The Issue Whether the amendments to the Franklin County (County) Comprehensive Plan (Plan) adopted by Ordinance No. 2005-20 (Amendments) on April 5, 2005, are “in compliance” as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact Background Franklin County (Franklin) is a coastal county located along the Gulf Coast of Florida's Panhandle. To the west is the Apalachicola River; it empties into a bay defined by barrier islands (St. Vincent, St. George, Dog), creating North America's second largest and most productive estuary. The eastern part of the County is St. James Island (SJI), separated from the mainland by the Crooked and Ochlockonee Rivers. Franklin's primary economic base is historically resource-based, including silviculture/timber, and since the 1930s primarily the fishing (seafood) industry. Tourism/retirement is an emerging industry especially on St. George Island, a noted resort destination. Retirees and vacationers come to enjoy the beautiful, pristine, relatively undeveloped, but still accessible waterfront stretches. Franklin's cities are Carrabelle, a 2.66 square mile fishing community about 50 percent developed and Apalachicola, a historic 4.81 square mile fishing community where about 90 percent of the land is still open for development. About 62- 70 percent of the County is federal or State land including the 1200-inmate State prison, Bald Point and St. George Island State Parks, Tate's Hell State Forest, and Apalachicola National Forest. FSU's Marine Lab is at Turkey Point. St. Joe owns over 55,000 acres in Franklin, mostly on SJI. Franklin has one of Florida's worst poverty rates. SJI's boundaries are the Crooked River and the Ochlockonee River and Bay on the north, Bald Point State Park on the east, Alligator Harbor Aquatic Preserve and the Gulf of Mexico on the south, and the City of Carrabelle on the east. SJI is mostly undeveloped except for: the Alligator Point area, including areas along County Road (CR) 370, areas along U.S. Highway (US) 98 including the unincorporated areas of St. Teresa and Lanark Village and adjacent to Carrabelle; and a few homes on Rio Vista Drive, just south of the Ochlockonee River. The natural systems on SJI are very diverse, and habitats range from xeric, well-drained uplands of pine and oak, to riverine swamps of cypress and hydric hardwoods, freshwater marshes, rivers and ponds, marine inter-tidal wetlands, bays, beaches, mudflats, seagrass meadows and open waters of the Gulf of Mexico. SJI is an ecologically significant and environmentally sensitive area that consistently scored in the 5 to 9 range (out of a high of 10) on the Florida Wildlife Commission's (FWC's) Integrated Wildlife Habitat Ranking System (IWHRS). SJI supports up to 388 species of birds, mammals, amphibians and reptiles, including a number of State-listed species. Of particular note is the presence of the black bear on SJI, which is a State-listed threatened species with substantial strategic habitats identified by FWC on SJI, particularly in the McIntyre, Brandy Creek, Cow Creek and Bear Creek corridors. The Gulf Sturgeon, a federally-listed threatened species, occurs in the Ochlockonee and Crooked Rivers and is subject to an ongoing U.S. Fish and Wildlife Service Study to determine the importance of the habitat to spawning and distribution of this prehistoric fish. SJI is surrounded by relatively clean (pristine) surface waters that have been designated as Outstanding Florida Waters (OFWs), including portions of Alligator Harbor and portions of the Ochlockonee Bay and River. A large part of Alligator Harbor is an Aquatic Preserve. Much of the Alligator Harbor and Ochlockonee Bay are designated as Class 2 Shellfish harvesting waters. SJI is home to Bald Point State Park, which provides a variety of wildlife habitat and recreational opportunities for nature observation and fishing. The eastern boundary of Tates Hell State Forest extends to Highway 319 on SJI and is separated from Bald Point State Park by approximately 7 miles of agricultural land (silviculture) through the center of SJI. Northeast Franklin, including SJI, is part of the Woodville Karst Plain, generally a sensitive karst area where some confining beds (especially in Wakulla County) are usually thin to absent, or breached. In unconfined karst hydrogeology, groundwater moves rapidly, but soil borings on SJI (Turkey Point) corroborate North Florida Water Management District maps which show a confining layer in eastern Franklin County varying in thickness from 15 to 20 feet. With such a confining layer, groundwater moves vertically at approximately 2 to 3 feet per year and laterally at approximately 100 feet per year in eastern Franklin County, including on SJI. Petitioners attempted to contradict evidence presented by St. Joe and prove that SJI has karst hydrogeology primarily on evidence of core samples taken in eastern Franklin County. These core samples were not explained by any expert testimony and did not prove the absence of any clay confining layer in eastern Franklin County. While unlikely, there may be places in eastern Franklin County where the confining layer thins or is absent or breached. In 1991 Franklin adopted a Plan for a long-term planning horizon of the year 2000. The Plan was found “in compliance,” at a time when approximately 27 percent of Franklin was in public ownership and Franklin was designated an Area of Critical State Concern (ASCS) largely due to the importance of the Apalachicola Bay Area and its natural resources. See §§ 380.05 and 380.0555, Fla. Stat. The 1991 Plan designated a critical shoreline district and impervious surface area limitations within 150 feet of shorelines and wetlands, which not only were determined by Franklin and the Governor and Cabinet to effectively protect County wetlands but also won an award from DCA for Outstanding Environmental Protection. The Administration Commission removed Franklin's ACSC designation in 1992, but the Plan was not changed prior to 1995. After 1995, and within the year 2000 planning horizon, there was one policy addition--FLUE Policy 2.2(k)-- and one policy amendment--to FLUE Policy 2.2(d). In approximately 1997, Franklin prepared an EAR on the 1991 Plan. It did not state a need for, or anticipate any, changes to the FLUE or FLUM or much else in the Plan. However, Franklin did not timely adopt EAR-based amendments to the 1991 Plan, and the planning horizon of Franklin's Plan remained the year 2000. Notwithstanding the 2000 planning horizon, there also were some amendments/additions/deletions to goals, objectives, and policies (GOPs) after 2000. Ordinance 2001-20 amended wetlands policies to reflect a change in State jurisdiction, amended FLUEP 1.2(d) and 3.1, deleted FLUEP 3.2 and 3.3, amended Coastal/Conservation Element (C/CE) Policy 1.5, and added FLUEP 1.6-1.9. Ordinance 2003-1 amended C/CEOs 1, 2, 3, and 7 and added Capital Improvements Element (CIE) Policies 4.4-4.6. Franklin also adopted two large-scale Plan amendments for mixed-use residential developments on SJI after 2000 without updating its Plan and planning horizon. In 2000 Franklin approved a FLUM amendment (FLUMA) from "Public Facilities" to "Mixed Use Residential" on 377.4 acres along US 98 at the intersection with Crooked River Road for a development of regional impact known as "St. James Bay." In 2002, Franklin transmitted a proposed FLUMA for 784 acres on Alligator Harbor from "Agriculture" to "Mixed-Use Residential," together with proposed FLUEP 11.11, for a St. Joe development called SummerCamp. During DCA's compliance review of the Summercamp amendments, the issue was raised whether the amendments should be found "in compliance" when Franklin's Plan was out-of-date and still planning for the year 2000. To resolve the situation, in 2003 Franklin adopted FLUEPs 11.12 and 11.13 along with the SummerCamp FLUMA. These amendments were found to be "in compliance." FLUEP 11.12 required Franklin to conduct a county- wide assessment of eight key substantive areas, prepare an overlay map and plan policies for SJI, and update its Plan not later than April 1, 2004, on the basis of the county-wide assessments, and to include requirements that all FLUMA on SJI be "consistent with the overlay map and policies." The eight key substantive areas were: Protection of natural resources including wetlands, floodplains, habitat for listed species, shorelines, sea grass beds, and economically valuable fishery resources, groundwater quality and estuarine water quality; Protection of cultural heritage; Promote economic development; Promotion of emergency management including the delineation of the coastal high hazard area, maintaining or reducing hurricane evacuation clearance times, creating shelter space, directing population concentrations away from known or predicted coastal high hazard areas, and implementing appropriate parts of the Local Mitigation Strategy; Adequate provision of public facilities and services including transportation, water supply, wastewater treatment, and facilities for access to water bodies; Provision of affordable housing, where appropriate; Inclusion of intensity standards; and A list of allowable uses. FLUEP 11.13 applied to any large-scale FLUMAs transmitted to DCA prior to the "effective date" of the Plan update pursuant to FLUEP 11.12, and required the FLUMA to "include an area-wide assessment covering the geographic area of the county where the FLUMA is located that addresses the same eight key substantive areas in FLUEP 11.12. Transmittal and Adoption Process The Plan Amendments at issue are the result of Franklin's endeavors to adopt EAR-based amendments and FLUMAs in accordance with FLUEPs 11.12 and 11.13. Franklin initially contracted the Department of Urban and Regional Planning of the Florida State University (FSU) for: a review and evaluation of the current Plan and EAR to recommend plan changes; to have a consensus building process with at least six community workshops; to evaluate population and employment; to perform technical data assembly and analysis; to recommend updated GOPs; and to facilitate consensus on a planning overlay for SJI. FSU produced updated data and analysis (D&A) in Geographic Information System (GIS) format and GOP revisions. FSU found no need for more residential land through 2020. FSU prepared a GIS-based "suitability analysis and county-wide map." Based upon St. Joe's concerns, FSU was told to delete it, and Franklin did not transmit the suitability analysis/map. In lieu of the FSU's suitability analysis/map, a short narrative was submitted. On June 16, 2004, Franklin filed a "transmittal package" with DCA: a "complete revised plan" with D&A and GOPs; a "supplementary notebook"; and 13 large FLUMs. Franklin proposed 8 FLUMAs: Eastpoint Sprayfield (45 acres); Breakaway Lodge/Marina (17.3 acres); Ft. Gadsden Creek (78.6 acres); Otter Slide Road (46.4 acres); McIntyre Rural Village (RV) (1,740 acres); Conservation Residential (ConRes) (6,532 acres); Carrabelle East Village (CEV) (201 acres); and Marina Village Center (MVC) (1,000 acres). DCA found Franklin's transmittal insufficient per 9J-11.009(1). On July 13, 2004, Franklin transmitted St. Joe's "site suitability for Proposed St. James Island FLUM amendments"; "traffic study"; "historical data on City of McIntyre"; "St. James Island Forestry Type Map"; and "Archaeological Reconnaissance of the St. James Island/Ochlockonee River Tract." On October 15, 2004, DCA issued an ORC per 9J- 11.010. The ORC made numerous (49) objections, including, but not limited to: the SJI overlay/policies, FLUMAs, wetlands, population projections/need, potable water, Coastal High Hazard Area (CHHA), land use categories/density and intensity standards, affordable housing, water supply planning, water dependent uses, no capital improvements schedule (CIS), and internal inconsistency. DCA coordinated with Franklin and St. Joe on the ORC response (ORCR), which was transmitted to DCA along with Ordinance 2005-20, adopted April 5, 2005, consisting of amended GOPs and FLUM series. The Ordinance replaced the 1991 Plan, as previously amended, and repealed all prior ordinances to the extent of conflict. The Ordinance adopted seven elements--FLUE; traffic circulation (TCE); housing (HE); infrastructure (IE); C/CE; recreation and open space (ROSE); and intergovernmental coordination (ICE)--and a FLUM series. FLUEPs 11.12 and 11.13 were deleted. There was no Capital Improvements Elements (CIE). In its new Plan, Franklin adopted five FLUMAs -- the Eastpoint Sprayfield and St. Joe's RV, ConRes, CEV, and MVC. The Eastpoint Sprayfield was dropped during DCA's compliance review, leaving the four St. Joe FLUMAs. During DCA's compliance review, many ORC objections were considered unresolved. Some issues were resolved on further review, but others remained, as reflected in a May 6, 2005, staff memo opining that the Plan Amendments were not "in compliance." This memo was written by DCA planners Susan Poplin and Jeff Bielling, who had extensively reviewed the County's transmittal and adoption packages. It was approved by their immediate supervisor, Charles Gauthier, a certified planner with extensive experience with Franklin, who left DCA not long after approving the memo. The memo was then presented to Valerie Hubbard, DCA's Director of the Division of Community Planning (and Gauthier's immediate supervisor), who considered the issues presented in the memo, along with additional information presented by the County, ultimately disagreed with the planners, and issued an "in compliance" Notice of Intent. No CIE A CIE is a mandatory element. See § 163.3177(3)(a); 9J-5.005(1)(c)2, 9J-5.0055(1)(b) and (2); 9J-5.016. The 1991 Plan had a CIE that was amended by ORD 2003-1 (CIEPs 4.4-4.6 were added). Franklin transmitted a proposed CIE to: change the "initial planning period" in CIEO 3.4 to 2004-2009; delete CIEPs 3.3 and 3.4; make a minor change to CIEP 2.1; and change CIEP 5.4 (LOS for potable water, principal arterial roads, and recreational facilities). DCA objected to the lack of a five- year CIS, which also is mandatory. In the ORCR, Franklin explained the absence of the CIS by maintaining that there were no capital improvements needed for the next five years. The adopted 2020 Plan has no CIS, which DCA found "in compliance" based on Franklin's explanation. However, it also has no CIE, which was not obvious or apparent to DCA in its compliance review because the CIE was not submitted in strike- through/underline format, as required by 9J-11. In addition, several adopted elements cross-reference to the CIE. Franklin contends that it did not adopt a CIE because there were no capital improvements to be shown on a five-year CIS and because of its understanding that many items, including building or paving roads, are not capital improvements. However, it appears Franklin may have inadvertently neglected to adopt the CIE as transmitted. The deletion was not discussed at the adoption hearing. When the deletion of the CIE came to the attention of DCA after the May 6, 2005, staff memo, DCA chose to accept Franklin's explanations as to why the CIE was deleted and why the 2020 Plan was "in compliance" without a CIE. But the evidence does not support these explanations. Notwithstanding Franklin's explanations, Franklin Ordinance 04-45 authorized a referendum on a local tourist development tax, which was approved by the voters on November 2, 2004, to provide for development of a beach park and for other recreational facility infrastructure. Franklin estimated $718,896 in tax receipts for FY 2005-06. The other parties contend that the expenditure of these capital improvement funds need not be addressed in the CIS or CIE in part because they are for the benefit of tourists, not residents. But it is clear from the evidence that both will benefit, and there does not appear to be any exception for capital improvements designed to benefit both. The other parties also point out, correctly, that only capital improvements needed to meet concurrency requirements need to be on the CIS. Besides the possible use of tourist development funds, Franklin's 2005-06 $34,036,313 annual budget includes a number of other items that appear to be capital improvement items: "capital outlay - land $100,000; capital outlay - imp. other than buildings $300,000; walk path Tillie Miller Park $10,000; Carrabelle Rec Park/FRDAP grant $200,000; Rec. Fac. Improvements other than buildings $25,000; Bald Pt. land $50,000; Bald Pt. improvements other than buildings $495,697; road paving-improvements $1,200,000; paving project-CR 30 $1,951,379; boating-improvements other than buildings $94,877; Lanark Village Drainage Improvement $92,059; Airport Fund capital outlay- improvements other than buildings $1,407,069." In addition, Franklin's CR 370 along Alligator Point has repeatedly washed out from storms, and current estimated repair costs are $2.1 million, with $1 million budgeted and FEMA matching funds anticipated. The other parties presented the direct testimony of several witnesses that none of the expenditures Franklin is planning to make in the next few years, even if capital expenditures, need to be on a CIS. Petitioners presented no direct testimony to the contrary. Based on the evidence, it was not proven that beyond fair debate that any of these expenditures were required to be included in a CIS. CIE requirements include GOPs. 9J-5.016(3). Franklin Planner Pierce and St. Joe witness Beck testified that CIE requirements can be found in other elements of the 2020 Plan. However, the 2020 Plan does not contain an explanation of any such combination of elements as required by 9J-5.005(1)(b). In addition, based upon the evidence, while some CIE requirements can be found in other elements, it is beyond fair debate that the other elements of the 2020 Plan do not contain all of the required CIE GOPs. One CIE requirement is to have a policy setting public facilities level of service standards (LOSS), including one for recreational facilities. See § 163.3177(3)(a)3; 9J- 5.016(3)(c)4. See also 9J-5.0055(1)(b) and (2). The 2020 Plan lacks LOSS for recreational facilities. ROSEP 1.2 purports to adopt LOSS "as provided in Exhibit 7-2 of this element," but Franklin did not adopt Exhibit 7-2. See 9J- 5.005(2)(g). Franklin's transmittal D&A proposed updated recreational LOSS using population forecasts for "projected need for 2010." Exhibit 7-2 in Franklin's June 14, 2004, transmittal was based on those 2010 forecasts. There was no projection of need for either five years or to 2020. Franklin's transmittal D&A showed a deficit for bike trails, fresh/saltwater fishing, football/soccer, tennis, and swimming pools through 2010. Franklin Planner Pierce testified Exhibit 7-2 was not adopted because it was inaccurate. He testified that it was based on total population, including incorporated areas, and failed to count some swimming pools and tennis courts. But he did not supply the corrected information, and accurate D&A was not submitted for review. Pierce admitted that no data in evidence showed that Franklin can meet recreational needs through 2020, or that current recreational LOSS are being met. Franklin operates Class 1 and Class 3 landfills located on the east side of CR 65, north of US 98. D&A indicated that there are two-three more years of Class 1 landfill capacity at 2004 collection levels, with household trash being trucked to Bay County under a contract valid until 2007. The Class 3 landfill takes construction debris for a fee. Franklin did not assess Class 1 disposal requirements after the 2007 contract expiration, or Class 3 disposal requirements, and the 2020 Plan is not supported by an assessment of future solid waste disposal requirements through either a five-year or 2020 time frame based upon the projected population. Franklin may need to expand either, or both, of its landfills during the 2010 and 2020 time frames, but there is no discussion of such improvements. DCA, Franklin, and St. Joe concede that Franklin's 2020 Plan without a CIE is deficient, but they characterize the deficiency as merely "technical" and "inconsequential" because: "there are no deficiencies for which to plan, and many Plan provisions ensure capital improvements implementation, monitoring and evaluation, and concurrency management"; and Franklin "has demonstrated that it can adopt a CIS and CIE in the future, if needed." But it is beyond fair debate that Franklin's 2020 Plan, as it stands now without a CIE, is not in compliance because it is inconsistent with Section 163.3177(3)(a), 9J-5.0055(1)(b) and (2), and 9J- 5.016(3)(c)4. Combination Coastal and Conservation Elements Petitioners also contend that the 2020 Plan combines the coastal and conservation elements but does not contain an explanation of such combination, as required by 9J- 5.005(1)(b). In a small jurisdiction like Franklin County, with the vast majority of its land in public ownership, combination of these two elements is appropriate because most of the County’s developable acreage is coastal, and conservation measures must necessarily focus on coastal areas. This combination was previously found in compliance in 1991. No expert witness for Petitioners testified that the combination of these elements is inconsistent with 9J- 5.005(1)(b), or that the 2020 Plan is not "in compliance" as a result. To the contrary, several experts for the other parties testified that the 2020 Plan is "in compliance." Two Planning Periods/Timeframes Petitioners contend that it is beyond fair debate that the 2020 Plan does not include a planning period covering at least the first five-year period after adoption, as required by Section 163.3177(5)(a). But the Plan contains a number of objectives and policies in the HE, IE, and C/CE that establish a five-year planning period for achieving certain objectives. See HEO 4; IEO 2.16; C/CEOs 5.9, 8.3, 9, 14.9, 15, 15.9, 18, and 21. Petitioners seem to contend that the 2020 Plan fails to include the two required time frames--one at least five years and one at least ten years--because Franklin's analyses included disparate time frames and lacked a uniform 2020 analysis. But there does not appear to be a prohibition against analyzing more time frames than just the long-term planning horizon. It was not proven beyond fair debate that the 2020 Plan does not cover at least two planning periods, one for at least the first five years and another for at least ten years after adoption. Affordable Housing Petitioners contend: "To the extent that FLUE Policies 11.12 and 11.13 required an assessment of affordable housing on SJI, there is no data or analysis to support a finding that an affordable housing assessment was prepared." Pam Ashley PRO, ¶ 42. But FLUEPs 11.12 and 11.13 were deleted by the Plan amendments at issue. Besides, the county-wide assessment would include the area of SJI. Adopted HEO 2 provides: "There will be sites available for 473 units of housing for low and moderate families by the year 2020 2000." (Underlining/strikethrough in original.) As stated, the number in the objective clearly is incorrect. Actually, D&A showed a need for 473 units in addition to the 1803 units identified in the 1991 Plan. Adopted HEO 3 makes the same kind of error for mobile homes: "There will be adequate sites for 244 mobile homes in the County by the year 2020 2000." (Underlining/strikethrough in original.) It is beyond fair debate that these objectives, as stated, are not supported by D&A. The plan should be corrected to comport with D&A. CHHA Designation Section 163.3178(2)(h) defines the CHHA to mean the Category (Cat) 1 hurricane evacuation zone. See also Rule 9J- 5.003(17) (defining the CHHA to mean the evacuation zone for a Cat 1 hurricane as established in the applicable regional hurricane study). The Apalachee Regional Transportation Analysis Final Report is the most recent applicable regional hurricane evacuation study (HES) per 9J-5.003(17). According to the HES, Franklin's Cat 1 evacuation zone boundary "would roughly coincide with US 98 throughout the County. The HES map of Franklin's evacuation zone, which is in GIS format, depicts one minor exception south of US 98, east of CR 30A (which is west of Apalachicola), and another southeast of US 98 (and southwest of CR 370) in the middle of SJI. Both exceptions are inland--i.e., they do not extend seaward to the coast (St. Vincent Sound in the case of the first exception, and Alligator Harbor in the case of the second exception). The adopted FLUM series includes a CHHA map that notes: "The Coastal High Hazard Area shall be designated . . . as all areas seaward of Highway 98 or County Road 30A with the exception of areas depicted as 1 and 2 on this map. The Coastal High Hazard Area for unincorporated Franklin County is based on the Apalachee Regional Transportation Analysis Final Report." The Areas 1 and 2 exceptions on Franklin's CHHA map purport to be the same two exceptions in the HES map. But unlike the HES map, the two exceptions depicted on Franklin's CHHA map extend all the way to the coast. In addition, they are larger than the exceptions depicted on the HES map, with Franklin's Area 2 exception on SJI clearly much larger. DCA, Franklin, and St. Joe concede that Franklin's CHHA map does not correspond to the HES Cat 1 evacuation zone for Franklin. However, they characterize the differences as "slight" and attributable to the "representational nature" of the HES map. To the contrary, the HES map, which is in GIS format, fixes precise boundaries that clearly are not matched by Franklin's map in the cases of Areas 1 and 2. Besides, 9J- 5 does not permit Franklin's CHHA to take liberties with the applicable regional study's evacuation zone based on alleged generalized depictions or representations in the regional map. A witness for St. Joe testified that evacuation zones are related to clearly identifiable landmarks and physical features, like US 98, for easier and clearer communication to the public. But that clearly is not always the case, as can be seen from the various HES maps. In any event, there was no evidence that such considerations could justify Franklin's departure from the HES Cat 1 evacuation zone boundaries in this case, and such an argument is not made in the Joint PRO filed by DCA, Franklin, and St. Joe. It is beyond fair debate that the 2020 Plan's CHHA designation in the CHHA map does not correspond to the evacuation zone for a Cat 1 hurricane as established in the applicable regional hurricane study, as required by Section 163.3178(2)(h) and 9J- 5.003(17). Petitioners also point out that HES was based, in part, upon the National Hurricane Center's Sea, Lake, and Overland Surges from Hurricanes (SLOSH) model in the 1994 Florida Hurricane Surge Atlas-Franklin County, and that HES included areas of Wakulla County north of SJI in the SLOSH Cat 1 area in Wakulla's Cat 1 evacuation zones, but excluded such areas south of the Ochlockonee Bay and River from Franklin's Cat 1 evacuation zone. They seem to contend that the HES Cat 1 evacuation zone for Franklin is not as large as it should be. But the evidence implied that the difference in treatment of these areas by HES was the result of lobbying by Wakulla's director of emergency management for their inclusion. In any event, as stated, Section 163.3178(2)(h) and 9J-5.003(17) accept the Cat 1 evacuation zone delineated by the applicable regional study, regardless of possible error. Inventory/Analysis/GOP for Natural Disaster Planning Petitioners question the adequacy of Franklin's inventory/analysis and GOPs for natural disaster planning under 9J-5.012. Besides citing some D&A, Petitioners make several major arguments: first, the CHHA may not plan to mitigate flooding damage; second, Franklin did not plan for projected populations; third, the 2020 Plan makes no provision for capital improvements to build shelters despite adding C/CEPs 14.8 and 14.12 regarding shelters inside and outside of county; fourth, parts of the evacuation routes out of Franklin are subject to storm surge and flooding; fifth, Franklin's planning ends at the county line; and, sixth, special needs persons were not considered. 45. 9J-5.012(2)(e)1. provides: (e) The following natural disaster planning concerns shall be inventoried or analyzed: 1. Hurricane evacuation planning based on the hurricane evacuation plan contained in the local peacetime emergency plan shall be analyzed and shall consider the hurricane vulnerability zone, the number of persons requiring evacuation, the number of persons requiring public hurricane shelter, the number of hurricane shelter spaces available, evacuation routes, transportation and hazard constraints on the evacuation routes, and evacuation times. The projected impact of the anticipated population density proposed in the future land use element and any special needs of the elderly, handicapped, hospitalized, or other special needs of the existing and anticipated populations on the above items shall be estimated. The analysis shall also consider measures that the local government could adopt to maintain or reduce hurricane evacuation times. These inventories and/or analyses are found in the C/CE, the regional hurricane evacuation study, the Comprehensive Emergency Management Plan (CEMP), and the Local Mitigation Strategy (LMS). The Plan incorporates the hazard mitigation appendix of the CEMP through C/CEP 15.7. Additionally, in C/CEPs 14.1, 14.6, the 2020 Plan recognizes appropriate parts of the LMS, such as the need to maintain and improve evacuation routes throughout the County. 9J-5.012(3) sets out requirements for coastal management GOPs, including the requirement in (a) for "one or more goal statements which establish the long term end toward which regulatory and management efforts are directed" to "restrict development activities that would damage or destroy coastal resources, and protect human life and limit public expenditures in areas subject to destruction by natural disasters"; and the requirement in (b) for "one or more specific objectives for each goal statement which . . . 7. [m]aintain or reduce hurricane evacuation times " To support their contention that the CHHA may not plan to mitigate flooding damage, Petitioners cite a statement in the CEMP that flooding is the greatest potential hurricane damage. The also cite D&A in Franklin's 6/2004 transmittal package that evaluated areas subject to coastal flooding and observed: Areas subject to coastal flooding resulting from storm surges are shown in Map 6.4. The map portrays substantial risk from flooding outside the Category 1 storm zone By limiting the CHHA to the Category 1 storm surge zone the county may not be planning to mitigate the substantial flooding risks posed by storm surges and Category 2 and 3 storms . . . . However, there was no evidence that Franklin, DCA, or anyone else ever came to the conclusion that the CHHA was inadequate for that reason. In any event, as stated in the discussion on the CHHA, state law defines the CHHA to coincide with the Cat 1 evacuation zone as drawn by the applicable regional hurricane evacuation study. See Finding 38, supra. Petitioners base their contention that Franklin did not plan for projected populations on a reference in the LMS to Franklin's future land uses as of 2000, instead of its future land uses in 2020. But is clear that Franklin also considered the four SJI FLUMAs with their future land uses for 2020. As to shelters, Petitioners essentially argue that the CIS is inadequate. But C/CEPs 14.8 and 14.12 require assessments of shelter availability inside and outside Franklin, pursuit of agreements with neighboring counties to provide out-of-county shelters, and exploration of the possibility of locating some shelters in Franklin (even though the entire county will be evacuated in the event of a Cat 2-5 storm). There was no D&A as to a need for capital funding within the next five years for inclusion in a CIS. Regarding the impact of storm surge and flooding on evacuation routes out of Franklin, there was evidence that US 319 is subject to flooding at the Ochlocknee River during a storm, that US 98 is subject to storm surge and flooding at the Ochlocknee Bay, and that the four SJI FLUMAs are expected to move the critical link in Franklin's evacuation plan from US 98 near Lanark Village to US 98 at the Ochlocknee Bay. But there was no evidence that Franklin failed to consider the impact of storm surge and flooding on evacuation routes out of Franklin. To the contrary, the evidence was clear that Franklin is planning for the complete evacuation of the county to take place before those routes are impacted by storm surge or flooding. The USACE guidance for HES states in part: Each jurisdiction's existing hurricane evacuation routes are evaluated. In choosing roadways for the hurricane evacuation network care should be taken to designate only those roads that are not expected to flood from rainfall or storm surge while evacuation is in process. There was no evidence that HES did not follow this guidance. Under C/CEO 14 of the 1991 Plan, reasonable hurricane evacuation standards of 16 hours for Cat 1 and 24 hours for Cat 2-5 storm events were adopted. The 2020 Plan amends C/CEO 14 to read: Hurricane Evacuation - The County shall conduct its hurricane evacuation procedures to ensure that Countywide evacuation clearance times do not exceed 16 24 hours for Category 1 & 2 storms and 24 30 hours for Category 2, 3, 4 and 5 storms. 9J5-012(3)(b)(7). (Underlining/strikethrough in original.) Actual hurricane evacuation times are based on models that estimate the amount of time it would actually take to evacuate the County. These models include consideration of behavioral tendencies and tourist occupancies. Without the SJI FLUMAs, actual hurricane evacuation clearance times for the entire County are 4 ½ hours for a Cat 1 evacuation and 8 ¼ hours for Cat 2–5 evacuations, with high tourist occupancy and a slow public response. With the additional populations from the SJI FLUMAs (none of which fall within the CHHA), actual clearance times would increase slightly to five hours for Cat 1 and 10 ½ hours for Cat 2 – 5 evacuations. However, today’s actual evacuation times of 4 ½ hours and 8 ¼ hours can be maintained or reduced with the use of reasonable mitigation measures found in C/CEP 14.1--namely, encouraging the use of SR 65 and SR 67 as alternatives to US 98 and SR 319. Petitioners contend that Franklin's hurricane evacuation standards actually have been lowered as a result of the amendment to C/CEO 14 by the addition of the word "clearance." But there was no evidence that the 1991 Plan's C/CEO 14 actually planned for something other than clearance from Franklin. Regardless whether evacuation plans changed by addition of the word "clearance," Petitioners question whether it is wise to plan only to clear Franklin before the arrival of tropical storm conditions when evacuees still must pass through Cat 1 evacuation zones in other counties, e.g., Wakulla, before reaching a place of safety. As they point out, the HES envisions the need for a regional evacuation in the event of a major hurricane with the majority of evacuees in the region evacuating to Leon County, and states: "For the near term, it may be most appropriate for the coastal counties, especially Franklin and Wakulla, to use the clearance times for Leon County rather than using their own specific figures." Moreover, HES stated: Until the roadway improvements are completed on the Crawfordville Highway and Capital Circle, the evacuation clearance times calculated for Franklin, Wakulla and Leon Counties can exceed one full day of heavy evacuation traffic movement for a worst-case storm if all those who wish to leave the area are to be accommodated. This timeframe easily extends beyond the maximum amount of warning and preparation time provided by the National Hurricane Center under a Hurricane Warning. This D&A in and of itself does not prohibit Franklin from using times to clear the county in its evacuation planning. But use of clearance times would require regional evacuation needs to be coordinated among the various counties and incorporated in the CEMP and LMS. There was no evidence in this case that such coordination has not occurred or that the various counties are not planning for evacuees to pass through all evacuation zones and reach places of safety soon enough to get out of harm's way. Petitioners also argue that special needs persons have not been considered. This argument is based on the supposed testimony of St. Joe's witness, Collins, that there is no provision in the 2020 Plan for the evacuation of persons with special needs. Actually, Collins' testimony was that there is a Plan provision that "definitely affects the evacuation" of persons with special needs, and not just indirectly, in that adult living facilities within the CHHA are prohibited. He also testified that the CEMP deals with those issues. Mr. Gauthier, the former DCA chief of comprehensive planning was subpoenaed by Petitioners and explained why, in his opinion, the 2020 Plan is not "in compliance" because of inconsistency with 9J-5.012. He based his opinion on the incorrect CHHA designation, failure to direct population concentrations away from the CHHA, and C/CEO 14's establishment of a clearance time standard greater than actual clearance times. While the CHHA may not be designated accurately, assuming a correct definition, there was at least fair debate as to whether the 2020 plan directs population concentrations away from the CHHA. As indicated, none of the FLUMAs are in the CHHA, either as designated or as it should have been designated. Elsewhere, both the 1991 and the 2020 Plans limited residential density in the CHHA to a maximum of one DU/acre, which arguably does not constitute a population "concentration." For the reasons described in the preceding findings, the evidence in this record did not prove beyond fair debate that Franklin's 2020 Plan is inconsistent with 9J- 5.012 and not "in compliance." SJI FLUMAs and FLUEPs RV consists of 1,704 acres on the 2020 FLUM and FLUEP 2.2(l). It is presently designated agriculture (with residential development allowed at 1 DU/40 acres), and parts are in silviculture. FLUEP 2.2(l) is designed as a rural village that focuses on the historical heritage and natural surroundings of the Crooked River, with the objective being to create a rural village center in proximity to the river and a supporting rural community of river cottages and single-family (SF) lots. FLUEP 2.2(l) lists seven allowable uses, including residential, some commercial, and recreational uses. Non- residential maximum intensity is expressed in terms of FAR and set at .20; maximum overall gross residential density is 1 DU/5 gross acres. FLUEP 2.25 does not apply. RV can be all residential. Franklin Planner Pierce testified that, at most, 340 acres can be used for non-residential uses. He calculated this by multiplying the total acreage by the FAR. He also testified that, if 340 acres are non-residential, a maximum of 272 residential DUs could be developed on the remaining 1,363 acres. If all 1704 acres of RV are residential, the maximum residential use would be 340 DUs. Clustering is allowed but not required. At least 25 percent (426 acres) must be in "common open space" (including roads and other infrastructure); 50 percent "common open space" is required for cluster developments. Central water and wastewater is mandatory, and SMSs must meet OFW standards. As transmitted, the ConRes FLUMA was 6,531 acres to the east of RV and along the Ochlocknee River and Bay. As adopted, it is 2,500 acres. The parts of the transmitted version adjacent to RV and along the river and Bear Creek were eliminated in the adopted version. The land is presently "Agriculture" (with residential development allowed at 1 DU/40 acres); the land is used for silviculture. As described in FLUEP 2.2(m), ConRes is generally intended for large, private tracts of land that are appropriate for low density residential development and the protection of natural and cultural resources. A stated important objective is to allow for low density residential development that accentuates and celebrates the natural environment and is designed to fit into the natural setting instead of altering the natural setting to fit the design of the development. It allows detached SF residential use, passive and active recreational uses, related infrastructure, silviculture, and accessory use for residents and guests, and other similar or compatible uses. Free- standing nonresidential or commercial uses intended to serve non-residents are not permitted. Neither "active" nor "passive" recreational uses are defined in FLUEP 2.2(m). "Timeshare" or "vacation rentals" may be allowed. Maximum gross density is 1 DU/5 gross acres, and maximum overall impervious surface coverage cannot exceed 15 percent of the land area. No FAR is included or, arguably, required because ConRes is primarily a residential concept. Septic tanks are allowed but may not be located within 500 feet of the Ochlocknee River, Ochlocknee Bay, or Bear Creek. "Aerobic systems" to provide a higher level of treatment apparently are not required, as they are on St. George Island and Alligator Point. IEP 1.2 states: "The County shall adopt a policy that mandates aerobic septic systems on a county-wide basis." Apparently, this has not yet occurred. SMSs must meet OFW standards. MVC is 1,000 acres presently "Agriculture" on the FLUM (with residential development allowed at 1 DU/40 acres); the land is used for silviculture. The land is to the immediate east of ConRes along the Ochlocknee Bay and west of the US 98 bridge over the bay. MVC is described in FLUEP 2.2(n). The intent is to create a southern coastal fishing village focused on a marina, which is a required use. In addition to the marina, the village may contain a mix of related activities including retail, office, hotel, restaurant, entertainment, and residential uses. "Public and private utilities" are allowed but are not defined; they probably contemplate those needed for MVC itself. Clustering is not required. Residential use may not be required, but it certainly is expected of a "southern coastal fishing village." Residential use may be any combination of SF, multi-family (MF), condominiums, private residence clubs, time shares, and other forms of fractional ownership. The maximum FAR for non- residential use is .30. The maximum residential density is "2 DU/gross acres", maximum ISR (impervious surface ratio) is .80, minimum "common open space" is .25, and other applicable Franklin zoning code provisions. FLUEP 2.25 applies, and at least three land uses are required, "none of which may be less than 10 percent of the total land area." Central water and wastewater is required. SMSs must meet OFW standards. CEV in the 2020 Plan FLUM and FLUEP 2.2(o) addresses 200 acres presently designated Agriculture (allowing 1 DU/40 acres residential use); the land is in silviculture. The CEV FLUMA represents the first phase of development. CEV is generally intended to create a self-sustaining community with a mixture of functionally integrated land uses anchored by a village center. It is to complement the existing community of Carrabelle and create places to live, work and shop in the context of promoting moderately priced housing and economic development opportunities. Allowable uses are limited to SF and MF residential, retail commercial, service-oriented commercial, office, business and industrial park, passive and active recreation, schools and other civic facilities, public and private utilities, and houses of worship. There is no definition limiting the type of industrial use allowed, but Franklin Planner Pierce interpreted FLUEP 2.2(o) to mean industry like a truss factory or a cement batching plant, not heavier industry. Performance standards are 1-3 DU per gross acre gross residential density, maximum non-residential intensity of .25 FAR, commercial and business park intensity of .25 FAR, minimum common open space of .25, minimum civic space of .10, and other applicable Franklin zoning code provisions. FLUEP 2.25 applies, and at least three land uses are required, "none of which may be less than 10 percent of the total land area." Density, Intensity, and Mixed-Use Standards Petitioners contend that the 2020 Plan provisions, including the SJI FLUMAs, are not "in compliance" for failure to identify densities and intensities of uses and for creating mixed-use categories without percentage distribution or other objective measures of the mix of land uses in each category, as mandated by 9J-5.006(4)(c) and (3)(c)7 and Section 163.3177(6)(a)("distribution, location and extent"). See also 9J-5.013(3)(b)("type, intensity or density, extent, distribution and location of allowable land uses"). However, it is clear that residential densities are provided for each category, and Petitioners concede in their PROs that the mixed-use residential category in FLUEP 2.2(e) has policies/standards for the percentage distribution among the mix of uses, or other objective measurement (of distribution), and the density or intensity of each use. In the ORC, DCA objected to Franklin's proposed plan for failure to identify non-residential intensities and for creating mixed-use categories without percentage distribution or other objective measures of the mix of land uses in each category. In response, Franklin added FAR standards and FLUEP 2.25. DCA's 5/06/2005 staff memo acknowledged the FARs and accepted them. The staff memo also acknowledged FLUEP 2.25 and accepted it as providing a percentage distribution mix of uses for mixed-use residential, mixed-use commercial, MVC, and CEV. However, the staff memo criticized the mixed-use categories for not requiring some residential use. Petitioners contend that, since FLUEP 2.25 does not apply to RV and ConRes, those categories fail to provide a percentage distribution or other objective measures of the mix of land uses. But it is at least fairly debatable that RV and ConRes are not true mixed-use categories, such that 9J- 5.006(4)(c) does not apply. Petitioners also contend that, since ConRes does not have FAR standards, intensity of non-residential uses is not provided for that category. In that regard, Petitioners argue that FLUEP 2.2(m) allows "free-standing non-residential or commercial uses" in ConRes and that Franklin Planner Pierce was unable to state how much of those uses are allowed in ConRes. Actually, FLUEP 2.2(m) disallows such uses if "intended to serve non-residents." It is not clear from the policy that such uses are allowed at all in ConRes since other allowable uses are described as "similar or compatible uses." If such uses are allowable by negative implication, they would have to serve only residents. Arguably, non-residential intensity standards are not required in ConRes. Petitioners put on no expert testimony to explain why the FLUMAs and related policies in the 2020 Plan do not meet the requirements of 9J-5.006(4)(c) and (3)(c)7 and Section 163.3177(6)(a), and they put on no expert testimony that the 2020 Plan is not "in compliance" for those reasons. Meanwhile, experts for the other parties testified that the 2020 Plan is "in compliance." On the evidence presented, it was not proven beyond fair debate that the FLUMAs and related policies in the 2020 Plan create mixed-use land use categories without the percentage distribution among the mix of uses, or other objective measurement, or without the density or intensity of each use. Predictable Standards for MVC and CEV Petitioners attempted to prove that wildly varied development scenarios could result from application of FLUEP 2.25 to MVC and CEV. The evidence did not disclose any reason to believe that uses will be combined so as to maximize certain types of uses and result in lopsided development scenarios. Assuming that were to occur, the evidence was not clear what the maximum possible density and intensity of particular uses could be under various scenarios. This is partly because Franklin's Planner Pierce seemed to interpret MVC and CEV as establishing a maximum gross residential density on the entire acreage (1000 acres for MVC and 200 acres for CEV), regardless how much land actually was devoted to residential uses. Using that interpretation (which runs counter to Mr. Pierce's interpretation of the RV FLUEP), taken to an extreme 2000 DU of residential could be developed in MVC even if 900 acres were used for non-residential uses (e.g., marina and other commercial or office) and only 100 acres were used for residential, and 600 DU of residential could be developed in CEV even if 180 acres were used for non- residential uses and only 20 acres were used for residential. Given those results, such an interpretation does not seem logical. In addition, the applicable Franklin zoning code provisions were not clear. Also, factors such as FAR and ISR limitations and the necessity for "common open space" were not applied in a clear or consistent manner in the testimony. It can, however, be found that, in the unlikely event that lopsided development were to occur, large amounts of either residential or non-residential uses theoretically could develop in MVC and CEV depending on the development scenario. In calculating some alleged development scenarios for MVC and CEV, Petitioners (and Mr. Pierce) also may have been applying the minimum common open space requirements and FAR intensity standards incorrectly. In some instances, they seemed to treat the minimum common open space requirements as if it were a separate allowable land use within the FLUMA and subtract the common open space minimum from total gross acreage to calculate acreage remaining for allowable land uses in the FLUMA. But it is not clear why minimum common open space requirements could (and should) not be incorporated within acreage devoted to the various allowable uses. In some instances, Petitioners (and Mr. Pierce) seemed to apply minimum FAR to gross acreage in the FLUMA to calculate maximum acreage that can be devoted to non-residential land uses. (This also was done for RV. See Finding 58, supra.) But it is not clear why FAR intensity standards should not be applied instead to the discrete acreage devoted to allowable non- residential uses to determine the maximum allowable floor area coverage within the acreage devoted to allowable non- residential uses. Petitioners put on no expert testimony to explain why the unlikely possibility of lopsided development in MVC or CEV makes those FLUMAs and related policies, or the 2020 Plan, not "in compliance." Meanwhile, experts for the other parties testified that the 2020 Plan is "in compliance." On the evidence presented, it was not proven beyond fair debate that the 2020 Plan is not "in compliance" because of the possibility of lopsided development in MVC or CEV. Failure to Consider/React to Best Available Data FLUEPs 11.12 and 11.13 required consideration of eight key areas. These areas included protection of natural resources and cultural heritage, promotion of economic development and emergency management, provision of adequate public facilities and services and affordable housing, and inclusion of intensity standards and allowable uses. Based on all of the documents in the record, the updated 2020 Plan was supported by consideration of each of the eight key areas listed by FLUEP 11.12 and, for the four SJI FLUMAs, by FLUEP 11.13. Petitioners contend that Franklin's 2020 Plan is not based on the best available data existing as of the date of adoption, April 5, 2005, as required by: Section 163.3177(8)("elements of the comprehensive plan, whether mandatory or optional, shall be based upon data appropriate to the element involved") and (10)(e)("Legislature intends that goals and policies be clearly based on appropriate data"); 9J- 5.005(2)(a)("shall be based upon relevant and appropriate data and the analyses applicable to each element" and "[t]o be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue"); and 9J-5.006(1)(FLUE data requirements). In support of that contention, they cite to a few of the voluminous data in the record submitted by St. Joe and used by Franklin that are not the best available or have errors or a weakness (an unknown source). But their argument concedes that the best available data are in the record, and no expert witness testified that the 2020 Plan is not based on the best available data. To the contrary, Petitioners' expert questioned the quality of the analysis of the data in the adoption package. Meanwhile, expert witnesses for the other parties testified that the 2020 Plan is based on the best available evidence. Petitioners also contend that inconsistent data was used in violation of 9J-5.005(5)(a)("[w]here data are relevant to several elements, the same data shall be used, including population estimates and projections"). While their PRO does not cite any specifics, during the hearing Petitioners directed Mr. Gauthier to two examples. One was that Florida Land Use Cover Classification System data was used to identify wetlands in the FLUE, while National Wetlands Inventory data (supplemented with hydric soils analysis) was used to identify wetlands for the SJI FLUMAs. But those data were used in the same element, not in different elements. The other was that a traffic study in the 6/2004 transmittal package used a projection of 2,965 residential units in the SJI FLUMA while Franklin Planner testified to a different number--3,400. But the higher number represented a theoretical maximum, which is not necessarily the data on which traffic analyses should be based. No expert testified that this constituted the use of inconsistent data in violation of 9J-5.005(5)(a). To the contrary, witnesses for the other parties testified that the 2020 Plan is based on the best available data and professionally acceptable analyses, that the County appropriately responded to the D&A in preparing the Plan update, and that the 2020 Plan is "in compliance." Suitability of SJI FLUMAs and FLUEPs Petitioners contend that none of the SJI FLUMAs are "inherently suitable for development at the permitted density and intensity." In their PRO, they based their contention in large part on FSU's analysis of various criteria, including proximity of three of the FLUMAs to the relatively pristine Ochlocknee River and Bay and their natural resources, presence of wetlands, soil types, floodplains, vegetative cover, habitat for Florida black bear and other wildlife, and alleged karst hydrogeology. They also cite DCA's 5/6/2005 staff memo, the concerns of Drs. Chanton and Livingston about density and intensity increases, and Mr. Gauthier's testimony that he is "concerned and believe[s] that there are compliance problems . . . based on suitability." The evidence might support the proposition that there are more suitable places in Franklin for development, including in the middle of SJI, where St. Joe also is contemplating possible development in the future, and nearer to Apalachicola and Carrabelle. But the middle of SJI would not be suitable for a marina village, and there may be other aspects of St. Joe's planned developments that could not be accommodated on other land available for development. In addition, Franklin wants to protect the land within the Apalachicola River and Bay basin. In any event, the question presented in this case is not whether there are more suitable lands for development. Rather, the question is whether, based on all the evidence presented, it is beyond fair debate that the locations of the FLUMAs are unsuitable. "Development suitability" is defined as "the degree to which the existing characteristics and limitations of the land and water are compatible with a proposed use or development." FLUEP 1.2 requires review of FLUMAs "to insure [sic] that the proposed uses, in the various categories, do not conflict with the prevailing natural conditions including": (a) soil conditions; (b) topography; (c) drainage; (d) wetlands; and (e) floodplains. In their PRO, Petitioners criticize the soil suitability analysis submitted in support of the FLUMAs as being "based upon a subset of on-site soils termed 'predominate' with no percentage quantification and no analysis of the other on-site soils" and as misrepresenting and selectively quoting from the soil survey. See Pamela Ashley PRO, ¶73. But the soils in the SJI FLUMAs were re- analyzed at length during the final hearing. The evidence was that there are upland soils in each SJI FLUMA. In the ConRes FLUMA, the only SJI FLUMA allowing septic tanks, suitable soils and a 500-foot setback from principal surface waters should provide adequate attenuation to accommodate on-site sewage systems. There are soils in each SJI FLUMA that are not the best for the proposed development. These soils are potentially limiting but arguably can accommodate the proposed development, given appropriate site planning and engineering, together with the 2020 Plan's provisions that operate to protect natural resources and environmentally sensitive areas. It was fairly debatable that the soils in the FLUMAs are suitable for the proposed development. Petitioners in their PRO also criticize the topography of the SJI FLUMAs in that parts are subject to inundation during a Cat 1 storm. But the evidence was that low-density development is not necessarily unsuitable in the CHHA, and it was fairly debatable that the topography of the FLUMAs is suitable for the proposed development. As for drainage, each SJI FLUMA requires an SMS employing OFW design criteria. OFWs have special resource value and need heightened protection. A 1991 Plan provision required County SMSs to collect and treat runoff from the first 1.5 inches of rainfall regardless of the area drained. This provision exceeds OFW criteria and applies to each SJI FLUMA. The SMS design criteria, buffers, setbacks, and the nature of development anticipated in each SJI FLUEMA are intended to work in concert to minimize surface water impacts. Employing these elements is anticipated to allow the development of the FLUMAs without impacting surface waters. If there is no measurable pollutant loading to nearby waters, aquatic flora and fauna should experience no impact. Fewer significant seagrass beds are located in waters north of where MVC is located, and it should be possible to site a marina facility there in deeper water without significant seagrasses. The strict SMS design criteria assure the collection and treatment of stormwater for water quality purposes. The SMSs also will provide important sources of groundwater recharge and help protect water quantity. Runoff collected in SMSs is retained on-site and returned to the groundwater component of the hydrologic cycle (minus losses to evaporation and evapotranspiration). The retention of stormwater on-site offsets the potential loss of runoff resulting from increased impervious surfaces, facilitating aquifer recharge. With proper engineering, runoff from each of the SJI FLUMAs could be collected within the required SMSs resulting in minimal or no adverse effect on aquifer recharge on SJI. Recharge rates on SJI vary from high (15 to 20 inches per year) to moderate (10 to 15 inches per year) to low (less than 5 inches per year), depending on location. As indicated, the confining layer between the surficial aquifer and the underlying Floridan aquifer in eastern Franklin thins from west to east but is not believed to degenerate into karst features. See Findings 4-5, supra. Rather, the confining layer in eastern Franklin County appears to vary in thickness from 15 to 20 feet. Assuming no karst features or other anomalies creating a direct conduit to the Floridan, groundwater moves vertically throughout SJI at approximately 2 to 3 feet per year. This rate would provide sufficient time for the natural breakdown (attenuation) of residual pollutants from on-site sewage and stormwater treatment systems as well as any additional pollutants that may be generated such that development within the SJI FLUMAs should not threaten the Floridan aquifer. Lateral flow of groundwater from beneath the SJI FLUMAs also should not pose a risk to surface waters. In contrast to unconfined karst, where the movement of groundwater to and through the Floridan aquifer may be rapid, groundwater appears to move laterally at approximately 100 feet per year in eastern Franklin, providing adequate time for the attenuation of any added pollutants prior to any such groundwater seepage reaching surface waters. Petitioners in their PRO also criticize the amount of wetlands in the FLUMAs. RV has 1,324 wetland acres (78 percent) with 380 acres (22 percent) of "interspersed" uplands; ConRes has 525 wetland acres (21 percent) with 1,975 acres of uplands (79 percent); MVC has 276 wetland acres (28 percent) and 724 upland acres (72 percent); and CEV has 66 wetland acres (33 percent) and 134 upland acres (67 percent). In response to ORC criticism, Franklin's wetlands policies were amended to address "high quality" and "low quality" wetlands and give a higher level of protection to the former. Petitioners criticize the 2020 Plan for not identifying and mapping the high and low quality wetlands. They also rely on Gauthier's opinion that "the wetland policies are flawed, in that they're vague and not specific and there are significant gaps" as a result of exceptions and waivers. They also contend that the 2020 Plan fails to direct development away from wetlands, which will result in degradation of water quality in the Ochlockonee River/Bay and Apalachicola Bay system primarily from increased urban runoff and nutrification. But it is at least fairly debatable that the amended wetlands policy will increase wetlands protections and that wetlands in the FLUMAs can be protected in the course of development as proposed under the amended wetland policies. Each SJI FLUMA allows “clustering,” which concentrates DUs in a portion of the overall site without increasing the overall number of units. Clustering is mandatory in ConRes and CEV. Clustering is advantageous to the extent that it encourages open space, reduces impervious surface, reduces pollutants generated from more widespread development, and enhances aquifer recharge. However, the advantages could be illusory to the extent that clustering simply allows the wholesale transfer of density from a portion of the site where development is unsuitable and should not be anticipated (e.g., high-quality wetlands) to other portions of the site. Such a result would be of particular concern in RV, which is 78 percent wetlands, if all 340 DUs were to be concentrated on 375 acres of uplands, effectively at a density of almost one DU/acre, interspersed among 1,330 acres of high- quality wetlands. (The concern would be even greater if non- residential uses in RV were surprisingly high, and if the interpretation of "gross density" suggested by Franklin's planner for MVC and CEV were applied to RV, thereby further increasing the effective residential density interspersed among high-quality wetlands.) C/CEP 10.1 requires that the County's site plan review process be amended to take into consideration natural constraints, including wetlands, and restricted depending upon the severity of those constraints. Because no site plan has been proposed for any of the SJI FLUMAs, it is unknown to what extent, if any, the privately-owned wetlands may actually be disturbed. It is at least fairly debatable that, given the relatively low overall densities, the extent of available uplands (at least in ConRes and MVC), the arguably-enhanced wetland protections, and properly-implemented clustering, wetlands in the SJI FLUMAs can be protected in the course of development as proposed and that the FLUMAs are suitable for the proposed development notwithstanding the wetlands in the SJI FLUMAs. Petitioners in their PRO also criticize the suitability analysis submitted in support of the FLUMAs for failure to quantify floodplains (although admittedly depicting them on maps and citing FIRM maps), for "inaccurate and generalized narrative," and for stating "that development is allowed 'but flood considerations must be evaluated'." Pamela Ashely PRO, ¶ 76, citing the ORCR. As to "areas subject to coastal flooding" (the hurricane vulnerability zone), all of the SJI FLUMAs are subject to Cat 3 evacuation and the vast majority are within the Cat 3 SLOSH surge area. But some effort was made to focus development outside of the floodplains. Besides, development within floodplains is not prohibited by state or federal law. Rather, development within a floodplain must be constructed above certain elevations and provide compensating flood storage for any displaced flood plain area. The evidence was that low density development is not necessarily unsuitable in the these areas, and it was at least debatable that the FLUMAs are suitable for the proposed development notwithstanding the presence of floodplains in the FLUMAs. Petitioners in their PRO also criticize the suitability analysis submitted in support of the FLUMAs as to "vegetative cover" and "wildlife habitats" for only addressing bald eagle nests and bear sightings and road kill locations, and for generally stating that St. Joe's silvicultural use has "vastly altered" or otherwise displaced the natural vegetation and wildlife habitat. IWHRS data and best available bear data was not addressed in the suitability analysis. However, all of this D&A was presented and analyzed during the hearing. The SJI FLUMAs comprise a fraction of the 1.2 million acres of habitat supporting the Apalachicola black bear population, of which SJI bears are also a fraction. In response to the ORC, Franklin and St. Joe made some accommodation to the black bear by significantly reducing the size of the ConRes FLUMA and removing the Bear Creek area from the FLUMA. The SJI FLUMAs also preserve the possibility of a bear corridor of appropriate dimensions connecting Bald Point State Park on the east end of SJI with the Crooked River Tract and the larger publicly-owned bear habitat to the west. Along with the availability of public lands, residential clustering will help facilitate bear movement through SJI notwithstanding the development of the SJI FLUMAs. Bears should still frequent the FLUMAs when food supplies are ample, even during construction. Even with the accommodation and a corridor, the proposed development will impact the black bear. Road kills occur where bears and roadways mix. (Generally, the more people there are in and near bear habitat, the more problems will arise from bear encounters with people, and the more likely that the resolution of such problems will not benefit the bears.) But the SJI FLUMAs themselves are not considered critical bear habitat, and their development alone should not result in a significant adverse impact on the bear population. While the gulf sturgeon, a protected species, is known to pass through nearby waters, neither the Ochlocknee River nor Bay has been designated critical habitat for the fish. No surface water impacts that would affect the sturgeon were proven. Based on the evidence, it is at least fairly debatable that the SJI FLUMAs are suitable for the proposed development notwithstanding the presence of the black bear, the Gulf sturgeon, and other wildlife now using SJI. Based on the foregoing, it was not proven beyond fair debate that the SJI FLUMAs are unsuitable for the proposed development, notwithstanding the issues raised by Petitioners as to soils, topography, drainage, wetlands, floodplains, vegetative cover, and wildlife and their habitat. Deletion of FLUEP 11.12 and 11.13 The County deleted FLUEPs 11.12 and 11.13 as part of the Plan update. This decision was appropriate because the substantive aspects of FLUEPs 11.12 and 11.13 were considered and would be incorporated within the various provisions of the updated Plan, once effective. Also, the assessments required under those policies must be made regardless of whether policies are included within the Plan because they are required under 9J-5. All of the expert planners--including Mr. Gauthier--testified that the 2020 Plan is "in compliance” notwithstanding deletion of those policies. Once FLUEPs 11.12 and 11.13 are no longer necessary, it is the County’s prerogative to include them in or remove them from the Plan. FLUEP 11.12 required the preparation and adoption of an overlay plan for SJI, which would result in an overlay map and policies. Although an overlay plan was prepared, it was not adopted as part of the 2020 Plan but rather was included as an appendix to the Technical Data and Analysis Report submitted in support of the 2020 Plan update. Potential adoption of the overlay as part of the Plan was a concern to many of the citizens attending the visioning meetings. There was confusion as to what adoption of an overlay into the Plan actually meant and whether it established development entitlements. The County has the discretion to adopt or remove Plan provisions that duplicate or exceed statutory and regulatory requirements. Utilization of the overlay as D&A is consistent with state planning requirements. It was not proven beyond fair debate that the 2020 Plan would not be "in compliance" without the SJI overlay.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that DCA enter a final order determining that Franklin's 2020 Plan update, with SJI FLUMAs, is not "in compliance" at this time. DONE AND ENTERED this 12th day of June, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 12th day of June, 2006.
The Issue Whether respondent violated Section 498.023, Florida Statutes, by offering or disposing of an interest in subdivided lands (Pinecrest Estates) without first registering it or delivering a public offering statement to the purchasers and, if so, what penalty should be assessed or affirmative action ordered.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter an order assessing a $10,000 civil penalty against respondent for its violation of Chapter 498 Florida Statutes; requiring respondent to fully disclose the adverse features of the Pinecrest Estates property to each of its prior purchasers, such disclosure to be accomplished in a manner approved by the Division; requiring respondent to offer and make full refunds to its prior purchasers who desire a refund, such refunds to be made in a manner approved by the Division and conditioned only on reconveyance of the land to the respondent or recission of the agreement for deed; and requiring respondent to record in the official records of St. Johns County, Florida, all outstanding agreements for deeds covering lots belonging to prior purchasers who, after disclosure, choose not to request refunds. DONE AND RECOMMENDED this 11th day of January, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1983.
The Issue Whether the Ochlocknee Management Corporation has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Initial Purchase. In January, 1986, Ochlocknee Management Corporation (hereinafter referred to as "Ochlocknee"), began negotiations for the purchase and development of land located on Buck Lake Road (hereinafter referred to as the "Buck Lake Property"). On January 25, 1986, a document indicating an intent to sell 100 acres of the Buck Lake Property to Ochlocknee was executed. On October 31, 1986, a Contract for Sale was entered into between Ochlocknee and the owners of the Buck Lake Property. Pursuant to the Contract for Sale, Ochlocknee agreed to purchase 100 acres of the Buck Lake Property (hereinafter referred to as the "100 Acres"). The 100 Acres were to be developed in three phases by Ochlocknee. The development was named Avondale. In February of 1987, the 100 Acres were rezoned and platted. The Development of Units I, II and III. Development of Avondale Unit I began in March, 1987. In August, 1987, the Unit I plat was recorded. All roads, utilities and storm water for Unit I were complete. In April, 1988, development of Avondale Unit II began. The development of Unit II began approximately 8 months after the Unit I plat was recorded. In October, 1988, the Unit II plat was recorded. All roads, utilities and storm water for Unit II were complete. In May, 1989, development of Avondale Unit III began. The development of Unit III began approximately 7 months after the Unit II plat was recorded. In November, 1989, the Unit III plat was recorded. All roads, utilities and storm water for Unit III were complete. During the construction of Unit III Ochlocknee intended to purchase an additional parcel of the Buck Lake Property. This property was to be developed as additional phases or units of the Avondale development, including Avondale Unit IV, the development which is the subject of this proceeding. When constructed, the main road running through Units I, II and III was intended to continue through, and serve, Avondale Unit IV. The road is the only road providing access between Unit IV and Buck Lake Road. Utilities for Unit III were designed and stubbed to serve Unit IV. The weight of the evidence failed to prove that any action which Leon County took in approving the development of Units I, II, or III could have been reasonably relied upon by Ochlocknee in its development of Unit IV. Most of Leon County's actions in approving the development of Avondale were taken before the Unit IV property was even purchased. Additionally, the evidence failed to prove that Leon County specifically reviewed any plans concerning Ochlocknee's plans to develop Unit IV until after the preliminary plat for Unit IV was filed for approval. The Second Purchase. In November, 1988, Ochlocknee began negotiations for the purchase of the additional parcel of the Buck Lake Property to be developed as Unit IV. The property consisted of 40.5 acres and was to be developed as Unit IV, the development at issue in this proceeding, and Unit V. In March, 1989, the owners of the 40.5 acres applied for rezoning of the 40.5 acre parcel from A-2 (agricultural use) to R-1 (residential use). In March, 1989, Ochlocknee entered into a Contract for Sale and Option, pursuant to which Ochlocknee was to purchase the 40.5 acres. Unit IV was to consist of 10 acres of the parcel. The 10 acres abut Unit III. The remaining 30.5 acres of the parcel were to be developed as Unit V. In May, 1989, the 40.5 acre parcel was rezoned as R-1, limited use. The zoning limited septic tanks on the property to 2.2 units per acre. On June 27, 1989, Ochlocknee purchased the 10 acres to be developed as Unit IV. The Regional Stormwater Facility. In April, 1988, Poole & Associates, Inc. (hereinafter referred to as "Poole"), prepared plans and designs for a regional stormwater facility for 126 acres of the Buck Lake Property. Poole provided the engineers for Avondale. The plan developed by Poole was intended to handle stormwater for all of Units II and III, all of what was to be Unit IV, part of what was to be Unit V and part of the Buck Lake Property which was not to be developed by Ochlocknee. This regional stormwater facility will hereinafter be referred to as the "Stormwater Facility". The plans and designs for the Stormwater Facility were completed before Unit IV was purchased by Ochlocknee and before Unit IV was rezoned from A-2 to R-1. In July, 1989, Ochlocknee began construction of the Stormwater Facility. Ponds used in the Stormwater Facility are located on Unit III. In November, 1989, when the Unit III plat was recorded, the Stormwater Facility was substantially completed. The Stormwater Facility was generally approved upon the recording of the Unit III plat. Recording of the Unit III plat and the approval of the Stormwater Facility only applied to the use of the Stormwater Facility for Unit III. The use of the Stormwater Facility for Unit IV was not approved or even reviewed by Leon County in November, 1989. Ochlocknee was required to maintain the Stormwater Facility for an additional year after it was approved for Unit III. After approval of the Stormwater Facility for Unit III, problems arose with the Stormwater Facility. These problems began as early as August, 1989 based upon an August 31, 1989, letter from Broward Davis & Assoc., Inc., to Ochlocknee. In a letter dated November 22, 1989, from the Respondent's engineering inspectors, Poole was provided with a "punch list" of problems associated with Units I, II and III, including problems associated with the Stormwater Facility. The punch list was developed during a meeting held on November 21, 1989. Ochlocknee informed Leon County that the problems raised in the letter referred to in finding of fact 29 would be resolved in 30 days. The problems continued, however, into 1990. Efforts continued during the remainder of 1989 and early 1990 to resolve the problems. On January 17, 1990, a new Environmental Management Act became effective in Leon County. Ochlocknee was required to insure that its proposed use of the Stormwater Facility for Unit IV complied with the Act. In a letter dated February 22, 1990, Leon County notified Poole that preliminary plans for the development of Unit IV which had been submitted to Leon County had been reviewed. Poole was informed that additional information concerning the preliminary site plans was needed before Unit IV could be approved for development. Among other things, Leon County informed Poole that additional information concerning the use of the Stormwater Facility for Unit IV would have to be submitted. Unit IV Development. In October, 1988, Poole prepared a preliminary site plan for the development of Unit IV. These plans were prepared before the property which constitutes Unit IV was purchased or rezoned from A-2 to R-1. On June 27, 1989, Ochlocknee purchased the 10 acres of Unit IV for $104,956.50. In November, 1989, Ochlocknee entered into an agreement with Poole to design roadways, utilities and obtain construction approvals for Unit IV. On December 1, 1989, preliminary plat approval for Unit IV was applied for. The preliminary plat was approved by the Tallahassee-Leon County Planning Department on January 10, 1990. On January 17, 1990, the City of Tallahassee approved the water distribution plans for Unit IV. On January 12, 1990, the City of Tallahassee agreed to provide water and electrical service for Unit IV. On February 2, 1990, a commitment for a construction loan for Unit IV was received by Ochlocknee. The Leon County comprehensive plan was submitted to the Department of Community Affairs on February 1, 1990. Ochlocknee should have been aware of the drafting of the comprehensive plan and the fact that it had been provided to the Department of Community Affairs for approval. 41 In March, 1990, Poole completed final construction drawings for the Unit IV roadways. In April, 1990, Ochlocknee received contracts for the construction of roadways and utilities for Unit IV. In May, 1990, Poole held an onsite pre-construction conference with Leon County officials, utility providers and construction personnel. Poole placed stakes for clearing limits on Unit IV during May, 1990. On June 29, 1990, Leon County approved roadway construction plans for Unit IV. At the time that the preliminary plat for Unit IV was filed by Ochlocknee for approval, Ochlocknee knew that the Stormwater Facility needed to be modified before development of Unit IV would be approved. Despite this knowledge, Ochlocknee chose to continue to propose that the Stormwater Facility be used for Unit IV. These problems continued throughout the time after the preliminary plat for Unit IV was filed. In May, 1990, Leon County informed Ochlocknee that a permit for clearing and grading, the last permit needed to begin construction, would not be issued until the Stormwater Facility proposed for Unit IV was modified and the problems previously identified by Leon County with the Stormwater Facility in 1989, were corrected. Construction on Unit IV has not commenced. Costs Associated with Unit IV. The cost of rezoning the 10 acres of Unit IV was $2,911.25 plus a $300.00 fee. The $300.00 fee was incurred in March, 1989, before the Unit IV property was purchased or the rezoning had taken place. Therefore, the fee was not incurred in reliance upon any representation from Leon County. The $2,911.25 cost was incurred between October, 1988 and May, 1989. This amount was incurred before the purchase of the Unit IV property or the approval of the rezoning. Therefore, this cost was not incurred in reliance upon any representation from Leon County. The cost of purchasing the 10 acres which are to be developed as Unit IV was $104,956.50. This cost was incurred in June of 1989. The only action taken by Leon County concerning any possible development of Unit IV prior to the time this cost was incurred was to approve rezoning Unit IV from A-2 to R-1. The cost of purchasing the 10 acres of Unit IV was not, therefore, incurred in reliance upon any action of Leon County other than approval of the rezoning of Unit IV. The cost of constructing the Stormwater Facility attributable to Unit IV was approximately $8,000.00. This cost was incurred between July, 1989, and November, 1989. Therefore, the cost was incurred after the Unit IV property was rezoned but before the preliminary plat and the development plans for Unit IV were approved by Leon County. Therefore, the cost of the Stormwater Facility attributable to the Unit IV property was not incurred in reliance upon any action of Leon County other than approval of the rezoning of Unit IV. Ochlocknee failed to present sufficient evidence to conclude what expenses were incurred by it in stubbing the road and utilities that run through Units I, II, and III are attributable to Unit IV. The weight of the evidence also failed to prove when any such expenses were incurred. These expenses were incurred sometime after the development of Unit I began (before the Unit IV property was acquired or rezoned) and sometime before Unit III was completed (before the preliminary plat for Unit IV was approved). Therefore, any expenses attributable to Unit IV for the road and utilities were incurred before Leon County took any action with regard to the development of Unit IV or were incurred only in reliance upon the rezoning of the Unit IV property. Engineering, surveying and permitting costs associated with Unit IV totalled $13,384.49. These costs were incurred between January, 1990 and May, 1990. Prior to the expenditure of these funds Leon County had approved the rezoning of Unit IV, the preliminary plat and some of the other plans for the development of Unit IV. All of these costs were incurred after Ochlocknee had been informed that there was a problem with the Stormwater Facility. All of the engineering costs were incurred before Leon County had indicated that it would approve the development of Unit IV. On April 25, 1990, Ochlocknee refinanced the note for the 10 acres of Unit IV. The new note was for $219,750.00. This amount was borrowed to refinance the cost of purchasing the 10 acres and to pay construction costs for the development of Unit IV. The funds intended for construction costs for Unit IV have not, however, been expended. The weight of the evidence failed to prove what costs Ochlocknee incurred in obtaining the $219,750.00 note. All of the costs incurred by Ochlocknee relating to the development of Unit IV were incurred in an effort to obtain approval from Leon County for the development of Unit IV. The costs were incurred before any representation from Leon County that development of Unit IV would be allowed to proceed. Some of the costs were incurred before the Unit IV property was rezoned from an agricultural use to R-1. Leon County had taken no action before approval of the rezoning. Some of the costs were incurred only in reliance upon the rezoning of the Unit IV property. Finally, all of the costs were incurred in an effort to obtain approval to develop Unit IV and before Leon County indicated through any action that development of the property would be allowed to proceed. These costs were incurred at a time when Ochlocknee should have known that the development of Unit IV would probably have to be consistent with the 2010 Comprehensive Plan. Procedure. On or about August 1, 1990, Ochlocknee filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County. The following information concerning the development of Unit IV was contained on the Application: "Ochlocknee Management" is listed as the "Owner/Agent." Question 3 of the Application requests the name of the project, including the name and address of each owner of, and interested party in, the project or property. "AVONDALE UNIT IV" was included as the response to question 3. The project is described as "22 Residential Lots on 10 acres, Proposed with Public Road, Water, and Recorded Plat." The project location is described as "AVONDALE WAY, SOUTH OF AVONDALE III." Total project costs are estimated at "$226,205.95" and it is estimated that "$126,952,24 " have been expended to date. "Progress . . . Towards Completion" is described as: (1) all utility site, drainage plans completed as of May 4, 1990; (2) preliminary plat approval 1/10/90, water plans approved 2/1/90 and environmental permit 6/27/90; and (3) the drainage facility located in Unit III is complete. "Preliminary Plat, Water Plan Approval, Environm. Permits" are included as forms of "government approval." The response to question 10 of the Application, which requests information concerning government action relied upon prior to committing funds towards completing the project, was "[s]ubdivision Ordinance for Preliminary Plat, The Letter of Agreement, Policy & Procedures Manual for Utilities and the Environmental Management Act for the Stormwater Permits." In a letter dated August 7, 1990, Ochlocknee was informed that its Application was being referred to a Staff Committee comprised of Jim English, Mark Gumula, Howard Pardue, Buddie Holshouser and Herb Thiele. By letter dated August 24, 1990, Ochlocknee provided additional information for the Staff Committee to consider. On August 27, 1990, a hearing was held to consider the Application before the Staff Committee. Barry Poole, of Poole, and Jody Elliott, of Ochlocknee, testified. By letter dated August 27, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Ochlocknee that the Application had been denied. By letter dated September 5, 1990, to Mr. Gumula, counsel for Ochlocknee appealed the decision to deny the Application. By letter dated October 5, 1990, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on October 25, 1990. During the hearing before the undersigned Ochlocknee stipulated that it had sought approval of its Application based upon "common law vesting" and not "statutory vesting" as those terms are defined in Leon County Ordinance 90- 31.
Findings Of Fact The Department as the State Land Planning Agency is charged with the responsibility of reviewing the Comprehensive Plans submitted by local governments. Following such review conducted pursuant to Chapter 163, Part II, Florida Statutes, the Department is to determine whether the plan submitted is "in compliance" or "not in compliance" with applicable statutes and rules employed in the review process. McIntosh is a local government which adopted its Comprehensive Plan pursuant to Chapter 163, Part II, Florida Statutes. The McIntosh Comprehensive Plan was adopted was received by the Department on July 24, 1992. On September 4, 1992, the Department published Notice of Intent to find the Comprehensive Plan "in compliance" with applicable statutes and rules. McIntosh is a town of approximately 450 acres in size, which had a residential population in 1990 of 411 and was projected to increase population by the year 2000 to 418 people. Single family residential and agricultural land uses are the predominant land uses in the community. Petitioner Harris owns property within the incorporated limits of McIntosh. He owns and operates Sportsman Cove, a business located on Orange Lake. Portions of Orange Lake are found within the corporate limits of McIntosh where Harris conducts his business. Harris owns blocks 35 and 36 and portions of blocks 37, 53 and 54 within the corporate limits. His business involves 49 licensed mobile home sites and a number of "RV" sites located on approximately 4.648 acres along the shore of Orange Lake. He also operates a fish camp there. When the Comprehensive Plan was being prepared Harris submitted written and oral comments, objections and recommendations pertaining to the plan. He is a person affected by the adopted Comprehensive Plan. Colwell owns property in the incorporated limits of McIntosh. She owns and operates the McIntosh Fish Camp which has 8 mobile home sites and 5 "RV" sites along the shore line of Orange Lake within the town limits. Colwell submitted written and oral comments, objections and recommendations during the process of review and adoption of the Comprehensive Plan. Colwell is a person affected by the adopted Comprehensive Plan. The fish camp operations and "RV" sites of Harris and Colwell are classified in the Comprehensive Plan as lakefront commercial. The Stott's own property in the incorporated limits of McIntosh. That ownership includes blocks 1, 2, 13, 14 and 15 constituted of 13.6 acres, a portion of which is located on the shore of Orange Lake. In 1986 part of their property was used as a restaurant for about a year. The Stott's engaged in a bait business for approximately a year beyond that point. In the past prior to the plan adoption, there had been a fish camp located at blocks 1 and 15 with cabins and camper sites. These blocks are located adjacent to Orange Lake and are classified lake front residential in the Comprehensive Plan. At the time of hearing the property was not being operated as a fish camp. In the past lots 2, 13 and 14 had been used by the Stott's for unspecified light industry. The Stotts submitted written and oral comments, objections and recommendations during the plan review and adoption process. The Stotts are persons affected by the adoption of the Comprehensive Plan. The notice that was provided on September 4, 1992 concerning the intent to find the Comprehensive Plan "in compliance" made mention that the adopted plan would be available for public inspection Monday through Friday, with the exception of legal holidays. The location contemplated for inspection was the McIntosh Town Hall, Clerk's Office, at 5975 Avenue G, McIntosh, Florida. A problem arose concerning the opportunity to inspect the adopted Comprehensive Plan. The problem was occasioned by an illness to the Town Clerk. This influenced petitioners' ability to review the adopted plan and to timely submit their challenges to the decision to find the Plan in compliance. Under the circumstances a slight delay in conforming to the 21 day requirement for filing the petitions in challenge to the Comprehensive Plan is acceptable. With some inconvenience to Petitioners, persons other than the Town Clerk offered assistance in making the adopted plan available for inspection. Nonetheless, petitioners were afforded sufficient opportunity to apprise themselves concerning the contents of the adopted plan when considered in the context of their participation in the overall process for adopting the McIntosh Comprehensive Plan. The complications experienced in reviewing the adopted Comprehensive Plan did not compromise the ability of these petitioners to advance their claims in a setting in which other procedural requirements for plan adoption, review and approval have been met. The inconvenience experienced by the petitioners in reviewing the adopted plan do not evidence a quality of prejudice that should form the basis for deciding that the plan is not in compliance with applicable statutes and rules. When the Town Council adopted the plan and established Policy 2.1.4.5 it intended to use the word "abandonment" where the written text found within the adopted plan at Page 2-23 uses the word "suspension." This mistake is evidenced by the minutes of the meeting for adoption where a motion was made to change the word "suspension" to "abandonment." In the course of the hearing the attorney for McIntosh stipulated that this was an error and that the written text would be changed to reflect the proper wording. With that change Policy 2.1.4.5 would read: Provisions in the Land Development Regulations shall discourage the continuance of existing inconsistent land uses within designated land uses. These provisions shall limit the expansion of inconsistent land usage and, upon a 90 days abandonment of the incompatible land use, require reversion to designated land uses. Petitioner Harris is not satisfied that the Figure 2-6, Page 2-11, which is a map of the wetlands within the incorporated town limits, in the Comprehensive Plan, is accurate. He claims that a lobe, which is an RV site on his property known as site 9C is not within the wetlands as shown on that map. He also takes issue with the designation in Figure 2-9, page 2-17, of the future land map which shows this lobe of property as conservation/open space. He perceives this property at site 9C to be uplands. By virtue of his own activities in May 1991 in which he arranged to have a survey performed on his property in the incorporated limits of McIntosh, Harris asserts that site 9C was not found to be wetlands then and is not wetlands now. When McIntosh designated the wetlands in the community through the use of the wetlands map and identified conservation/open space in the future land use map it was acting in accordance with legal requirements incumbent upon it in adopting the Comprehensive Plan. The specific designations of wetlands and conservation/open space areas are based upon appropriate data and analysis. The data was taken from a professionally accepted existing source and was the best available data. The work that was done in preparing the wetland mapping requirements was done by the same consulting firm which Harris had employed in May 1991, that is to say Environmental Service and Permitting, Inc. In preparing the wetlands survey for McIntosh the private consulting firm used ground-truthing, as well as a review of wetland mapping data sources to delineate the wetlands. The data consulted included the U.S.D.A. Soil Conservation Service Soil Survey of Marion County, U.S.G.S. Quadrangle maps for the Town of McIntosh, as well as a review of the McIntosh Land Planning Agency Drainage Map. Although Harris takes issue with the clarity of some of the maps depicting the lobe of property for his site 9C, the adopted plan is acceptable as it describes wetlands and conservation/open space to include his site 9C. Objective 7.1.1 at Page 7.4 establishes wetland setbacks within the town where it states: The Town of McIntosh shall protect the natural drainage features within and adjacent to the Town limits, by the establishment of the wetland setbacks, and compliance with State Water Quality standards, to be a part of the Land Development Regulation. In furtherance of this Objective, Policy 7.1.1.1 is set out at page 7- 4 where it states: Setbacks shall be established from the limit of wetlands landward to buildings, septic tanks and land coverage. The following setbacks shall be a part of the Land Development Regulations. Buildings shall be set back at a minimum of 75 feet. Septic tanks and drain fields shall be set back at a minimum of 200 feet. Impervious areas shall be set back at a minimum of 50 feet. Drainage Retention Areas shall be set back 25 feet. These set backs were arrived at by the Town Council having heard from the petitioners. In the face of remarks by the petitioners made in the adoption process the council reduced the set backs. While no specific data and analysis was offered to support the set backs, they are within limits which would be recommended by the Department to protect the wetlands resources. According to the Department, from a planning viewpoint, the mere existence of wetlands is sufficient to promote protections through the use of set backs. The set backs found within this Comprehensive Plan are appropriate. Moreover, the set backs associated with the protections of wetlands have the additional benefit of protecting Orange Lake, a Class III Outstanding Florida Water Body, entitled to special water quality protection. Protection of that water body is the responsibility of McIntosh in its comprehensive planning, together with other local governments and environmental regulators. Future land use classifications in the Comprehensive Plan are set out at Page 2-14. Property which abuts Lake Orange is classified as lake front residential and lake front commercial. Lake front residential is defined as: [T]his category allows a maximum of 2 units per acre. Dwelling units includes: single family houses and mobile homes. Maximum coverage of 35% and maximum building height of 35 feet. Lake front commercial is defined as: this category allows fish camps, marinas, and recreational vehicle parks. Maximum coverage of 50% and a maximum building height of 35 feet." These classifications and densities protect natural resources to include the wetlands and Orange Lake and are appropriate. Petitioners Harris and Colwell may take advantage of the lake front commercial for their fish camp operations and "RV" sites. Stott is not entitled to take advantage of the lake front commercial classification in that her property did not include a fish camp and recreational vehicle operations at the time the plan was adopted. Petitioners have failed to show to the exclusion of fair debate that the adopted Comprehensive Plan is not "in compliance" with applicable statutes and rules concerning the issues raised in the challenges to the determination to find the Comprehensive Plan "in compliance."
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which finds the Town of McIntosh Comprehensive Plan to be "in compliance" and dismisses the petitions. DONE and ENTERED this 30th day of March, 1993, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1993. APPENDIX The following discussion is given concerning the proposed facts of the parties: Harris' Facts: This paragraph is not relevant in that it was not alleged in the petition. This paragraph in its various parts concerning available low and moderate income housing and the densities is rejected in its suggestion that the Comprehensive Plan is not acceptable. This paragraph is rejected in its suggestion that the seasonal population for dwelling units affiliated with fish camp operations should cause a reconsideration of the classifications and densities for land use. This paragraph is ejected in its legal conclusion. 5-8 These paragraphs are not relevant in that these issues were not set out in the petition. 9, 10 To the extent that paragraphs 9 and 10 describe concerns about the treatment in the Comprehensive Plan of wetlands and comment critically on wetlands protections, the proposed findings of facts are rejected. Colwell's Facts: The unnumbered facts proposed are subordinate to facts found, with the exception that the changes in Orange Lake described even if true do not persuade that the wetlands protection of Orange Lake contemplated by the Comprehensive Plan is inappropriate. Stott's Facts: 1-2 Paragraphs 1 and 2 are subordinate to facts found. 3-5 Constitute legal argument. 6 It is acknowledged that the Orange Lake is used for fishing. 7-11 To the extent that paragraphs 7 through 11 suggest inappropriate identification and protection of the wetlands through the adopted Comprehensive Plan, the proposed facts are rejected. McIntosh's Facts: A-E, A-C, A-E Are subordinate to facts found with exception that the word "increase" in fact should be "decrease" when describing residential density. Department's Facts: 1, 2 Subordinate to facts found. Subordinate to facts found with exception that the reference to the property being within "unincorporated" limits should read "incorporated" limits. - 6 Subordinate to facts found. Subordinate to facts found with exception to the suggestion that the petitioners had to contact city council members to obtain a copy of the adopted plan in the absence of the clerk. - 20 Subordinate to facts found. Not necessary to the resolution of the dispute. - 26 Subordinate to facts found. COPIES FURNISHED: R. Jerry Harris P. O. Box 107 McIntosh, FL 32664 Anna Colwell P. O. Box 135 McIntosh, FL 32664 Thomas C. Stott Marie Stott P. O. Box 551 McIntosh, FL 32664 David Wilcox, Esquire 425 Pleasant Grove Road Inverness, FL 32652 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Michael P. Donaldson, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue The issue in this case is whether the Walton County Comprehensive Plan (Plan) is in compliance with Chapter 163, Part II, Florida Statutes (the Act), the State Comprehensive Plan (Section 187.201, F.S.), the West Florida Comprehensive Regional Policy Plan, and Chapter 9J-5, Florida Administrative Code (F.A.C.).
Findings Of Fact 1. Rejected, not supported by the weight of the evidence. 2-4. Rejected, not supported by the weight of the evidence. 5. Rejected, argumentative. 6-7. Rejected, not supported by the weight of the evidence. 8. Rejected, argumentative and legal conclusion. 9-12. Rejected, not supported by the weight of the evidence. 13. Rejected, legal conclusion. 14-17. Rejected, not supported by the weight of the evidence and much of these proposed findings are argumentative legal conclusions. 18-21. Rejected, not supported by the weight of the evidence. Also many of these proposed findings are merely arguments of law. 22-36. Rejected, not supported by the weight of the evidence. Again, many of these proposed findings are argumentative and mere conclusions of law as opposed to statements of factual findings supported by the record of evidence admitted at hearing. Rejected, not supported by the weight of the evidence. Accepted. Rejected, argumentative. 40-42. Rejected, subordinate to Hearing Officer's findings. 43. Adopted by reference. 44-48. Rejected, argumentative, mere recitation of testimony. 49. Rejected, not supported by weight of evidence. 50-62. Rejected, not supported by weight of evidence, argumentative, and, again, counsel argues law as opposed to presenting facts. Rejected, argumentative. Rejected, argumentative. Rejected, the failure of the county to adopt a traffic circulation map simply renders moot any need for discussion of adequacy of maps in data and analysis. 66-67. Rejected, see statement for finding number 65 above. 68-69. Rejected, not supported by the weight of the evidence. 70-71. Rejected, argumentative. Rejected, not supported by the weight of the evidence. Rejected, conclusion of law. Rejected, conclusion of law. Rejected, conclusion of law. Rejected, not supported by the weight of the evidence. Counsel continues also to engage in legal argument as opposed to presenting findings of fact. 77-79. Rejected, subordinate to Hearing Officer's findings. Rejected, subordinate to Hearing Officer's finding of fact. Rejected, generally this finding consist of an argumentative conclusion of law. 82-83. Rejected, the weight of the evidence does not support findings that these policies comply with requirements of 9J5. 84-96. Rejected, the greater weight of the evidence does not support any finding that these objectives comply with requirements of 9J5. 97-118. Rejected, not supported by the greater weight of the evidence. COPIES FURNISHED: Douglas M. Cook, Director Florida Land and Water Adjudicatory Commission 311 Carlton Building Tallahassee, FL 32301 George Ralph Miller, Esquire County Attorney Post Office Box 687 DeFuniak Springs, FL 32433 Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 David J. Russ, Esq. Kenneth D. Goldberg, Esq. Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Fred H. Kent, Jr., Esquire Post Office Box 53075 Jacksonville, FL 32201-3075 Chris Cadenhead, Esquire Post Office Box 5354 Destin, FL 32540 Richard Grosso, Esquire 1000 Friends of Florida Post Office Box 5948 Tallahassee, FL 32314-5948
Recommendation Based on the foregoing, it is hereby recommended that the Administration Commission for enter a final order determining that the Walton County Comprehensive Plan is not in compliance. RECOMMENDED this 13th day of April, 1992, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 13th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1080GM The following constitutes my specific rulings in accordance with Section 120.59, Florida Statutes, on Findings of Fact submitted by the parties.
Recommendation It is recommended that the Complaint against the Respondent be dismissed. ENTERED this 9th day of June, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Staff Attorney, Florida Real Estate Commission 17 Ponce de Leon Boulevard Coral Gables, Florida 33134 Lawrence Scherr 2222 Southwest 22nd Terrace Miami, Florida 33145 C. B. Stafford, Executive Director Florida Real Estate Commission 699 Lee Road Winter Park, Florida 32789
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: DCA is the state land planning agency with the power and duty to exercise general supervision over the administration and enforcement of Chapter 380, Florida Statutes, including Areas of Critical State Concern, and all rules and regulations promulgated thereunder. See, Section 380.031(18), Florida Statutes. The City of Key West is in the Florida Keys Area of Critical State Concern. See, Section 380.0552(3), Florida Statutes and Rule 27F-8, Florida Administrative Code. Since the City is in the Florida Key's Area of Critical State Concern, City ordinances regulating land development do not take effect until DCA approves them "by rule." See, Section 380.0552(9), Florida Statutes. See also, Section 380.05(6), Florida Statutes (which provides that no proposed land development regulation in an Area of Critical State Concern shall become effective until DCA has adopted a rule approving such regulation.) In pertinent part, Section 380.0552, Florida Statutes provides: 380.0552 Florida Keys Area; protection and designation as area of critical state concern.-- PRINCIPLES FOR GUIDING DEVELOPMENT.--State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which chapter is hereby adopted and incorporated herein by reference. For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the principles for guiding development and any amendments to the principles, the principles shall be construed as a whole and no specific provision shall be construed or applied in isolation from the other provisions. However, the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, are repealed 18 months from July 1, 1986. After repeal, the following shall be the principles with which any plan amendments must be consistent: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shorelines and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or man-made disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. * * * MODIFICATION TO PLANS AND REGULATIONS.--Any land development regulation or element of a local comprehensive plan in the Florida Keys Area may be enacted, amended, or rescinded by a local government, but the enactment, amendment or rescission shall become effective only upon the approval thereof by the state land planning agency. The state land planning agency shall review the proposed change to determine if it is in compliance with the principles for guiding development set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, and shall either approve or reject the requested changes within 60 days of receipt thereof. Further, the state land planning agency, after consulting with the appropriate local government, may, no more often than once a year, recommend to the Administration Commission the enactment, amendment, or rescission of a land development regulation or element of a local comprehensive plan. Within 45 days following the receipt of such recommendation by the state land planning agency, the commission shall reject the recommendation, or accept it with or without modification and adopt it, by rule, including any changes. Any such local development regulation or plan shall be in compliance with the principles for guiding development. (Emphasis supplied.) In sum, any land development regulations adopted by the City must be submitted to DCA for approval or rejection pursuant to Section 380.0552(9). Such regulations become effective when approved by DCA. In evaluating an Ordinance submitted pursuant to Section 380.0552(9), DCA will look to the Principles for Guiding Development found in Section 380.0552(7), Florida Statutes. DCA is directed to approve a proposed ordinance if it is in compliance with the Principles for Guiding Development; conversely, DCA is without authority to approve a proposed amendment which is not in compliance with the Principles for Guiding Development. On September 3, 1991, the City adopted Ordinance 91-25 (the "Ordinance") which provides for a 180 day moratorium on certain development activities in the City. The Ordinance prohibits ...the approval of Community Impact Assessment Statements and site plans for projects falling within the scope of the city's CIAS ordinance, where the proposed density or intensity of use is inconsistent with the permitted density or intensity under the future land use map of the city's pending comprehensive plan or the property is situated in an area designated as coastal high hazard or wetlands on the Future Land Use Map of the City's pending comprehensive land use plan... A building moratorium, such as that set forth in the Ordinance, constitutes a land development regulation as defined in Section 380.031(8), and Rule 28-20.19(4), Florida Administrative Code. Therefore, the moratorium could not take effect until approved by DCA by rule. A Community Impact Assessment Statement ("CIAS"), as defined in Section 34.04, Key West Code, describes expected impacts of proposed development on specified City resources and infrastructure. While a CIAS is not a development order, the City requires a CIAS as a precondition to the granting of a building permit for most large projects in the City. A developer is required to submit a CIAS for a proposed residential or hotel/motel development of ten or more habitable units or a proposed commercial development of 10,000 square feet or more. A CIAS is intended to ensure that the impacts a proposed project will have upon public facilities and the social and economic resources of the community are considered in the planning process and to avoid surprises during the planning process. The City will reject a CIAS that it finds to be incomplete or misleading. The City Commission held its first hearing on the Ordinance on June 18, 1991. At least five public hearings before the City Commission were held prior to the City's adoption of the Ordinance. The 1981 City of Key West Comprehensive Plan (the "Existing Comprehensive Plan") sets forth certain parameters and standards for the issuance of development orders. The Existing Comprehensive Plan has been approved by the Administration Commission in Chapter 28-37, Florida Administrative Code. The City of Key West land development regulations and certain amendments to the Existing Comprehensive Plan have been approved by DCA in Chapter 9J-22, Florida Administrative Code. The City is required by the States's growth management statute, Part II of Chapter 163, Florida Statutes, to submit to DCA a new comprehensive plan. Since the City is in an Area of Critical State Concern, the new comprehensive plan will not take effect until it is approved by DCA by rule. The Existing Comprehensive Plan remains in effect until a new plan is adopted. At the time the Ordinance was adopted, the City was in the process of preparing a new comprehensive plan to guide future development. By adopting the moratorium, the City sought to provide itself with an opportunity to effectively implement a new comprehensive plan. The City submitted a proposed new comprehensive plan (the "Pending Comprehensive Plan") to DCA on December 2, 1991. DCA and the City are currently involved in negotiations over whether the Pending Comprehensive Plan is in compliance with the state's growth management law, Chapter 163, Florida Statutes, and the rules promulgated thereunder, Rule 9J-5, Florida Administrative Code. The Pending Comprehensive Plan was still in the draft stages at the time the Ordinance was adopted. As indicated above, the City adopted the moratorium for projects requiring a CIAS in an effort to ensure that the City would be able to effectively implement a new comprehensive plan. The City is faced with numerous development-related problems which it attempts to address in the Pending Comprehensive Plan. These problems include: Water Quality Water Resources - The City draws all of its water from the Biscayne Aquifer. The water is pumped from wellfields on the mainland in Dade County and is transported through a single pipe to Monroe County to provide water to the Florida Keys population. While there is no immediate problem with the availability of water for the City, the Florida Keys Aqueduct Authority and the South Florida Water Management District (SFWMD) are in the process of preparing a water supply plan for Dade County and the Keys. These agencies recently informed all Monroe County local governments that they are approaching the limit of water that can be supplied from the aquifer and it is expected that there will be limitations on any further increases in consumption and/or consumptive use permits. The City and DCA contend that the moratorium will help the City to effectively analyze and address these issues in its new comprehensive plan. Chapter 4 of the Pending Comprehensive Plan would require the City to develop a plan for potable water resources, including replacement of the aging water main, providing for emergency supplies, and emphasizing the need to conserve water. Sewer System - Sewage treatment in the City of Key West is a serious problem. The treated effluent is currently dumped into the Atlantic Ocean and has been implicated in the degradation of the environmentally sensitive and unique coral reefs. Chapter 4 of the Pending Comprehensive Plan would direct the City to substantially improve its wastewater treatment level of service, prevent system infiltration, fix leaky pipes, and reduce the pollution of the surrounding waters. Stormwater Runoff - The waters surrounding the island of Key West have been designated Outstanding Florida Waters, pursuant to Chapter 403, Florida Statutes. The runoff generated by rains in the City is currently channeled into these waters either directly or via canals. The Existing Comprehensive Plan does not contain extensive guidance regarding stormwater runoff. Chapter 4 of the Pending Comprehensive Plan would direct the City to conduct a half million dollar study over the next two years to examine, develop, and implement a stormwater management plan. Section 4-2.1(d) of the Pending Comprehensive Plan would also require improved levels of service for stormwater runoff. Hurricane Evacuation - The evacuation of people out of the Florida Keys during a hurricane is an important element in the planning process for the City. The Existing Comprehensive Plan does not provide any standards for hurricane evacuation. Chapter 2 of the Pending Comprehensive Plan requires the City of Key West to develop a feasible hurricane evacuation plan and coordinate its implementation with the County. The City has taken no action on this directive to date. A model is being developed within the Monroe County Comprehensive Plan for the safe evacuation of residents from the Florida Keys. The model will include updated information based upon the Pending Comprehensive Plan. The inclusion of new development into the model is complicated. By temporarily limiting new development, the City can provide more certainty to this planning process. Wetlands and Environmental Protection - The Pending Comprehensive Plan seeks to strengthen and clarify the Existing Comprehensive Plan provisions regarding wetlands and habitat protection by reducing densities within wetlands, salt ponds, and coastal high hazard areas and requiring the adoption of amended land development regulations which extensively improve the City's environmental protection requirements. Residential Housing and Conversion to Transient Units - There have been a significant number of conversions from residential to transient units (hotels, motels, and other tourist accommodations) in the City during the last several years. The increase in "transient" persons exacerbates the strain upon public facilities, especially transportation facilities. The Existing Comprehensive Plan offers little protection to residential areas from commercial and transient intrusion. The Future Land Use Element of the Pending Comprehensive Plan attempts to guide and plan the locations of conversions. Transportation - Many roads in the City are currently operating at poor levels of service, including U.S. Highway 1, the main arterial roadway in the City. The City has never had a specific plan to improve the levels of service. The City is required under the growth management statute (Chapter 163) to provide adequate levels of service on the roads within the City. Chapter 2 of the Pending Comprehensive Plan proposes to implement an extensive traffic circulation system over the next twenty years which will include roadway improvements, revised levels of service, and nonmotorized transportation provisions. Solid Waste - Currently, the City's solid waste is disposed at a local landfill. The City's solid waste disposal facility is currently operating under a year old consent order that directs the facility to be closed within three years. The Existing Comprehensive Plan states that the City is to provide adequate public facilities, but does not explain what constitutes "adequate". The Existing Comprehensive Plan does not provide a plan for the impending closure. The Pending Comprehensive Plan would require the City to provide the funding for solid waste disposal improvements. The clear goal of the Ordinance was to delay the approval of certain CIAS applications, site plans and building permits for 180 days while work continued on the Pending Comprehensive Plan. The City contends that the moratorium will help it to effectively implement the policies which it anticipates will be incorporated in the new comprehensive plan when it is finally in place. The Ordinance provided that the 180 day moratorium would begin on the effective date of the administrative rule approving the Ordinance. The City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the Ordinance. Normal rulemaking pursuant to Section 120.54, Florida Statutes, generally takes between 90 to 120 days. Many local governments experience a significant increase in development proposals immediately prior to the adoption of a new comprehensive plan. Many of these proposals are prompted by a fear as to the impact of the new plan and seek to acquire vested rights under the old plan. The City and DCA were concerned that such an increase in development proposals might complicate the planning process by rendering some aspects or assumptions of a new plan moot before the plan could even be adopted. Moratoria are frequently used by local governments in order to complete an effective comprehensive plan without the need for changes. In the year immediately proceeding the adoption of the Pending Comprehensive Plan by the City Commission (from September 1990 through September 1991), the City received seven CIAS applications. No CIAS applications had been received during the year prior. The City contends that many of the 1990/1991 applications were motivated by an attempt to obtain vested development rights. However, no persuasive evidence to support this speculation was presented. The City Commmission did not consider any reports, studies or other data in connection with the enactment of the Ordinance. At the time the Ordinance was adopted, the City Commission did not make any specific determinations that there were any immediate dangers to the public health, safety or welfare of the community nor was the Ordinance enacted as an emergency ordinance. After its adoption by the City Commission, the Ordinance was transmitted to DCA on September 5, 1991 for approval pursuant to Section 380.0552(9), Florida Statutes. The only information transmitted to DCA was a copy of the Ordinance. As indicated above, the City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the City's Ordinance. The City Planner contacted DCA to request approval of the Ordinance by emergency rule. The City Planner and DCA concurred in the conclusion that the purpose of the Ordinance would be defeated if it was not immediately implemented. The City Commission did not specifically ask or authorize the City Planner to request DCA to enact the Ordinance by emergency rule. The City's concerns included, among other things, that the conversions of residential properties to transient tourist accommodations would accelerate during the process of finalizing the Pending Comprehensive Plan. In addition, the City expects that its new comprehensive plan will reexamine the densities in coastal high hazard areas. By adopting a moratorium, the City sought to insure that any new developments will comply with the new densities ultimately adopted. On September 18, 1991, DCA filed the rule packet for the Emergency Rule with the Secretary of State and the Emergency Rule became effective on that date. DCA did not prepare an economic impact statement for the Emergency Rule. The rule packet consisted of: (a) a Certification Of Emergency Rule; (b) the Notice Of Emergency Rule; (c) a Statement Of The Specific Facts And Reasons For Finding An Immediate Danger To The Public Health, Safety And Welfare, (the "Statement of Specific Reasons") and (d) a Statement of the Agency's Reasons for Concluding that the Procedure Used Is Fair under the Circumstances (the "Agency Conclusions"). The Notice of Emergency Rule appeared in the September 27, 1991 edition of the Florida Administrative Weekly. In the Statement of Specific Reasons, DCA concluded that: ...Generally, a [comprehensive] plan revision process stimulates an accelerated rate of permit requests. Accelerated permitting including the acquisition of vested rights during a planning period will severly erode the City's ability to effectively revise and implement the comprehensive plan. Such accelerated development will also lead to further deterioration of current hurricane evacuation clearance time for the City. This action will increase the existing potential for loss of life and injury to person [sic] and property, will cause further deterioration of level [sic] of service on existing roadways and will lead to irreversible environmental degradation. Therefore this rule must be adopted by emergency procedures because of the potential immediate danger to the public health, safety and welfare. In the Agency Conclusions, DCA concluded: The emergency rulemaking is fair because (1) it immediately approves the ordinance as adopted by the City of Key West Commission and (2) normal rulemaking would moot the intent of the adopted ordinance since the City of Key West would be required to continue accepting applications for building permits, site plans, of [CIAS's] covering work projects or both, as set forth in Section 2 of ordinance 91-25 until the Department's rule approving the ordinance becomes effective. DCA's Statement of Specific Reasons was not reviewed or discussed with the City or its planner prior to its preparation. In deciding to promulgate the Emergency Rule, DCA considered the major public facilities and natural resource problems confronting the City and the City's proposed strategy to deal with these problems in the Pending Comprehensive Plan. DCA concluded that an immediate danger to the public health, safety, and welfare currently exists within the City justifying the approval of the Ordinance by emergency rule. The evidence clearly indicates that the City is facing many significant problems from a planning perspective. Petitioner contends, however, that there is no evidence that any of those problems present an "immediate" threat to the public health, safety or welfare. For the reasons set forth in the Conclusions of Law below, this contention is rejected. On October 10, 1991, DCA filed a rule packet for the Proposed Rule with the Secretary of State. The rule packet consisted of the Notice Of Proposed Rule 9J-22.013, the Estimate of Economic Impact on All Affected Persons (the "EIS",) a Statement of the Facts and Circumstances Justifying Proposed Rule 9J-22.013 (the "Statement of Facts"), a summary of the Proposed Rule, a Comparison with Federal Standards, a Statement of Impact on Small Business and the text of the Proposed Rule. The Notice of Proposed Rule 9J-22.013 appeared in the October 18, 1991 edition of the Florida Administrative Weekly. On October 24, 1991, DCA filed a Notice of Change with the Secretary of State, stating that the correct number for the Proposed Rule was 9J-22.014, since 9J-22.013 had already been used. The Notice of Change appeared in the November 1, 1991 edition of the Florida Administrative Weekly. DCA did not consider any appraisals, data, reports or other studies concerning the economic impact that could result from the imposition of a moratorium. Instead, DCA followed the approach it had used in approving prior ordinances enacted by the City and concluded that its role in reviewing the Ordinance for compliance with the Priniciples Guiding Development did not require an examination of the economic impact of the underlying policy decisions reached by the City Commission in adopting the Ordinance. The EIS states that: Costs and benefits will occur as a result of this ordinance and were considered by the City prior to adoption of the ordinance. The City did not provide any information to DCA on the economic impacts of the Ordinance or on the impact of the Ordinance on the value of properties affected by it. The evidence was unclear as to the extent to which the City Commission considered economic impacts in deciding to adopt the Ordinance. Several public hearings were held in connection with the adoption of the Ordinance and DCA assumed that interested parties had an opportunity to express their concerns regarding the economic impact of the Ordinance at these hearings. DCA did not inquire as to the number of projects under review by the City at the time the Ordinance was passed nor did it seek a determination as to whether any projects with vested rights were affected by the Ordinance. The City Planning Department has retained a consultant, as required by the Ordinance, to conduct an economic study of existing conditions and projections for future growth. The purpose of this study is to assist in developing future amendments to the Ordinance. The study is not final and was not considered by the Key West City Commission when the Ordinance was enacted. DCA concluded that the proposed moratorium adopted by the Key West City Commission was consistent with the Principles for Guiding Development. Therefore, DCA concluded that Section 380.0552 required it to approve the Ordinance. Petitioner has not presented any persuasive evidence to establish that the Ordinance is in any way inconsistent with the Principles for Guiding Development. Petitioner owns 6.8 acres of vacant real property on Atlantic Boulevard in the City. He purchased the property in 1974 with the intent to develop it. Petitioner's property is located in an R-2H zoning district. The City's future land use map designates Petitioner's property as multi-family. Petitioner has spent approximately $71,000.00 to hire architects, engineers, surveyors, planners, biologists and attorneys to aid him in preparing to develop the subject property. In 1989, Petitioner submitted applications for a Department of Environmental Regulation Surface Water Management permit, and an Army Corps of Engineers dredge-and-fill permit, but neither of those permits have been issued to date. Generally the City requires a developer to obtain these "higher-order" permits prior to issuing a building permit. Petitioner has never applied for or installed sewer service, water service or any other utility service to the property. Since he acquired the property, Petitioner has not cleared any vegetation on the property except for minor trimming adjacent to the roadway which was required by the City for safety purposes. In June of 1989, the City passed a resolution notifying the Department of Environmental Regulation that it opposed Petitioner's application to place fill upon the property. On April 10, 1991, Petitioner submitted a CIAS to the City for a proposed 96 unit residential development in three buildings on the subject property. Before the Ordinance was enacted, the City Planner prepared a report dated July 3, 1991 reviewing Petitioner's CIAS as required by the CIAS ordinance. In that review, the City Planner concluded: The project is located in the R-2H zoning district and conforms to all provisions of that district, thus requiring no variances or special exceptions. On August 6, 1991, the Key West City Commission considered Petitioner's CIAS. The City Commission refused to approve the Petitioner's CIAS application. Specifically, the City Commission determined that Petitioner's CIAS application was incomplete and that the "submerged land district" designation ("SL") applied to the Petitioner's property as an overlay zoning district because Petitioner's property is located in an area which is deemed to include wetlands and mangroves. The City Commission requested that the CIAS address the "submerged land district" before the CIAS application could be deemed complete. The City Planner was not present at the August 6, 1991 City Commission meeting. The "submerged land district" in Section 35.07(f), City of Key West Code, provides that the density and site alteration of "environmentally sensitive areas including but not limited to wetland communities, mangroves, tropical hardwood hammocks and salt ponds shall be zoned with a maximum density of one (1) unit per acre. Site alteration shall be limited to a maximum of ten percent of the total size." The "submerged land district" overlay zone applies to any parts of the property which fall within the description of "environmentally sensitive areas" in Section 35.07, City of Key West Code. Because there is confusion over the interpretation and applicability of the SL district and because the SL land use district does not appear on the City's official zoning map, it was not considered in the preparation of the July 3 Report. The evidence in this case was inconclusive as to whether Petitioner's property is located in a SL district and/or whether Petitioner's CIAS for his property can be approved under the City regulations in place prior to the adoption of the Ordinance. On August 22, 1991, Petitioner submitted an amendment to the CIAS as well as a Site Plan. The amendment to the CIAS contests the City's conclusion that Petitioner's property should be considered part of a SL district. As set forth above, during this time period, the City had began consideration of the Ordinance. The first hearing on the Ordinance was held on June 18, 1991 and the Ordinance was passed by the City Commission on September 3, 1991. The City Planner notified Petitioner by letter dated October 11, 1991, that his CIAS Site Plan review and approval had been "stayed" because of the enactment of the Ordinance and because of the project's "inconsistencies with the City's Pending Comprehensive Plan." Petitioner requested an exception from the effect of the Ordinance pursuant to the procedure contained in the Ordinance. A hearing was held before the City Commission and the request was denied.
Findings Of Fact Petitioner is a civil engineer and registered land surveyor in Massachusetts, New York, and Pennsylvania. He took and passed the examination for land surveyor in Massachusetts in 1957 and was subsequently licensed by endorsement in New York and Pennsylvania based on having passed the Massachusetts examination. He has been a practicing land surveyor for some 28 years and is an experienced and well-qualified practitioner. Petitioner was unable to produce a copy of the 1957 examination he took in Massachusetts since no copy could be located in the files of the Massachusetts agency which licenses land surveyors. Similarly, no copy of the 1957 Florida examination is contained in the files of the Florida Board of Land Surveyors. By reason of Petitioner's experience he was exempted from taking the Fundamentals portion of the Florida examination but was required to take the Principles and Practices section. After recomputation Petitioner was awarded a final grade of 68 on this examination, two points below a passing grade of 70. Petitioner acknowledged in his testimony that retention of the workbook he was issued at the examination would not have changed any of the wrong answers he put on the answer sheet. He also acknowledged that to a question asking for the size of the survey marker used in Florida surveying he guessed 2" instead of the correct answer of 3". Had Petitioner correctly answered two questions regarding size of survey markers, he would have passed the examination. He also acknowledged that the answer to several of the questions he missed would have been known by a Florida land surveyor and had he familiarized himself with Florida law regarding land surveying he would have passed the examination. He also acknowledged it was customary to take a refresher course before sitting for an examination. Petitioner lost eight points on one question, the answer to which was premised on changing a filed plat plan as the question directed. In Massachusetts a filed plat plan may not be changed and, since Petitioner considered the question to require the examinee to perform an unlawful act, viz., change the filed plat plan, he declined to do so and received a zero grade on this eight-point question.
The Issue The issue in this case is whether Monroe County Ordinance 035-2007, which amends the County's Beneficial Use Determination (BUD) procedures, is consistent with the Principles for Guiding Development in the Florida Keys Area of Critical State Concern (ACSC), which are in Section 380.0552(7), Florida Statutes (the Principles for Guiding Development).
Findings Of Fact Monroe County Ordinance 035-2007 was adopted on July 18, 2007. The Ordinance makes changes in the County's BUD procedures, non-judicial procedures by which a property owner may seek relief from the literal application of County Comprehensive Plan provisions and land development regulations (LDRs). It repeals Article VI, Division II, Sections 9.5-171 through 9.5-174 of the Monroe County Code and replaces them with Sections 9.5-171 through 9.5-179. The Petition alleges that Ordinance 035-2007 is inconsistent with the Principles for Guiding Development because it increases the time and expense of obtaining a BUD. The Petition also alleges that Ordinance 035-2007 exacerbates "condemnation blight" in the Florida Keys and will hold down the apparent market value of undeveloped land in the Florida Keys so that the State and County can acquire undeveloped lands at less than fair market value. Petitioners There was no evidence to prove the standing of several of the Petitioners. The evidence presented on Petitioners' standing is reflected in the following findings of fact. Salvador Guttierrez filed for a BUD determination on a lot he owns in Rock Harbor in the Florida Keys and that the application was denied under the BUD procedures in effect at this time (i.e., before the challenged amendments.) The following Petitioners "own land, vacant land, in Monroe County": Roger Akers and Sandra Henning, as tenants in common; Ida Mae Cornblum and Marilyn Schwack, as tenants in common, and Bella Schwartz; E&O Land Development Corp. and Enos Mitchell; Richard Melahn; Stephen Rohaty; Herbert Shaw, Jr.; David T. Voit; and Kenneth R. Wilson and Christine E. Wilson, as tenants by the entirety. It was alleged that those Petitioners intend to file BUD applications, but there was no evidence to that effect. Ed Lewis, LLC, and C.O. Jones, Jr., LLC, own undeveloped platted lots with platted access roads in the Florida Keys that have been acquired beginning in 2003. Mr. Gutierrez testified without contradiction that eighty-five percent of those lots cannot be developed as currently zoned, are unlikely to be rezoned, and cannot obtain building authorization under the County's Rate-of-Growth Ordinance (ROGO) because they are in Tier 1 of the County's new Tier System. He also testified without contradiction that the LLCs have decided to file BUD applications on those lots. Effect of Amendments The Petition alleges that Ordinance 035-2007 will increase the time and expense of obtaining a BUD. Without Ordinance 035-2007, applicants in the BUD process learn the requirements of obtaining a BUD during the processing of an application. As a result, the process can take more time and cost more. Ordinance 035-2007 essentially details the requirements of obtaining a BUD and places time limits on BUD procedures. This makes the process more predictable and coherent. Ordinance 035-2007 does not make substantive changes or other significant procedural changes. By better detailing the BUD process, Ordinance 035-2007 improves the BUD process and makes it more efficient, making it more consistent with Comprehensive Plan Future Land Use Element Policy 101.18.5, which requires the adoption of the BUD procedure. In so doing, Ordinance 035-2007 will strengthen the County's capabilities for managing land use and development so that it is able to achieve these objectives without the continuation of the Florida Keys ACSC designation. It also will help to ensure the maximum well-being of the Florida Keys and its citizens through sound economic development and help protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. It was not proven that Ordinance 035-2007 will increase the time or expense of obtaining a BUD. There was evidence that the State and County have purchased undeveloped lands in the Florida Keys at lower prices than some other properties in the Florida Keys. It was not proven that there is "condemnation blight" in the Florida Keys (or that Ordinance 035-2007 will exacerbate "condemnation blight" in the Florida Keys ). It also was not proven that Ordinance 035-2007 will hold down the apparent market value of undeveloped land in the Florida Keys so that the State and County can acquire undeveloped lands at less than fair market value.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Department of Community Affairs enter a Final Order that Monroe County Ordinance 035-2007 is consistent with the Principles For Guiding Development for the Florida Keys Area of Critical State Concern. DONE AND ENTERED this 14th day of October, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 October, 2008. COPIES FURNISHED: Thomas Pelham, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Suite 100 Tallahassee, Florida 32399-2100 Shaw Stiller, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Suite 325 Tallahassee, Florida 32399-2160 James S. Mattson, Esquire Post Office Box 586 Key Largo, Florida 33037-0586 Derek V. Howard, Esquire Monroe County Attorney's Office 1111 12th Street, Suite 408 Key West, Florida 33040-3005 Andrew M. Tobin, Esquire Post Office Box 620 Tavernier, Florida 33070-0620 Richard E. Shine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether the amendment to the Lee County Comprehensive Plan adopted by Ordinance No. 05-20 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2005),1 for the reasons set forth in the Petition for Formal Administrative Hearing and Statement of Intent filed by the Department of Community Affairs ("the Department").
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. Lee County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Leeward is a Florida limited liability company that owns a portion of the real property that is the subject of the amendment at issue. The Amendment The amendment would change the future land use designation for 41.28 acres in the northeast quadrant of the Interstate 75 (I-75)/State Road 80 (SR 80) interchange from General Commercial Interchange to Urban Community, as shown on the FLUM. The General Commercial Interchange land use is described in the County Plan as “intended primarily for general community commercial land uses: retail, planned commercial districts, shopping, office, financial, and business.” It does not allow residential development. The Urban Community land use provides for a mix of residential, commercial, public, quasi-public, and limited light industrial uses. The standard density range for residential uses in the Urban Community category is one to six dwelling units per acre (du/a). The 41.28 acres affected by the amendment ("the amendment site") consist of 19.28 acres of lands along the Orange River owned by Leeward, a platted subdivision known as Dos Rios of approximately 11 acres, and the remaining acreage consists of right-of-way for SR 80 and I-75. Currently operating on Leeward's property is a vessel repair facility, a marina with wet and dry slips, and an ecotourism company. Leeward also has its office on the site. The Dos Rios subdivision includes 26 single-family lots. Apparently, only a few of the lots (the number was not established in the record) have been developed. Because residential land uses are not allowed in the General Commercial Interchange category, the Dos Rios lots were non-conforming uses. Maximum Allowed Density The County Plan provides residential density bonuses to promote various County objectives, such as the provision of affordable housing. With density bonuses, lands designated Urban Community can boost their density to a maximum of ten du/a. There was testimony presented by Leeward that the County has not often approved applications for density bonuses. Even if the practice of the County in approving density bonuses were relevant, the practice can change. It is reasonable for the Department to consider the maximum intensity or density associated with a future land use designation when determining whether a FLUM amendment is in compliance. Therefore, in this case, it is reasonable to consider the Urban Community land use designation as allowing up to ten du/a. The Department asserts that the amendment would allow the 41.2 acres affected by the amendment to have a total of 412 dwelling units (41.2 acres x 10 du/a). Leeward disputed that figure because the 41.2 acres includes road right-of-way and the Dos Rios subdivision. A hearing officer appointed to review a Lee County development order recently determined that right-of-way external to a development should not be included in calculating allowable units, and the County accepted the hearing officer's recommendation based on that determination. The definition of "density" in the County Plan supports the determination.2 Therefore, for the purposes of this case, the right-of-way in the northeast quadrant should not be included in calculating the maximum residential density that would result from the amendment. On the other hand, Leeward's argument that the Dos Rios subdivision acreage should not be included in the ten du/a calculation is rejected. For the purposes of an "in compliance" determination, it is reasonable for the Department to apply the maximum potential densities to all developable and re- developable acreage. Using 29 acres as the approximate acreage affected by the amendment when road right-of-way is subtracted, the amendment would create the potential for 290 residences in the northeast quadrant of the interchange. Adoption of the Amendment The amendment was initiated as part of the County's reexamination of the existing land use designations in the four quadrants of the I-75/SR 80 interchange. Following the County planning staff's completion of a study of the entire interchange, it recommended several changes to the County Plan, but no change was recommended for the northeast quadrant. Apparently, the amendment at issue was urged by Leeward, and, at a public hearing held on June 1, 2005, the Board of County Commissioners voted to adopt the amendment. Pursuant to Section 163.3184(6), Florida Statutes, the proposed amendment was forwarded to the Department for an "in compliance" review. Following its review, the Department issued its ORC Report on August 19, 2005. In the ORC Report, the Department objected to the proposed amendment based upon what it considered to be inappropriate residential densities in the coastal high hazard area (CHHA) and floodplain. The Department recommended that the County not adopt the proposed amendment. On October 12, 2005, another public hearing was held before the Board of County Commissioners to consider adoption of the amendment. At the public hearing, the County planning staff recommended that the land use designation in the northeast quadrant not be changed to Urban Community "due to the potential increase in density in the Coastal High Hazard Area." Nevertheless, the Board of County Commissioners approved the amendment. Representatives of Leeward appeared and submitted comments in support of the amendment at the public hearings before the Board of County Commissioners. On December 16, 2005, the Department issued its Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance, identifying three reasons for its determination: (1) inconsistency with state law regarding development in the CHHA and flood prone areas, (2) internal inconsistency with provisions of the County Plan requiring the consideration of residential density reductions in undeveloped areas within the CHHA, and (3) inconsistency with the State Comprehensive Plan regarding subsidizing development in the CHHA and regulating areas subject to seasonal or periodic flooding. On January 5, 2006, the Department filed its petition for formal hearing with DOAH. Coastal High Hazard Area The Florida Legislature recognized the particular vulnerability of coastal resources and development to natural disasters and required coastal counties to address the subject in their comprehensive plans. [I]t is the intent of the Legislature that local government comprehensive plans restrict development activities where such activities would damage or destroy coastal resources, and that such plans protect human life and limit public expenditures in areas that are subject to destruction by natural disaster. § 163.3178(1), Fla. Stat. The statute also requires evacuation planning. Until 2006, the CHHA was defined as the "category 1 evacuation zone." § 163.3178(2)(h), Fla. Stat. In 2006, the CHHA was redefined as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model."3 Ch. 2006-68, § 2, Laws of Fla. The County Plan defines the CHHA as "the category 1 evacuation zone as delineated by the Southwest Florida Regional Planning Council." Map 5 of the County Plan, entitled "Lee County Coastal High Hazard Area (CHHA)," shows the entire amendment site as being within the CHHA. Nothing on Map 5, however, indicates it was produced by the Regional Planning Council. Daniel Trescott, who is employed by the Southwest Florida Regional Planning Council and is responsible for, among other things, storm surge mapping, stated that the Category 1 evacuation zone is the storm surge level for the worst case scenario landfall for a Category 1 storm. He stated that the Category 1 storm surge for Lee County was determined by the SLOSH model to be 5.3 feet. Mr. Trescott stated that the 5.3 foot contour (shown on Plate 7 of the Regional Planning Council's "Hurricane Storm Tide Atlas - Lee County") more accurately delineates the CHHA than Map 5 of the County Plan. Although Mr. Trescott's testimony suggests a conflict between the County Plan's definition of the CHHA and Map 5's depiction of the CHHA, the two can be reconciled by a finding that Map 5 is a gross depiction of the CHHA for general public information purposes, but the precise location of the CHHA boundary is the one delineated by the Regional Planning Council, and the latter is controlling. Using the 5.3 contour on the amendment site, Leeward's witness, Michael Raider, estimated that there are approximately 16 acres of the amendment site within the CHHA. Applying the maximum allowable residential density under the Urban Community land use designation (with bonuses) of ten du/a means the amendment would result in a potential for 160 dwellings in the CHHA. Florida Administrative Code Rule 9J-5.012(3)(b)6. and Rule 9J-5.012(3)(c)7., respectively, require each local government’s coastal management element to contain one or more specific objectives that "[d]irect population concentrations away from known or predicted coastal high-hazard areas” and limit development in these areas. The parties' evidence and argument regarding whether the amendment was "in compliance" focused on these rules and the following goal, objective, and policy of the County Plan related to the CHHA: GOAL 105: PROTECTION OF LIFE AND PROPERTY IN COASTAL HIGH HAZARD AREAS. To protect human life and developed property from natural disasters. OBJECTIVE 105.1: DEVELOPMENT IN COASTAL HIGH HAZARD AREAS. Development seaward of the 1991 Coastal Construction Control Line will require applicable State of Florida approval; new development on barrier islands will be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion will not be permitted; and allowable densities for undeveloped areas within coastal high hazard areas will be considered for reduction. POLICY 105.1.4: Through the Lee Plan amendment process, land use designations of undeveloped areas within coastal high hazard areas will be considered for reduced density categories (or assignment of minimum allowable densities where ranges are permitted) in order to limit the future population exposed to coastal flooding. In the opinion of Bernard Piawah, a planner employed by the Department, the amendment is inconsistent with the goal, objective and policy set forth above because these provisions only contemplate possible reductions of residential densities in the CHHA and there is no provision of the County Plan that addresses or establishes criteria for increasing residential densities in the CHHA. Population Concentrations As stated above, Florida Administrative Code Rule 9J-5.012(3)(b)6. directs local governments to include provisions in their comprehensive plans to direct population concentrations away from the CHHA. The term "population concentrations" is not defined in any statute or rule. The term apparently has no generally accepted meaning in the planning profession. The word "population" has the ordinary meaning of "all of the people inhabiting a specific area." The American Heritage Dictionary of the English Language (1981). The word "concentration" has the ordinary meaning of "the act or process of concentrating." Id. The word "concentrate" means "to direct or draw toward a common center." Id. In the context of Florida Administrative Code Rule 9J-5.012, the term "population concentrations" suggests a meaning of population densities (dwelling units per acre) of a certain level, but the level is not stated. Leeward argues that, because there is no state guidance on the meaning of the term "population concentrations," surrounding land uses should be examined to determine whether a proposed density would be "proportionate to its surroundings." According to Leeward, in order to be a population concentration, the density under review would have to be greater than the surrounding density. This comparative approach is rejected because the overarching Legislative objective is protection of life, which plainly calls for a straightforward consideration of the number of lives placed in harm's way. The Department, in its Proposed Recommended Order, states: By assigning either zero residential density to land by virtue of an Open Space land use designation, or a maximum density of one unit per acre by assigning a low density land use designation, the County Plan fulfills the mandates of State law that development be limited in and residential concentrations be directed away from the CHHA. Thus, not surprisingly, the Department does not consider one du/a to be a population concentration. A density of ten du/a is an urban density, as indicated by the fact that it is the maximum density allowed in the Urban Community land use designation and the highest density within the "standard density range" for the County's Central Urban land use designation. It is a generally known fact, of which the undersigned takes notice, that urban areas are areas where populations are concentrated. It is a another generally known fact, of which the undersigned takes notice, that ten dwelling units on one acre of land amounts to a lot of people living in a small space. Leeward, itself, described the residential density allowed under the Urban Community designation as "relatively intense." Leeward's Proposed Recommended Order, at 7. Whether measured by density alone (ten du/a) or by Leeward's estimate of 160 residences on 16 acres, the amendment places a population concentration in the CHHA. Offsets in the CHHA Leeward presented evidence that the County has been reducing residential densities, sometimes referred to as "down- planning," in other areas of the CHHA in Lee County. The reduction in dwelling units in the CHHA over the past several years may be as high as 10,000 units. The Department did not present evidence to dispute that there has been an overall reduction in dwelling units in the CHHAs of Lee County. Leeward argues that these reductions "offset" the increase in dwelling units in the CHHA that would result from the amendment and this "overall" reduction in densities in the CHHA must be considered in determining whether the amendment is "in compliance" with state law and with provisions of the County Plan related to directing population concentrations away from the CHHA. At the hearing and in its Proposed Recommended Order, the Department argued that the consideration of offsets in the CHHA was improper and unworkable, but that argument conflicts with the Department's actual practice and official position as described in the January 2006 "Department of Community Affairs Report for the Governor's Coastal High Hazard Study Committee." In that report, the Department acknowledged there is no statutory or rule guidance regarding what the maximum density should be in the CHHA. The Report notes that some local governments have established maximum densities for the CHHA (e.g., Pinellas County, 5 du/a; Franklin County 1 du/a). The Department states in the report that it reviews amendments to increase density in the CHHA on a "case by case" basis, and explains further: When a Comprehensive Plan Amendment in the CHHA proposes a density increase, DCA's review considers the amount of the density increase, the impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" (generally accomplished through public acquisition). One of the visual aides used in conjunction with the 2006 report to Governor's Coastal High Hazard Study Committee, entitled "Policy Issue #2 - Densities in High Hazard Areas," also describes the Department's practice: Without locally adopted density limits, DCA conducts a case by case review of amendments without any defined numeric limit. DCA considers amount of density increase, impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" in other areas of the CHHA. These statements use the phrase "there will be a corresponding offset," which suggests that for an offset to be considered, it would have to be proposed concurrently with an increase in residential density on other lands within the CHHA. However, according to the director of the Department's Division of Community Planning, Valerie Hubbard, offsets in the CHHA do not have to be concurrent; they can include previous reductions. Furthermore, although the Department pointed to the absence of any criteria in the County Plan to guide an offset analysis, Ms. Hubbard said it was unnecessary for a comprehensive plan to include express provisions for the use of offsets. To the extent that this evidence of the Department's interpretation of relevant law and general practice conflicts with other testimony presented by the Department in this case, the statements contained in the report to the Governor's Coastal High Hazard Study Committee and the testimony of Ms. Hubbard are more persuasive evidence of the Department's policy and practice in determining compliance with the requirement that comprehensive plans direct population densities away from the CHHA and limit development in the CHHA. As long as the Department's practice when conducting an "in compliance" review of amendments that increase residential density in the CHHA is to take into account offsets, the Department has the duty to be consistent and to take into account the County's offsets in the review of this amendment. The County planning director testified that he believed the applicable goal, objective, and policy of the County Plan are met as long as there has been a reduction in residential densities in the CHHAs of the County as a whole. The Department points out that the planning director's opinion was not included in the County planning staff's reports prepared in conjunction with the amendment. However, it necessarily follows from the Board of County Commissioners' adoption of the amendment that it does not interpret Objective 105.1 and Policy 105-1.4 as prohibiting an increase in residential density in the CHHA. Although these provisions make no mention of offsets, the Department has not required offset provisions in a comprehensive plan before the Department will consider offsets in its determination whether a plan amendment that increases density in the CHHA is in compliance. The wording used in Objective 105.1 and Policy 105-1.4 requiring "consideration" of density reductions in the CHHA can be harmonized with the County planning director's testimony and with the County's adoption of the amendment by construing these plan provisions consistently with the Department's own practice of allowing increases in the CHHA when the increases are offset by overall reductions in dwelling units in the CHHA. Seeking to harmonize the amendment with the provisions of the County Plan is the proper approach because, as discussed later in the Conclusions of Law, whether an amendment is consistent with other provisions of the plan is subject to the "fairly debatable" standard which is a highly deferential standard that looks for "any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction." Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Shelter Space and Clearance Time Prior to the hearing in this case, Leeward moved to strike certain statute and rule citations in the Department's petition related to shelter space and clearance time4 because they were not included in the Department's ORC Report. The motion was denied because, although Section 163.3184(8)(b), Florida Statutes, limits the Department's petition to issues raised in the "written comments" in the ORC Report, the statute does not indicate that the Department is barred from citing in its petition, for the first time, a rule or statute that is directly related to the written comments. The CHHA is defined in the County Plan as the category one "evacuation zone." It is the area most in need of evacuation in the event of a severe coastal storm. Shelter space and clearance time are integral to evacuation planning and directly related to the Department's comment in the ORC Report that the amendment would, "expose a substantial population to the dangers of a hurricane." Therefore, the Department was not barred from presenting evidence on shelter space and clearance time in support of this comment. The Department's practice when reviewing an amendment that increases residential density in the CHHA, described in its 2006 report to the Governor's Coastal High Hazard Area Study Committee, is to consider not only dwelling unit offsets in the CHHA, but also the effect on shelter space and clearance time. That report did not elaborate on how shelter space and clearance time are considered by the Department, but evidence that a comprehensive plan amendment would have a significant adverse effect on shelter space or clearance time could presumably negate what would otherwise appear to the Department to be an acceptable offset of residential density in the CHHA. On this record, however, the Department did not show that a significant adverse impact on shelter space or clearance time would be caused by this particular amendment.5 Special Planning Areas Leeward argues that, even if the amendment were determined to be inconsistent with Objective 105.1 and Policy 105-1.4, that inconsistency should be balanced against other provisions in the County Plan that are furthered by the amendment, principally the provisions related to the Caloosahatchee Shores Community Planning Area and the Water- Dependent Use Overlay Zone. There is no authority for such a balancing approach that can overcome an inconsistency with an objective or policy of the comprehensive plan. Therefore, whether the amendment furthers the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area, Water-Dependent Use Overlay Zone, or other subjects is irrelevant to whether the amendment is consistent with Objective 105.1 and Policy 105-1.4. On the other hand, the Department's contention that the amendment is inconsistent with the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area is contrary to the more credible evidence. 100-Year Floodplain The amendment site is entirely within the 100-year floodplain. In its Statement of Intent, the Department determined that the amendment was not in compliance, in part, because the amendment site's location in the 100-year floodplain made it unsuitable for residential development. In addition, the Department determined that the amendment caused an internal inconsistency with the following policies of the County Plan related to development in the floodplain: POLICY 61.3.2: Floodplains must be managed to minimize the potential loss of life and damage to property by flooding. POLICY 61.3.6: Developments must have and maintain an adequate surface water management system, provision for acceptable programs for operation and maintenance, and post-development runoff conditions which reflect the natural surface water flow in terms of rate, direction, quality, hydroperiod, and drainage basin. Detailed regulations will continue to be integrated with other county development regulations. According to Mike McDaniel, a growth management administrator with the Department, "we try to discourage increasing densities in floodplains and encourage that it be located in more suitable areas." The policies set forth above are intended to aid in the achievement of Goal 61 of the Community Facilities and Service Element "to protect water resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters.” Plainly, Goal 61 is directed to regulating construction and surface water management systems. There is no mention in this goal or in the policies that implement the goal of prohibiting all development or certain kinds of development in the 100-year floodplain. The Department's argument in this case regarding development in the 100-year floodplain is rejected because it ignores relevant facts and law. First, substantial portions of Lee County and the State are within the 100-year floodplain. Second, there is no state statute or rule that prohibits development in the 100-year floodplain. Third, the Department of Environmental Protection, water management districts, and local governments regulate development in the floodplain by application of construction standards, water management criteria, and similar regulatory controls to protect floodplain functions as well as human life and property. Fourth, there has been and continues to be development in the 100-year floodplain in Lee County and throughout the State, clearly indicating that such development is able to comply with all federal, state, and local requirements imposed by the permitting agencies for the specific purpose of protecting the floodplain and the public. Fifth, the Department "discourages" development in the floodplain but has not established by rule a standard, based on density or other measure, which reasonably identifies for local governments or the general public what development in the floodplain is acceptable to the Department and what development is unacceptable. Finally, the Department's practice in allowing offsets in the CHHA, as discussed previously, necessarily allows for development in the 100-year floodplain in that particular context.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Land and Water Adjudicatory Commission determining that the amendment adopted by Lee County in Ordinance No. 05-10 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 25th day of August, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2006.
