operations (electrical switching gear, chillers, boilers, air handlers, and emergency generators) and parking lots are flood prone. In the event of a hurricane, the entire hospital would have to be evacuated. When the project was under consideration, "rebuilding 500 beds on [the] location . . . [never came up] as a viable alternative in . . . discussions with the architects" (Id.) because it would be so difficult to comply with rules governing hurricane surge zones. The "main building," the "annex," and three "radial" wings are older multi-story buildings where the acute care beds and patient rooms are currently located. The oldest of these areas, the main building, was built approximately in 1953. For a hospital building, "it is a very old building." (Tr. 104). The annex was built in the late 1950's. Two of the three radials were built around 1961 and the third, the one closest to the river, around 1967. None of these buildings meet minimum applicable requirements specified in the National Fire Protection Association's Life Safety Code, NFPA 101, 1994 Edition, Chapter 13. These fire safety issues at Manatee Memorial are substantial and serious. There is not only a lack of fireproofing of the facility structure but also a lack of fire- smoke compartmentation and deficiencies in vertical chases and the fire alarm system. Deficiencies in the shut-down mechanisms of the air-conditioning system pose the danger of rapid conflagration in case of even a small fire. After acquiring the hospital in 1995, Manatee Memorial undertook a renovation of the substance abuse area. During the course of final inspection by AHCA, it was discovered that the prior owner had undertaken structural work in the hospital but did not submit the work to AHCA for review. The unapproved work substantially compromised the fire integrity in many areas of the hospital. There is no question that a reduction in bed count will allow Manatee Memorial to better organize its physical plant and free more areas to be demolished. Relocation of the 120 beds out of the facility and demolition of the north radial, "one of the poorly constructed areas in the facility" (Tr. 872) was well received by James R. Gregory, the Bureau Chief of AHCA's Office of Plans and Construction, because "it certainly solved the problem at hand . . . how to bring this very large and antiquated building into minimum standards with the Life Safety Code as soon as possible." (Id.) Accordingly, the Office of Plans and Construction has approved a Fire Safety Evaluation System ("FSES") plan for Manatee Memorial's main campus. The plan is contingent upon the removal, whether by relocation or elimination, of the 120 beds Manatee Memorial proposes to relocate to the Lakewood facility and the de-licensure of additional beds. As Blake astutely points out, elimination of the 120 beds is just as effective as relocation of the beds for commencement of the solution to the fire safety problems posed by Manatee Memorial's main campus. At the same time, relocation of the 120 beds rather than elimination is consistent with the current trend in hospital design and planning, the result of changes in health care in the country not the least of which is due to technological advances: to decentralize beds by moving some existing beds in central urban facilities to smaller campuses in suburban areas. These new-style smaller, suburban facilities are oftentimes referred to as health centers and "almost replac[e] . . . the civic centers or courthouses in these areas." (Tr. 873.) As Bureau Chief Gregory summed up, I would say generally the days of going downtown to the great white giant are over except for . . . large teaching institutions. . . . [T]he trend has . . . been to decentralize and to bring health care . . . out towards where the population centers are growing. (Tr. 874). Examples of these facilities in Florida include Florida Hospital at Lake Placid or Heartland of Florida near Haines City or Columbia Hospital of Lake City, all newly- constructed replacement facilities the size of the proposed facility in this case. The Radials The radial wings at Manatee Memorial are called radials because they radiate out from the nursing station. The second floor of the radials consist of three or four-bed "wards." (Wards contain more than two beds.) Although common thirty or forty years ago, wards are no longer recommended in any national hospital construction or operational standards because of the higher average intensity of acuity of patients hospitalized today. Patients with higher acuity are at greater risk of infection. Recognition of an inpatient's right to privacy also comes into play. Patients more often than not (much as airline passengers in the coach compartment with three seats on one side of an aisle would choose to be on the window or the aisle) will choose not to be a patient in a bed in the middle of a ward. For hospital patients, lack of direct access to a window, door, or bathroom facilities typically creates a high level of dissatisfaction with wards regardless of a hospital's quality of care. The four bed wards at Manatee Memorial have no space for modern equipment, no windows to the outside, no bathrooms and no washing facilities. Although the three-bed wards are somewhat more accommodating than the four-bed wards, their bathing and sink facilities are not compliant with the Americans with Disabilities Act ("ADA"). Manatee Memorial considered modifying the wards to create semi-private rooms. All spaces, however, would have to be brought to current Life Safety and ancillary support standards, a requirement that would be impractical to meet. Creation of semi-private rooms, moreover, would result in an inefficient 20-bed floor. Modern hospital needs for efficiency make the design of a nursing station and associated acute care patient wing with less than 36 beds impractical and uncommon. Because of the age of many of the inpatient areas only about 320 of Manatee Memorial's beds are accessible on a daily, operational basis. In the past, these 320 beds for the most part have been enough to serve the hospital's population. In 1999, for example, its average daily census was 196, and not once did the hospital need to resort to emergency bypass status because of a lack of beds. But at other times, the hospital has been perilously close to 100 percent occupancy. And on one occasion in the year 2000, Manatee Memorial was required to institute emergency bypass because it did not have enough beds in adequately designed spaces to receive patients. The wards would be eliminated if Manatee Memorial's CON is approved. Main Building Existing nursing stations on the third floor of the main building are located in exit corridors. Such a location would not be allowed under current standards. The stations were designed more than forty years ago, before the existence of information systems and high-tech monitoring equipment now regarded as essential. The Agency will not permit Manatee Memorial to "grandfather" the various Life Safety and code deficiencies resulting from the age of Manatee Memorial's older patient care floors. Nor will the completion of a Facility Safety Assessment System ("FSES"), now underway at Manatee Memorial, address any of the remaining Life Safety, structural, and ADA code deficiencies that AHCA requires to be remedied if any single renovation is made. For example, installation by the hospital of a window into a patient room that is presently windowless would involve bringing an entire area of the hospital into compliance with applicable codes. As Noel Barrick, Manatee Memorial's architect, explained at hearing, "[the window installation] would be connected to other things. Once you get into any area, AHCA is going to say [']you are playing with that area, you upgrade to meet new standards."['] (Tr. 129). In some instances, bringing into compliance areas adjacent to a simple renovation would not be possible. The patient rooms have 10-foot ceilings. (See Finding of Fact Nos. 69 to 79, below.) Patient bed areas with floor-to-floor heights greater than 10 feet are necessary in order to retrofit all of the required mechanical systems. As for some of the systems, it would be impossible to "get some of that ductwork in a 10 foot floor-to- floor height to meet those standards." (Tr. 130). Because simple renovations would entail upgrading much greater areas of the hospital to meet standards, Mr. Barrick's architecture firm, hired by UHS as part of the due diligence inquiry conducted prior to UHS purchase of the hospital, recommended that Manatee Memorial be decompressed in the interests of cost effectiveness. Floor-to-floor (i.e., height from finished first floor to finished second floor) must have at least twelve-foot, six- inch floor-to-floor height in order to accommodate ductwork, lights, sprinklers, electrical conduit, data lines, and medical gases necessary to meet the basic Life Safety and operational requirements for patient care areas. The floor-to-floor heights in the main building as well as other of the hospital's oldest buildings are only ten feet. Without adequate floor-to-floor space, to accommodate those Life Safety and mechanical items needed and required by AHCA for patient areas, those floors cannot be renovated and used for patient care or brought into compliance with current Life Safety and mechanical standards. The lack of floor-to-floor space has also necessitated construction of ramps between the various older buildings containing patient beds, and the surgical building and radials. These ramps must be and are routinely used by visitors and by staff to transport patients. None of these ramps meet ADA standards. Manatee Memorial's architects considered demolishing the main building and radials entirely. The consulting architect's assessment goal was, however, to reclaim as much space as was available on Manatee Memorial's existing campus before considering the possibility of de-licensure or relocation of beds. Additionally, total demolition would require closing the entire hospital for one to three years, since buildings with patient care areas also contain functional and ancillary areas necessary for operation of the entire hospital. Manatee Memorial's consulting architects have recommended that, on balance, it would be more cost effective and achieve a better result to decompress the main campus by relocating some beds and their ancillaries to a different site. This would create sufficient space on the main campus for modernizing and using, to the maximum extent possible, the main campus. AHCA must review and approve, prior to construction, all new construction and renovation to healthcare facilities in Florida. Rule 59A-3.080(1), Florida Administrative Code. AHCA's Chief of Plans and Construction Review is a registered Florida architect. He does not favor renovation of all 512 beds on Manatee Memorial's existing site because of its location in a hurricane zone as discussed, above. If 120 beds can be relocated to Lakewood Ranch, and 73 beds de-licensed, then Manatee Memorial can eliminate: 71 beds from the north and south radials which were built in the 1960's; 56 beds from the annex, which was built in 1958; and 28 beds from the third floor main building which was built in 1953, leaving 319 beds on a decompressed campus for renovation. One of the benefits of choosing to decompress by relocating beds is that all the renovations can be sequenced so the hospital is not closed during renovation. The total cost for a three phase, 8-year plan which leaves 319 renovated acute care beds and all the tertiary services on the main campus is $43 million. Since Lakewood Ranch will cost $40 million to construct and open, the total cost for Lakewood Ranch's 120 beds and the 3 phase plan to renovate for 319 beds on the main campus is $83 million. Assuming that taking the entire hospital out of service for a sufficient period of time to renovate 512 beds is desirable, and that such renovations are otherwise possible, the cost would be at least $97 million, or $14 million more than the alternative proposed by Manatee Memorial's architects. Manatee Memorial has opted for a plan that will enable it to keep some of its beds in its inventory that would otherwise be casualties of much-needed modernization. Its decision is justified. There is not enough real estate on the main campus to accomplish work necessary to solve the fire safety issues, locate 512 beds and the support services for those beds such as emergency room, laboratory, surgery, and X- ray so that the beds and ancillary areas are designed to meet prevailing community standards for the delivery of health care. Decompression will allow more efficient renovation and use of the outdated radials and annex for business occupancy, to accommodate these non-clinical functions, instead of using them for institutional occupancy. At the same time, decompression by relocating some patient beds and ancillary support for the beds elsewhere will allow the highest and best, if not only, use of salvageable areas on the existing campus without interruption of service. Health Planning Relocation Need Criteria Although AHCA has a rule to determine the need for new or additional beds, it does not have a rule specifying a methodology for evaluating a proposal to relocate existing licensed beds within the subdistrict. The acute care bed need calculation methodology in Rule 59C-1.0384(4) and (5), Florida Administrative Code, therefore, is not applicable to these proceedings. Rule 59C- 1.038(6)(a), Florida Administrative Code, does contain a preference for applicants proposing a capital expenditure on acute care beds that have documented a history of providing services to medically indigent patients. The Agency interprets subpart (6)(a) to be applicable to acute care bed relocations. Manatee Memorial's proposal earns the preference. District and sub-district out-migration Acute care district and sub-district boundaries are used by AHCA and health planners to define the geographic boundaries for inventory and bed need projections. Consistency in providing sufficient access within a subdistrict to accommodate the needs of patients originating within the subdistrict is a desirable health planning goal. For purposes of reviewing the health planning aspects of the application, the relevant geographic health planning area is Manatee County, sub-district 6-3. It is becoming more common for hospitals that have patient care areas that have aged (as in this case, by more than 40 years) to relocate new beds to areas of new and rapid growth within the health planning subdistrict. The Agency has approved these efforts on at least four occasions in the relatively recent past. In some instances the entire hospital was relocated, as in the relocation of Sarasota Doctors Hospital in Sarasota County; in others, as in the proposal in this case, only some of the beds were relocated while the existing campus underwent renovation. The existing acute care beds in Manatee County are not well distributed in relation to population growth in the sub- district. This poor distribution has resulted in considerable out-migration of acute care patients to Sarasota County for services, and, in turn, is a significant factor in the under- utilization of Manatee County hospitals. Until Sarasota Doctors relocated, out-migration was significant back and forth between Sarasota and Manatee Counties, that is, for both the sub-districts represented by the two counties. After Sarasota Doctors' relocation from near Sarasota to eastern Sarasota County approximately 15 miles south of the Manatee County/Sarasota County line, however, the out- migration became primarily one way: from Manatee County to Sarasota County. In 1997, alone, while 312 Sarasota County District 8 residents sought acute care in Manatee County, approximately 5,000 Manatee County District 6 residents sought acute care in Sarasota County. Between 1995 and 1997, Manatee County hospitals experienced an overall increase of 9.5 percent in admissions. For the same period, out-migration from Manatee County for acute care services increased 26.5 percent. Currently, for every one person that comes from Sarasota County to be hospitalized in Manatee County, sixteen are leaving Manatee County to be admitted to a bed in Sarasota County. Out-migration patterns between Manatee County and Sarasota County contribute to the under-utilization of Manatee County hospitals. This disproportionate level of out-migration from Manatee County is inconsistent with typical out-migration between planning areas. It is the result of a poor distribution of Manatee County acute care beds in relation to Manatee County population growth combined with the unappealing and deficient four bed wards and the problems with Manatee Memorial's aged buildings. Geographic Access Manatee Memorial's existing campus is located at the junction of Routes 41 and 301 and the Manatee River. Blake is located about four miles west. Both Blake and Manatee Memorial are located in the Bradenton City limits. Lakewood Ranch is outside the city limits. Approximately one-quarter mile north of University Parkway and just east of the Interstate 75 interchange, it is in south central Manatee County near the Manatee and Sarasota County boundary line. Lakewood Ranch is a master planned community of approximately 5500 acres and involving 3 Developments of Regional Impact ("DRI"). Master planned communities are favored by the State of Florida because all aspects of daily living are included in the multi-use planning: homes, workplaces, shopping facilities, recreation facilities, worship, and medical facilities. State DRI and master planned community requirements have made growth somewhat more predictable. Using periodic aerial photography and subdivision maps to conduct an inventory by actually counting rooftops over time, it is evident that in the last two decades there has been substantial residential, commercial, and office growth in the eastern part of the county along and to the east of the I-75 corridor. This growth commenced with the opening of the corridor 20 years ago. The pattern of substantial growth east of I-75 and much less growth west of the I-75 corridor in Manatee County is expected to continue. As one witness expressed, [T]he most substantial majority of new growth will happen along the I-75 corridor and east of 75, as it's currently doing, and I believe from the activity that we see, that it'll continue. One of the reasons for that is that if you look at a map or a similar aerial photo, to the west of I-75 you will see that it's substantially all built out and there's really very little land available. (Tr. 172). The population located along and east of the I-75 corridor is expected to increase by 28,000 persons between 1999 and 2004. The County, itself, has projected that the population in the area of the county in and around Lakewood Ranch has projected growth at a rate of 600 percent over the thirty years from 1990 to 2020. Manatee County has created infrastructure to support residential development in eastern Manatee County, including 2 elementary, 3 middle and 1 high school. The area is served by many major roads. They include University Parkway which runs east and west. It is six lanes running west of I-75 to the airport and four lanes to Lakewood Ranch Boulevard with plans to six-lane it. A time travel study conducted in accordance with DOT's Manual of Uniform Traffic Studies demonstrates that currently, during the peak hour traffic, the congestion on roads leading from large portions of Lakewood Ranch's primary service area east of I-75 to Manatee Memorial and Blake results in travel times in excess of 30 minutes to reach Blake and between 20 and 30 minutes to reach Manatee Memorial. All the road improvements presently planned by Manatee County are east of I-75 and will not relieve any of the congestion west of I-75. In the absence of planned road improvements west of I-75, the congestion west of I-75 will increase as the result of development along the interstate's corridor and to its east. The road system is one of the reasons out-migration from Manatee County to Sarasota County has increased and one of the reasons Manatee Memorial is feeling the impact of competition with Sarasota hospitals. At present, four hospitals offer more than adequate access to hospital services to the residents of eastern Manatee County: Manatee Memorial and Blake in Manatee County and two Sarasota County hospitals: Sarasota Memorial and Sarasota Doctors. All four compete to and do serve the patients in Lakewood Ranch's proposed service area. There is no evidence of capacity constraints at any of these hospitals. Increasingly, physicians in Sarasota County serve patients in Manatee County and market their services to them. For instance, open heart surgeons practicing in Sarasota also have offices in Manatee County. The yellow pages for the Bradenton telephone directory reveal at least 183 physicians with Sarasota addresses. This does not include the many listings for groups or clinics. These physicians view eastern Manatee County as a market they serve and from which they seek to draw patients to their Sarasota offices. Indigent Care Manatee Memorial is a disproportionate share Medicaid provider. During fiscal year 1997, Manatee Memorial provided 12 percent of its total patient days to Medicaid patients and 3.5 percent of its total patient days to charity care, exceeding the district averages for both Medicaid and charity care. Compared to Blake, Manatee Memorial has consistently provided significantly more Medicaid and charity days. In 1996, for example, Manatee Memorial shouldered a fraction above 87 percent, compared to Blake's 12.96 percent of the Medicaid patient days in the subdistrict. In that same year, Manatee Memorial provided over $10 million in charity care, while Blake provided less than $600,000. While Blake and Manatee Memorial have the same kind of patients, their patient mixes are different. Blake takes many less Medicaid and charity care patients. This is due, in part, to location; Manatee Memorial's location (albeit only four miles from Blake's) attracts such patients. It is also due, in part, to the obligation Manatee Memorial has incurred by agreement with Manatee County to provide care to indigent Manatee County residents, an obligation which has as its source the hospital's former status as the county hospital. Blake is not a party to a similar agreement. Under the terms of Manatee Memorial's agreement with the county there are three different ways for the hospital to be reimbursed for indigent care: reimbursement of 50 percent of the annual interest earned on a fund that's used for general health care purposes within the community, reimbursement at the prevailing Medicaid rate, or reimbursement under a special indigent care calculation. The hospital receives the lowest amount yielded by the three methods. At the time of hearing, at least since September of 1995, when its chief executive officer assumed his position, Manatee Memorial has only been reimbursed on the basis of the first of the three possibilities: 50 percent of the annual interest earned on the county's general health care fund. The shortfall has been substantial. In 1999, inpatient and outpatient charges for care to indigents under Manatee Memorial's agreement with the County amounted to approximately $7.4 million. But Manatee Memorial was only reimbursed $1.5 million, resulting in a deficit of about $5.8 million. The inpatient shortfall alone was about $3.5 million. Over the past ten years, through August of 1999, the shortfall has totaled approximately $36 million worth of uncompensated care provided by Manatee Memorial. On a cost basis, for every dollar of cost incurred to provide services to a County funded indigent in 1999, Manatee Memorial recovered only 70 cents from the County. There is no question that Manatee Memorial's contribution to care of Medicaid patients and indigents is both substantial and costly. Blake's fear with regard to the impact on indigent care in Manatee County of granting the CON in this case and transferring 120 beds from their present location to eastern Manatee County was expressed by its Chief Executive Officer: [W]e'll do 120 now, then next year we will do another 120 until we have eventually moved the patient's right to have a hospital in that location [far to the] east and then we will have a shell of a hospital in a location [in which] there's a great need . . . for indigent care. (Tr. 524). But Blake conceded under cross-examination that simply granting the CON under consideration without more would leave a hospital adequate to handle the indigent care needs of the county at the location where the considerable bulk of those needs are presently met. Lakewood Ranch Design, Cost & Construction The proposed 120-bed Lakewood Ranch project, at the schematic stage, conforms to Chapter 59A-3, Florida Administrative Code, and other applicable codes, including the Americans with Disabilities Act. The proposed construction cost of $133.74 per gross square foot compares favorably with the average cost of $138.45 for five new Florida hospitals completed since 1995. The design, cost, and time necessary to construct and equip the Lakewood Ranch 120-bed facility are reasonable. Financial Feasibility: short-term and long-term Short-term financial feasibility for CON review refers to the ability of the applicant to provide or obtain sufficient capital to construct the project and to finance the project until it becomes financially self-sufficient. To determine at what point the proposed project would become financially self-sufficient, Manatee Memorial used actual recent revenue, fixed and variable cost data, and adjusted service volumes from Manatee Memorial to model Lakewood Ranch's projected financial performance. It is reflected in Schedules 7 and 8 of the application. Manatee Memorial has demonstrated that, if projected utilization is achieved, the proposed project will become profitable in the second year of operation and continue to be financially self-sufficient on an ongoing basis. UHS has provided a commitment letter in the application that states in pertinent part: This letter is to confirm the commitment of Universal Health Services, Inc. (UHS) to provide financing for the planned replacement and relocation of 120 acute care hospital beds for Manatee Memorial Hospital. UHS owns this hospital through a partnership, Manatee Memorial Hospital, L.P. (the applicant), which is comprised of partners which are wholly-owned subsidiaries of UHS. UHS anticipates that it will finance all future capital expenditures for Manatee Memorial Hospital, including this project, entirely from UHS's net cash flow from operations. Accordingly, UHS does not plan to assume any indebtedness to third parties to finance this project, or to pay interest on any such costs. Manatee Memorial has adequately evidenced UHS' commitment and ability to provide the necessary capital, using the ongoing net cash flow from UHS operations, until the proposed project becomes self-sufficient, even if it should take more than 3 years. UHS does not take loans to build hospitals, but always uses current operating funds. Since UHS will fund the project from its own cash flow, Manatee Memorial appropriately did not indicate any financing costs on Schedule 1. The Lakewood Ranch hospital only becomes a depreciable asset after it becomes operational. Accordingly, Manatee Memorial captured Lakewood Ranch's costs of capital as interest on Schedule 8A. AHCA does not require pro forma projections for the main campus. There have been no material changes in UHS' financial strength, or its commitment to the proposed project through the date of hearing. Manatee Memorial does not have any other capital projects planned or approved that would compromise its ability to undertake the proposed project. UHS continues to have ample cash flow, as well as access to credit facilities, sufficient to capitalize and fund start-up operations at Lakewood Ranch. Manatee Memorial has projected that the first year of operation, after construction and licensure, will be January 1, 2004. Manatee Memorial selected eight zip codes as the primary service area for the Lakewood Ranch project. These zip codes correspond to the sub-areas the Manatee County Planning Department uses to project growth for areas within 5-15 minutes driving time from Lakewood Ranch. The selection of these eight zip codes for the project's proposed service area is reasonable. Manatee Memorial assumed it would derive at least 70 percent of its admissions during the first three years of operation from this primary service area. The assumption is consistent with the recent, actual experience of four hospitals in Broward, Collier, Sarasota, and Marion Counties that relocated or developed a satellite by relocating beds to an area of high growth similar to Lakewood Ranch. Using the most currently available population projections provided by Claritas for the eight zip codes comprising Lakewood Ranch's primary service area, it appears the projected occupancy for the proposed facility in the third year of operation will be even greater than projected in the application. Based on reasonable assumptions and methodology, Manatee Memorial will admit 2,600 patients to the Lakewood Ranch facility from its primary service area in 2004, the first year of operation. That equals 11,961 patient days. The hospital projects 17,220 patient days in the second year of operation and 21,812 days in the third year of operation. Out of the 4,742 total admissions in year three of operations at Lakewood Ranch, approximately 3,500 would be due to the projected Manatee County population increase. In the first year of operation of the Lakewood facility, it is reasonable to project that the facility will lose slightly more than $900,000. In the second year of operation, it is reasonable to project a net profit of $3.1 million; and, at the end of the third year of operation, it is reasonable to project a profit of approximately $6.7 million. It is reasonable to expect utilization to increase beyond the third year of operation so "that the hospital [the Lakewood Ranch facility] should sustain profitability in the long run." (Tr. 475). The project is financially feasible in the long term. As an aside, it is reasonable to assume that Manatee Memorial's main campus will lose some patients to the Lakewood Ranch facility. The revenues for the campus will therefore be reduced if the project is approved. So will the main campus' expenses associated with those patients. It is reasonable to assume that the main campus' profit will be reduced if the project is approved. But, AHCA does not require pro formas to show projected financial impact on the main campus as part of the application for the Lakewood Ranch facility. That impact, therefore, whatever it may be, is not considered in this proceeding. On the other hand, the impact to Blake and to the hospitals in Sarasota County is to be considered. Impacts to Blake and hospitals in Sarasota County a. Sarasota Hospitals The two hospitals in Sarasota County that will feel the most impact from approval of CON 9170 are Sarasota Doctors and Sarasota Memorial, particularly Sarasota Doctors. If the proposed facility becomes operational, much of the disproportionate share of out-migration from Manatee County to Sarasota County will be reduced because of Manatee County patients, particularly those residing in the eastern part of the county, choosing the proposed facility over Sarasota Doctors or Sarasota Memorial. The migration patterns for Districts 6 and 8 will adjust to a normal pattern. Some of the loss of patients by the Sarasota hospitals will be mitigated by an increase in the population of Sarasota County. In any event, the continued success of Sarasota County hospitals is not dependent on the out-migration of Manatee County residents. In the case of Sarasota Doctors, the recapture of Manatee County patients by the proposed facility is appropriate in light of Sarasota Doctors' decision several years ago to relocate to the eastern part of Sarasota County near the Manatee County line. Manatee Memorial's proposal will enhance competition. There will be an impact if it is approved to other competitors. But it will not put any other hospital in Manatee County or Sarasota County out of business or compromise their operations with the possible exception of making it more difficult to staff the hospitals as explained in paragraphs 126 to 129, below. Blake calculated that the impact of approval of the application to Blake would be a loss of $1.6 million and $2.7 million in the first and third years of operation, respectively, of the Lakewood Ranch facility. The calculation did not consider that tertiary services that will not be provided at the new facility so that the calculation "is not exact but . . . is quite close." (Tr.698). Assuming the accuracy of Blake's calculation, the impacts do not weigh heavily in favor of denial of the application in the context of Blake's most recent net profit of approximately $18.5 million. Blake's concern about the impact to it from the new facility was much more than the loss in dollars it poses. Blake is much more concerned about the competition posed by the need of its patients to be served by physicians and, in particular, staff who would be given privileges or employed by the new facility. Staffing Staffing and operating three hospitals in Manatee County will require more staff than is presently required for Manatee Memorial and Blake because of the need for "core" staffing. Core staffing is the minimum number of people required to care for a hospital census. Any hospital must maintain a minimum level of core nursing staff regardless of the size of the census. For example, an emergency room must have two people on duty at all times as must a recovery room. In addition, the Lakewood Ranch facility, as a hospital, should be distinguished from an outpatient facility. In contrast to an outpatient facility, essentially an "episodic" facility, the patients at Lakewood Ranch will have a much higher intensity of acuity. In other word, they will be sicker demanding much more intense care. Existing facilities could absorb the Lakewood Ranch facility's patients incrementally without having to add many staff, whereas a brand new facility is required to fully staff its facility. The increased demand for staff, especially nursing staff, will substantially affect Blake. For one, it is likely that the facility will recruit current employees of Blake. To make staffing matters more difficult for Blake, there is a shortage in health care personnel in Manatee County. Indicative of the shortage is Blake's 12 percent vacancy in its nursing staff at the time of hearing. The vacancy existed despite a comprehensive effort on Blake's part to keep and recruit nurses. The effort includes offering nurses on-site child care that is less expensive than rates in the community at large, paid critical care and operating room courses, reimbursement of continuing education expenses and payment for time spent in continuing education, a service excellence program, free parking, and competitive wages. Blake also conducts extensive, ongoing recruitment of nurses. It includes international recruiting, advertising, targeting cities with high unemployment rates or recently closed facilities, recruitment at job fairs and local schools. Blake competes not only with Manatee Memorial for nurses but also Sarasota Memorial and, to some extent, Sarasota Doctors Hospital. It monitors the salaries of those institutions and tries to at least match them. Blake also routinely obtains and reviews regional salary surveys. Bonuses in the market range from $5,000 to $10,000 recently offered by Manatee Memorial. Despite all its extensive recruitment efforts, typically it takes Blake 90 days to fill a nursing position. Recruiting nurses is difficult and expensive. Recruiting an intensive care nurse, for example, costs upward of $60,000 in direct and indirect costs. Recruiting a surgical nurse costs $40,000. The nursing shortage in Manatee County reflects a nationwide crisis in health care personnel. It is more severe than the cyclic shortages previously experienced. But, in all likelihood, the current shortage is also cyclic. No nursing shortage, moreover, is forever. This is because the nursing labor market behaves like any free market. Ultimately, supply and demand are managed in a free market by offering higher wages and increasing the other benefits to address the profession. Eventually, the current shortage should be alleviated by an increase in wages. The current national shortage is expected to be at its worst in 2006. The Lakewood Ranch staffing projections underestimate nurse staff needs by 8 to 10 employees. The underestimation in the context of the whole project is insignificant. Still, approval of the application will make recruitment of nurses by Blake more difficult. It will not be easy for the Lakewood Ranch facility either although there will be many nurses in the area for whom the Lakewood Ranch facility will be the most convenient facility at which to work. Like Blake, Manatee Memorial has developed a variety of strategies for recruiting, training and retaining nurses. It plans to use these at the Lakewood Ranch facility. Strategies include local open houses at the hospital, emphasis on a regional and national market, using the internet, and targeting military trained nurses through job fairs and affiliations with the University of South Carolina and the University of South Texas that allow UHS first access to students in nursing there. While there are inefficiencies in staffing due to the need for core staff at both campuses should the application be granted, there are some counterbalancing efficiencies. For example, efficiencies flow from sharing the same governing board and some of the managerial staff, such as human resources director, risk managers, accounting functions and quality improvement functions. There is little doubt that approval of the application will make it more difficult for Blake to staff its facility and will affect Blake financially in a substantial way. Approval of the Lakewood Ranch facility, at the same time, may have a slight counterbalancing effect. One of the main reasons nurses leave nursing is to seek a less physically demanding profession; modernization of facilities to make them less physically demanding should help to keep some nurses in their profession. Granting the application will lead to two modernized facilities: a renovated Manatee Memorial campus and a brand-new Lakewood Ranch facility. Local Health Plan Preferences Local Health Plan Preference Number 1 affords a preference for applicants documenting that they provide or will provide a large percent of Medicaid and charity care in relation to other hospitals in the subdistrict. Manatee Memorial provides the most Medicaid and charity care in Manatee County, measured in both patient days and dollar volume, and has documented its willingness to do so at Lakewood Ranch. For example, in 1996, Manatee Memorial provided 87 percent of all the acute care inpatient Medicaid days in the subdistrict. Blake provided 12 percent. Manatee Memorial earns this preference. Local Health Plan Preference Number 2 affords a preference to an applicant who can document a commitment to provide care and assure access for the community regardless of ability to pay. Manatee Memorial's continued commitment to provide care, regardless of the ability to pay, is evidenced by a formal resolution of the Manatee County Commission unequivocally supporting relocation of 120 beds to Lakewood Ranch. Manatee Memorial has demonstrated a commitment to provide patient access, regardless of ability to pay. Local Health Plan Preference Number 3 relates exclusively to applicants seeking tertiary services, and is not applicable to this proceeding. Local Health Plan Preference Number 4 is not applicable to this proceeding because the application under consideration is not for additional beds in a fixed-need pool, nor are additional beds being sought under "not normal circumstances". Local Health Plan Preference Number 5A contemplates a preference when a transfer of beds will result in operating cost efficiencies. Manatee Memorial's sharing managerial staff, human resources, governance, administrative functions, and risk management will minimize operating costs achieving the economies contemplated by Local Health Plan Preference Number 5A. Local Health Plan Preference Number 5B affords a preference for an applicant who has documented growth with demographic studies for an area where beds will be transferred. Manatee Memorial has fully documented that the proposed site is in an area of Manatee County that is rapidly growing, relative to the county as a whole. Local Health Plan Preference Number 5C affords a preference for an applicant transferring beds and addresses the availability of professionals and medical personnel in the proposed area. The beds being relocated by Manatee Memorial are already licensed. Staffing them, however, will not be done without some difficulty. Local Health Plan Preference Number 5D contemplates preference for applicants providing patient origin studies related to campus and the proposed transfer site. Local Health Plan Preference Number 5D is satisfied. Local Health Plan Preference Number 6A contemplates a preference for applicants transferring beds and who have analyzed current occupancy and projected impact. Because of the mal-distribution of beds in relation to the population growth, and the inefficiency of Manatee Memorial's existing older patient areas, the occupancy rates at Manatee Memorial are not optimal. Relocation will improve utilization of Manatee Memorial by Manatee County residents. Manatee Memorial receives preference under this Local Health Plan Preference. Local Health Plan Preference Number 6B affords a preference for applicants providing a copy of the existing charge structure at its hospital. Manatee Memorial stated that it does not anticipate any material changes to its existing charge structure, because of constraints placed upon it by payors and competition in the local market. The preference in Local Health Plan Preference Number 7 is awarded to Manatee Memorial. The parties have stipulated that Manatee Memorial has demonstrated intent to serve HIV/AIDS infected persons. Local Health Plan Preference Number 8 affords a preference to applicants that analyze the need and impact of proposed project on existing providers when the need is not currently being met. Residents of District 6 and subdistrict 6- 3 are not going without needed hospital services. Local Health Plan Preference Number 9 affords a preference to applicants documenting a commitment to provide initial and continuing education of staff for patients receiving services. Manatee Memorial has earned this preference.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the application of Manatee Memorial Hospital, L.P. (CON 9170) be granted by the Agency for Health Care Administration. DONE AND ENTERED this 14th day of September, 2000, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2000. COPIES FURNISHED: John F. Gilroy, III, Esquire Agency for Health Care Administration 2727 Mahan Drive Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Robert D. Newell, Jr., Esquire Newell & Terry, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 John D.C. Newton, II, Esquire Berger, Davis & Singerman, P.A. 215 South Monroe Street, Suite 705 Tallahassee, Florida 32301-6313 Sam Power, Agency Clerk Agency for Health Care Administration Building Three, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration Building Three, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Petitioner, Jane R. Wilkinson, f/n/a Jane Nelson Riley and Wilkinson were married on February 12, 1983 and lived together as man and wife until his death, except for a short period of separation from mid-October, 1990 until December 31, 1990. During this short period of separation, Wilkinson continued to perform chores and special tasks for his wife at their home. After being reunited in January, 1991, they lived together in a close relationship until Wilkinson's death. Petitioner is the surviving spouse and designated sole beneficiary of Wilkinson for any benefits under the Florida Retirement System having been so designated by Wilkinson at the time of their marriage. Wilkinson was employed full time by the Manatee County Sheriff and remained employed by the Manatee County Sheriff until his death. At the time of his death, Wilkinson was classified as a correctional officer carrying the rank of sergeant. Wilkinson was certified as a special risk member of the Florida Retirement System effective January 1, 1983. Before his marriage to Petitioner, Wilkinson had been married to Audrey Lynn Wilkinson, n/k/a Audrey Lynn Batchelor. There were two children born of this marriage. This marriage was dissolved in 1982. The former wife was granted custody of the children. Wilkinson was ordered to pay child support to the former wife. Sometime around March, 1991, the former wife petitioned the court for an increase in child support from Wilkinson. This action by the former wife had caused some concern for Wilkinson, mainly because of its effect on his present wife. However, they apparently had reached some sort of settlement just prior to his death but the settlement was not presented to the court before his death. Wilkinson served in the United States Army in the United States and overseas between December 30, 1974 and February 13, 1981. Wilkinson's military service between December 30, 1974 and May 7, 1975, comes within the definition of military service as defined in Section 121.021(20)(b), Florida Statutes. In 1989, after obtaining permission from the Manatee County Sheriff's Office, Wilkinson was employed part time on the ground crew of American Airlines (AMR Services) at Sarasota-Bradenton Airport. Wilkinson had expressed hope of obtaining ten years of creditable service in the Florida Retirement System before resigning from the Manatee County Sheriff's Office to work full time with AMR Services. Wilkinson's last duty assignment with the Manatee County Sheriff's Department was at the Port Manatee Stockade (Port Manatee). Port Manatee was operated under a method known as "direct supervision" of inmates. This method allowed the inmates to be supervised in a dormitory type setting or "pod" from approximately 5:30 a.m. to approximately 11:30 p.m. with the correctional officers "locked in" with approximately 48 inmates. The inmates were locked in the cells between approximately 11:00 p.m. and 5:30 a.m. This type supervision is more in favor of inmates than correctional officer. Port Manatee was one of three of this type facility in Florida and one of ten in the United States. Since Wilkinson's death the facility has begun shifting back to the traditional type facility. During the time Wilkinson worked with the Sheriff's Department the Department was cited for overcrowding correctional facilities in Manatee County, including Port Manatee. Although there were no "life felons" incarcerated in Port Manatee, there were second and third degree felons who exhibited aggressive and violent behavior creating problems for the correctional officers "locked in" with them. There were times when the inmates assaulted and injured the correctional officers, including Wilkinson. Port Manatee was understaffed during the time Wilkinson was assigned there. Wilkinson favored the more traditional method of handling inmates rather than direct supervision and this resulted in problems between Wilkinson and some of his supervisors. Additionally, this created problems between Wilkinson and some of the inmates. Wilkinson's concern about his own safety and the safety of those under his supervision at Port Manatee created a stressful situation for Wilkinson. Wilkinson's coworkers, including some of his supervisors, considered Wilkinson a hard worker, dedicated to those whom he supervised, a "go-getter" and a "perfectionist". Sheriff Wells considered Wilkinson an excellent correctional officer, and on a scale of one to ten would rate him as an eight. In the Spring of 1991 Wilkinson began having difficulty in coping with the pressures and stresses of his job with the Sheriff's Department. Wilkinson had conflicts with certain supervisors and felt that these supervisors were not backing him in protecting "his men" at Port Manatee. As early as the Spring of 1991 Wilkinson was "stressed-out", "tired all of the time", tense, "wired" and a "bundle of nerves". Wilkinson was frustrated with his job and was sad and withdrawn. During this time, Wilkinson suffered from sleeplessness which is an indication of depression. On August 15, 1991, Wilkinson spoke with David Clooney, a close friend and coworker at Port Manatee. Wilkinson was in tears and depressed about not being able to handle his job at Port Manatee. Wilkinson wrote a good-bye letter to the Petitioner on this date and went to the Skyway Bridge with the intention of killing himself. Instead of killing himself on August 15, 1991, Wilkinson called Petitioner and told her that he needed help. Petitioner and David Clooney picked Wilkinson up and carried him to Manatee Memorial Hospital where he was admitted for treatment as a voluntary patient in the Life Management Center. Wilkinson was admitted to the hospital under the care of a psychiatrist, Dr. Hector Fosser. Wilkinson's mental condition on admission was diagnosed as major depression by Dr. Orrosio, a psychiatrist covering for Dr. Hector Fosser in his absence. However, upon Dr. Fosser's return, Dr. Fosser diagnosed Wilkinson,s mental condition as major depression with suicidal ideation. During his stay at the Life Management Center, Manatee Memorial Hospital, Wilkinson was treated by Dr. Hector Fosser, a licensed psychiatrist, Dr. David Thomas, a licensed psychotherapist and Rebecca Gramblin, RN, specializing in psychiatric nursing. On August 28, 1991, Dr. Fosser discharged Wilkinson from the hospital, apparently improved. Dr. Fosser's diagnosis upon discharge was major depression, single episode with suicidal ideation. After his discharge from the hospital, Wilkinson continued under the care of Dr. Fosser on an outpatient basis. Early in Wilkinson's post-hospitalization period his mental condition appeared to improve for a time. Apparently, Wilkinson complied with the medication prescribed by Dr. Fosser. However, Wilkinson's mental condition deteriorated, and he became anxious and depressed. Wilkinson was scared, apprehensive about working with inmates, fearful for his "troops", and fearful of what he considered unsafe conditions at Port Manatee. Wilkinson felt that he had "lost his edge and the ability to handle risks and problems at Port Manatee". On September 30, 1991, Wilkinson kept his appointment with Dr. Fosser who prescribed lithium and another medication for him. Dr. Fosser also wrote a note of authorization for Wilkinson to return to work at AMR Services but not for returning to work at the Sheriff's Department. Also on September 30, 1991, Wilkinson wrote six suicide letters addressed to Sheriff Wells, several family members and a friend. On October 1, 1991, Wilkinson continued to be upset about his job at Port Manatee and wrote four additional suicide letters addressed to his wife, mother and two friends. Also, Wilkinson talked to his close friend, David Clooney and advised him that he intended to kill himself. Clooney was unable to delay him long enough for someone to get to Wilkinson's home and possibly prevent the suicide. After talking to Clooney, Wilkinson went into his backyard and killed himself with a gunshot to his head. Dr. Fosser, Dr. Thomas and Nurse Gramblin all testified that matters such as Wilkinson's former wife demanding more child support could have been the cause of some of the stress that Wilkinson was experiencing. However, they were all of the opinion that his job at Port Manatee was the major cause of his stress which led to his mental illness, diagnosed as major depression with suicidal ideation. There is competent substantial evidence to establish facts to show that Wilkinson's mental condition was caused or aggravated by the stress resulting from his employment with the Manatee County Sheriff's Department, and that his suicide was the result of his mental illness. There is competent substantial evidence to establish facts to show that Wilkinson became disabled in the line of duty on August 15, 1991, and died as a result of his disabling illness on October 1, 1991. At the time of his death on October 1, 1991, Wilkinson had 9.91 years of creditable service which included his time with the Manatee County Sheriff's Department, Manatee Memorial Hospital and Sarasota County Public Hospital Board but did not include any military time. At the time of Wilkinson's death his rate of pay was $1,038.88 biweekly or an annual and monthly rate of $27,010.88 and $2,250.91, respectively.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a final order finding that Dale S. Wilkinson suffered death in the line of duty and awarding his surviving spouse and designated beneficiary, Jane R. Wilkinson, the appropriate benefits commensurate therewith. RECOMMENDED this 22nd day of March, 1993, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1993.
Findings Of Fact Citizens for Responsible Boating, Inc., the Petitioner, is a not-for- profit corporation organized under the laws of Florida. Its approximately 500 members own, sell and use boats and boat related products on the waters regulated by the State. Their purposes are to promote boating and water sports and to protect the boating public's right to access and use of Florida waters. The Department of Environmental Protection ("DEP") is the state agency with primary responsibility for rulemaking to regulate boat speeds incident to protection of manatees, pursuant to Subsection 370.12(2), Florida Statutes. After a series of public hearings on earlier versions of the rule, the Secretary of DEP approved the rules on August 11, 1993, to be effective on September 9, 1993. Subsection 370.12(2), Florida Statutes, the Florida Manatee Sanctuary Act, was enacted to give DEP the authority to regulate: (f). . . the operation and speed of motorboat traffic, only where manatee sightings are frequent and it can be generally assumed, based on available scientific information, that they inhabit these areas on a regular or continuous basis . . . . The challenged rules enacted pursuant to the Act have the effect of limiting boat speeds in western Volusia County in the Hontoon Dead River, and the parallel St. Johns River, roughly from a point just south of the Beresford Peninsula at Marker 63 extending south to Marker 81; and in eastern Volusia County on the Indian River from the North Bridge in New Smyrna Beach through Ponce Inlet to Rock House Creek, and on the Indian River in Edgewater and Oak Hill from Marker 65 to Marker 9A. The waterways are designated year round slow speed zones. Slow speed zones are, according to the definitions in Rule 16N- 22.002, designated areas . . . "within which it has been established that manatees are known to congregate." Eastern Volusia County (Halifax and Indian River) In the slow speed zone north of New Smyrna Beach, Michael Godfrey, Sr., a boat dealer from Edgewater who formerly water-skied in the area, reported seeing probably 6 manatees over 27 years. His average speed on the water was 45 miles per hour in boats, and in excess of 38 miles per hour on water-skis. The only manatees he is able to see are the ones which have come to the surface of the water to feed. High speed corridors are included in most of the Volusia County waterways. Exemptions from the speed limits are available for boat dealers with service departments, but no application has been made based on Mr. Godfrey's unexplained conclusion that it is not economically feasible. What was a 15 minute demonstration ride for boats from his Edgewater dealership through the Ponce Inlet prior to the enactment of speed restrictions, now takes 45 minutes. Water-skiing is impossible in the slow speed zone, and because he is a professional skier, Mr. Godfrey has to use a freshwater lake in Volusia County to ski at speeds exceeding 35 miles per hour. The nearest available freshwater lake is 35 miles from Edgewater. For nonprofessionals, water-skiing is still available in a 35 mile per hour designated water sports area near a power plant. That area is particularly congested on weekends. The water temperature is usually below 68 degrees in December, January and February. Surface temperatures go as low as 58 degrees. The rule also applies to jet skis and other types of personal watercraft, skies which average 300 pounds in weight, and extend approximately three inches into the water and have no propellers. These watercraft are not equipped with speedometers. Some barges on the St. Johns River extend six feet into the water and have not had the speed at which they operate affected by the rule. The speed allowed for boats depends, in part, on the type of hull. Mr. Godfrey knows how to determine if a boat is operating on a plane, not causing a wake, and coming off plane. A United States Coast Guard licensed ocean master, Edward J. Stupack, Jr., operated commercial fishing, diving and tour boats in Volusia County to see shuttle launches and to tour Tomoka State Park. The speed limits have caused him to eliminate Tomoka State Park tours, because trips that took four hours now take a full day. Shuttle launch tours which previously took 1 1/2 hours to the shuttle, now take 3 to 4 1/2 hours to the shuttle site. Registration for the Greater Daytona Strike and Fish Tournament has fallen from 250 boats to less than 200 in the past two years. At slower speeds, more carbon collects in boat engines, and more maintenance is required. In addition, exhaust fumes and heat make boat rides less comfortable at slow speeds. In eleven years of boating in eastern Volusia County, Mr. Stupack has seen two manatees both hugging the shoreline, one going out Ponce Inlet to sea and another around Rock House Creek. There is undisputed expert testimony in this case, however, that manatees do not always, or as a general rule, travel along the shoreline. Mr. Stupack has not applied for an exemption from the rules because he does not believe his small, part-time business has enough clout. In the 50 miles of Intercoastal Waterway from Flagler to Brevard County, eight of the total ten and a half miles regulated were regulated idle speed areas for boating safety prior to the manatee protection speed limits. The manatee slow speed zone resulted in the addition of two and a half miles of regulated area. There are two designated recreational areas along the 50 miles. DEP relied, in part, on the 1988 report of the Marine Manual Commission to support regulation in Eastern Volusia County. Western Volusia County (St. Johns River) Richard E. Rawlins, the owner and operator of a fish camp in Deland with a 150 boat slip and 59 unit campground, operates guided fishing tours exclusively in the St. Johns River Basin from Lake George at Putnam County to Lake Monroe in Seminole County. Prior to the adoption of the rule, idle zones existed around bridges and marinas on the St. Johns. Mr. Rawlins operated guided fishing tours at speeds of 40 to 45 miles per hour. The camp is close to bankruptcy having gone from 8 to 3 employees, from 80 to 85 percent to 10 percent wet storage occupancy and 30 to 35 percent dry storage occupancy. Having received three tickets and many warnings for exceeding the speed limit, Mr. Rawlins has reduced, by approximately half, his own recreational boating and fishing. Pulling persons on innertubes has also been eliminated by slow speeds, which he estimates equates to 5 to 7 miles per hour, as compared to innertubing at 40 miles per hour prior to the rule. Although, innertubing at 40 miles per hour was probably unsafe. Mr. Rawlins 20 foot boat with a 200 horsepower engine gets up on a plane at approximately 28 miles per hour and maintains a plane at 25 miles per hour. Prior to the rule, water-skiing on the St. Johns occurred primarily between Markers 38 and 20 at Cross Creek. The area now has a 30 mile per hour speed limit above Marker 32 and 25 miles below it. From the fish camp to the lower basin of the Hontoon Dead River takes over four hours, as compared to 45 to 50 minutes by boat prior to the adoption of the rule. The camp's operation of bass fishing tournaments has been eliminated by the inability to cover greater distances in shorter periods of time. In 32 years of St. Johns River boating and fishing, Mr. Rawlins estimates having seen manatees on one of every 18 to 20 trips, although the waters of the St. Johns River and its tributaries are relatively dark. He recalls one boat related manatee killing near his camp two and a half years ago, and a couple more at the Hontoon Dead River at about the same time. Recently, he has seen manatees outside of the Blue Springs area near Marker 20. Prior to that, he had not seen manatees in the area for 60 to 70 days. Although it varies, generally in December, January and February, the guide sees up to 70 manatees congregating in Blue Springs. When water temperature drops below 68 degrees in the rest of the river basin, the manatees move to Blue Springs because of its constant water temperature of 72 degrees. Mr. Rawlins does not need a speedometer to determine whether his boat is settled in the water. Because different boats settle differently depending on the type of hull, Mr. Rawlins believes Marine Patrol enforcement is not uniform. The speed limits in the areas north of the camp in the Norris Dead River to Lake Woodruff are at least 25 miles per hour, except for areas of idle zones established for marinas and for public safety, but not under the manatee protection rules. Access to southern fishing areas through the Hontoon Dead River have been adversely affected by the rule. Mr. Rawlins has not filed any written application for an exemption from the rule. He claims to have applied and been turned down by telephone. One boat manufacturer in Volusia County has received an exemption to test its boats at higher speeds. William B. Flowers, Sr., is a fishing guide who lives near the Lake Beresford Peninsula, and operates a 14 foot boat powered by a 48-horsepower motor at slower speeds than 300 foot long barges pushed by tugboats with two five foot propellers. It now takes approximately 4 hours to reach the areas of the Wekiva, River which he could reach in 35 minutes prior to the adoption of the rule. He will not apply for an exemption from the rule based on concern for his neighbors who would still have to adhere to the slow speeds. Lake Beresford is too crowded with fishermen to also accommodate water-skiers. Lake Woodruff and Lake Dexter are in a Federal Wildlife Refuge infested with alligators. On the St. Johns River, three miles of idle speed zone is imposed for boating safety and an additional nine-tenths of a mile for manatee protection, seven miles around Blue Springs and south of it, and another four and a quarter miles going into the southern Norris Dead River. The best estimate is that two thousand manatees live in Florida waters. Up to 76 manatees spend some time during the winter months in Blue Springs, particularly when water temperatures elsewhere drop to 20 degrees Centigrade or 68 degrees Fahrenheit. As water temperature approaches 50 degrees, manatees stop feeding and must get to warmer water to survive. Except for times of the most severe cold fronts, manatees in Blue Springs venture out into the St. Johns River system on a daily basis. In general, they venture out 12 kilometers from the springs, but have been known to go to Jacksonville. Mr. Flowers sees manatees around the springs from December to early March, and a few in Lake Beresford when there is grass left in the lake. The Regulations Rule 16N-22.003(6) authorizes exemptions for commercial fishermen and professional fishing guides and adopts, by reference, a written application form. Exemptions may not be granted for speeds in excess of 20 miles per hour nor in "motorboat prohibited" and "no entry" zones. There have been no denials of exemption applications from Volusia County. One exemption has been granted in Volusia County, other applications are pending. DEP relied, in part, on the Bengston study of manatees in the St. Johns River, which shows manatees move from one area to another depending on the availability of grasses for feeding. DEP also relies on the federal Endangered Species Recovery Plan for Manatees, which lists as its first priority reducing boating speeds in order to reduce boating-related accidental manatee deaths. A killing of a manatee by personal watercraft has been reported in Puerto Rico. There are no documented cases of manatees being killed by airboats. The rules apply to personal watercraft and airboats. Although, there was undisputed expert testimony that exemptions are available for airboats in some slow zones. In the last 15 to 20 years, an average of two manatees a year have been killed in Volusia County. There was no evidence of the types of watercraft causing the fatal injuries. Average boating speeds in Broward, Palm Beach and Pinellas Counties are 26 to 28 miles per hour, and lower in the rest of Florida. The majority of smaller recreational boats plane safely at speeds of 25 miles per hour or less. Because of its size and depth of the hull, DEP acknowledges that a barge going 5 miles per hour may pose more danger to manatees than smaller vessels traveling faster. The meaning of slow speed, as taught to Marine Patrol officers, is that a vessel is fully settled and level in the water and the wake does not endanger other vessels operating on the water or tied up along the shore. If an officer approaches a boat which settles into the water after reducing its speed, then the boat has not been operating at a slow speed. The view from a moving boat is a poor vantage point to determine the presence of manatees. Manatees are only able to move at speeds up to 15 miles per hour for short distances. To allow vessels to plane at approximately 20 miles per hour, 25 miles per hour zones have been adopted due to the absence of lower effective boat speeds between slow and 25 miles per hour, at which a boat could plane. The regulations also include 30 and 35 mile per hour speed zones. At 30 miles per hour, virtually all vessels, except the largest cigarette boats, can plane. At 35 miles per hour, innertubing, parasailing and water-skiing are possible if the water is deep and wide enough, except for barefoot and professional water- skiing. Although many boats are not equipped with speedometers, relatively accurate and inexpensive ones are available to determine speeds in excess of 10 miles per hour. Personal watercraft and jet skis cannot be equipped with speedometers. Other methods for determining speed are frequently used by boaters. Some of the higher speed zones in Volusia County decrease to 25 miles per hour at night, although moving boaters are unlikely to see manatees and manatees are unlikely to see boats. Manatees are able to see only two or three feet ahead, depending on water clarity, but there was unrefuted expert testimony that they are more aware of surroundings in daylight and better able to sense where to move to avoid boats.
