Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached hereto as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Jul 28 2009 10:37 a7/2e/28e89 18:28 B589222679 DCA LEGAL PAGE @4/ae FINAL ORDER NO. DGA09-GM-266 CERTIFICATE OF FILING AND SERVICE LHEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct Waite have been furnished to the persons listed below in the manner described, on this ay of July, 2009. a Zp 2 Paula Ford fency Clerk Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 U. §. Mail: Jerry Coleman, Esq- Jerry Coleman, PI. 201 Front Street, Suite 203 Key West, Florida 33041 Derek V. Howard, Esq. Monroe County Attorney's Office 1111 12" Street, Suite 408 Key West, Florida 33040 Barton W. Smith, Esq. Barton Smith, P.L. 309 Whitehcad Street Key West, Florida 33040 Richard E. Grosso, Esq. Everglades Law Center, Inc. 3305 College Avenue Fort Lauderdale, Florida 33314 Robert N. Hartsell, Esq. Everglades Law Center, Inc. 818 U.S. Highway 1, Ste. 8 North Palm Beach, Florida 33408-3857 Sherry A. Spiers, Esq. Robert C. Apgar, Esq. Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301 Jul 28 2009 10:37 a7/2e/28e89 18:28 B589222679 DCA LEGAL PAGE @5/@8 FINAL ORDER NO. DCA09-GM-266 Richard Barfield, Esq. Navy Office of the General Counsel Naval Facilities Engineering Command Southeast United States Navy Box 30, Building 903 Jacksonville, Florida 32212-0102 Hand Delivery: Richard E. Shine, Esquire L. Mary Thomas, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jul 28 2009 10:37 a7/2e/28e89 18:28 B589222679 DCA LEGAL PAGE 86/88 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, and PROTECT KEY WEST AND THE FLORIDA KEYS, INC., d/b/a LAST STAND AND THE DEPARTMENT OF THE NAVY, Intervenor, vs. Case No. 08-2035GM MONROE COUNTY, Respondent , and ROBBIE”"S SAFE HARBOR MARINE ENTERPRISES, INC.; SAFE HARBOUR PROPERTIES, LLC; AND KW RESORT UTILITIES CORP., Intervenor.
The Issue Whether Petitioner should be certified by Respondent as a minority business enterprise.
Findings Of Fact Petitioner, Jupiter Environmental Laboratories, Inc. (Jupiter), is an environmental testing laboratory established in October 1995. The services performed by Jupiter include testing samples of water, oil, soil, and waste water in accordance with the Environmental Protection Agency standards. Jupiter also tests for inorganic and organic compounds by mass spectrography and gas chromatography. Jupiter is owned 70 percent by Glynda Russell, a female, and 30 percent by her husband, Edward Dabrea, who is a non- minority. Prior to forming Jupiter, Ms. Russell had not worked in a laboratory such as Jupiter. Her work experience had been in real estate and selling women's apparel. According to Ms. Russell she did gain some knowledge and experience in environmental testing because she was a customer of testing laboratories while she was in the real estate business. She became familiar with the Environmental Protection Agency's requirements while she was investigating environmental impacts when she was a realtor. Mr. Dubrea has a degree in earth science (geology) and has done post graduate studies in geoscience (organic geochemistry). He has extensive work experience in environmental testing laboratories. Both Ms. Russell and Mr. Dabrea are jointly liable for a $50,000 loan from the Small Business Administration and a $15,000 line of credit. Ms. Russell has also incurred debt of over $100,000 on her personal credit card for Jupiter's expenses. The company has three equipment leases which Ms. Russell signed and indicated she was personally liable. Ms. Russell also signed the lease for the space occupied by the business. Ms. Russell is the president of the corporation. Her duties include directing all marketing, sales, and financial operations. She is responsible for recruiting and hiring personnel, maintaining state certifications, prioritization of work flow (sample pick-up, sample log-in and report generation), bid pricing, selection of subcontracting laboratories, customer service and purchasing of supplies. Mr. Dabrea is the Technical Director for the company. In addition to working for Jupiter, he does freelance research. His resume states that his work at Jupiter includes the following: Planned and organized all technical details for new laboratory, including equipment requirements and analytical supplies. Received and setup instrumentation, performs necessary calibrations. Coordinates information with Laboratory Director and QA/QC Officer. Develops new methods and provides research assistance to clients with unusual assessments. Coordinates between laboratory and governmental agency to ensure compliance. Submits performance evaluation studies to E. P. A. for certification on quarterly basis. Responsible for ensuring adequate instrument capacity for continued growth of the company. Cliff Ross, a non-minority, is the Laboratory Director and works part-time for Jupiter. Start-up funds for Jupiter were contributed by Ms. Russell and Mr. Dabrea. Ms. Russell contributed $25,000 in cash, and computer equipment worth approximately $8,000. Mr. Dabrea contributed an $11,000 truck and $5,000 in computer equipment. Ms. Russell contributed 67 percent and Mr. Dabrea contributed 32 percent. Jupiter is certified in certain categories of environmental water testing by the State of Florida, Department of Health, pursuant to Chapter 403, Florida Statutes. In order to acquire such certification, tests must be performed in the laboratory by qualified technical personnel with the proper educational credentials. In order to acquire the certification for Jupiter, the tests were performed by Mr. Dabrea and Mr. Ross. Ms. Russell is not technically or educationally qualified to perform the tests required for certification. It is not necessary to have the certification to operate an environmental laboratory, but many companies acquire the certification as a marketing tool. Ms. Russell indicated in her response to the denial of her certification that "current market conditions make it all but impossible to get work without it." (Petitioner's Exhibit No. 1.) Ms. Russell can perform the extractions. Once the extractions are done for certain types of testing, the testing is automated. She cannot do chromatography. The Quality Assurance Director for Jupiter is Pamela Shore-Loeb. Her duties include responsibilities for all quality assurance and quality control requirements to ensure continued State of Florida laboratory certifications and project management to a growing client list. She, along with Ms. Russell, developed the quality assurance manual used by the business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner, Jupiter Environmental Laboratories, Inc., meets the requirements of Rule 38A-20.005(2)(c), Florida Administrative Code, but does not meet the requirements of Rules 38A- 20.005(3)(c), (d)1, 4 and (6) and (4)(a), Florida Administrative Code. Consequently, the final order should deny Jupiter Environmental Laboratories, Inc.'s application for certification as a minority business enterprise. DONE AND ENTERED this 1st day of December, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1997. COPIES FURNISHED: Joseph L. Shields, Esquire Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Glynda E. Russell, President Jupiter Environmental Laboratories, Inc. 220 Venus Street, Suite 16 Jupiter, Florida 33458 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
Findings Of Fact Based upon all of the evidence, the following findings are fact are determined: In this examination for licensure challenge, petitioner, Mason L. Flint, contends that he is entitled to a higher score on the March 1994 deputy pilot examination for the Port of Jacksonville. The examination is administered by the Department of Business and Professional Regulation (DBPR) on behalf of respondent, Board of Pilot Commissioners (Board). Although the original petition challenged the grade in twelve respects, petitioner now contends that only two items are in issue, item 21 relating to the local knowledge part of the examination, and item 270 relating to the aids to navigation part of the examination. Both are true-false questions. Unlike the more than fifty other professional licensure examinations administered by the DBPR, the seven-part pilot examination requires a candidate to achieve a minimum passing grade on each part, but candidates doing so then compete with each other for vacant positions. In other words, if only one position at a particular port is open, the candidate achieving the highest score above the minimum passing grade is the only candidate receiving a license. In this case, three deputy pilot positions were available at the Port of Jacksonville, and thus the candidates having the three highest scores among those exceeding the minimum passing grade would be given a license. Petitioner finished sixth on the original grading, but after having his examination regraded by the Board prior to hearing, he was ranked number four. By this challenge, he seeks to have his grade changed on items 21 and 270 so as to raise his ranking to number three. In order to preserve the confidentiality of Item 21 for future examinations, it is suffice to say that the item required a response of true or false concerning limitations on vessels leaving the Talleyrand Docks in Jacksonville, Florida. The examination answer key shows true as the correct response. In preparing all questions pertaining to local knowledge, including item 21, the Board's consultant used the U. S. Coast Pilot, a compilation of operational guidelines governing the movement of vessels in the St. Johns River (and Port of Jacksonville). The specific source of authority for item 21 was paragraph (16) on page 153 of the 1993 edition of the U. S. Coast Pilot. That paragraph reads in pertinent part as follows: (16) Outbound vessels: Vessels with a draft of over 23 (sic) feet sailing between Main Street Bridge to, and including, U. S. Gypsum Co. Pier, shall get underway after 1-1/2 hours after flood current with a cut off time at the beginning of ebb current . . . Because Talleyrand Docks lies between the Main Street Bridge and the U. S. Gypsum Company Pier, this paragraph has application to vessels leaving those docks. The 1993 version of the U. S. Coast Pilot contained a typographical error. Rather than "23" feet, the guidelines should have read "32" feet. To correct this error, paragraph (16) was revised in mid-March 1994, or the same month the examination was given, to provide that any vessel drawing more than 32 feet would be subject to the above movement restrictions. However, candidates were advised that only revisions to the U. S. Coast Pilot through January 1, 1994, would be included in the March 1994 examination. Besides the limitation described in paragraph (16), two other paragraphs on the same page of the U. S. Coast Pilot made reference to the correct 32 foot limitation. In addition, the Guidelines of Vessel Movements on St. Johns River, which form the basis for the data in the U. S. Coast Pilot, used the correct 32 foot limitation. Candidates familiar with those provisions should have been on notice that a typographical error existed in paragraph (16). Although the Board's suggested response is arguably correct, the more persuasive evidence shows that the statement in item 21 was confusing and unclear due to the typographical error in the U. S. Coast Pilot and the conflicting provisions on the same page of the source material. Thus, item 21 does not reliably measure the specified area of competency. Under these circumstances, a candidate should be given credit for either a true or false response, or alternatively, the question should be discarded in calculating a candidate's final score. Accordingly, petitioner's grade should be adjusted in this respect. Petitioner has also contended that only a false response is correct since the question implies that a restriction exists because of its use of the words "up to the beginning of ebb current." The evidence shows, however, that a candidate could reasonably reject that suggested implication and properly make a true response. Item 270 requires a true or false response to a statement regarding identifying marks or buoys marking a channel. The item identifies a set of conditions and then states that such a marking "could" properly be made. The examination answer key shows true as the correct response. The primary source of authority for item 270 is 33 CFR 62.43. According to that federal regulation, buoys marking the side of a channel (lateral aids) are always a solid color, and all solid color buoys marking a channel are numbered. The regulation goes on to provide that, in addition to a number, all solid color numbered buoys may also carry a letter suffix to aid in their identification, or to indicate their purpose. They cannot, however, be identified by letter only, but only by number and letter. Because the more credible and persuasive evidence shows that the question, as stated on the examination, clearly suggests that only a letter could be used for identification of a sidemark buoy, the correct response should be false. Therefore, petitioner should be given credit for his answer. The record is not altogether clear as to how changing petitioner's overall grade will impact his ranking. According to the DBPR psychometrician who is in charge of the pilot examination development, both petitioner and the third ranked candidate gave the same response on one of the challenged questions. On the other item, the two gave different responses, but if either response is deemed to be a correct response, it would have no bearing on their overall ranking. The pychometrician added that if an item is challenged and credit given to the protesting candidate, the answer key is changed and all candidates' scores are adjusted to reflect the change in the answer key.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Board regrading petitioner's examination consistent with the above findings and conclusions. DONE AND ENTERED this 18th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 18th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5327 Petitioner: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Rejected as being unnecessary. 6-8. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Rejected as being unnecessary. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Partially accepted in finding of fact 3. 14-27. Partially accepted in findings of fact 3-8. 28-39. Partially accepted in findings of fact 9-11. Respondent: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 5. 6. Partially accepted in finding of fact 7. 7. Partially accepted in finding of fact 8. 8. Partially accepted in finding of fact 9. 9-11. Partially accepted in finding of fact 10. 12. Rejected. See finding of fact 11. Note: Where a proposed findings has been partially accepted, the remainder has been rejcted as being unnecessary, irrelevant, subordiante, not supported by the evidence, or cumulative. COPIES FURNISHED: Mason L. Flint 1605 Brookside Circle East Jacksonville, Florida 32207 Wellington H. Meffert, II, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Susan J. Foster, Executive Director Board of Pilot Commissioners 1940 North Monroe Street Tallahassee, FL 32399-0773
Findings Of Fact An ethics complaint was filed against Petitoner, Eli Tourgeman (Tourgeman) alleging that Tourgeman, as Mayor of the Town of Surfside, violated Chapter 112, Florida Statutes. Respondent, the Florida Commission on Ethics (Commission), found probable cause to believe that Tourgeman did violate Section 112.313(6), Florida Statutes. A formal hearing was held by the Division of Administrative Hearings. Tourgeman hired Richard Waserstein to represent him in the administrative proceedings. The Commission issued a Final Order and Public Report on July 20, 1994, Complaint No. 91-73 and Final Order No. COE 94-28, finding that Tourgeman did not violate Section 112.313(6), Florida Statutes, and dismissing the complaint. Tourgeman filed a Petition for Award of Costs and Attorneys Fees. In the petition, he alleged that he was on the Town of Surfside City Commission for six years and during the last four years he served as Vice Mayor and Mayor of the Town of Surfside. He also alleged that he is a banker employed by Glendale Federal as a Branch Manager and Vice President. Mr. Waserstein spent 52.75 hours in representing Tourgeman in the case at a rate of $150 per hour. The total cost for legal services was $7,912.50. The costs incurred by Tourgeman was $1,934, which included costs for depositions, transcripts, and travel to attend the Commission meeting in Tallahassee.
The Issue The issue is whether the establishment of the Bartram Springs Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Overview Petitioner, SouthStar Development Partners, Inc., is seeking the adoption of a rule by the Florida Land and Water Adjudicatory Commission (Commission) to establish a community development district proposed to consist of approximately 1,025 acres located within the boundaries of the City of Jacksonville (City). The City is a consolidated government which has jurisdiction over and extends territorially to the limits of Duval County. The proposed name for the new District is the Bartram Springs Community Development District (the District). There are no parcels within the external boundaries of the proposed District which are to be excluded from the District. The estimated cost of the infrastructure facilities and services which are presently expected to be provided to the lands within the District was included in the Petition. The sole purpose of this proceeding was to consider the establishment of the District as proposed by Petitioner. Summary of Evidence and Testimony Whether all statements contained within the Petition have been found to be true and correct. Petitioner's Composite Exhibit 1 consists of the Petition and its attachments as filed with the Commission. Mr. J. Thomas Gillette, III, regional manager for north Florida for Petitioner, testified that he had reviewed the contents of the Petition and approved its findings. Mr. Gillette also generally described certain of the attachments to the Petition. Finally, Mr. Gillette testified that the Petition and its attachments were true and correct to the best of his knowledge. Mr. Douglas C. Miller, a professional engineer with England, Thims & Miller, Inc., testified that he had assisted in the preparation of portions of the Petition and its attachments. Mr. Miller also generally described certain of the attachments to the Petition which he or his office had prepared. Finally, Mr. Miller testified that the attachments to the Petition prepared by England, Thims & Miller, Inc., and admitted into evidence, were true and correct to the best of his knowledge. Dr. Henry H. Fishkind, president of Fishkind & Associates, Inc., testified that he had prepared Exhibit 11 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Dr. Fishkind also testified that the SERC submitted as Attachment 11 to Petitioner's Composite Exhibit 1 was true and correct to the best of his knowledge. The Petition included written consent to establish the District from the owners of one hundred percent of the real property located within the lands to be included in the proposed District. Mr. Gillette also testified that the ownership of the lands to be included within the proposed District had not changed. The Petition and its exhibits are true and correct. Whether the establishment of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan. Mr. Gary R. Walters, a land planner and president of Gary Walters & Associates, reviewed the proposed District in light of the requirements of the State Comprehensive Plan found in Chapter 187, Florida Statutes. Mr. Walters also reviewed the proposed District in light of the requirements of the City of Jacksonville Comprehensive Plan. The State Comprehensive Plan "provides long-range policy guidance for the orderly social, economic and physical growth of the State" by way of twenty-six subjects, and numerous goals and policies. From a planning perspective, two subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District, as do the policies supporting those subjects. Subject 16, Land Use, recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed District will have the fiscal ability to provide services and facilities and help provide infrastructure in a fiscally responsible manner in an area which can accommodate development within the City. Subject 26, Plan Implementation, provides that systematic planning shall be integrated into all levels of government, with emphasis on intergovernmental coordination. The proposed District is consistent with this element of the State Comprehensive Plan because the proposed District will systematically plan for the construction, operation, and maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations. Additionally, the District meetings are publicly advertised and are open to the public so that all District property owners and residents can be involved in planning for improvements. Finally, Section 189.415, Florida Statutes, requires the District to file and update public facilities reports with the local governments, which they may rely upon in any revisions to the local comprehensive plan. Dr. Fishkind reviewed the proposed District in light of the requirements of the State Comprehensive Plan and found that from a financial perspective, two subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District, as do the policies supporting those subjects. Subject 18, Public Facilities, provides that the state shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. The proposed District will be consistent with this element because the District will plan and finance the infrastructure systems and facilities needed for the development of lands within the District; it will be a stable, perpetual unit of local government and will be able to maintain the infrastructure servicing the lands within the District; and it will allow growth within the District to pay for itself at no cost to the City. Subject 21, Governmental Efficiency, provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District will be consistent with this element because the proposed District will economically and efficiently finance and deliver those public services and facilities as needed by the District's residents and property owners. The proposed District will be professionally managed, financed, and governed by those whose property directly receives the benefits of the services and the facilities provided. Creating a District does not burden the general taxpayer with the costs for the services or facilities inside the proposed District. Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. The City of Jacksonville Comprehensive Plan contains various elements which are supported by numerous goals and objectives. Mr. Walters testified that portions of three of these elements were relevant when determining whether or not the proposed District was inconsistent with the local comprehensive plan. Within the Future Land Use Element are Goals and Objectives which are targeted to effectively manage growth in areas designated to accommodate future development and provide services in a cost-efficient manner. The proposed District is consistent with this plan element. The development within the proposed District is part of a Chapter 380, Florida Statutes, Development Order, which states that the "development is consistent with the local comprehensive plan and local land development and zoning regulations." The Development Order itself specifically notes that a community development district may be established. The proposed District is a recognized vehicle to provide the necessary services and facilities to the lands within the boundaries of the proposed District consistent with the City of Jacksonville Comprehensive Plan’s objective of coordinating land uses with urban services delivery. The goal of the Intergovernmental Coordination Element is to establish processes among various governmental, public, and private entities to coordinate development activities, preservation of the quality of life, and the efficient use of available resources. The proposed District will assist in the coordination process by providing and maintaining community infrastructure in a way that is not inconsistent with the plans and activities of related public and private agencies. The Capital Improvements Element is intended to provide necessary infrastructure in a timely and orderly manner. The proposed District will expand the areas within the City that receive infrastructure in a manner consistent with the Development Order for the area and the City of Jacksonville Comprehensive Plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the local Comprehensive Plan, and will in fact further the goals provided. The Florida Department of Community Affairs (DCA) reviewed the Petition for compliance with its various programs and responsibilities. After conducting a review of the petition for consistency with the approved Development Order and Comprehensive Plan, the DCA concluded that the Petition for the Establishment of the Bartram Springs Community Development District was not inconsistent with either the Comprehensive Plan or Development Order. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Messrs. Miller, Walters, and Fishkind. The proposed District will include approximately 1,025 acres, located within the borders of the City. All of the land in the proposed District is part of a planned community included in the Bartram Park Development of Regional Impact (the DRI). Functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function requires a management capability, funding source, and an understanding of the size of the community's needs, so as to handle the growth and development of the community. Each function must be designed to contribute to the development or the maintenance of the community. The size of the District as proposed is approximately 1,025 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. The proposed facilities can be provided in an efficient, functional, and integrated manner. Compactness relates to the location in distance between the lands and land uses within a community. The community is sufficiently compact to be developed as a functionally inter-related community. The compact configuration of the lands will allow the District to provide for the installation and maintenance of its infrastructure in a long-term, cost-efficient manner. Petitioner is developing all of the lands within the District as a single master-planned community. All of these lands are governed by the DRI issued by the City. From planning, economics, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. Whether the proposed district is the best alternative available for delivering community development services and facilities to the area that will be served by the proposed district. It is presently intended that the District will construct or provide certain infrastructure improvements as outlined in the Petition. Installation and maintenance of infrastructure systems and services by the proposed District is expected to be paid through the imposition of special assessments. Use of such assessments will ensure that the real property benefiting from District services is the same property which pays for them. Two alternatives to the use of the District were identified. First, the City might provide facilities and services from its general fund. Second, facilities and services might be provided by some private means, with maintenance delegated to a property owners' association or a home owners' association. The District is preferable to these alternatives at focusing attention on when, where, and how the next system of infrastructure will be required. This results in a full utilization of existing facilities before new facilities are constructed and reduces the delivered cost to the citizens being served. The District will construct certain infrastructure and community facilities which will be needed by the property owners and residents of the project. Expenses for the operation and maintenance of the facilities the District retains are expected to be paid through maintenance assessments to ensure that the property receiving the benefit of the district services is the same property paying for those services. Only a community development district allows for the independent financing, administration, operations, and maintenance of the land within such a district. Only a community development district allows district residents to ultimately completely control the district. The other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities to the land included in the proposed District because it is a long-term, stable, perpetual entity capable of maintaining the facilities over their expected life. From planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. Whether the community development services and facilities of the proposed district will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services will not duplicate any existing regional services or facilities. None of the proposed services or facilities are presently being provided by another entity for the lands to be included within the District. Therefore, the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. As cited previously, from planning, economic, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The community to be included in the District has a need for certain basic infrastructure systems, and the proposed District provides for an efficient mechanism to oversee the installation of these improvements. From planning, engineering, economic, and management perspectives, the area that will be served by the District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the petition and other information to be submitted to the Commission. The Commission has certified that the Petition to Establish the Bartram Springs Community Development District meets all of the requirements of Section 190.005(1)(a), Florida Statutes. The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, the City and its citizens, Petitioner, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which is difficult to quantify but nonetheless substantial. Administrative costs incurred by the City related to rule adoption will be modest. These modest costs are offset by the $15,000 filing fee required to accompany the Petition to the City. Residents within the District will pay non-ad valorem or special assessments for certain facilities. Locating within the District is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to residents within the community development district will include a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Section 190.005(1)(a), Florida Statutes, requires a petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition filed herein contains a SERC. It meets all requirements of Section 120.541, Florida Statutes. Petitioner has complied with the provisions of Section 190.005(1)(b)1., Florida Statutes, in that the City was provided four copies of the Petition and was paid the requisite filing fee. Section 190.005(1)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in Duval County for four consecutive weeks prior to the hearing. The notice was published in a newspaper of general paid circulation in Duval County (The Florida Times Union) for four consecutive weeks on May 3, May 10, May 17, and May 24, 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120 and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Bartram Springs Community Development District, as requested by Petitioner, by formal adoption of the proposed rule attached to this Report as Appendix C. DONE AND ENTERED this 19th day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2002. COPIES FURNISHED: Cheryl G. Stuart, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 Charles Canady, General Counsel Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Gregory M. Munson, Esquire Office of the Governor 400 South Monroe Street, Room 209 Tallahassee, Florida 32399-6536 APPENDIX A Petitioner's Witnesses at Hearing J. Thomas Gillette, III SouthStar Development Partners, Inc. 4720 Salisbury Road, Suite 126 Jacksonville, Florida 32256-6101 Douglas C. Miller, P.E. England, Thims & Miller, Inc. 14775 St. Augustine Road Jacksonville, Florida 32258-2463 Gary R. Walters Gary Walters & Associates 12 Crooked Tree Trail Ormond Beach, Florida 32174-4338 Dr. Henry H. Fishkind Fishkind & Associates, Inc. 11869 High Tech Avenue Orlando, Florida 32817-1490 APPENDIX B List of Petitioner's Exhibits Exhibit Number Exhibit Description Petition with attachments Notice of Receipt of Petition Division of Administrative Hearings Referral Letter Department of Community Affairs Transmittal Letter Department of Community Affairs Review Letter Ordinance 2000-451-E State Comprehensive Plan The Florida Times Union Proof of Publication APPENDIX C Text of Proposed Rule CHAPTER 42___-1 BARTRAM SPRINGS COMMUNITY DEVELOPMENT DISTRICT 42___-1.001 Establishment. 42___-1.002 Boundary. 42___-1.003 Supervisors. 42____-1.001 Creation. The Bartram Springs Community Development District is hereby established. Specific Authority 120.53(1), 190.005 F.S. Law Implemented 190.005 F.S. History-New 42____-1.002 Boundary. The boundaries of the District are as follows: A portion of Sections 28, 29, 32 and 33, together with a portion of Section 48, of the Christopher Minchin Grant, all lying in Township 4 South, Range 28 East, Duval County, Florida, being more particularly described as follows: For a Point of Reference, commence at the corner common to said Sections 32 and 33, Township 4 South, Range 28 East, said Duval County and Sections 4 and 5, Township 5 South, Range 28 East, St. Johns County, Florida, said corner also lying on the county line dividing said Duval and St. Johns Counties; thence North 89° 04' 41" East, along said county line, 3281.18 feet; thence North 00° 55' 19" West, departing said county line, 5.00 feet to the Point of Beginning. From said Point of Beginning, thence South 89° 04' 41" West, 3281.22 feet to a point lying on the line common to said Sections 32 and 33; thence South 89° 33' 42" West, departing said common line, 699.85 feet to the Easterly limited access right of way line of State Road No. 9B, a variable width right of way as established on State Road Department Right of Way Map Section 72002-2513, dated 09-08-92; thence Northwesterly and Northeasterly, along said Easterly limited access right of way line, the following courses: (1) North 40° 25' 37" West, 2161.10 feet to the Point of Curvature of a curve, concave Northeasterly having a radius of 2744.79 feet; (2) along the arc of said curve, through a central angle of 14° 47' 23", an arc length of 708.51 feet to the Point of Tangency of said curve, said arc being subtended by a chord bearing and distance of North 33° 01' 55" West, 706.55 feet; (3) North 25° 38' 14" West, 2143.97 feet to the Point of Curvature of a curve, concave Easterly having a radius of 1789.86 feet; (4) along the arc of said curve through a central angle of 37° 18' 23", an arc length of 1165.41 feet to a point on said curve, said arc being subtended by a chord bearing and distance of North 06° 59' 02" West, 1144.93 feet; (5) North 10° 17' 40" East, along a non-tangent bearing, 500.14 feet; (6) North 11° 40' 10" East, 1913.60 feet to a point lying on the Southerly line of the North 1/2 of said Section 29; thence North 88° 42' 41" East, departing said Easterly limited access right of way line and along last said line, 2914.25 feet to the Southwest corner of the Northwest 1/4 of said Section 28; thence North 89° 02' 27" East, along the Southerly line of the Northwest 1/4 of said Section 28, a distance of 233.49 feet to a point lying on the Westerly right of way line of the Florida East Coast Railroad, a 100 foot right of way as now established; thence South 41° 00' 02" East, along said Westerly right of way line, 1203.71 feet to a point lying on the Westerly line of the Easterly 1/4 of the Northwest 1/4 of the Southwest 1/4 of said Section 28; thence South 00° 59' 05" East, departing said Westerly right of way line and along said Westerly line of the Easterly 1/4, a distance of 424.47 feet to the Southwest corner of said East 1/4 of the Northwest 1/4 of the Southwest 1/4; thence North 88° 54' 34" East, along the Southerly line of said East 1/4, a distance of 355.82 feet to a point lying on the aforementioned Westerly right of way line; thence South 41° 00' 02" East, along said Westerly right of way line, 6946.50 feet; thence South 81° 44' 38" West, departing said Westerly right of way line, 1239.95 feet; thence North 89° 51' 10" West, 1102.07 feet; thence South 10° 16' 03" West, 955.68 feet to the Point of Beginning. Containing 1025.40 acres, more or less. Specific Authority 120.53(1), 190.005 F.S. Law Implemented 190.004, 190.005 F.S. History-New 42____-1.003 Supervisors. The following five persons are designated as the initial members of the Board of Supervisors: J. Thomas Gillette, III, L. Alfredo Rodriguez-Walling, Walter Kehoe, Thaddeus D. Rutherford, and Leo W. Johns. Specific Authority 120.53(1), 190.005 F.S. Law Implemented 190.006(1) F.S. History-New.
The Issue The ultimate issue in this appeal is whether to approve, approve with conditions, or deny the Development Order issued to Appellee Pinellas Education Organization, Inc., d/b/a Enterprise High School (Applicant or School), by the Board on December 3, 2019. Specifically, the following issues must be resolved: Whether Appellants have standing to appeal the Development Order. Whether the issues raised by Appellants at the Oral Argument were properly preserved for appeal. Whether there is substantial competent evidence in the record to support approval of the Development Order.3 Whether the Board's decision departs from the essential requirements of the law. If the Development Order is affirmed, whether any additional conditions are appropriate. PROCEDURAL HISTORY Appellee School filed an application to renovate an existing building to operate a high school at 2495 Enterprise Road, in Clearwater, Florida.4 The Board held a quasi-judicial public hearing on the application on November 19, 2019 (Board Hearing). The Board approved the School's application with conditions and the City issued the Development Order on December 3, 2019. On December 4, 2019, two separate Appeal Applications were filed regarding the Development Order: (1) by 2521 Countryside Blvd., LLP, Countryside Property Principals, LLC, Bruce Levine, and Joan Levine; and by 2505 Enterprise, LLC, and Greg Willsey, and Sandra Willsey. The Appeal Applications were fairly similar and raised a number of issues: four issues pertaining to traffic and parking requirements; and one issue as to whether a high school is a compatible use with the surrounding area. The City referred the matter to DOAH on December 4, 2019, and it was 3 Section 4-505C states, "The burden shall be upon the appellant to show that the decision of the community development board cannot be sustained by substantial competent evidence before the board, or that the decision of the board departs from the essential requirements of law." 4 The School's application went through a Level Two approval process which requires a quasi-judicial public Board hearing to approve flexibility (i.e. deviation) from the minimum development standards set forth in the Code. See Code at §4-401. Level Two approvals must meet both the general applicability criteria and the flexibility criteria outlined by the Code. See Code at Art. 4, Divisions 1, 3, 4 and 6. assigned to an administrative law judge. On December 13, 2019, a telephonic scheduling conference was held to determine the record on appeal and set the oral argument hearing. During that conference the parties agreed not to submit pre-argument briefs, but rather, chose to file post-hearing proposed final orders. The Oral Argument was held at the Clearwater Library and was open to the general public. Applicant, the City, the Board, and all persons who were granted party status at the Board Hearing were allowed to present arguments at the Oral Argument. See Code at 4-505B. At the Board Hearing the following people were granted party status: Dr. Richard Gottlieb, who was represented by Todd Pressman; Sandra Willsey; Greg Willsey; and Todd Burch. The transcript of the Oral Argument was filed with DOAH on February 19, 2020. Pursuant to section 4-505D, the proposed final orders were due within 20 days after the filing of the transcript, or no later than March 11, 2020. Per the City's request, the parties were granted an extension to submit proposed final orders. The additional time was to allow the parties to collaborate on a master index to the record on appeal (Index), which they intended to cite to in their proposed orders. The Index and the proposed final orders were timely submitted on March 23, 2020.5 5 At the Oral Argument, the parties stipulated that the undersigned could take official recognition of the Code provisions and City of Clearwater Comprehensive Plan (Comprehensive Plan) found online. As such, the undersigned takes official recognition of the Code found at https://library.municode.com/fl/clearwater/codes/ community_development_code?nodeId=CODECO (last visited April 14, 2020); and of the Comprehensive Plan found at https://www.myclearwater.com/government/city- departments/planning-development/divisions-/development-review-zoning/comprehensive- plan (last visited April 14, 2020). FACTS IN THE RECORD Pursuant to section 4-505A, the record includes the application file of the Clearwater Planning and Development Department (Planning Department); the agenda packet of the Board Hearing; all exhibits accepted into evidence at the Board Hearing; and the streaming video of the Board Hearing.6 The following findings of fact are supported by substantial competent evidence found in the record. Parties and Property The School filed an application with the Planning Department to renovate a 16,696 square foot building located on a 1.730 acre site at 2495 Enterprise Road in Clearwater, Florida (proposed development). The proposed development is in a retail/office plaza known as Village at Countryside (Plaza), located on the east side of Enterprise Road, just south of Countryside Boulevard in Clearwater, Florida. The Plaza consists of 11 parcels, including a large vacant building that formerly housed a Toys-R-Us store. The Plaza is located within the US 19 Corridor Redevelopment Plan, and has a designation of "US 19 District, Regional Center sub-district" (US 19-RC). Property within US 19-RC is subject to the special zoning district and development standards found at Appendix B of the Code.7 The School seeks to operate Enterprise High School, a charter high school, at the proposed development site.8 As explained below, relevant to this appeal is the number of students at the School and whether there will be adequate parking for the proposed development as required by the Code. 6 See Video of Board Hearing held November 19, 2019, on Agenda FLD2019-8026 at time marker 9:25 at http://clearwater.granicus.com/MediaPlayer.php?view_id=50&clip_id=3782 (last visited April 1, 2020). 7 See Code at Appendix B – US 19 Zoning District and Development Standards, found at https://library.municode.com/fl/clearwater/codes/community_development_code?nodeId=APX BUS19ZODIDEST (last visited April 14, 2020). 8 Enterprise High School is an existing charter school which intends to move from its current location to the proposed development site. The School is subject to section 1013.33, Florida Statutes. Appellants own and operate property within the Plaza and adjacent to the proposed development site. Specifically, Bruce and Joan Levine own Appellants 2521 Countryside Blvd., LLP,9 and Countryside Property Principals, LLC. The LLP and/or LLC operate the Countryside Foot and Ankle Center.10 The Countryside Foot and Ankle Center's administrator, Todd Burch, was granted party status at the Board Hearing. Greg and Sandra Willsey own Appellant 2505 Enterprise, LLC, which is a property in the Plaza. The Willseys were also granted party status at the Board Hearing. At the conclusion of the Board Hearing, the Board voted to approve the School's application. On December 3, 2019, a Development Order was issued to memorialize the Board's action. Thereafter, Appellants filed the Appeal Applications with a document titled "Notice and Statement" which stated the following grounds for the appeals: The Neighbors assert that the decision of the Community Development Board ("the Board") was not supported by substantial competent evidence and was a departure from essential requirements of law. Specifically: The Board's decision was based upon a high school with two, 200-student shifts. However, the record below established that these student shifts would substantially overlap during the noon hour. In other words, the evaluation of the proposed change of use was based on impacts and site requirements that were substantially less than what would actually occur on the site. 9 The Appeal Application lists this entity as 2521 Countryside Boulevard Land Trust. 10 Although Appellants state that Bruce Levine was granted party status at the Board Hearing, there is no substantial competent evidence in the record supporting this statement. See Appellees' Proposed Final Order at p. 3; compare Tab 30 of the Index, Board Meeting Minutes for November 19, 2019, at p. 3 and 5. The Board's decision was based on a traffic analysis provided by the applicant that used a wrong ITE trip generation code - an elementary school instead of a high school - so it cannot be relied upon as a basis for the underlying decision. The change of use to a high school required that the applicant establish that it had one parking space per three students. There is no substantial competent evidence to establish that this parking requirement was satisfied. To the contrary, the substantial competent evidence establishes that the parking on the property failed to meet this requirement. In fact, granting this change of use would result in a substantial oversubscription of the available parking at the site. The proposed use would create tortured on-site parking and traffic circulation patterns that would substantially impact the existing medical office uses on the property, including a kidney dialysis office that serves a substantial elderly population. There is no substantial competent evidence to support the finding that the change of use would "have no impacts on the adjacent retail plaza." To the contrary, the change of use would have substantial impacts on the current retail and office plaza. The proposed change of use would have substantial negative impacts on the surrounding community and is incompatible with the existing surrounding retail, office and residential uses. At the Oral Argument, Appellants raised for the first time whether the operation of a school is an inconsistent use with: (1) an Amended and Restated Declaration of Establishment of Restrictive Covenants, Conditions, and Restrictions, and Grants of Easements dated December 7, 1983 (the "Parking Easement"); and (2) the Comprehensive Plan. The Studies The first four issues raised in the Appeal Applications are related to the Parking Study and Traffic Study (collectively referred to as the Studies) which were submitted by the School as part of its application. The Parking Study, dated September 2, 2019, consists of overall parking calculations; aerial photographs of the development site and surrounding areas; and the Parking Easement. The purpose of the Traffic Study was to analyze the impact of the development on the traffic intersection at Countryside Boulevard and Enterprise Road, as well as the full access drive at the site. The 50-page Traffic Study, dated October 18, 2019, included numerous charts, maps, and tables with underlying information and data relating to the traffic counts for the proposed development. Jerry Dabkowski, a local traffic engineer who prepared the Studies for the School, testified at the Board Hearing about the traffic and parking calculations. To rebut the Studies, at the Board Hearing Mr. Pressman presented a two-page letter from a professional engineer dated November 15, 2019, titled "Traffic Study Review." Relevant to the appeal, the letter finds fault in the number of students and the "ITE Code" used in the Traffic Study and in the Planning Department's Staff Report and Recommendation (Staff Report), dated November 19, 2019, which was also presented to the Board. These factors would affect the calculations for the number of parking spaces required for and the trip distribution caused by the proposed development. Number of Students Appellants argue the parking calculations should be based on the total number of students enrolled at the School, or 400 students. The Studies and the Staff Report calculated the traffic and number of parking spaces necessary based on two shifts with 200 students per shift. At the Board Hearing, Donna Hulbert, the School's Director, testified that unlike a traditional high school, the School operated in two shifts to allow the students to hold employment while completing their high school education. Although the School intends to enroll a total of 400 students, she explained, each of the two shifts would have a maximum of 200 students. Additionally, the students are eligible for a public transportation bus pass, which some students utilize instead of driving their personal vehicles. The Study establishes that "[t]o reduce the impacts during the AM and PM peak hours, the school intends to split the day into two shifts, each with 200 students attending." Although there was conflicting information between the School's application and Ms. Hulbert's testimony at the Board Hearing about whether the shifts would overlap, the Staff Report recommends approval of the application because, "[t]he applicant has provided the school will operate in two shifts . . . with no more than 200 students present per shift." There is substantial competent evidence that there will be only 200 students at the School at a time, and that this number was correctly used in calculating the required parking spaces and the trip generation for the proposed development. ITE Trip Calculation Appellants argue the Traffic Study utilized the wrong Institute of Transportation Engineers' (ITE) Trip Generation Code, 520, which is the code applicable to an elementary school. The Study, however, states it utilized ITE Code 530 from the Institute of Transportation Engineers' Trip Generation, 10th Edition for Office, to calculate the change in trips attributed to the proposed development. A copy of the ITE Code 530 was attached to the Traffic Study. Additionally, Mr. Dabkowski testified that ITE Code 530 was the correct code for high schools. There is substantial competent evidence that ITE Code 530 was used in calculating the change in trips for the Traffic Study which was relied upon in the Staff Report, and which was accepted by the Board. Parking Requirements Table 2 in section B-303, Permitted uses and parking, provides the following parking requirements relevant to this appeal. Use Regional Use Specific Standards Minimum Off-Street Parking Spaces Retail Plaza BCP[Level 1 Minimum Standard(Building Construction permit)] [Not included] 4/1,000 SF GFA Schools FLD [Level 2 Flexible Development (Board approval required)] 1. All off-street parking is located at least 200 feet from any property designated as residential in the Zoning Atlas 1 per 3 students Based on this criterion, the School would require 67 parking spaces (200 students/3 = 66.6667). The Staff Report and Studies establish the proposed site has 55 parking spaces, but five of these spaces cannot be used because they are within 200 feet from a parcel designated as Residential. Thus, there are 49 available parking spaces "on site," leaving 18 spaces to be designated. As stated earlier, the proposed site is one of 11 parcels in the Plaza. The Parking Study contains a copy of a Parking Easement that allows cross- parking among the parcels. Based on the square footage of the buildings on the parcels (including the proposed development site), the entire Plaza is required to have 975 parking spaces. The Plaza actually has 1,137 parking spaces, an excess of 162 parking spaces. The Code also requires off-street parking spaces be located within 600 feet of the principal and accessory uses they serve. See Code at § 3-1404A. Next to and within 600 feet of the proposed development site is currently a vacant building that formerly housed a Toys-R-Us store. That parcel has 228 parking spaces, but only 177 spaces are required for that building, leaving an extra 51 parking spaces. Based on the excess spaces available through the Parking Easement, there is substantial competent evidence supporting the City's staff finding of adequate parking spaces to satisfy the additional 18 spaces necessary for the proposed development, and the Board's approval of the same. Compatible Use The fifth issue raised in the Appeal Applications is regarding the use of the proposed development site as a charter high school. Whether this site is appropriate for the type of school operated by the Applicant was a topic of discussion among the Board members at the Board Hearing. At the Board Hearing, Planning Department Manager Mark Parry testified as an expert witness. Mr. Parry explained the nature of the US 19- RC standards and gave his opinion that the proposed development complies with all applicable provisions of the Code, including the use requirements. In contrast, Appellants expressed anecdotal fears that the types of students attending the School would disrupt Appellants' medical businesses. For example, at the Board Hearing, Mrs. Willsey expressed concern that the students at the School were known to have "behavioral problems." Mr. Burch spoke about the increased number of pedestrians in the Plaza and cited to a letter in the record from Dr. Levine: "For us to have to monitor and police our properties for trespassing students would be untenable." There was no actual evidence in the record that the School's operations would cause any problems such as increased crime or trespassing in the area. At the Oral Argument and in their proposed final order, however, Appellants' argument shifted away from the potential effects of the students in the area and instead offered the new arguments that the School was inconsistent with the Parking Easement which states the Plaza shall be used "for commercial purposes only, including without limitation the operation of merchandising establishments, restaurants, and professional offices."11 Regardless, as explained below, this argument is not appropriate on appeal because it was not raised at the Board Hearing or in the Appeal Applications. At the Oral Argument, Appellants also argued that the School is an inconsistent use with the Comprehensive Plan. Appellants cited a paragraph from the Staff Report: The proposal includes a new charter school with grades nine through 12 and constitutes a public educational facility as defined by Policy J.2.1.2. The school will be located within the US 19–RC future land use designation. The prior designation was Commercial General (CG). The intent is that all uses permitted in the CG are also permitted in the US 19–RC classification. The City is planning to update the Comprehensive Plan to reflect this. Schools are a listed permitted use in the CG classification. As explained below, this argument is also inappropriate because it was not raised at the Board Hearing or in the Appeal Applications. Appellants also argue the proposed development is an inconsistent use with the existing businesses because the adjacent properties are commercial in nature and the School is not commercial. The Code, however, clearly allows Schools as an allowable use in the US 19-RC zoning district, and in the 11 The Complete section of the Parking Easement titled "Uses" states: 2.1 Uses in General The Property, consisting of both the Building Area and the Common Areas, shall be used for commercial purposes only, including without limitation the operation of merchandising establishments, restaurants, and professional offices. No portion of the Property shall be used or operated as a discotheque, bar or cocktail lounge (except in connection with a restaurant) ... theatre, bowling alley, skating rink, roller disco or catering hall, funeral parlor, or for the sale of pornographic literature or material, or an adult book store or so called "head shop" or for a video or other game arcade, flea market, or for a use which would be noxious or immoral or otherwise constitute moral turpitude or constitute an undignified, disreputable use. previous zoning designation of CG. See Code at § B-303. Moreover, unlike the Parking Easement, the Code does not divide use categories into "Commercial" and "Non-Commercial." Rather, the uses are categorized as "Residential" and "Non-Residential." Id. Based on the Code and the review of the application submissions, the Staff Report concluded the School will be an appropriate use in the area. Based on Staff visits, aerial photographs and material submitted by the applicant it is evident that the proposal will be in harmony and consistent with the scale, bulk, coverage and character of adjacent properties and, generally, with properties in the greater neighborhood. The reuse of the 16,700 square foot building with a school will not result in any adverse visual impacts on adjacent properties. Since the character of the site will not change with the proposal, and it is currently similar in nature vis-a-vis placement of other uses in the area it is not expected to impair the value of those properties. The proposal will likely have no effect, negative or otherwise, on the health or safety of persons residing or working in the neighborhood. The testimony of Mr. Parry, coupled with the Staff Report, constitute substantial competent evidence supporting the Board's finding that the School is a compatible use with the area.
The Issue The sole issue to be addressed is whether the Petition to establish the Double Branch Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Overview The Petitioner is seeking the adoption of a rule by the Commission to establish a community development district proposed to consist of approximately 1,203 acres located within the boundaries of unincorporated Clay County. The suggested name for the proposed District is the Double Branch Community Development District. The Petition notes that the proposed District covers approximately 1,203 acres. Hinson testified that the approximate acreage of the proposed District remains 1,203 acres; however, the metes and bounds description contained in the Petition has been revised since the time of the filing of the Petition. The revised metes and bounds description was, without objection, admitted into evidence. There are no out-parcels within the area to be included in the proposed District. The estimated cost of the infrastructure facilities and services which are presently expected to be provided to the lands within the District was included in the Petition. The sole purpose of this proceeding was to consider the establishment of the District as proposed by the Petitioner. Summary of Evidence and Testimony Whether all statements contained within the Petition have been found to be true and correct. Petitioner's Composite Exhibit A was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Hinson testified that he had reviewed the contents of the Petition and approved its findings. Hinson also generally described the exhibits to the Petition. Hinson testified that the Petition and its exhibits, as modified by the revised metes and bounds description admitted into evidence as Exhibit B, are true and correct to the best of his knowledge. Miller testified that he had assisted in the preparation of portions of the Petition and its exhibits. Miller also generally described several exhibits to the Petition which he or his office had prepared. Miller testified that the exhibits to the Petition, prepared by England, Thims & Miller, Inc., and admitted into evidence, were true and correct to the best of his knowledge. Walters testified that he had prepared Exhibit 11 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Walters also testified that Statement of Estimated Regulatory Costs submitted as Exhibit 11 to Petitioner's Composite Exhibit A was true and correct to the best of his knowledge. Hinson also testified that the consent by the owner of the lands to be included within the proposed District is still in full force and effect. The Petition included written consent to establish the District from the owners of one hundred percent (100%) of the real property located within the lands to be included in the proposed District. There have been no sales of these lands thus far. Based upon the foregoing, the Petition and its exhibits are true and correct. Whether the establishment of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan. Walters reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Walters also reviewed the proposed District in light of the requirements of the Clay County Comprehensive Plan. From a planning and economic perspective, four (4) subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, Land Use, recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed District will have the fiscal ability to provide services and facilities to the population in the designated growth area and help provide infrastructure in an area which can accommodate development within Clay County in a fiscally responsible manner. Subject 18, Public Facilities, provides that the State shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. The proposed District will be consistent with this element because the District will plan and finance the infrastructure systems and facilities needed for the development of lands within the District at no capital cost to Clay County. Subject 21, Governmental Efficiency, provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District will be consistent with this element because the proposed District will finance and deliver those public services and facilities as needed by the District's residents and property owners. The proposed District will be established under uniform general law standards as specified in Chapter 190, Florida Statutes. Creating a District does not burden the general taxpayer with the costs for the services or facilities inside the proposed District. The proposed District will require no subsidies from the state or its citizens. Subject 26, Plan Implementation, provides that systematic planning capabilities be integrated into all levels of government, with emphasis on improving intergovernmental coordination. The proposed District is consistent with this element of the State Comprehensive Plan because the proposed District, by and through a separate and distinct Board of Supervisors, will systematically plan for the construction, operation, and maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations. Additionally, the District meetings are publicly advertised and are open to the public so that all District property owners and residents can be involved in planning for improvements. Finally, Section 189.415(2), Florida Statutes, requires the District to file and update public facilities reports with the county or city, which they may rely upon in any revisions to the local comprehensive plan. Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. The Clay County Comprehensive Plan contains thirteen (13) elements which are supported by numerous goals and objectives. Walters testified that portions of three (3) of these elements are relevant when determining whether or not the proposed District is inconsistent with the local comprehensive plan. There are Goals and Objectives within the Future Land Use Element which are targeted to effectively manage growth in areas designated to accommodate future development and provide services in a cost-efficient manner. The proposed District is within the County's Planned Urban Service Area, and is part of a Chapter 380, Florida Statutes, development order vested in the County Land Use Plan. The proposed District is a recognized vehicle to provide the necessary services and facilities to the lands within the boundaries of the proposed District. The goal of the Intergovernmental Coordination Element is to establish processes among various governmental, public and private entities to coordinate development activities, preservation of the quality of life, and the efficient use of available resources. The proposed District will assist in the coordination process by providing and maintaining community infrastructure in a way that is not inconsistent with the plans and activities of related public and private agencies. The Capital Improvements Element is intended to provide necessary infrastructure in a timely and orderly manner. The proposed District will expand the areas that enjoy infrastructure in a manner consistent with the Clay County Comprehensive Plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the Local Comprehensive Plan, and will in fact further the goals provided. The Florida Department of Community Affairs (DCA) reviewed the Petition for compliance with its various programs and responsibilities. DCA also discussed the contents of the Petition with the Clay County Planning Department and the Northeast Florida Regional Planning Council. After conducting its own review and conferring with local governmental entities, DCA concluded that it had no objection to the establishment of the Double Branch Community Development District. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Miller and Walters. The lands that comprise the proposed District will consist of approximately 1,203 acres, located within the borders of unincorporated Clay County. All of the land in the proposed District is part of a planned community included in the Villages of Argyle Forest Development of Regional Impact (DRI). Functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function requires a management capability, funding source, and an understanding of the size of the community's needs, so as to handle the growth and development of the community. Each function must be designed to contribute to the development or the maintenance of the community. The size of the District as proposed is approximately 1,203 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. The proposed facilities and services require adequate planning, design, financing, construction, and maintenance to provide the community with appropriate infrastructure. Compactness relates to the location in distance between the lands and land uses within a community. The community is sufficiently compact to be developed as a functionally inter-related community. The compact configuration of the lands will allow the District to provide for the installation and maintenance of its infrastructure in a long- term, cost-efficient manner. The Petitioner is developing all of the lands within the District as a single master-planned community. All of these lands are governed by the Villages of Argyle Forest Development of Regional Impact Development Order issued by Clay County. From planning, economics, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. Whether the proposed district is the best alternative available for delivering community development services and facilities to the area that will be served by the proposed district. It is presently intended that the District will participate in the construction or provision of certain infrastructure improvements as outlined in the Petition. Installation and maintenance of infrastructure systems and services by the District is expected to be financed through the issuance of tax exempt bonds and the debt retired by "non-ad valorem" or "special" assessments on benefited property within the proposed District. Expenses for operations and maintenance are expected to be paid through maintenance assessments. Use of such assessments will ensure that the real property benefiting from District services is the same property which pays for them. Two types of alternatives to the use of the District were identified. First, the County might provide facilities and services from its general fund. Second, facilities and services might be provided by some private means, with maintenance delegated to a property owners' association (POA) or a home owners' association (HOA). The District is preferable to the available alternatives at focusing attention on when, where, and how the next system of infrastructure will be required. This results in a full utilization of existing facilities before new facilities are constructed and reduces the delivered cost to the citizens being served. The District will construct certain infrastructure and community facilities which will be needed by the property owners and residents of the project. Expenses for the operations and maintenance are expected to be paid through maintenance assessments to ensure that the property or person receiving the benefit of the district services is the same property or person to pay for those services. Only a community development district allows for the independent financing, administration, operations and maintenance of the land within such a district. Only a community development district allows district residents to completely control the district. The other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities to the land included in the proposed District because it is a long-term, stable, perpetual entity capable of funding, constructing, and in some cases, maintaining the facilities over their expected life. From planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. Whether the community development services and facilities of the proposed district will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services within the proposed boundaries will not duplicate any existing regional services or facilities which are provided to the lands within the District by another entity. None of the proposed services or facilities are presently being provided by another entity for the lands to be included within the District. Therefore, the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. As cited previously, from planning, economics, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The community to be included in the District has need for basic infrastructure systems to be provided. From planning, engineering, economic and management perspectives, the area that will be served by the amended District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the Petition and other information to be submitted to the Commission. Elements of the Petition The Commission has certified that the Petition to Establish the Double Branch Community Development District meets all of the requirements of Section 190.005(1)(a), Florida Statutes. Statement of Estimated Regulatory Costs (SERC) The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, the County and its citizens, the City and its citizens, the Petitioner, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which are difficult to quantify, but nonetheless substantial. Administrative costs incurred by the County related to rule adoption should be minimal. Benefits to the County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed District except for those it chooses to accept. Consumers will pay non-ad valorem or special assessments for certain facilities. Location in the District by new residents is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers in the area within the CDD will include the option of having a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Section 190.005(1)(a), Florida Statutes, requires the Petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition contains a SERC. It meets the requirements of Section 120.541, Florida Statutes. Other Requirements Petitioner has complied with the provisions of Section 190.005(1)(b)1, Florida Statutes, in that Clay County was paid the requisite filing fees. Section 190.005(1)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in Clay County for four consecutive weeks prior to the hearing. The notice was published in The County Line section of The Florida Times-Union, a newspaper of general circulation in Clay County for four consecutive weeks, on February 13, 2002, February 20, 2002, February 27, 2002, and March 6, 2002. Clay County Support for Establishment Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioner filed a copy of the Petition and the $15,000 filing fee with Clay County prior to filing the Petition with the Commission. As permitted by Section 190.005(1)(c), Florida Statutes, the Clay County Commission held a public hearing on February 26, 2002, to consider the establishment of the Double Branch Community Development District. At the conclusion of its public hearing on February 26, 2002, the Clay County Commission adopted Resolution No. 01/02-42, expressing support for the Commission to promulgate a rule establishing the Double Branch Community Development District. The Clay County Resolution specifically found that all six (6) of the statutory factors for evaluating the establishment of community development districts found in Section 190.005(1)(e), Florida Statutes, had been met by the Petition in this matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 190 and 120, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Double Branch Community Development District as requested by the Petitioner by formal adoption of the proposed rule attached to this Report as Exhibit 3. DONE AND ENTERED this 1st day of April, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 1st day of April, 2002. Exhibit 1 Petitioner's Witnesses at Public Hearing Donald P. Hinson OakLeaf Plantation, L.L.C 3020 Hartley Road, Suite 100 Jacksonville, Florida 32257 Douglas C. Miller, P.E. England Thims & Miller, Inc. 14775 St. Augustine Road Jacksonville, Florida 32258 Gary R. Walters Gary Walters and Associates 12 Crooked Tree Trail Ormond Beach, Florida 32174 Exhibit 2 List of Petitioner's Exhibits Letter Description Composite Exhibit (Petition with twelve (12) exhibits) B-1 Pre-filed Testimony of Donald P. Hinson (11 pages) Revised legal description for lands to be included within the boundaries of the proposed District Commission Notice of Receipt of Petition Letter to Division of Administrative Hearings from Commission Letter to Department of Community Affairs from Commission Correspondence from Department of Community Affairs to the Commission Clay County Resolution 01/02-42 Development Order (No. 99-45) for Villages of Argyle Forest Development of Regional Impact Florida Times-Union Proof of Publication of Notice of Local Public Hearing Pre-filed Testimony of Douglas C. Miller, P.E. (8 pages) Pre-filed Testimony of Gary R. Walters (21 pages) Chapter 187, Florida Statutes (23 pages) Exhibit 3 Text of Proposed Rule CHAPTER 42___-1 DOUBLE BRANCH COMMUNITY DEVELOPMENT DISTRICT 42___-1.001 Establishment. 42___-1.002 Boundary. 42___-1.003 Supervisors. 42____-1.001 Creation. The Double Branch Community Development District is hereby established. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.005 FS. History-New 42____-1.002 Boundary. The boundaries of the District are as follows: A parcel of land lying in the being part of Sections 4, 5, 6, 8 and 9, Township 4 South, Range 25 East, Clay County, Florida, being more particularly described as follows: Commencing at the Northwest corner of said Section 4, also being the Northeast corner of said Section 5; thence, on the West line of said Section 4, South 00 degrees 10 minutes 14 seconds East, 5.00 feet to the point of beginning; thence, parallel with and 5.0 feet South from the North line of said Section 4, also being the line dividing Clay County and Duval County, and the North line of said Township 4 South, North 89 degrees 50 minutes 04 seconds East, 2039.14 feet to the West line of Deerfield Pointe, as recorded in Plat Book 22, Pages 62 through 65, of the public records of said Clay County; thence, on said West line, South 00 degrees 20 minutes 13 seconds West, 1354.17 feet to the South line of said Deerfield Pointe; thence, on said South line, North 89 degrees 51 minutes 50 seconds East, 675.62 feet to the West line of Spencer’s Crossing Unit 1, as recorded in Plat Book 18, Pages 18 through 22, of said public records; thence, on said West line, the West line of Spencer’s Crossing Unit 5, as recorded in Plat Book 27, Pages 19 through 22, the West line of Sweetbriar, as recorded in Plat Book 32, Pages 61 through 64, the West line of lands recorded in Official Records Book 1603, Page 1212, and the West line of a 20 foot right-of-way recorded in Official Records Book 1603, Page 1220, all being recorded in the public records of said county, said line also being the East line of the Southeast quarter of the Northwest quarter and the Southwest quarter of said Section 4, South 00 degrees 31 minutes 32 seconds West, 4050.46 feet to the South line of said Section 4; thence, on said South line, North 89 degrees 51 minutes 57 seconds West, 662.62 feet to the West line of lands described in Official Records Book 1603, page 1212, of said public records, also being the East line of the West half of the Northeast quarter of the Northwest quarter of said Section 9; thence, on last said line, South 00 degrees 11 minutes 52 seconds East, 1388.96 feet to the South line of said Northeast quarter of the Northwest quarter of said Section 9; thence, on said South line, South 89 degrees 09 minutes 05 seconds West, 662.36 feet to the East line of the Southwest quarter of the Northwest quarter of said Section 9; thence, on said East line, South 00 degrees 21 minutes 15 seconds East, 699.95 feet to the South line of the North half of the Southwest quarter of the Northwest quarter of said Section 9; thence, on said South line, South 88 degrees 36 minutes 38 seconds West, 1327.66 feet to the West line of said Section 9, also being the East line of said Section 8; thence, on the South line of the North half of the Southeast quarter of the Northeast quarter of said Section 8, North 88 degrees 34 minutes 52 seconds West, 1335.51 feet to the East line of the Southwest quarter of the Northeast quarter of said Section 8; thence, on said East line, South 00 degrees 10 minutes 48 seconds East, 700.93 feet to the South line of said Southwest quarter of the Northeast quarter of Section 8; thence, on said South line, North 88 degrees 09 minutes 42 seconds West, 1156 feet, more or less, to the centerline of the North prong of Double Branch; thence, in a Northwesterly direction, by and along said centerline and following the meanderings thereof, 12,053 feet, more or less, to a point bearing South 89 degrees 49 minutes 27 seconds West from the point of beginning; thence, parallel with and 5.0 feet South from the North line of said Section 5, North 89 degrees 49 minutes 27 seconds East, 5043 feet, more or less, to the point of beginning. said parcel containing 1203 acres, more or less. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.004, 190.005 FS. History-New 42____-1.003 Supervisors. The following five persons are designed as the initial members of the Board of Supervisors: Donald P. Hinson, James T. O’Riley, Donald E. Brown, Charles W. Arnold, III, and Gary F. Hannon. Specific Authority 120.53(1), 190.005 FS. Law Implemented 190.006(1) FS. History - New COPIES FURNISHED: Cheryl G. Stuart, Esquire Jennifer A. Tschetter, Esquire Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Charles Canady, General Counsel Florida Land and Water Adjudicatory Commission Office of the Governor Department of Legal Affairs The Capitol, Room 209 Tallahassee, Florida 32399 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 2105 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399
The Issue The issue on appeal is whether, pursuant to Clearwater Code of Ordinances Section 4-505, to sustain or reverse, with or without conditions, the decision of the Community Development Board on June 20, 2003, denying Cepcot Corporation's application to build a convenience store with two islands for pumping gas.
Findings Of Fact Petitioner The Cepcot Corporation (Cepcot) owns real property located at 657 Court Street in the downtown zoning district of the City of Clearwater (Property). On December 17, 2002, Cepcot filed a Flexible Development Application for a comprehensive infill redevelopment project (Application) on the Property. At the time of the proposal, the Property, which comprises 0.95 acres, was developed with a restaurant in a building that was the former Clearwater train station, a thrift store, and a park. The Application proposes the demolition of these improvements and their replacement with a 3200 square-foot convenience store and two gas pump islands. The Property fronts Chestnut Street to the south, East Avenue to the east, and Court Street to the north. The surrounding area is developed with office uses to the west and south, a privately owned utility plant to the north, and warehouse uses to the east. Upon the completion of the Memorial Causeway bridge, which is presently under construction, traffic to the beach will use Court Street and traffic from the beach will use Chestnut Street. In response to questions and suggestions from Respondent's staff, Cepcot revised the proposed site plan several times. The Application is presently complete. Respondent's Planning Department prepared a Staff Report, which finds that the proposed project does not meet certain requirements and recommends denial of the Application on several grounds. On June 17, 2003, Respondent's Community Development Board (CDB) considered the Application. CDB denied the Application and issued a development order explaining the reasons for denial as follows: The proposal is inconsistent with the adopted Community Development Code, the Comprehensive Plan, 1995 Clearwater Downtown Redevelopment Plan, and the Downtown Design Guidelines. The proposed automobile service station is not a permitted use within the downtown district. Approval of the proposed use may encourage other like uses and may be detrimental to downtown redevelopment. The proposal does not comply with the Flexible Development criteria as a comprehensive infill redevelopment project per Section 2-803. The proposal is not in compliance with the other standards in the Code including the general applicability criteria for Section 3-913. Most of the reasons cited for denial involve Respondent's Community Development Code (CDC), which is the land development regulations. The Property is in the Downtown District. CDC Section 2-901 states: "The intent and purpose of the Downtown District is to establish a mixed use downtown where citizens can work, live, and shop in a place which is the economic, governmental, entertainment and cultural focal point of a liveable city." CDC Section 2-902 sets forth the permitted uses within the Downtown District, and CDC Chart 2-100 lists permitted uses by zoning district. The proposed uses are not among the permitted uses for the Downtown District (or the Tourist District, to which portions of the record refer). CDC Section 2-903.C sets forth the following ten criteria to be applied in determining if the proposed use qualifies as a Comprehensive Infill Redevelopment Project (CIRP) that may qualify an otherwise non-permitted use: The development or redevelopment of the parcel proposed for development is otherwise impractical without deviations from the use, intensity and development standards; The development of the parcel proposed for development as a Comprehensive Infill Redevelopment Project will not reduce the fair market value of abutting properties; The uses within the comprehensive infill redevelopment project are otherwise permitted in the City of Clearwater; The uses or mix of uses within the comprehensive infill redevelopment project are compatible with adjacent land uses; Suitable sites for development or redevelopment of the uses or mix of uses within the comprehensive infill redevelopment project are not otherwise available in the City of Clearwater; The development of the parcel proposed for development as an comprehensive infill redevelopment project will upgrade the immediate vicinity of the parcel proposed for development; The design of the proposed comprehensive infill redevelopment project creates a form and function which enhances the community character of the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole; Flexibility in regard to lot width, required setbacks, height and off-street parking are justified by the benefits to community character and the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole; Adequate off-street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development; The design of all buildings complies with the Downtown District design guidelines in Division 5 of Article 3. CDC Section 3-913.A sets forth the General Applicability criteria. CDC Section 3-913.A.1 states: "The proposed development of the land will be in harmony with the scale, bulk, coverage, density, and character of adjacent properties in which it is located." CDC Section 3-913.A.5 states: The proposed development is consistent with the community character of the immediate vicinity of the parcel proposed for development."
The Issue The issue is whether certain provisions within proposed rule 62-296.470 are an invalid exercise of delegated legislative authority, as alleged in the Petition for Administrative Determination of Invalidity of Specific Provisions of a Proposed Rule (Petition) filed by Petitioner, Florida Power and Light Company (FPL), on August 16, 2006.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties FPL is Florida's largest electric utility, serving over four million residential, commercial, and industrial accounts in thirty-five counties throughout southern and eastern Florida, or approximately forty percent of the state population. Its business address is 700 Universe Boulevard, Juno Beach, Florida. It owns and operates over 20,000 megawatts (MW) of electric generating capacity. Approximately seventy-seven percent of FPL's self-generated energy comes from fossil fuels, primarily oil and natural gas. The remaining twenty-three percent of self-generation comes from nuclear power or is produced from non-polluting renewable sources. Approximately sixty-six percent of the fossil fuel self-generation relies on clean- burning natural gas, with oil making up another twenty-seven percent. About seven percent comes from coal, with two-thirds of that generated from the Southern Company's Scherer Unit 4, which is located in Georgia. Only 232 MW, or 1.1 percent of FPL's total capacity comes from coal plants in Florida. FPL has an additional 1,144 MW generating unit set to come on-line in 2007, which also relies on natural gas generation. FPL participated in the rulemaking process before the Department and ERC and objected to the use of fuel adjustment factors in the rule. FPL also informed the Department and ERC of the economic impact to its customers of the proposed rule, and the Department addressed FPL's comments in its SERC. The Department is the state agency charged with the responsibility of regulating discharges from the EGUs, including those of FPL. It must also implement the programs required under the federal Clean Air Act. See § 403.061(35), Fla. Stat. ("The Department of Environmental Protection shall implement the programs required under the federal Clean Air Act"). Among other things, that Act requires the Department to develop rules to implement the CAIR, including reductions in emissions of SO2 and NOx from EGUs in the State. Gulf is an investor-owned electric utility with a service territory that is bounded on the Alabama border on the west and runs to the Apalachicola River on the east, and from the Alabama border on the north to the Gulf of Mexico to the south. It serves approximately 394,722 retail customers directly and an additional 14,128 customers through the wholesale delivery of electricity to one investor-owned electric utility and one municipality. Gulf serves customers in seventy- one towns and communities. Its total generating capacity is 2,711,900 kilowatts (KW) and its thirteen units are fueled by coal and natural gas. Gulf participated in the proceedings which culminated in the proposed rule and supports the Department's position. FPC is an investor-owned electric utility with coal- fired, gas-fired, and oil-fired generating units whose service area is in central and northern peninsular Florida. It presently serves 1,583,000 customers and has a total generating capacity of 9,365 MW. FPC also supports the proposed rule. TECO is an investor-owned electric utility with 4,400 MW of generating capacity serving over 645,000 residential, commercial, and industrial customers in the Tampa Bay area. Its plants use coal, natural gas, and oil for the generation of electric power. TECO has intervened in support of the proposed rule. Seminole is a generation and transmission cooperative. It operates the Seminole Generating Station and the Payne Creek Generating Station with capacities of 1,300 and 500 MW, respectively. In addition, construction is nearing completion on 310 MW of combustion turbine peaking units at the Payne Creek Generating Station site. The Seminole Generating Station is fired by coal, while the Payne Creek Generating Station is fired by natural gas and Number 2 fuel oil. Seminole provides service to an estimated 1,600,000 customers in forty-six counties. It supports the proposed rule. JEA owns, operates, and manages the electric system established by the City of Jacksonville and is the largest community-owned utility in the State. JEA serves in excess of 366,000 customers in Jacksonville and parts of three adjacent counties. The generating plants are fueled by coal, petroleum coke, oil, and natural gas. JEA supports the proposed rule. Cedar Bay owns and operates a cogeneration facility located in Jacksonville, Florida. The facility burns crushed coal to generate approximately 258 MW (net output) of electricity and provides steam to a kraft paper recycling mill. Cedar Bay will be regulated by the proposed rule and supports its adoption. Indiantown owns and operates a cogeneration facility located near the community of Indiantown in the southwestern portion of Martin County, Florida. The facility burns pulverized coal to generate approximately 330 MW (net output) of electricity and provides steam to a citrus processing facility. Indiantown is also regulated by the rule and supports the proposed rule. The Department is unwilling to stipulate to the facts that would form the basis for FPL's standing to challenge the rule. (If FPL lacks standing to challenge the rule under the theory posited by the Department, then Intervenors likewise lack standing to support the rule.) The record shows, however, that FPL and Intervenors own EGUs or cogeneration facilities, those facilities will be regulated by the proposed rule, and their substantial interests will accordingly be affected by the implementation of the rule. Background The underlying history which prompted the adoption of the proposed rule in issue is lengthy and somewhat complex. The federal Clean Air Act (42 U.S.C. §§ 7401 et seq.) was enacted in 1970 and forms the primary legal basis for air pollution programs in the United States. Section 110 of the Clean Air Act (42 U.S.C. § 7410) requires every state to adopt a state implementation plan (SIP) for implementing the requirements of the Clean Air Act. Among other things, the SIP must describe how each state will achieve compliance with National Ambient Air Quality Standards (NAAQS) promulgated by the EPA. One provision of the Clean Air Act, commonly referred to as the "Good Neighbor Provision," provides that emissions from one state shall not significantly interfere with another state's attainment of compliance with the NAAQS. See 42 U.S.C. § 7410(a)(2)(D)(i). In 2004, the EPA began rulemaking to address the non- attainment of NAAQS in a number of states where non-attainment was caused or contributed to by airborne emissions from upwind states. Among other things, the EPA determined that Florida EGUs contribute significantly to non-attainment of NAAQS in a small number of counties in Georgia and Alabama, including those counties in which the cities of Birmingham, Alabama, and Atlanta and Macon, Georgia, are located. On May 12, 2005, CAIR was promulgated by the EPA and generally requires (through implementation in two phases, the first of which begins in 2009) reductions in emissions of SO2 and/or NOx from EGUs in twenty-eight eastern states, including the State of Florida, and the District of Columbia, all of whom are considered upwind states. In adopting CAIR, the EPA determined that Florida, and other upwind states, contribute significantly to the non- attainment by downwind states of NAAQS for fine particles and/or 8-hour ozone, and they interfere with the maintenance of those standards. The CAIR requires Florida (and other affected states) to revise its SIP to include control measures to reduce emissions of SO2 and NOx so as to enable the downwind states to achieve and maintain the required standards. CAIR provides that in the event a state does not timely file a SIP modification satisfactory to EPA by September 2006, a federal implementation plan will apply within the state until proper modifications are filed. (Presumably, the Department complied with this requirement by adopting a rule before September 2006, even though the rule is now subject to a challenge which may not be concluded, after court appeals, until 2007 or even 2008. In addition, and probably in late 2005, FPL filed suit in the United States Court of Appeals for the District of Columbia challenging EPA's CAIR. That matter still remains pending as of this time.) Under CAIR, EPA determined "budgets" (or numerical limitations) for the pollutants that each state could emit consistent with its goal of avoiding significant contributions to downwind non-attainment. With respect to NOx emissions, which are at issue here, the CAIR states were allocated a share of the region-wide pool of available NOx allowances based on the heat input of the fuel burned by EGUs within the state, with fuel adjustment factors applied to adjust the heat input based on the type of fuel burned. In other words, EPA based its distribution scheme on heat input, subject to fuel adjustment factors. This is referred to as the fuel-adjusted heat input allocation method. The specific fuel adjustment factors used by EPA for allocation to the states were 100 percent for coal, 60 percent for oil, and 40 percent for gas. These factors, when multiplied by heat input, determine the proportion of available allowances to each utility. As the numbers imply, under this methodology more emission credits are allocated to coal-fired units than to EGUs that rely on gas and oil generation. In choosing these percentage factors, the EPA concluded that they take into account the relatively greater burden on coal-fired units to control emissions, that the allocation methodology will have little effect on overall compliance costs or environmental outcome, and that the fuel adjustment factors provide a more equitable budget distribution methodology for allocation credits. See Joint Exhibit 5. Thus, under the EPA distribution scheme, utilities with a higher proportion of coal-fired EGUs (such as Intervenors) would receive a higher proportion of allowances to continue operating and provide fuel diversity, while FPL, which has very little coal-fired electric generation, will receive fewer pollution allowances. Indeed, FPL claims that due to its heavy reliance on oil and gas, the redirection of credits to coal plants under the challenged provisions will cause it to "lose" 7,000 pollution credits to other utilities, and its regulatory costs will rise around $13 million per year. Although states are encouraged by the EPA to use the above fuel adjustment factors, a state is allowed to allocate NOx allowances to EGUs on whatever basis it chooses so long as it substantially complies with CAIR. For example, it may use other allowance methodologies, such as one which allocates allowances based on the electricity generated by EGUs rather than the heat used for generation (as found in EPA's Model Rule). For the State of Florida, EPA allocated 99,445 NOx allowances for the years 2009-2014 (phase 1) and 82,871 allowances for 2015 and subsequent years (phase 2). EPA's allocation of NOx allowances establishes the state cap, that is, the total amount of NOx that may be emitted by all of the EGUs in Florida combined, unless allowances are acquired from out-of- state sources in a cap and trade system. Florida's cap is less than the current annual NOx emissions from the EGUs in Florida. In a cap and trade system, which the Department has chosen to use, the regulator (EPA) sets a cap on emissions in a geographic area and then allocates allowances to the facilities in the State that is subject to the cap. Both FPL and Intervenors (and other entities operating EGUs or cogeneration facilities) are subject to the cap and are required to have at least one allowance for each ton of emissions. The proposed rule acts as an absolute bar to any emissions of NOx for Florida EGUs which do not have sufficient allowances. If a regulated facility does not receive enough allowances from the state, the facility may reduce its emissions by reducing operations or installing air pollution control systems. The facility may also purchase allowances from anyone that has a surplus of allowances. If a regulated facility has a surplus of allowances, the facility may sell its allowances or a facility may save, or bank, its allowances and then use or sell the allowances in a subsequent year. Although EPA has not mandated that states use a cap and trade system for the CAIR, as noted above, it has encouraged states to do so and has prepared a Model Rule that states may adopt to implement a CAIR cap and trade system. States adopting EPA's Model Rule will be deemed to be in compliance with the CAIR. To opt into the federal cap and trade system, the Department was required to either adopt the EPA Model Rule or adopt other regulations substantially identical to the Model Rule. On May 26, 2006, the Department published a Notice of Proposed Rulemaking (Notice) in the Florida Administrative Weekly advising that it intended to create a new rule 62-296.470 which implements the CAIR, that it would opt into the cap and trade system, and that it would use the fuel adjustment factors found in EPA's Model Rule. The proposed rule was approved for adoption by the ERC on June 29, 2006, subject to certain minor modifications. The ERC exercises the standard-setting authority of the Department under Chapter 403, Florida Statutes. See § 403.804(1), Fla. Stat. On July 21, 2006, the Department published in the Florida Administrative Weekly a Notice of Change, which reflected minor revisions to the proposed rule not relevant here and set out its final language. The Notice of Change indicates that the Department relied upon Sections 403.061 and 403.087, Florida Statutes, as the specific authority for adopting the rule and Sections 403.031, 403.061, and 403.087, Florida Statutes, as the laws being implemented. In the Joint Proposed Final Order, as well as various exhibits, the Department has more precisely identified Section 403.061(35), Florida Statutes, as the statute which grants it specific authority to adopt the rule in question and the statute which is being implemented. That provision states that the Department must "[e]xercise the duties, powers, and responsibilities required of the state under the federal Clean Air Act, 42 U.S.C. ss. 7401 et seq. The department shall implement the programs required under that act in conjunction with its other powers and duties." The Challenged Provisions The entire proposed rule is lengthy and need not be repeated in full here. Relevant to this controversy are subparagraphs (B) through (D) of paragraph (3)(d)3.(i), which contain the challenged fuel adjustment factors. The latter paragraph, including the challenged provisions, reads as follows: (3) * * * * The baseline heat input (in mmBtu) used with respect to CAIR NOx allowance allocations under paragraph (b) of this section for each CAIR NOx unit will be: For units commencing operation before January 1, 2000: the average of the 3 highest amounts of the unit's adjusted control period heat input for 2000 through 2004; for units commencing operation on or after January 1, 2000, and before January 1, 2007: the average of the 3 highest amounts of the unit's adjusted control period heat input over the first 5 calendar years following the year in which the unit commenced operation, or the average of the 2 highest amounts of the of the unit's adjusted control period heat input over the first 4 calendar years following the year in which the unit commenced operation, or the maximum adjusted control period heat input over the first 1 to 3 calendar years following the year in which the unit commenced operation, depending on the maximum number (1 to 5) of such calendar years of data available to the permitting authority for determination of allowance allocations pursuant to sections 96.141(a) or 96.141(b); with the adjusted control period heat input for each year calculated as follows: If the unit is 85 percent or more (on a BTU basis) biomass-fired during the year and is subject to best available control technology (BACT) for NOx emissions, the unit's control period heat input for such year is multiplied by 150 percent; If the unit is coal-fired during the year, and not subject to paragraph (a)(1)(i)(A) of this section for the year, the unit's control period heat input for such year is multiplied by 100 percent; If the unit is oil-fired during the year, the unit's control period heat input for such year is multiplied by 60 percent; and If the unit is not subject to paragraph (a)(1)(i)(A), (B), or (C) of this section, the unit's control period heat input for such year is multiplied by 40 percent. Identical language regarding the challenged fuel adjustment factors is also found in subparagraphs (B) through of paragraph (5)(d)3.(i), which reads as follows: (5) * * * * The baseline heat input (in mmBtu) used with respect to CAIR NOx Ozone Season allowance allocations under paragraph (b) of this section for each CAIR NOx Ozone Season unit will be: For units commencing operation before January 1, 2000: the average of the 3 highest amounts of the unit's adjusted control period heat input for 2000 through 2004; for units commencing operation on or after January 1, 2000, and before January 1, 2007: the average of the 3 highest amounts of the unit's adjusted control period heat input over the first 5 calendar years following the year in which the unit commenced operation, or the average of the 2 highest amounts of the of the unit's adjusted control period heat input over the first 4 calendar years following the year in which the unit commenced operation, or the maximum adjusted control period heat input over the first 1 to 3 calendar years following the year in which the unit commenced operation, depending on the maximum number (1 to 5) of such calendar years of data available to the permitting authority for determination of allowance allocations pursuant to sections 96.141(a) or 96.141(b); with the adjusted control period heat input for each year calculated as follows: If the unit is 85 percent or more (on a BTU basis) biomass-fired during the year and is subject to best available control technology (BACT) for NOx emissions, the unit's control period heat input for such year is multiplied by 150 percent; If the unit is coal-fired during the year, and not subject to paragraph (a)(1)(i)(A) of this section for the year, the unit's control period heat input for such year is multiplied by 100 percent; If the unit is oil-fired during the year, the unit's control period heat input for such year is multiplied by 60 percent; and If the unit is not subject to paragraph (a)(1)(i)(A), (B), or (C) of this section, the unit's control period heat input for such year is multiplied by 40 percent. On August 10, 2006, FPL filed its Petition challenging subparagraphs (B) through (D) of paragraphs (3) and (5) on the ground they constitute an invalid exercise of delegated legislative authority. More specifically, the Petition alleged in relevant part that for the following reasons, the challenged provisions constitute an invalid exercise of delegated authority: The agency exceeded its grant of rulemaking authority in including fuel adjustment factors set out in the Challenged Provisions. The Challenged Provisions enlarge, modify, or contravene the specific provisions of law implemented, have no basis in any explicit power or duty identified in the statutory language and go beyond the particular powers and duties conferred to DEP. The Challenged Provisions are arbitrary and capricious, are unsupported by necessary facts or logic and without thought or reason or irrational, and are therefore an invalid exercise of delegated legislative authority. See Fla. Stat. § 120.52(8)(e). In employing fuel-biased allocation factors to adjust the allocation of compliance costs in a manner divorced from any incremental environmental benefit and, inter alia, lessening compliance costs for certain fuel types at the expense of others, creating economic incentives for certain fuels, creating disincentives for fuels that are already at a cost advantage, and setting up a system of cross subsidies among fuel types, DEP went beyond the particular powers and duties conferred upon it, and also impinged in the statutory jurisdiction of the Florida Public Service Commission set out in sections 366.04 and 366.05, Florida Statutes. The Challenged Provisions impose excess regulatory costs upon FPL and the public as a whole that are not justified by any incremental environmental benefit. The inclusion of the Challenged Provisions in the proposed rule fails to adhere to the agency's duty to consider economic impacts and weigh the relative risks and benefits to the public and the environment pursuant to section 403.804(1), Florida Statutes, and imposes excess regulatory costs in violation of section 120.541(1)(d), Florida Statutes. Petition, paragraphs 45-49. In short, FPL contended in its initial pleading that the inclusion of the fuel adjustment factors that EPA encourages states to use is outside the rulemaking authority of the Department, is arbitrary and capricious, contravenes the legislative purpose, and imposes excess regulatory costs that could otherwise be avoided. In addition, the Petition alleged that the SERC was improperly prepared by the Department in several respects. Besides Section 120.52(8), Florida Statutes2, the Petition also cited Sections 120.54, 120.541, 120.56(1) and (2), 120.57, 366.04, 366.05, 403.021, 403.031, 403.061, 403.087, and 403.804, Florida Statutes, as the provisions which require that the proposed rule be invalidated. Does the rule exceed the statutory grant of authority? FPL has alleged that the rule goes beyond the specific powers and duties conferred upon the Department by Chapter 403, Florida Statutes, to promulgate regulations implementing CAIR. As noted above, the Department has cited Section 403.061(35), Florida Statutes, as the underlying grant of authority for adopting the rule. That statute requires the Department to "[e]xercise the duties, powers, and responsibilities required of the state under the federal Clean Air Act, 42 U.S.C. ss. 7401 et seq. The department shall implement the programs required under that act in conjunction with the other powers and duties." The Clean Air Act gives EPA authority to require submission of an appropriate SIP from any state that contributes to a violation of NAAQS in any other state. Using this authority, EPA promulgated CAIR. Florida is considered an upwind state and is therefore subject to these new standards. Thus, the Department must "implement the programs required under that act." CAIR provides Florida with the option of achieving compliance with the new standards by either mandating reductions of NOx at each source by requiring each EGU to alter production or operations, or to participate in an interstate cap and trade program. Florida has opted to participate in the cap and trade program, and the rule was tailored to do so. Under CAIR, EPA requires states participating in the cap and trade program to allocate a fixed number of allowances to the state EGUs. FPL concedes that the proposed rule, including the challenged provisions, will comply with this federal requirement because the Department essentially adopted the federal Model Rules. Although the Department could have complied with the federal requirement in a way more favorable to FPL, the rule, as written, is clearly within the grant of authority given under Section 403.061(35), Florida Statutes, since it does nothing more than "implement the programs required under the [Clean Air Act]." Does the rule enlarge, modify, or contravene the specific provisions of the law implemented? FPL further contends that because the proposed rule uses a fuel-biased allocation method not required under the statute, and it does not serve an environmental purpose, the challenged provisions enlarge the specific provisions of the law being implemented. As noted above, Section 403.061(35), Florida Statutes, requires that the Department adopt rules to implement the requirements of the Clean Air Act. While FPL may quarrel with the fuel adjustment factors in the rule which favor coal-fired units, the Department's decision to adopt the EPA's Model Rule is consistent with its statutory authority to implement EPA's programs under the Clean Air Act. Is the rule arbitrary and capricious? FPL next contends that coal EGUs do not need a subsidy; there are significant defects in the Department's economic analysis; the Department incorrectly concluded that FPL would not bear any net compliance costs; the Department's proposal will be more costly than estimated; and these erroneous considerations collectively led to an arbitrary and capricious decision to utilize the fuel adjustment factors in violation of Section 120.52(8)(e), Florida Statutes. To overcome this claim, there must be evidence in the record showing that the rule is supported by facts and logic, and that the Department's decision was reached after giving thought or reason to the matter. After EPA adopted CAIR in May 2005, the Department began its rule development process by meeting with utilities and other interested parties interested in the implementation of CAIR. It also conducted three public meetings or workshops and encouraged the utilities to reach a consensus on how to distribute the CAIR allowances. Early on, the Department decided to participate in the cap and trade program, a decision supported by all parties, including FPL. No consensus was reached on how to distribute the pollution allowances, as the parties aligned themselves in the manner in which they are in this case: the utilities that primarily burn coal versus the utilities that primarily burn natural gas. After concluding that a consensus would probably not be reached, the Department hired a consultant, Dr. Paul M. Sotkiewicz, to assist it in analyzing the implementation options for CAIR and the Clean Air Mercury Rule (CAMR), which is not in issue here. Although the Department considered using a number of variations of the proposed rule during the rule adoption process, and relied on several different bases for doing so, it finally concluded that, with some minor changes, the EPA's Model Rule should be adopted. (For example, the Department considered using a heat input approach with fuel adjustment factors adopted by EPA; a heat input approach with no fuel adjustment factors; and an output approach, based upon the amount of fuel required to produce a unit of electricity.) During the entire process, the Department carefully considered the information presented by FPL and other parties and as well as a number of policy issues, including energy efficiency, fuel diversity, economic impacts, and environmental impacts. It also relied upon Dr. Sotkiewicz's conclusion, accepted by the undersigned as being credible, that the overall cost of compliance with CAIR in Florida would be the same under each of the proposed allocation schemes being evaluated by the Department and that the overall effect on ratepayers would be same. As to FPL, if the proposed rule becomes effective, the impact on its customers will be de minimus, that is, it will add approximately $0.33 per month for a customer using 1,000 killowatt hours of electricity. On the other hand, if FPL's proposal were accepted, there would be a financial impact on the customers of the utilities that utilize large percentages of coal-fired electric generation. In choosing to adopt the rule as finally proposed, the Department was guided by five broad principles: protecting the state's status as an attainment area for air quality standards; accommodating the state's future growth in demand for electricity; promoting new, more efficient power production technologies; maintaining fuel diversification across the fleet of EGUs in the State; and minimizing the impact of CAIR on the utility customers. These principles constitute rational and valid concerns to consider when adopting a rule such as this. The greater weight of evidence supports a finding that air quality will be protected because EGUs will comply with the cap on the state's NOx emissions; the environmental benefits of CAIR will be achieved in accordance with EPA's plan; the rule's approach to allocation of allowances encourages the use of more efficient power production technologies in new EGUs; the rule will not materially affect fuel diversification in the state's existing fleet of EGUs; the rule will not likely affect a utility's decision regarding the type of EGU to build in the future; and it protects the state's ratepayers because it allows the EGUs to participate in a cap and trade program. The proposed rule is very similar to the EPA Model Rule, except for certain exceptions which address issues unique to a high growth state such as Florida. In addition, the evidence shows that coal-fired EGUs will bear the greatest costs when complying with CAIR. This is true no matter which allocation scheme is selected by the Department. It was not illogical for the Department to adopt a distribution system for NOx allowances that places more NOx allowances with the utilities who will need them the most. Based on sound public policy, this same approach was taken by the EPA when distributing NOx allowances to the States, when creating the Model Rule, and when adopting the federal implementation plan. The fact that fuel costs for coal-fired EGUs are currently lower than the fuel costs for gas and oil-fired EGUs does not require the adoption of a different system for distributing NOx allowances. Indeed, fuel costs are only one component of the total cost of generating electricity. Although FPL generates electricity primarily by using oil and natural gas-fired units, its customers enjoy some of the lowest costs for electricity in the State. Placing NOx allowances with the other utilities is not irrational. FPL contends that the Department should have adopted the system advocated by FPL for the distribution of NOx allowances. However, this proposal was considered and rejected by the EPA, ERC, and Department. Even if the challenged provisions are applied to FPL, it will receive NOx allowances, as a percentage of emissions, at a level that is above the average for all utilities. On average, each utility will receive NOx allowances under the proposed rule equal to 44.4 percent of their NOx emissions in 2004. FPL will receive 45.8 percent, or more than the average utility. If FPL's proposed allocation had been adopted, it would receive allowances equal to 64.4 percent of its emissions, while Intervenors and others would continue to receive 44.4 percent. The evidence supports a finding that there are facts and logic which support the Department's decision to adopt the proposed rule, and that its decision was made with thought and reason. Issues Surrounding the SERC FPL has raised two arguments related to the SERC: that the use of the Department's fuel adjustment factors in the rule imposes regulatory costs on FPL that could be reduced by adopting FPL's own proposal (allowances based upon an unadjusted heat input approach); and that the Department's SERC does not comply with the requirements of Section 120.541(1)(b) and (2)(c), Florida Statutes, because the Department failed to adopt FPL's alternative proposal or provide a statement of the reasons for its rejection, and it failed to include an estimate of the transactional costs to be incurred by affected individuals and entities in complying with the rule. Because the Department and Intervenors contend that FPL has waived its right to raise either argument by failing to request a SERC or timely filing a LCRA, and omitting at least one of the issues from the Pre- Hearing Stipulation, a brief history of the preparation of the SERC, the issues raised in the Petition, and the issues recited in the parties' Pre-Hearing Stipulation is appropriate. The Preparation of the SERC Following the publication of CAIR in May 2005, the Department began the process to adopt a rule which would modify Florida's SIP, as required by federal law. A public workshop was held on November 29, 2005, at which time the Department presented a rule proposal using a transitional basis to allocate NOx allowances, that is, the allowances would be initially allocated using the fuel adjustment heat input method, but would switch to an output method in 2012. At the end of the workshop, the Department invited written comments from all interested parties. FPL submitted comments on January 6, 2006, objecting to the initial part of the proposal, but supporting the switch that would occur in 2012. After further study regarding the issues, on March 2, 2006, the Department conducted another workshop, at which it announced that it intended to use the fuel adjusted heat input method on a permanent, rather than a transitional, basis. The Department again invited comments from interested parties. In response to that invitation, on March 20, 2006, the Florida Electric Power Coordinating Group (FCG), an organization representing major electric utilities in the State, including FPL, submitted a two and one-half page letter in which it offered comments regarding the implementation of CAIR and CAMR. Among other things, the letter noted that it expected the Department to adopt a rule implementing CAIR that would be consistent with EPA's rule. Also, it specifically requested that the Department prepare a "[SERC] for its proposals to implement both CAIR and CAMR, in accordance with Sections 120.54(3)(b)[1.] and 120.541." Department Exhibit 29, page 2. The letter went on to say that its "prior comments [contained in letters dated October 7, 2005, January 6, 2006, and February 7, 2006], as well as this letter, constitute a 'good faith written proposal for a lower cost regulatory alternative' which accomplishes the objectives of CAIR and CAMR." Id. On March 17, 2006, or three days earlier, FPL also submitted a four and one-half page letter which reiterated in part its earlier comments contained in a letter of January 6, 2006, and which "endorses and incorporates by reference the comments submitted on behalf of . . . FCG pertaining to both the CAIR and CAMR." FPL Exhibit 22, page 1. (Obviously, FPL was anticipating that FCG would be filing comments within a few days.) FPL's letter made no specific reference to a SERC, and those portions of the letter objecting to the Department's use of fuel adjustment factors and the associated economic impact on the utility were not labeled or otherwise identified as a LCRA. Even so, FPL takes the position that by "endorsing" FCG's comments, it was likewise requesting that a SERC be prepared. It also takes the position that its comments regarding the cost effect of the challenged provisions constituted a bona fide LCRA within the meaning of the law. Among other things, FPL's letter specifically objected to the Department's decision to retain the EPA's fuel adjustment factors in the rule and pointed out that this would cost FPL "tens of millions of dollars each year"; that the Department's proposal was "inequitable" to its customers; that it required FPL's customers to pay a disproportionate share of the implementation of CAIR; and that many of the assumptions made by the EPA when it adopted the Model Rule were erroneous. (By now, FPL had filed suit in federal court seeking to overturn the EPA rule; FPL reminded the Department that this litigation was ongoing.) The Department conducted another workshop on April 13, 2006, at which time it announced that it intended to propose fuel adjustment factors in the rule. Following that workshop, on April 28, 2006, the FCG submitted comments similar to the ones contained in its letter of March 20, 2006, and again requested that a SERC be prepared. Joint Exhibit 3, page 23. On the same day, FPL filed a four and one-half page letter containing comments relating to both CAIR and CAMR, although most of the letter focused on CAIR. Among other things, FPL stated that it continued to oppose the Department's decision to utilize fuel adjustment factors for the allocation of allowances; that it should include language in the rule that would require a modification of the rule if FPL prevailed in its federal suit against the EPA; that the fuel adjustment factors were "inequitable" to its customers and allocated a disproportionate share of allowances to the coal-fired units; that neither the Department nor the EPA had ever presented a rational justification for the methodology being used; that the proposed rule would result in "an annual cost to our customers of approximately $15 million"; that compliance with CAIR would not reverse the competitive advantage of coal; and that as a compromise, the Department should increase the fuel adjustment factors for oil and gas units from 60 and 40 percent, respectively, to 80 percent for each. FPL Exhibit 23. The letter made no reference to a SERC, and while it referred to lower regulatory costs that it would experience if its proposal was adopted, it did not characterize the comments as a LCRA that would substantially accomplish the statutory objectives. On May 26, 2006, the Department published its Notice in the Florida Administrative Weekly to satisfy the requirements of Section 120.54(3)(a)1., Florida Statutes. (That provision requires an agency to publish such a notice prior to the adoption, amendment, or repeal of a rule.) No relevant changes to the proposed rule were made as a result of FPL's comments. The Notice stated that the ERC would hold a rule adoption hearing on June 29, 2006. The Notice also stated that the Department had "begun preparation of a [SERC] as outlined in section 120.541 of the Florida Statutes . . . ." By making this statement, it is fair to infer that the Department had treated FCG's earlier request for preparation of a SERC as a valid request and that it intended to prepare one to satisfy the statutory requirement. In addition, because of the complexity of the subject matter and the widely differing views presented by the parties on how to comply with CAIR, the Department, as a matter of good regulatory practice, believed that a complex rule such as this warranted a companion SERC for the benefit of the ERC and interested parties even if one had not been formally requested. (The Department has continued to take the position that the SERC was prepared voluntarily and that no appropriate request for one was ever made.) The Notice also borrowed language from Section 120.541(1)(a), Florida Statutes, by stating that "[a]ny person who wishes to provide information regarding the estimated regulatory costs, or to provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice." At hearing, FPL conceded that it never formally requested that a SERC be prepared in any document filed during the rule development phase or in accordance with the instruction in the Notice. Also, while not conceding this point, it failed to specifically characterize any comments in its letters of March 17 or April 28, 2006, as a LCRA within the meaning of Section 120.541(1)(a), Florida Statutes. However, it is fair to infer that the Department considered FPL's comments as a LCRA since it summarized those comments in its draft SERC prepared shortly thereafter, and it later gave reasons for rejecting the proposal in a revised SERC. See Findings of Fact 55 and 57, infra. Here, the undersigned rejects the contention by FPL that its "endorsement" of FCG's letter of March 20, 2006, was equivalent to a formal request by FPL for a SERC. Had FPL desired to request one, it could have easily included that request in any of its written submissions to the Department during the lengthy rule development process, or even after the Notice was issued. Section 120.541(1)(a), Florida Statutes, provides that "a substantially affected person, within 21 days after publication of the notice provided under s. 120.54(3)(a), may submit to an agency a good faith written proposal for a [LCRA] to a proposed rule which substantially accomplishes the objectives of the law being implemented." Subsection (1)(b) goes on to provide that if a LCRA is filed within that time limitation, the agency must prepare a SERC (assuming one has not yet been prepared) "or shall revise its prior [SERC], and either adopt the alternative or give a statement of the reasons for rejecting the alternative in favor of the proposed rule." No substantially affected party in this proceeding submitted to the Department a good faith written proposal for a LCRA within the time limitation described in the statute. As noted elsewhere, however, the Department treated FCG's letter of March 20, 2006, as a request to prepare a SERC, and it obviously construed the comments submitted by FPL as a LCRA. On June 21, 2006, the Department submitted to the ERC a memorandum summarizing its rationale for the proposed rule. Attached to the memorandum was its initial SERC, which the Department refers to as a "draft" SERC, and which has been received in evidence as Joint Exhibit 3. The SERC was prepared by the Department's in-house economist, Dr. Nicholas Stratis, and represented a good faith effort by the Department to estimate the economic impacts associated with the adoption of the rule. Beginning on page 23 of the draft SERC and continuing through page 25, the report included a section which was intended to comply with the requirement that, with respect to LRCAs submitted by other persons, the agency must either adopt the alternative proposal or state the reasons for its rejection. Since no alternative proposals were submitted after the Notice was published on May 26, 2006, this portion of the SERC was directed to the comments filed by interested parties during the rule development phase of the process. The SERC noted that only FCG had requested a SERC in its letter dated March 20, 2006, and then went on to summarize the comments contained in FCG's letter, as well as additional comments made by FCG in a letter dated April 28, 2006. Also, the report noted comments submitted by another organization, the Florida Municipal Electric Association, on behalf of its 33 members, as well comments submitted by other utilities. Finally, the Department summarized the concerns raised by FPL in its comments dated March 17 and April 28, 2006, which opposed the Department's adjusted heat input proposal. While the Department gave its rationale for adopting the proposed rule, the SERC did not state the reasons for rejecting FPL's LCRA. In the parties' Pre-Hearing Stipulation filed on November 13, 2006, FPL admits without dispute that the Department "addressed FPL's comments in its Statement of Estimated Regulatory Costs" submitted to the ERC prior to the adoption of the rule. See Pre-Hearing Stipulation, page 10, paragraph E.14.d. See also Finding of Fact 2, supra. On the first day of the final hearing, the Department submitted a revised SERC for the purpose of correcting what it considered to be "minor" errors contained in the draft SERC, which surfaced when FPL deposed Dr. Stratis during preparation for the final hearing. That document has been received in evidence as Joint Exhibit 7. (According to counsel, preparation of the revised SERC was completed on November 9, 2006.) While the SERC again summarized the arguments of FPL at length, it also responded to FPL's LCRA by concluding that "DEP's modeling shows that the total cost of the proposed regulation for 2009- 2021 for all utilities is the same under DEP's proposal and under the unadjusted heat input allocation proposal. While the unadjusted heat input approach would result in lower costs for FP&L, it would not result in lower costs for the entire regulation, and DEP rejects the alternative proposed by FP&L." It is fair to assume that the SERC was revised as a matter of caution in the event FPL's comments in its two letters were deemed to be a LCRA, and that it was filed on a timely basis. The Petition and Pre-Hearing Stipulation In its Petition filed on August 10, 2006, FPL identified as disputed issues of material fact "[w]hether DEP's [SERC] complied with the requirements of section 120.541, Florida Statutes," and "[w]hether FPL's proposal for a fuel- neutral system without the fuel adjustment factors in the Challenged Provisions constitutes a lower cost alternative that would substantially accomplish the statutory objectives[.]" See paragraphs 19k. and m., Petition. Therefore, both issues were clearly raised in the initial Petition. On November 13, 2006, or just before the final hearing, the parties filed a Pre-Hearing Stipulation, a document which controls the issues to be adjudicated at final hearing. See, e.g., Heartland Environmental Council, Inc. v. Department of Community Affairs et al., DOAH Case No. 94-2095GM (DOAH Oct. 15, 1996, DCA Nov. 25, 1996), 1996 Fla. Div. Adm. Hear. LEXIS 3152 at *49 ("[a party] is bound by the allegations in its Petition for Hearing as to the alleged deficiencies in the [rule], as further limited by the Prehearing Stipulation filed in [the] case")(Emphasis added). Among other things, the stipulation contains a concise statement of the nature of the controversy, a brief statement of each party's position, a list of each party's exhibits and witnesses, facts admitted or requiring no proof at hearing, issues of law upon which there is agreement, issues of fact which remain to be litigated, and issues of law which remain for determination. The issues of fact which remained for determination included "[w]hether FPL's proposal for an allocation system without the fuel adjustment factors in the Challenged Provisions constitutes a lower cost alternative that will substantially accomplish the statutory objectives." The parties likewise stipulated that under Section 120.54(1)(d), Florida Statutes, the Department "is required to adopt the least-cost regulatory alternative that substantially accomplishes the statutory objectives." Pre- Hearing Stipulation, paragraphs 15.c. and 16.c. Whether intentionally or through oversight, the document fails to include, explicitly or otherwise, the issue of whether the SERC was prepared in accordance with the requirements of Section 120.541, Florida Statutes. Therefore, the original allegation in the Petition was limited by the parties' Pre-Hearing Stipulation, and the issue was not preserved. Whether FPL's proposal constitutes a lower cost alternative that will substantially accomplish the statutory objectives? FPL contends the challenged provisions are invalid under Section 120.52(8)(f), Florida Statutes, because its alternative proposal imposes lower regulatory costs on FPL and substantially accomplishes the statutory objectives. Accepting the premise that FPL's two letters filed during the rule development process constituted timely-filed LCRAs within the meaning of the law, this contention must still be rejected since it is not supported by the more credible evidence. As noted earlier, the Department considered several alternative methodologies for allocating NOx allowances under CAIR, including: (a) using the heat input approach with the fuel adjustment factors adopted by EPA; (b) using a heat input approach with no fuel adjustment factors or differentiation between fuels; and (c) using an output approach, based upon the amount of fuel required to produce a unit of electricity. During this process, the Department's rationale for using the fuel adjustment factors changed. For example, it initially took the position that a lack of agreement among the parties on an alternative proposal justified the use of the EPA model. The Department finally concluded that the fuel adjustment factors allocated the pollution allowances in a more equitable manner. As is common with cap and trade programs, there are a variety of ways in which an individual utility or an individual EGU may meet the requirements of CAIR and the proposed rule. These options include the installation of control technology, the purchasing or banking of allowances, repowering or fuel switching, or a combination of these approaches. The decision on how best to comply will be made by each individual utility or facility owner, and depends on many factors. These factors include such things as cost, equipment availability, operational difficulty, unit dispatch, and the overall philosophy of the entity making the decisions regarding compliance strategy. Although some of the regulated entities in Florida have preliminary plans on how they intend to comply with CAIR, FPL has not yet settled on a definitive compliance strategy. During the course of the rulemaking, the Department was aware of some of the proposals and methods by which individual EGUs would achieve compliance. However, the Department did not have a final compliance plan for each company and EGU, and this information was not provided to the Department by all of the regulated interests. Even if the Department had requested such information, the compilation of the information would have been exceedingly time-consuming and expensive. Moreover, because the method of compliance is left up to the individual utility or regulated entity, even if this information had been provided, the Department would not have any way of ensuring that the proposed methodology ultimately would be implemented. As noted earlier, to assist with its economic analysis of the proposed rule, the Department retained Dr. Paul M. Sotkiewicz, an expert in economics and economic modeling, electric utility regulation, and emission trading in electricity markets. Dr. Sotkiewicz's primary role was to provide advice to the agency on the various schemes that were under consideration for allocating NOx allowances. During the rule development process, the Department concluded that some economic modeling should be performed to assist in the analysis. Dr. Sotkiewicz developed computer model programs to confirm that the allocation methodologies under consideration by the Department would not lead to a different overall compliance cost for the state, and to determine how the cost burdens among the affected utilities would change with the different allowance allocation schemes. Models do not provide a literal depiction of the real world and its attendant complexities, but models are nevertheless useful analytical tools. Factors to be considered when constructing a model include the availability of data to input into the model and the amount of computational complexity necessary to capture the issues being examined. Any modeling effort involves certain assumptions. Among the primary assumptions for the models in this case are that the utilities will follow optimizing behavior and act to minimize the cost of compliance with CAIR. For the models created by Dr. Sotkiewicz, pollution control technologies are assumed to be installed only when they become cost effective over the remaining time horizon of the models. As a result, some sources do not install pollution control technology immediately upon the effective date of the proposed rule, but rather at some future date. The models also assume no uncertainty and, as such, are perfect foresight models. Finally, the models assume no banking of allowances because of the computational complexity that banking would add and the limited time available to perform the modeling. Dr. Sotkiewicz testified that, even if the model accounted for banking, this issue would not have changed the outcome of his analysis. Dr. Sotkiewicz assumed a NOx allowance price of $2,500.00 in the models. He did not have the data, or the time to collect the data, from all affected sources in the 28 states subject to the CAIR program, which would have been necessary to construct an equilibrium model that determines the price of the allowances. However, this analysis had already been completed by EPA in its model. The $2,500.00 figure used by Dr. Sotkiewicz was a conservative estimate because it is high enough to represent a reasonable "worst case" scenario for the allowance price. This amount also is the midpoint of the range of $1,500.00 to $3,500.00 used by FPL in its analyses. Dr. Sotkiewicz's models assumed that oil and gas steam generating units would only install selective catalytic reduction technology or selective non-catalytic reduction technology to reduce NOx emissions. This approach is consistent with the approach taken by EPA in its analyses. Natural gas combustion turbines could install selective catalytic reduction, selective non-catalytic reduction, dry low NOx burners, water injection technology, or a combination of these emission controls. Control efficiency information was derived from the data published by the United States Energy Information Administration, publications from the United States Department of Energy, and EPA modeling data. The models required input on future utility demand growth. This information was obtained from the Department and the ten-year site plans submitted to the Florida Public Service Commission (PSC) by the electric utilities. Dr. Sotkiewicz assigned a certain generation rate for each of the EGUs using historical data from the year 2004 as a base for existing units and using information from the Department for new units not yet in service. Fuel usage for each EGU was assumed to be in the same proportion as it was during the years from 2000 to 2004. The same time period was used to estimate EGU efficiencies. The models compared a number of different scenarios, including the allocation methodology in the challenged provisions and the methodology proposed by FPL (heat input without fuel adjustment factors). The model showed that when optimizing behavior is present, that is, allowing EGUs to install pollution control technologies as well as engaging in transactions in the emission trading market, the emissions will be the same under both allocation schemes. This result is also supported by general economic theory without the models. Based on his experience with emissions trading markets and his modeling, Dr. Sotkiewicz established that the method of allocating NOx allowances "will have no effect on the ultimate emissions outcome, will have no effect on which [pollution control] technologies will be installed by particular generating units, and will not lead to any differences in overall compliance costs." Dr. Sotkiewicz's model demonstrates that the overall cost of compliance with CAIR will be the same under either allocation methodology for distributing NOx allowances. This conclusion is consistent with EPA's determination that the method of distributing NOx allowances will not affect the environmental impact of the CAIR program or the economic cost of compliance. There will be variations in the costs to individual utilities, depending upon what scheme is adopted and what assumptions are made as to the compliance methodology. The overall cost of compliance, however, will not be reduced by FPL's proposal. FPL criticized the models because they do not account for all of the site-specific information held by FPL and other utilities. One advantage of emissions trading, however, is that the Department and other regulators do not need to know the specific costs of controls for individual utilities. FPL complained that the cost of pollution control equipment will be greater than the values used in Dr. Sotkiewicz's models. Even if this assertion is true, however, it does not change the "overall qualitative results [of the model] that the allocation scheme will not affect overall costs." In its Petition, FPL also raised the issue of whether certain transaction costs associated with the compliance decisions for utilities had been taken into account in the Department's modeling. The transaction costs include such things as broker fees for allowances and trades, and costs associated with planning, engineering, and construction in cases in which control technology is to be installed. Dr. Sotkiewicz explained that these transaction costs will not affect the overall cost of compliance in this case. Utilities preparing to comply with the proposed rule will undertake many of these costs, regardless of the allocation scheme, and by the time the program is in effect, those costs will have already been expended. Brokerage fees and the like are generally incurred per allowance transaction. The empirical evidence gathered from the sulfur dioxide trading program administered by EPA suggests that transaction costs have not been a factor at all in the decisions made by utilities to participate in the market or in their trading activity in the market. FPL's expert (Dr. Landon) testified that the method of compliance could be affected by the treatment a utility could expect to receive from the PSC for the costs expended. He testified that one could not assume the PSC would approve such expenditures as being "prudent" and provided examples of several types of transactions in which the utility's prudence may be called into question. However, the testimony from other FPL witnesses made it clear that the cost recovery process at the PSC is ongoing, that the PSC is kept informed of the decisions as they are made by FPL, and that those costs are pre-approved by the PSC. FPL acknowledged that it did not know of any instance in which costs expended in this manner were not authorized to be recovered. Moreover, the Department met with PSC staff during the rulemaking process to reassure them that the cost recovery information that was then being submitted was legitimate, even though the rule was not yet adopted, and the time to comply would be short. The testimony of FPL's other witnesses discredits Dr. Landon's concerns about this issue. Dr. Landon further opined there will be an increase in the total CAIR compliance costs if, hypothetically, there is no trading of NOx allowances. Dr. Landon admitted his hypothetical involved an "extreme" scenario because it is undisputed that trading will occur under CAIR, as it does under the existing trading programs for NOx and SO2. FPL witness LaBauve confirmed that FPL favors the CAIR cap and trade program, and FPL has observed that other such systems have worked effectively. On cross-examination, Dr. Landon conceded that he had not quantified the actual CAIR compliance costs that will be incurred under realistic conditions. Further, Dr. Sotkiewicz explained that Landon's "no trading" hypothetical was based on assumptions reflecting a "command and control" regulatory regime, which would be expected to have higher compliance costs than the cap and trading system proposed by the Department. Although Dr. Landon was critical of the Sotkiewicz models, he did not perform any modeling himself because it would be time-consuming and expensive. He further questioned the assumptions used by Dr. Sotkiewicz concerning perfect foresight, perfect competition, and no transaction costs. The record demonstrates, however, that the assumptions used by Dr. Sotkiewicz are reasonable and appropriate. Dr. Sotkiewicz used the same assumptions that EPA used in its model. Even Dr. Landon acknowledged that the EPA model is an appropriate model for use in this case. The purpose of CAIR is to reduce the emissions of certain pollutants by imposing a statewide cap on those emissions. The EPA's cap operates as an allocation of NOx allowances to the individual states. Each state must distribute the allowances among the affected utilities and entities in accordance with one of the allocation methodologies available. The individual regulated entities are then free to decide for themselves how best to comply with the cap on each EGU, in accordance with their own goals, objectives, and decision-making processes. Each individual entity may approach the decision- making process differently, but the factors that generally are considered in this process appear to be the kinds of factors that would be considered by all such entities. Nevertheless, each entity will make voluntary decisions on what is best for it and its customers. These voluntary decisions are generally unaffected by the allocation scheme for allowances because the decisions are based on multiple considerations, such as the regulated entity's individual projections about the cost and availability of NOx allowances in the market, the cost of construction and the availability of construction workers and materials for pollution control systems, and the general philosophy of the entity with regard to its tolerance for risk. A utility with a high tolerance for risk may choose a path that is more uncertain and perhaps less costly, while one with a lower tolerance for risk would opt for more certainty. These voluntary decisions may well affect the cost of compliance for each individual utility. Although FPL criticized the assumptions used by Dr. Sotkiewicz in his model, it represents a good faith estimate by the Department of the economic impacts associated with the proposed rule. Even if the model results are not precisely accurate, the results provided useful information to the Department. Moreover, even if the model results are disregarded entirely, thirty years of experience with emission trading programs and general economic theory demonstrates that the allocation of allowances in a fixed baseline trading system, like the one proposed by the Department, will not affect the overall cost of compliance with the proposed rule. For all of these reasons, FPL's proposed allocation methodology does not constitute a lower cost alternative in this case. g. Whether the SERC Complies with the Law? For the reasons stated above, the issue of whether the SERC complies with the law has not been preserved. That issue, as originally framed by FPL, is whether the Department's SERC fails to satisfy the requirements of Section 120.541(1)(b) and (2)(c), Florida Statutes, because the Department failed to adopt FPL's alternative method or include a statement of the reasons for rejecting that alternative in favor of the proposed rule, and it failed to provide a good faith estimate of the transactional costs that would be incurred by regulated persons or entities in complying with the rule's requirements. Assuming arguendo that the issue is viable, in both the initial and revised SERCs, the Department summarized all of FPL's objections to the use of fuel adjustment factors for allocating allowances, and in the revised SERC gave a statement of the reasons for rejecting FPL's proposal. While the reasons for rejecting that proposal are admittedly brief, and they differ with the views advocated by FPL throughout the rule development process, the SERC concludes that the Department's modeling supports its allocation method by demonstrating that "the total cost of the proposed regulation for 2009-2021 for all utilities is the same under DEP's proposal and under the unadjusted heat input allocation proposal [of FPL]." It goes on to state that while FPL's proposal would obviously reduce FPL's overall costs or financial burden to comply with CAIR, the Department (and EPA) method of allocation "would not result in lower costs for the entire regulation, and DEP rejects the alternative propos[al] by FP&L." Accordingly, the evidence supports a finding that the SERC considered FPL's LCRA and stated the reasons for its rejection. Finally, both the initial and revised SERCs include a section which contains a good faith estimate of the transactional costs likely to be incurred by individuals and entities who must comply with the rule. See Joint Exhibit 3, pages 15-18; Joint Exhibit 7, pages 15 and 16.
