Findings Of Fact Stella Neville, Inc. (Neville) is the owner of a 4.5 acre tract of land which abuts State Road (SR)905 on north Key Largo, Monroe County, Florida. On June 21, 1985, Monroe County entered a development order approving Neville's amended permit application to excavate and mine coral rock from its property. The Department, pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Adjudicatory Commission. The Subject Property: The Neville property is located in that portion of Monroe County designated as an area of critical state concern, Section 380.0552, Florida Statutes, and is part of a tropical hardwood hammock which extends several miles north and a substantial distance south on either side of SR 905. To the immediate east, south and west of the Neville property, however, there has been some man-induced alteration of the topography. The Neville site is bounded on the east by SR 905;2 on the southwest by a 9-acre tract owned by Keystone Products, Inc. (Keystone), which is currently being quarried for coral rock; and to the west by a 60-acre trace of land, known as the "West Cappeletti Pit", which contains a large abandoned borrow pit dug to depths of up to 60 feet. With the exception of the west Cappeletti Pit and the Keystone quarry, the area west of US 9052 stands predominately undisturbed by humans. About 1970, however, the Neville property was disturbed by fire. Consequently, the tropical hardwood hammock community is presently characteristic of a successional hammock, as opposed to a mature hammock, with a dense understory of immature trees3 On site vegetation includes: Jamica Dogwood, Gumbo Limbo, Poisonwood, Spanish Stomper, Wild Lime, Bamboo, Lancawood, Crabwood, and Mahogany. While the successional hammock, which occupies the Neville site, may not be considered as rare or unique because it has not yet reached maturity, it does provide needed habitat for the fauna of the area. The Key Largo Woodrat, an endangered species, inhabits the Neville site notwithstanding its preference for mature hardwood hammocks. Several active Key Largo Woodrat stick nests have been located on the site; with one located approximately 125 feet from the proposed quarry area. The site also provides habitat for the indigo snake, a threatened species, observed on site. The Neville Application: Neville's revised application, dated February 27, 1985, sought authorization from Monroe County to mine coral rock from the westerly 1.6 acres of its 4.5-acre tract to create a lake.4 Neville proposed to mine the rock to a depth of -10' MLW (mean low water) by use of a trenching machine capable of cutting block 3' square and 8' deep; no dynamiting would be necessary under Neville's proposal. At hearing, Neville agreed to limit the depth of its excavation to -8' MLW to ensure good sunlight penetration and, consequently, good water quality. The quarry proposed by Neville would measure 300' x 232'; contain a safety shelf 3' wide around the perimeter of the quarry at a depth of -1' MLW; and be bermed to a height of 1' above grade to prevent storm water runoff from entering the quarry's waters. Dug as proposed, the quarry would result in the removal of 39,000 cubic yards of coral rock. Neville does not, itself, propose to mine the property. Neville's application was filed by its ''agent" Keystone, which is currently mining the property which abuts Nevilles'. Keystone, as lessee, proposes to cut the blocks from the Neville site and truck them to its plant in Florida City where they would be custom cut to provide a coral rock veneer construction material. Monroe County's Approval: At a regular meeting of the Monroe County Board of County Commissioners on June 21, 1985, Monroe County approved Neville's revised application conditioned upon: . . . the full restoration of the property as outlined; that at the time of the restoration period, the County would be contacted and have the option of using this as a site for disposal of materials, that bonding of half the amount of the value of the fill that it would take to fill in the excavation site would be required, that the site would be mined in such a way that the second half of the proposed mine could not be mined until the first half was restored; that all endangered species taking permits or other State or Federal permits would be had before this was allowed to proceed, and that no more than three years after completion of the excavation, the site will be totally restored or the bond will be forfeited.5 Areas of Concern: The Department's appeal charged that the proposed project was a non-permitted use under Monroe County's GU-general use district, Section 19-180 Monroe County Code (MCC); that the permitting of the subject mine was contrary to Section 19-ill(b), MCC, Excavation and Mining Activities, because of the alteration of hydrologic regime, violation of water quality standards, destruction of tropical hardwood hammock, and disturbance of endangered species; that the proposed project was contrary to Sections 18-18, 18-19, 18-21, and 18-23, MCC, because no land clearing permit was received and the project would adversely impact natural resources, scenic amenities, water quality, and tropical hardwood hammock; and, that the proposed project was contrary to the Monroe County Comprehensive Plan, Coastal Zone Protection and Conservation Element, Chapter 4, because it failed to minimize the destruction of natural vegetation or to demonstrate special protective efforts for endangered species. Notwithstanding the Department 's charges, no party offered any part of the Monroe County Code or the Monroe County Comprehensive Plan in evidence. Therefore, only those portions of the Monroe County Code contained in paragraphs 7-9 of the Department's petition, which were admitted by Neville, are a part of the record in this case. The Neville property is zoned GU-general use. Section 19-180, MCC, provides: No land, body of water and/or no structure shall be used or permitted to be used, . in any zone of classification GU- general, which is designated, arranged or intended to be used or occupied for any purpose, except for one or more of the following uses, unless otherwise provided: Single family dwellings with their customary accessory uses. Agriculture uses. Clubs, including country, golf, gun and fish clubs or similar enterprises, and ranges. (4) Athletic fields and stadiums. (5) Power plants and sub-stations, water pumping stations, television, and radio transmission towers. (6) Fishing camps on isolated islands. Churches (two (2) acres). Horses: Horses may be kept only id a GU zone, on a minimum of one (1) acre. The area must be fenced, property drained and if a stable or other structure exists on the property it must meet all the building and setback regulations of Monroe County. Cemeteries, including crematories and mausoleums on a minimum of five (5) acres. An area of land set apart for the sole purpose of the interment of the remains of deceased persons and for the erection of customary markets [markers], monuments, and mausoleums. Monuments recognizing persons or points of historical interest (two (2) acres). And, Section 19-109, MCC, Interpretation of Permitted Uses, provides: In the administration and enforcement of this ordinance all uses not expressly permitted in any district are otherwise prohibited. Neville argues that simply because its property is zoned GU does not preclude issuance of the subject permit because excavation and mining activities within Monroe County are not restricted by zoning classification. To support its position, Neville asserts that the provisions of the Monroe County Code which establish the criteria for evaluating applications for excavation and mining permits do not require any specific zoning category, and that Monroe County has interpreted its code to allow excavation and mining activities in all zoning classifications. The record does not support Neville's assertion. The only part of the Monroe County Code dealing with excavation and mining permits of record in this proceeding is the following portion of Section 19-111, MCC: (b) Excavation and Mining Activities * * * Upland permit application. Application for a permit to excavate within upland areas, as defined above, with a proposed volume greater than one thousand (1,000) cubic yards shall be approved or denied by the board of county commissioners . Consideration, will be given to the county staff's comments and reports which will account for the effects to the natural biological functions and communities within the proposed site, and to the physical aspects of drainage and water quality within the proposed area of excavation. Mining permit application. Applications for a permit to conduct mining operations within Monroe County shall adhere to the following: * * * (b) A topographic map of the area signed by a professional engineer or land surveyor shall be submitted. (Emphasis added) From the foregoing provision, the conclusion cannot be drawn that excavation and mining activities may be permitted without regard for the zoning classification of the property. The only evidence of record that Monroe County may interpret its code as permitting excavation and mining activities in a GU-zone is the fact that the properties encompassed by the West Cappeletti Pit and the Keystone quarry are currently zoned GU.6 There is no evidence, however, which would demonstrate when those activities were permitted and what zoning ordinances or classifications were in effect when permitted. Accordingly' the existence of such quarries does not support Neville's contention. With the exception of the matters discussed in paragraphs 14 and 15, supra, Neville presented no evidence that Monroe County permitted mining and excavation in any zoning category or that Monroe County interpreted its code to permit such activities. Based on the evidence presented, Neville has failed to establish that its proposed mining and excavation activity is consistent with the land development regulations applicable to this case. In light of the foregoing conclusion, it is unnecessary to pass upon the impacts of the proposed project on the area's hydrologic regime, water quality, tropical hardwood hammocks, endangered species, or to evaluate Neville's mitigation proposals.
Findings Of Fact The Respondent, Darell L. Treadway currently holds contractor's license number RP 0027269 and serves as qualifying agent for Treadway Pools and Concrete, 415 South Palmetto Avenue, Daytona Beach, Florida. (Petitioner's Exhibit II) On June 6, 1979, Chester Webb, 1548 Culverhouse Drive, Holly Hill, Florida, entered into a contract with Almo Pools of Florida, Inc., 609 Turnbull Bay Road, New Smyrna Beach, Florida, for Almo to construct a 13' x 27' kidney shaped fiberglass pool for $4,840.00. (Petitioner's Exhibit I) A $484.00 deposit was paid to Respondent Treadway on June 21, 1979, and on June 26, 1979, a building permit for the pool was obtained by Treadway Pools. (Petitioner's Exhibits I and II) Mr. Webb paid Respondent Treadway $4,684.00 toward completion of the pool. He refused to pay the $242.00 due on completion under the terms of the contract because of numerous problems with the pool including a broken drain, malfunctioning switch box timer, leaking pipes, defective filter and debris left at the site by workmen. (Testimony of Webb; Petitioner's Exhibit III) On August 23, 1979, Clyde Pirtle, Investigator, Department of Professional Regulation discussed the Webb pool with the Respondent who was informed by Pirtle that Almo Pools of Florida, Inc. was not licensed with the Board. (Petitioner's Exhibit III) Investigator Pirtle mailed change of status forms to the Respondent to qualify Almo Pool's but the forms were never completed and returned. (Petitioner's Exhibit III) At Investigator Pirtle's request, the Respondent agreed on August 23, 1979, to correct the problems with Mr. Webb's pool but thus far has failed to do so. In addition to repairing minor problems, Mr. Webb found it necessary to replace the pool filter. (Testimony of Webb) On August 29, 1979, the Respondent Treadway acting as agent for Almo Pools of Florida, Inc. entered into a contract with Donald Bird, 227 East Burn Drive, Orange City, Florida, to construct a 14' x 36' fiberglass pool with a 47' x 32' screen enclosure for $9,425.00. (Petitioner's Exhibit IV) The Respondent was paid $5,642.00 and on September 10, 1979, began installation of a fiberglass shell. (Testimony of Bird) While installing the pool, workmen who were attempting to level its bottom and sides cracked one side of the pool. (Testimony of Bird) The Respondent agreed to repair the crack and in October, 1979, returned to the site, repaired the crack and back-filled around the pool. (Id) No other work was done on the filter system or screen enclosure. Mr. Bird spent approximately $12,500.00 to finish the construction of his pool and patio. (Id) Mr. Bird's pool still has problems including discoloring, cracking and leaking. (Id) The Respondent Treadway failed to obtain a permit for the construction of the Bird's pool from the Volusia County Building Department and, accordingly, no permit for this project was ever obtained. (Testimony of Barrett) The Respondent failed to place his state registration number on the face of his contracts with Webb and Bird. (Petitioner's Exhibits I and IV)
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Construction Industry Licensing Board enter a final order revoking the registration of Darell L. Treadway as a state registered contractor. DONE and ORDERED this 21st day of July, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1981. COPIES FURNISHED: Drucilla Bell, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Darell L. Treadway 415 South Palmetto Avenue Apartment Number 5 Daytona Beach, Florida 32015
The Issue The issue to be resolved in this proceeding concerns whether Jim Vandergrifft, the Respondent, as mayor of the City of New Smyrna Beach, voted on a matter which inured to his special private gain in violation of Section 112.3143(3), Florida Statutes, by voting to postpone a vote on Proposed City Ordinance 43-05. If enacted, the ordinance would have established an "historic architecture overlay district" by amendment to local land use regulations.
Findings Of Fact Jim Vandergrifft was the Mayor of New Smyrna Beach at times pertinent to this case. He had been mayor from 1995 through 2007, and prior to that time served as a city commissioner from 1988 to 1995. He is subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. A proposed city ordinance came before the New Smyrna Beach City Commission for a vote, as proposed ordinance number 43-05. The vote was to be taken on February 14, 2006. The Respondent voted to postpone enactment of the ordinance which was designed to amend local land development regulations by establishing an historic architectural overlay district. It applied to a certain described territory within the City of New Smyrna Beach. The purpose of the ordinance was to ensure that new construction and renovations of current structures within that historic overlay district would adhere to strict building guidelines intended to maintain the historic character of the area, by following historic design standards of the City of New Smyrna Beach. The guidelines concerning building and remodeling structures in the historic district of New Smyrna Beach were voluntary prior to the proposal of ordinance 43-05. The ordinance was never enacted, however, so the guidelines for building and remodeling in the subject territory in the City of New Smyrna Beach remained voluntary. At the time of the vote on February 14, 2006, the Respondent had a pending contract for the purchase of property located at 115 Washington Street, New Smyrna Beach, Florida. The property was located in the area to be affected by the above-referenced proposed ordinance. At the time of the vote on February 14, 2006, the property was under contract and was not actually in the title ownership of the Respondent. He closed his purchase of the property and completed it on February 15, 2006. At the time of the purchase a dilapidated 15-room hotel was located on the property. The hotel was in very bad condition. The roof was in the process of collapse and it was dangerous to walk on the second floor for risk of falling through. The wiring was antiquated and in poor condition, and the building had no central heating system. At the time of the vote on February 14, 2006, the Respondent owned his personal residence, also located in the area affected by the ordinance. Because his residence was new it would not have affected by the subject architectural standards ordinance. Mr. Vandergrifft disclosed that he lived in his residence and owned other property in the district, encompassed by ordinance 43-05, at the city commission meeting of February 14, 2006. The Respondent did not abstain from voting on that date, but publicly disclosed that he lived downtown and owned other properties in the affected area. The Respondent had sought advice from the city attorney prior to the vote on February 14, 2006, concerning whether he would have a voting conflict if he voted on the ordinance. He told the city attorney that he lived in and had other property in the district to which the ordinance would apply if enacted. He did not actually inform the city attorney of his impending purchase of the property located at 115 Washington Street (the hotel site). The city attorney advised him that as an elected official he had an obligation to vote on the ordinance. According to the city attorney's testimony the Respondent indicated that he lived downtown and had other property in the area of the ordinance's applicability and inquired whether he could vote on the ordinance. Based on his understanding of the district covered by the ordinance, the city attorney advised Mr. Vandergrifft that he could vote on the matter. The city attorney reasoned that under existing law, Mr. Vandergrifft's ownership interest was less than one percent of the properties being affected by the vote, therefore Mr. Vandergrifft could vote on the ordinance. According to the city attorney's testimony: ". . . practically every land use vote that a member of the governing body makes could affect that person's property one way or the other. But, they're . . . required to live in the city to qualify for office . . . so obviously their votes affect their property. The question is whether it is a special private gain." The proposed ordinance 43-05 would have affected 522 parcels of property within its territorial area. If the Respondent had an ownership interest in two properties, his residence and the property at 115 Washington Street (the hotel) his interest would only constitute .37 percent of the total parcels affected by the ordinance, obviously less than one percent of the total parcels affected. In fact, as of the date the postponement vote on the ordinance was taken, he did not actually own the hotel property. It was under contract to be sold to the Respondent but the closing and final performance of the contract did not occur until the day after the city commission meeting at which the postponement was voted. In any event, Mr. Vandergrifft's ownership in the territorial area of the proposed ordinance amounted to less than one percent, at most, of the total affected parcels. Therefore, in the opinion of the city attorney a voting conflict did not exist. Although the Respondent did not inform the city attorney of the impending purchase of that specific piece of property, he did inform him that he owned his residence and "other property" in the area affected by the proposed ordinance. The city attorney would not have changed his legal advice as to whether the Respondent could vote on the ordinance if he had known of the specific impending purchase of the property at 115 Washington Street. The Respondent purchased the property at 115 Washington Street with the intention of renovating it. After having architects examine it, however, including a renovation architect, and having it inspected by members of the city staff, it was determined by all concerned, including the city building inspector, that the property should be demolished. It was deemed beyond repair and a liability. The renovation architect believed that there was no feasible way to renovate the building and so the Respondent requested approval to demolish the structure. Ultimately approval was granted by the city and the old hotel structure has now been demolished, as of October 2007, approximately one and one-half years after the property was purchased by the Respondent. The demolition of the hotel building was accomplished in accordance with the "Historic Building Demolition Ordinance." Pursuant to that ordinance the hotel was a "contributing structure" in the National Register Historic District. If the subject proposed ordinance had been enacted, demolition of the hotel building would have still have been possible. There were no differences in the actual approval process of the Historic Preservation Commission with respect to the proposed demolition either with or without enactment of the proposed ordinance at issue. Several conditions were attached to approval of the demolition of the hotel building, as allowed for by the "Historic Building Demolition Ordinance." The Respondent agreed to these conditions, one of which was that a site plan for reconstruction be completed and approved, based upon historic overlays. The procedures voluntarily followed by the Respondent in demolition of the hotel, and obtaining the site plan approval by the Historic Preservation Board and the City Building Department, although pursuant to non-mandatory guidelines, were essentially the same as they would have been if the mandatory standards of the proposed ordinance had been enacted. A Real Estate Broker, Mr. Floyd Fulford, established that, based on Multiple Listing Service Reports, four properties in the district covered by the proposed ordinance, were sold during February of 2006. However, property sold by owners without the use of a realtor are typically not shown in the multiple listing service, a service to which realtors have access. According to the Volusia County Property Appraiser's data base, as described by Mr. Fulford, 166 properties were sold in the entire 32168 zip code area, which is the mainland side of the City of New Smyrna Beach. There may have been other sales in February 2006 occurring in the beachside area of New Smyrna Beach. Mr. Fulford was not aware of whether or not these properties were located in the Historic Overlay District at issue.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Ethics finding that the Respondent, Jim Vandergrifft, did not violate Section 112.3143(3)(a), Florida Statutes. DONE AND ENTERED this 17th day of November, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 17th day of November, 2008. COPIES FURNISHED: Kay Starling, Agency Clerk Florida Commission on Ethics 3600 Macclay Boulevard, South Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, Executive Director Florida Commission on Ethics 3600 Macclay Boulevard, South Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Jennifer M. Erlinger, Esquire James H. Peterson, III, Esquire Advocate for the Commission on Ethics Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Mark Herron, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Post Office Box 15579 Tallahassee, Florida 32317
The Issue The ultimate issues to be resolved in this proceeding are whether the Florida Land and Water Adjudicatory Commission should grant or deny permission to Key Large Investors, Inc., to develop and what, if any, conditions and restrictions should be attached to development approval or denial. The Department of Community Affairs contends that Monroe County improperly approved the preliminary development plan and final development plan because the plans did not comply with the requirements of local ordinances and rules of the Florida Administration Commission and that the development plans were inconsistent with the Monroe County Comprehensive Plan. Key Large Investors, Inc., contends that the appeal should be dismissed because it was not filed within the required time limits, that the Department of Community Affairs is estopped from maintaining the appeal, and that the development comports with local and state criteria. The Florida Audubon Society agrees with the contentions of the Department of Community Affairs, and Monroe County agrees with the contentions of Key Largo Investors, Inc.
Findings Of Fact Key Largo Investors, Inc. ("KLI" hereafter), owns approximately 129.2 acres of land in North Key Largo, Monroe County, Florida. The property is approximately three miles south of "Card Sound Road" and 5.5 miles north of U.S. Highway 1. It is divided by State Road 905; 84.5 acres of the parcel lying to the east of the highway, and 44.7 acres to the west. The property is within the Florida Keys Area of Critical State Concern. KLI is proposing to develop a residential and marina project on the property to be known as "Carysfort Yacht Club." The Department of Community Affairs is the state land planning agency designated to undertake statewide comprehensive planning. Members of the Florida Audubon Society participate in fishing, nature study, scientific research, and other such activities in the immediate vicinity of the proposed project. Members of the Society believe that the proposed development would adversely affect their interests by eliminating, disturbing, or otherwise adversely affecting their ability to engage in such activities. The proposed project lies within Monroe County, Florida. Monroe County is the local government agency which issued the development order respecting the proposed development. KLI filed an application with Monroe County for preliminary development plan approval for the Carysfort Yacht Club The staff of the Monroe County Planning and Zoning Board reviewed the plans and other submissions, and the Board conducted a public hearing on February 26, 1981. The Board took no action at that time, but continued the matter until a meeting conducted on March 27, 1981, so that KLI could provide additional information. On March 27, the matter was again continued. A public hearing was conducted by the Planning and Zoning Board on April 24, 1981. In considering the application for preliminary development approval, the Planning and Zoning Board had KLI's application before it. The application included an "Environmental Designation Survey," a "Community Impact Statement," and additional documentation. At its April 24, 1981, meeting, the Planning and Zoning Board approved the preliminary development plan. The only condition imposed by the Board was a requirement that KLI back fill a marina that had been dredged on the site by a prior owner. The Board's order approving the preliminary development plan was never formally transmitted to the Department of Community Affairs. Personnel of the Department were aware of the decision, but had not been formally advised of it. KLI applied to the Monroe County Planning and Zoning Board for final development plan approval for Phase 1A of the proposed project. The Zoning Board met on February 25, 1982, and approved the plans through its Resolution MD 81-3-19. On March 9, 1982, a copy of this order was transmitted to the Department of Community Affairs. In accordance with the Monroe County Code, the Florida Keys Citizens Coalition appealed the Zoning Board order to the County Commission. On or about August 9, 1982, the County Commission denied the Coalition's appeal. Reconsideration was requested and denied on or about August 23, 1982. On September 24, 1982, the Department of Community Affairs filed an appeal with the Florida Land and Water Adjudicatory Commission. These proceedings ensued. The preliminary development plans initially submitted to the Monroe County Planning and Zoning Board provided for approximately 700 dwelling units on both sides of State Road 905. While it is not clear from the documents, it appears that the Planning and Zoning Board intended to approve only those portions of the preliminary development plans that provided for development on the east side of the roadway. KLI has, for now, abandoned plans to develop on the west side of the roadway. The plans provide for construction of a total of 512 dwelling units on the 84.5 acres lying to the east of State Road 905. KLI is proposing to develop the project in three stages -- 203 dwelling units would be constructed during Phase 1, 188 units during Phase 2, and 121 units during Phase 3. In its application for final development plan approval which generated this proceeding, KLI is seeking approval to develop a substage of Phase 1, which it has designated Phase 1A. The KLI property which lies to the east of State Road 905 borders on the Atlantic Ocean. The land had been cleared and partially developed before KLI purchased it. A harbor and an upland lake had been dredged. In Phase 1A of the development, KLI is proposing to construct 31 dwelling units along the Atlantic Ocean adjacent to the harbor. The plans also provide for constructing roadways and parking facilities, drainage structures, sewage treatment structures, a water distribution system, and recreational amenities. Neither the preliminary development plans nor the final development plans for Phase 1A explicitly provide that the developer will bear the cost of the infrastructure (roadways, water distribution systems, wastewater treatment facilities, and recreational amenities) of the development. The development plans, however, appear to assume that the developer would maintain these costs. At the time that KLI purchased this property, the portion of the property to the west of State Road 905 was dominated by a native hardwood hammock. Approximately 8 acres of the property to the east of State Road 905 were dominated by such a hammock. KLI, or someone acting on its behalf, illegally cleared a portion of the hammock on the west of State Road 905. It will take more than 10 years for the hardwood hammock to reestablish itself completely, but that process is now occurring. Of the approximately 8 acres of hardwood hammock that remain on the east of State Road 905, KLI proposes to ultimately clear all but approximately 1 1/2 to 2 acres. That remaining hammock would be divided by an access road. It does not appear that clearing the hardwood hammock on the east side of State Road 905 is a necessary portion of Phase 1A of the development. There are two small wetland communities on the site to the east of State Road 905 which KLI proposes to preserve in a natural, although diked, condition. Hardwood hammocks such as exist in the Florida Keys Area of Critical State Concern are unique in North America. There is a long history of these terrestrial, botanical communities being diminished. Only a small portion of hardwood hammock area that was originally in the Keys remains. The finest examples of these communities that remain in the Florida Keys, and indeed in North America, are on Key Largo. Such communities serve numerous beneficial and environmental functions. They serve to retain soils, limit discharge of pollutants into surrounding water bodies, support wildlife communities, and protect wetlands from upland areas. Preservation of hardwood hammocks is aesthetically important, but is also important to protecting the environment of the Keys. The hammock areas provide food and shelter for a wide variety of animals, birds, and plants. At least 14 species of endangered, threatened, or rare species or species of special concern were observed on the project site. In addition, 7 species of birds that are either threatened, rare, or species of special concern; and 2 species of reptiles that are threatened are known to make use of the site for habitat. The portion of the property to the west of State Road 905 forms a part of the very limited habitat that exists for crocodiles in North America. Development of the KLI property can be accomplished in such a manner as to minimally impact the important hardwood hammock and wetland areas. KLI does propose to leave wetland areas undisturbed. If the hardwood hammocks were also left undisturbed, threatened and endangered wildlife species could continue to use the site as habitat, and the various beneficent environmental functions that hardwood hammocks perform would not be KLIminated. To accomplish these ends, the portion of the property to the west of State Road 905 should not be developed. The hardwood hammock areas that have been illegally cleared should be allowed and encouraged to reestablish themselves. The hardwood hammock areas that still exist to the east of State Road 905 should not be disturbed. Roadways and other structures should be reconfigured so as to not cross the hardwood hammock areas, and they should not be cleared. The harbor and upland lake that presently exist on the KLI site were constructed prior to KLI purchasing the site. The harbor was constructed in such a manner -- it is much too deep -- that it causes adverse water quality consequences in surrounding waters. As a condition for receiving approval of its preliminary development plans, KLI agreed to back fill the marina so that adverse water quality impacts would be reduced. KLI has pursued a permit to accomplish this operation from the Department of Environmental Regulation. The permit has been issued. If the back filling of the marina is not accomplished in conjunction with the proposed development, the adverse water quality consequences of the marina will be increased because more boat traffic will be brought to the marina as a result of development. As a part of its overall development plans, KLI proposes to construct docks in the presently existing upland lake and to provide access for boats docked in the lake to the harbor through some sort of tram system. The developer also proposes to construct two additional upland lakes on the east side of State Road 905. These construction activities are not a part of Phase 1A of the proposed development. Utilizing the present upland lake as a docking facility and constructing two new upland lakes is likely to have adverse water quality consequences. Even if properly vegetated, it would be difficult to maintain good water quality in the lakes. water in the lakes interacts with surrounding water bodies through groundwater percolation. Therefore, surrounding water bodies and groundwater in the area are likely to be adversely impacted. The preliminary development plans do not include an explanation of how water quality in these upland lakes will be maintained. Without such assurance being provided, development of the upland lakes should not be approved. KLI has plans to make a considerable expenditure to revegetate developed areas. KLI has told local zoning officials that it will revegetate the area with native species so that minimal fertilization will be required and so that the character of the area will be maintained. While there have been such statements made, it does not appear that any clear requirement to that effect has been imposed on KLI. It is appropriate that KLI's revegetation plans be required to utilize native vegetational species. KLI has invested considerable sums of money in obtaining the property and in paying for professional engineering, architectural, and legal services. After Monroe County approved its preliminary development plans, KLI changed its financing arrangements in order to obtain additional money for planning and initial development efforts. The change in financing arrangements was less advantageous to KLI from the perspective of KLI backing out of the project if for any reason development does not occur. It appears that the decision to restructure the financing was made in part based upon a statement made by an attorney who worked for Monroe County. There is no evidence from which it could be concluded that any official of the Department of Community Affairs or of the Florida Land and Water Adjudicatory Commission made any representation of any kind to KLI or any of its representatives, neither does it appear that the attorney had actual or apparent authority to bind even Monroe County to any course of conduct. It does not appear that the development proposed by KLI would adversely impact the provision of government services or require that any public facilities be expanded. Local officials appear assured that presently existing roadways, solid waste facilities, freshwater supplies, schools, and recreational facilities will not be overburdened as a result of the development. No evidence was presented at the hearing from which it could be concluded that the proposed project, either itself or in combination with other proposed projects, would unduly burden such public facilities. The Department of Community Affairs has asserted that the procedures followed by the Monroe County Planning and Zoning Board and by the Board of County Commissioners of Monroe County do not comport with requirements of law. To the `extent that any such failures have been established, there is no evidence from which it could be concluded that either the fairness of the proceedings or the correctness of the action taken by local government officials was in any way impaired by the errors. It does appear that all persons who wished to address the local zoning board and the local board of county commissioners were not allowed as much time to make presentations as they desired. It does not, however, appear that local officials prevented anyone from making presentations about the proposed project. The Department has asserted that the proposed development could adversely impact the John Pennekamp recreation area, which is located nearby. It does appear that the project would generate more boating activity in the region and that boating activity is potentially injurious to the dKLIcate reef ecosystems located underwater at Pennekamp. Increased boating activity at Pennekamp is being generated from numerous sources, including from the recreation area itself. Additional activity as a result of the proposed project would be negligible. Monroe County has adopted its Ordinance No. 21-1975, which pertains to the regulation of major development projects in Monroe County. The ordinance has been codified into Article VII (Sections 6-221 through 6-245) of the Monroe County Code. The County has also adopted a comprehensive plan which includes provisions relating to preservation of beaches and shorKLInes, and trees and vegetation. The Florida Administration Commission has adopted rules relating to developments in the Florida Keys Area of Critical State Concern. See: Rules 27F-8 through 27F-14, Florida Administrative Code.
The Issue The issue in this case is whether the amendment to the Lee County Comprehensive Plan adopted by Ordinance No. 05-20 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2005),1 for the reasons set forth in the Petition for Formal Administrative Hearing and Statement of Intent filed by the Department of Community Affairs ("the Department").
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. Lee County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Leeward is a Florida limited liability company that owns a portion of the real property that is the subject of the amendment at issue. The Amendment The amendment would change the future land use designation for 41.28 acres in the northeast quadrant of the Interstate 75 (I-75)/State Road 80 (SR 80) interchange from General Commercial Interchange to Urban Community, as shown on the FLUM. The General Commercial Interchange land use is described in the County Plan as “intended primarily for general community commercial land uses: retail, planned commercial districts, shopping, office, financial, and business.” It does not allow residential development. The Urban Community land use provides for a mix of residential, commercial, public, quasi-public, and limited light industrial uses. The standard density range for residential uses in the Urban Community category is one to six dwelling units per acre (du/a). The 41.28 acres affected by the amendment ("the amendment site") consist of 19.28 acres of lands along the Orange River owned by Leeward, a platted subdivision known as Dos Rios of approximately 11 acres, and the remaining acreage consists of right-of-way for SR 80 and I-75. Currently operating on Leeward's property is a vessel repair facility, a marina with wet and dry slips, and an ecotourism company. Leeward also has its office on the site. The Dos Rios subdivision includes 26 single-family lots. Apparently, only a few of the lots (the number was not established in the record) have been developed. Because residential land uses are not allowed in the General Commercial Interchange category, the Dos Rios lots were non-conforming uses. Maximum Allowed Density The County Plan provides residential density bonuses to promote various County objectives, such as the provision of affordable housing. With density bonuses, lands designated Urban Community can boost their density to a maximum of ten du/a. There was testimony presented by Leeward that the County has not often approved applications for density bonuses. Even if the practice of the County in approving density bonuses were relevant, the practice can change. It is reasonable for the Department to consider the maximum intensity or density associated with a future land use designation when determining whether a FLUM amendment is in compliance. Therefore, in this case, it is reasonable to consider the Urban Community land use designation as allowing up to ten du/a. The Department asserts that the amendment would allow the 41.2 acres affected by the amendment to have a total of 412 dwelling units (41.2 acres x 10 du/a). Leeward disputed that figure because the 41.2 acres includes road right-of-way and the Dos Rios subdivision. A hearing officer appointed to review a Lee County development order recently determined that right-of-way external to a development should not be included in calculating allowable units, and the County accepted the hearing officer's recommendation based on that determination. The definition of "density" in the County Plan supports the determination.2 Therefore, for the purposes of this case, the right-of-way in the northeast quadrant should not be included in calculating the maximum residential density that would result from the amendment. On the other hand, Leeward's argument that the Dos Rios subdivision acreage should not be included in the ten du/a calculation is rejected. For the purposes of an "in compliance" determination, it is reasonable for the Department to apply the maximum potential densities to all developable and re- developable acreage. Using 29 acres as the approximate acreage affected by the amendment when road right-of-way is subtracted, the amendment would create the potential for 290 residences in the northeast quadrant of the interchange. Adoption of the Amendment The amendment was initiated as part of the County's reexamination of the existing land use designations in the four quadrants of the I-75/SR 80 interchange. Following the County planning staff's completion of a study of the entire interchange, it recommended several changes to the County Plan, but no change was recommended for the northeast quadrant. Apparently, the amendment at issue was urged by Leeward, and, at a public hearing held on June 1, 2005, the Board of County Commissioners voted to adopt the amendment. Pursuant to Section 163.3184(6), Florida Statutes, the proposed amendment was forwarded to the Department for an "in compliance" review. Following its review, the Department issued its ORC Report on August 19, 2005. In the ORC Report, the Department objected to the proposed amendment based upon what it considered to be inappropriate residential densities in the coastal high hazard area (CHHA) and floodplain. The Department recommended that the County not adopt the proposed amendment. On October 12, 2005, another public hearing was held before the Board of County Commissioners to consider adoption of the amendment. At the public hearing, the County planning staff recommended that the land use designation in the northeast quadrant not be changed to Urban Community "due to the potential increase in density in the Coastal High Hazard Area." Nevertheless, the Board of County Commissioners approved the amendment. Representatives of Leeward appeared and submitted comments in support of the amendment at the public hearings before the Board of County Commissioners. On December 16, 2005, the Department issued its Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance, identifying three reasons for its determination: (1) inconsistency with state law regarding development in the CHHA and flood prone areas, (2) internal inconsistency with provisions of the County Plan requiring the consideration of residential density reductions in undeveloped areas within the CHHA, and (3) inconsistency with the State Comprehensive Plan regarding subsidizing development in the CHHA and regulating areas subject to seasonal or periodic flooding. On January 5, 2006, the Department filed its petition for formal hearing with DOAH. Coastal High Hazard Area The Florida Legislature recognized the particular vulnerability of coastal resources and development to natural disasters and required coastal counties to address the subject in their comprehensive plans. [I]t is the intent of the Legislature that local government comprehensive plans restrict development activities where such activities would damage or destroy coastal resources, and that such plans protect human life and limit public expenditures in areas that are subject to destruction by natural disaster. § 163.3178(1), Fla. Stat. The statute also requires evacuation planning. Until 2006, the CHHA was defined as the "category 1 evacuation zone." § 163.3178(2)(h), Fla. Stat. In 2006, the CHHA was redefined as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model."3 Ch. 2006-68, § 2, Laws of Fla. The County Plan defines the CHHA as "the category 1 evacuation zone as delineated by the Southwest Florida Regional Planning Council." Map 5 of the County Plan, entitled "Lee County Coastal High Hazard Area (CHHA)," shows the entire amendment site as being within the CHHA. Nothing on Map 5, however, indicates it was produced by the Regional Planning Council. Daniel Trescott, who is employed by the Southwest Florida Regional Planning Council and is responsible for, among other things, storm surge mapping, stated that the Category 1 evacuation zone is the storm surge level for the worst case scenario landfall for a Category 1 storm. He stated that the Category 1 storm surge for Lee County was determined by the SLOSH model to be 5.3 feet. Mr. Trescott stated that the 5.3 foot contour (shown on Plate 7 of the Regional Planning Council's "Hurricane Storm Tide Atlas - Lee County") more accurately delineates the CHHA than Map 5 of the County Plan. Although Mr. Trescott's testimony suggests a conflict between the County Plan's definition of the CHHA and Map 5's depiction of the CHHA, the two can be reconciled by a finding that Map 5 is a gross depiction of the CHHA for general public information purposes, but the precise location of the CHHA boundary is the one delineated by the Regional Planning Council, and the latter is controlling. Using the 5.3 contour on the amendment site, Leeward's witness, Michael Raider, estimated that there are approximately 16 acres of the amendment site within the CHHA. Applying the maximum allowable residential density under the Urban Community land use designation (with bonuses) of ten du/a means the amendment would result in a potential for 160 dwellings in the CHHA. Florida Administrative Code Rule 9J-5.012(3)(b)6. and Rule 9J-5.012(3)(c)7., respectively, require each local government’s coastal management element to contain one or more specific objectives that "[d]irect population concentrations away from known or predicted coastal high-hazard areas” and limit development in these areas. The parties' evidence and argument regarding whether the amendment was "in compliance" focused on these rules and the following goal, objective, and policy of the County Plan related to the CHHA: GOAL 105: PROTECTION OF LIFE AND PROPERTY IN COASTAL HIGH HAZARD AREAS. To protect human life and developed property from natural disasters. OBJECTIVE 105.1: DEVELOPMENT IN COASTAL HIGH HAZARD AREAS. Development seaward of the 1991 Coastal Construction Control Line will require applicable State of Florida approval; new development on barrier islands will be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion will not be permitted; and allowable densities for undeveloped areas within coastal high hazard areas will be considered for reduction. POLICY 105.1.4: Through the Lee Plan amendment process, land use designations of undeveloped areas within coastal high hazard areas will be considered for reduced density categories (or assignment of minimum allowable densities where ranges are permitted) in order to limit the future population exposed to coastal flooding. In the opinion of Bernard Piawah, a planner employed by the Department, the amendment is inconsistent with the goal, objective and policy set forth above because these provisions only contemplate possible reductions of residential densities in the CHHA and there is no provision of the County Plan that addresses or establishes criteria for increasing residential densities in the CHHA. Population Concentrations As stated above, Florida Administrative Code Rule 9J-5.012(3)(b)6. directs local governments to include provisions in their comprehensive plans to direct population concentrations away from the CHHA. The term "population concentrations" is not defined in any statute or rule. The term apparently has no generally accepted meaning in the planning profession. The word "population" has the ordinary meaning of "all of the people inhabiting a specific area." The American Heritage Dictionary of the English Language (1981). The word "concentration" has the ordinary meaning of "the act or process of concentrating." Id. The word "concentrate" means "to direct or draw toward a common center." Id. In the context of Florida Administrative Code Rule 9J-5.012, the term "population concentrations" suggests a meaning of population densities (dwelling units per acre) of a certain level, but the level is not stated. Leeward argues that, because there is no state guidance on the meaning of the term "population concentrations," surrounding land uses should be examined to determine whether a proposed density would be "proportionate to its surroundings." According to Leeward, in order to be a population concentration, the density under review would have to be greater than the surrounding density. This comparative approach is rejected because the overarching Legislative objective is protection of life, which plainly calls for a straightforward consideration of the number of lives placed in harm's way. The Department, in its Proposed Recommended Order, states: By assigning either zero residential density to land by virtue of an Open Space land use designation, or a maximum density of one unit per acre by assigning a low density land use designation, the County Plan fulfills the mandates of State law that development be limited in and residential concentrations be directed away from the CHHA. Thus, not surprisingly, the Department does not consider one du/a to be a population concentration. A density of ten du/a is an urban density, as indicated by the fact that it is the maximum density allowed in the Urban Community land use designation and the highest density within the "standard density range" for the County's Central Urban land use designation. It is a generally known fact, of which the undersigned takes notice, that urban areas are areas where populations are concentrated. It is a another generally known fact, of which the undersigned takes notice, that ten dwelling units on one acre of land amounts to a lot of people living in a small space. Leeward, itself, described the residential density allowed under the Urban Community designation as "relatively intense." Leeward's Proposed Recommended Order, at 7. Whether measured by density alone (ten du/a) or by Leeward's estimate of 160 residences on 16 acres, the amendment places a population concentration in the CHHA. Offsets in the CHHA Leeward presented evidence that the County has been reducing residential densities, sometimes referred to as "down- planning," in other areas of the CHHA in Lee County. The reduction in dwelling units in the CHHA over the past several years may be as high as 10,000 units. The Department did not present evidence to dispute that there has been an overall reduction in dwelling units in the CHHAs of Lee County. Leeward argues that these reductions "offset" the increase in dwelling units in the CHHA that would result from the amendment and this "overall" reduction in densities in the CHHA must be considered in determining whether the amendment is "in compliance" with state law and with provisions of the County Plan related to directing population concentrations away from the CHHA. At the hearing and in its Proposed Recommended Order, the Department argued that the consideration of offsets in the CHHA was improper and unworkable, but that argument conflicts with the Department's actual practice and official position as described in the January 2006 "Department of Community Affairs Report for the Governor's Coastal High Hazard Study Committee." In that report, the Department acknowledged there is no statutory or rule guidance regarding what the maximum density should be in the CHHA. The Report notes that some local governments have established maximum densities for the CHHA (e.g., Pinellas County, 5 du/a; Franklin County 1 du/a). The Department states in the report that it reviews amendments to increase density in the CHHA on a "case by case" basis, and explains further: When a Comprehensive Plan Amendment in the CHHA proposes a density increase, DCA's review considers the amount of the density increase, the impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" (generally accomplished through public acquisition). One of the visual aides used in conjunction with the 2006 report to Governor's Coastal High Hazard Study Committee, entitled "Policy Issue #2 - Densities in High Hazard Areas," also describes the Department's practice: Without locally adopted density limits, DCA conducts a case by case review of amendments without any defined numeric limit. DCA considers amount of density increase, impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" in other areas of the CHHA. These statements use the phrase "there will be a corresponding offset," which suggests that for an offset to be considered, it would have to be proposed concurrently with an increase in residential density on other lands within the CHHA. However, according to the director of the Department's Division of Community Planning, Valerie Hubbard, offsets in the CHHA do not have to be concurrent; they can include previous reductions. Furthermore, although the Department pointed to the absence of any criteria in the County Plan to guide an offset analysis, Ms. Hubbard said it was unnecessary for a comprehensive plan to include express provisions for the use of offsets. To the extent that this evidence of the Department's interpretation of relevant law and general practice conflicts with other testimony presented by the Department in this case, the statements contained in the report to the Governor's Coastal High Hazard Study Committee and the testimony of Ms. Hubbard are more persuasive evidence of the Department's policy and practice in determining compliance with the requirement that comprehensive plans direct population densities away from the CHHA and limit development in the CHHA. As long as the Department's practice when conducting an "in compliance" review of amendments that increase residential density in the CHHA is to take into account offsets, the Department has the duty to be consistent and to take into account the County's offsets in the review of this amendment. The County planning director testified that he believed the applicable goal, objective, and policy of the County Plan are met as long as there has been a reduction in residential densities in the CHHAs of the County as a whole. The Department points out that the planning director's opinion was not included in the County planning staff's reports prepared in conjunction with the amendment. However, it necessarily follows from the Board of County Commissioners' adoption of the amendment that it does not interpret Objective 105.1 and Policy 105-1.4 as prohibiting an increase in residential density in the CHHA. Although these provisions make no mention of offsets, the Department has not required offset provisions in a comprehensive plan before the Department will consider offsets in its determination whether a plan amendment that increases density in the CHHA is in compliance. The wording used in Objective 105.1 and Policy 105-1.4 requiring "consideration" of density reductions in the CHHA can be harmonized with the County planning director's testimony and with the County's adoption of the amendment by construing these plan provisions consistently with the Department's own practice of allowing increases in the CHHA when the increases are offset by overall reductions in dwelling units in the CHHA. Seeking to harmonize the amendment with the provisions of the County Plan is the proper approach because, as discussed later in the Conclusions of Law, whether an amendment is consistent with other provisions of the plan is subject to the "fairly debatable" standard which is a highly deferential standard that looks for "any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction." Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Shelter Space and Clearance Time Prior to the hearing in this case, Leeward moved to strike certain statute and rule citations in the Department's petition related to shelter space and clearance time4 because they were not included in the Department's ORC Report. The motion was denied because, although Section 163.3184(8)(b), Florida Statutes, limits the Department's petition to issues raised in the "written comments" in the ORC Report, the statute does not indicate that the Department is barred from citing in its petition, for the first time, a rule or statute that is directly related to the written comments. The CHHA is defined in the County Plan as the category one "evacuation zone." It is the area most in need of evacuation in the event of a severe coastal storm. Shelter space and clearance time are integral to evacuation planning and directly related to the Department's comment in the ORC Report that the amendment would, "expose a substantial population to the dangers of a hurricane." Therefore, the Department was not barred from presenting evidence on shelter space and clearance time in support of this comment. The Department's practice when reviewing an amendment that increases residential density in the CHHA, described in its 2006 report to the Governor's Coastal High Hazard Area Study Committee, is to consider not only dwelling unit offsets in the CHHA, but also the effect on shelter space and clearance time. That report did not elaborate on how shelter space and clearance time are considered by the Department, but evidence that a comprehensive plan amendment would have a significant adverse effect on shelter space or clearance time could presumably negate what would otherwise appear to the Department to be an acceptable offset of residential density in the CHHA. On this record, however, the Department did not show that a significant adverse impact on shelter space or clearance time would be caused by this particular amendment.5 Special Planning Areas Leeward argues that, even if the amendment were determined to be inconsistent with Objective 105.1 and Policy 105-1.4, that inconsistency should be balanced against other provisions in the County Plan that are furthered by the amendment, principally the provisions related to the Caloosahatchee Shores Community Planning Area and the Water- Dependent Use Overlay Zone. There is no authority for such a balancing approach that can overcome an inconsistency with an objective or policy of the comprehensive plan. Therefore, whether the amendment furthers the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area, Water-Dependent Use Overlay Zone, or other subjects is irrelevant to whether the amendment is consistent with Objective 105.1 and Policy 105-1.4. On the other hand, the Department's contention that the amendment is inconsistent with the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area is contrary to the more credible evidence. 100-Year Floodplain The amendment site is entirely within the 100-year floodplain. In its Statement of Intent, the Department determined that the amendment was not in compliance, in part, because the amendment site's location in the 100-year floodplain made it unsuitable for residential development. In addition, the Department determined that the amendment caused an internal inconsistency with the following policies of the County Plan related to development in the floodplain: POLICY 61.3.2: Floodplains must be managed to minimize the potential loss of life and damage to property by flooding. POLICY 61.3.6: Developments must have and maintain an adequate surface water management system, provision for acceptable programs for operation and maintenance, and post-development runoff conditions which reflect the natural surface water flow in terms of rate, direction, quality, hydroperiod, and drainage basin. Detailed regulations will continue to be integrated with other county development regulations. According to Mike McDaniel, a growth management administrator with the Department, "we try to discourage increasing densities in floodplains and encourage that it be located in more suitable areas." The policies set forth above are intended to aid in the achievement of Goal 61 of the Community Facilities and Service Element "to protect water resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters.” Plainly, Goal 61 is directed to regulating construction and surface water management systems. There is no mention in this goal or in the policies that implement the goal of prohibiting all development or certain kinds of development in the 100-year floodplain. The Department's argument in this case regarding development in the 100-year floodplain is rejected because it ignores relevant facts and law. First, substantial portions of Lee County and the State are within the 100-year floodplain. Second, there is no state statute or rule that prohibits development in the 100-year floodplain. Third, the Department of Environmental Protection, water management districts, and local governments regulate development in the floodplain by application of construction standards, water management criteria, and similar regulatory controls to protect floodplain functions as well as human life and property. Fourth, there has been and continues to be development in the 100-year floodplain in Lee County and throughout the State, clearly indicating that such development is able to comply with all federal, state, and local requirements imposed by the permitting agencies for the specific purpose of protecting the floodplain and the public. Fifth, the Department "discourages" development in the floodplain but has not established by rule a standard, based on density or other measure, which reasonably identifies for local governments or the general public what development in the floodplain is acceptable to the Department and what development is unacceptable. Finally, the Department's practice in allowing offsets in the CHHA, as discussed previously, necessarily allows for development in the 100-year floodplain in that particular context.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Land and Water Adjudicatory Commission determining that the amendment adopted by Lee County in Ordinance No. 05-10 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 25th day of August, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2006.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: DCA is the state land planning agency with the power and duty to exercise general supervision over the administration and enforcement of Chapter 380, Florida Statutes, including Areas of Critical State Concern, and all rules and regulations promulgated thereunder. See, Section 380.031(18), Florida Statutes. The City of Key West is in the Florida Keys Area of Critical State Concern. See, Section 380.0552(3), Florida Statutes and Rule 27F-8, Florida Administrative Code. Since the City is in the Florida Key's Area of Critical State Concern, City ordinances regulating land development do not take effect until DCA approves them "by rule." See, Section 380.0552(9), Florida Statutes. See also, Section 380.05(6), Florida Statutes (which provides that no proposed land development regulation in an Area of Critical State Concern shall become effective until DCA has adopted a rule approving such regulation.) In pertinent part, Section 380.0552, Florida Statutes provides: 380.0552 Florida Keys Area; protection and designation as area of critical state concern.-- PRINCIPLES FOR GUIDING DEVELOPMENT.--State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which chapter is hereby adopted and incorporated herein by reference. For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the principles for guiding development and any amendments to the principles, the principles shall be construed as a whole and no specific provision shall be construed or applied in isolation from the other provisions. However, the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, are repealed 18 months from July 1, 1986. After repeal, the following shall be the principles with which any plan amendments must be consistent: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shorelines and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or man-made disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. * * * MODIFICATION TO PLANS AND REGULATIONS.--Any land development regulation or element of a local comprehensive plan in the Florida Keys Area may be enacted, amended, or rescinded by a local government, but the enactment, amendment or rescission shall become effective only upon the approval thereof by the state land planning agency. The state land planning agency shall review the proposed change to determine if it is in compliance with the principles for guiding development set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, and shall either approve or reject the requested changes within 60 days of receipt thereof. Further, the state land planning agency, after consulting with the appropriate local government, may, no more often than once a year, recommend to the Administration Commission the enactment, amendment, or rescission of a land development regulation or element of a local comprehensive plan. Within 45 days following the receipt of such recommendation by the state land planning agency, the commission shall reject the recommendation, or accept it with or without modification and adopt it, by rule, including any changes. Any such local development regulation or plan shall be in compliance with the principles for guiding development. (Emphasis supplied.) In sum, any land development regulations adopted by the City must be submitted to DCA for approval or rejection pursuant to Section 380.0552(9). Such regulations become effective when approved by DCA. In evaluating an Ordinance submitted pursuant to Section 380.0552(9), DCA will look to the Principles for Guiding Development found in Section 380.0552(7), Florida Statutes. DCA is directed to approve a proposed ordinance if it is in compliance with the Principles for Guiding Development; conversely, DCA is without authority to approve a proposed amendment which is not in compliance with the Principles for Guiding Development. On September 3, 1991, the City adopted Ordinance 91-25 (the "Ordinance") which provides for a 180 day moratorium on certain development activities in the City. The Ordinance prohibits ...the approval of Community Impact Assessment Statements and site plans for projects falling within the scope of the city's CIAS ordinance, where the proposed density or intensity of use is inconsistent with the permitted density or intensity under the future land use map of the city's pending comprehensive plan or the property is situated in an area designated as coastal high hazard or wetlands on the Future Land Use Map of the City's pending comprehensive land use plan... A building moratorium, such as that set forth in the Ordinance, constitutes a land development regulation as defined in Section 380.031(8), and Rule 28-20.19(4), Florida Administrative Code. Therefore, the moratorium could not take effect until approved by DCA by rule. A Community Impact Assessment Statement ("CIAS"), as defined in Section 34.04, Key West Code, describes expected impacts of proposed development on specified City resources and infrastructure. While a CIAS is not a development order, the City requires a CIAS as a precondition to the granting of a building permit for most large projects in the City. A developer is required to submit a CIAS for a proposed residential or hotel/motel development of ten or more habitable units or a proposed commercial development of 10,000 square feet or more. A CIAS is intended to ensure that the impacts a proposed project will have upon public facilities and the social and economic resources of the community are considered in the planning process and to avoid surprises during the planning process. The City will reject a CIAS that it finds to be incomplete or misleading. The City Commission held its first hearing on the Ordinance on June 18, 1991. At least five public hearings before the City Commission were held prior to the City's adoption of the Ordinance. The 1981 City of Key West Comprehensive Plan (the "Existing Comprehensive Plan") sets forth certain parameters and standards for the issuance of development orders. The Existing Comprehensive Plan has been approved by the Administration Commission in Chapter 28-37, Florida Administrative Code. The City of Key West land development regulations and certain amendments to the Existing Comprehensive Plan have been approved by DCA in Chapter 9J-22, Florida Administrative Code. The City is required by the States's growth management statute, Part II of Chapter 163, Florida Statutes, to submit to DCA a new comprehensive plan. Since the City is in an Area of Critical State Concern, the new comprehensive plan will not take effect until it is approved by DCA by rule. The Existing Comprehensive Plan remains in effect until a new plan is adopted. At the time the Ordinance was adopted, the City was in the process of preparing a new comprehensive plan to guide future development. By adopting the moratorium, the City sought to provide itself with an opportunity to effectively implement a new comprehensive plan. The City submitted a proposed new comprehensive plan (the "Pending Comprehensive Plan") to DCA on December 2, 1991. DCA and the City are currently involved in negotiations over whether the Pending Comprehensive Plan is in compliance with the state's growth management law, Chapter 163, Florida Statutes, and the rules promulgated thereunder, Rule 9J-5, Florida Administrative Code. The Pending Comprehensive Plan was still in the draft stages at the time the Ordinance was adopted. As indicated above, the City adopted the moratorium for projects requiring a CIAS in an effort to ensure that the City would be able to effectively implement a new comprehensive plan. The City is faced with numerous development-related problems which it attempts to address in the Pending Comprehensive Plan. These problems include: Water Quality Water Resources - The City draws all of its water from the Biscayne Aquifer. The water is pumped from wellfields on the mainland in Dade County and is transported through a single pipe to Monroe County to provide water to the Florida Keys population. While there is no immediate problem with the availability of water for the City, the Florida Keys Aqueduct Authority and the South Florida Water Management District (SFWMD) are in the process of preparing a water supply plan for Dade County and the Keys. These agencies recently informed all Monroe County local governments that they are approaching the limit of water that can be supplied from the aquifer and it is expected that there will be limitations on any further increases in consumption and/or consumptive use permits. The City and DCA contend that the moratorium will help the City to effectively analyze and address these issues in its new comprehensive plan. Chapter 4 of the Pending Comprehensive Plan would require the City to develop a plan for potable water resources, including replacement of the aging water main, providing for emergency supplies, and emphasizing the need to conserve water. Sewer System - Sewage treatment in the City of Key West is a serious problem. The treated effluent is currently dumped into the Atlantic Ocean and has been implicated in the degradation of the environmentally sensitive and unique coral reefs. Chapter 4 of the Pending Comprehensive Plan would direct the City to substantially improve its wastewater treatment level of service, prevent system infiltration, fix leaky pipes, and reduce the pollution of the surrounding waters. Stormwater Runoff - The waters surrounding the island of Key West have been designated Outstanding Florida Waters, pursuant to Chapter 403, Florida Statutes. The runoff generated by rains in the City is currently channeled into these waters either directly or via canals. The Existing Comprehensive Plan does not contain extensive guidance regarding stormwater runoff. Chapter 4 of the Pending Comprehensive Plan would direct the City to conduct a half million dollar study over the next two years to examine, develop, and implement a stormwater management plan. Section 4-2.1(d) of the Pending Comprehensive Plan would also require improved levels of service for stormwater runoff. Hurricane Evacuation - The evacuation of people out of the Florida Keys during a hurricane is an important element in the planning process for the City. The Existing Comprehensive Plan does not provide any standards for hurricane evacuation. Chapter 2 of the Pending Comprehensive Plan requires the City of Key West to develop a feasible hurricane evacuation plan and coordinate its implementation with the County. The City has taken no action on this directive to date. A model is being developed within the Monroe County Comprehensive Plan for the safe evacuation of residents from the Florida Keys. The model will include updated information based upon the Pending Comprehensive Plan. The inclusion of new development into the model is complicated. By temporarily limiting new development, the City can provide more certainty to this planning process. Wetlands and Environmental Protection - The Pending Comprehensive Plan seeks to strengthen and clarify the Existing Comprehensive Plan provisions regarding wetlands and habitat protection by reducing densities within wetlands, salt ponds, and coastal high hazard areas and requiring the adoption of amended land development regulations which extensively improve the City's environmental protection requirements. Residential Housing and Conversion to Transient Units - There have been a significant number of conversions from residential to transient units (hotels, motels, and other tourist accommodations) in the City during the last several years. The increase in "transient" persons exacerbates the strain upon public facilities, especially transportation facilities. The Existing Comprehensive Plan offers little protection to residential areas from commercial and transient intrusion. The Future Land Use Element of the Pending Comprehensive Plan attempts to guide and plan the locations of conversions. Transportation - Many roads in the City are currently operating at poor levels of service, including U.S. Highway 1, the main arterial roadway in the City. The City has never had a specific plan to improve the levels of service. The City is required under the growth management statute (Chapter 163) to provide adequate levels of service on the roads within the City. Chapter 2 of the Pending Comprehensive Plan proposes to implement an extensive traffic circulation system over the next twenty years which will include roadway improvements, revised levels of service, and nonmotorized transportation provisions. Solid Waste - Currently, the City's solid waste is disposed at a local landfill. The City's solid waste disposal facility is currently operating under a year old consent order that directs the facility to be closed within three years. The Existing Comprehensive Plan states that the City is to provide adequate public facilities, but does not explain what constitutes "adequate". The Existing Comprehensive Plan does not provide a plan for the impending closure. The Pending Comprehensive Plan would require the City to provide the funding for solid waste disposal improvements. The clear goal of the Ordinance was to delay the approval of certain CIAS applications, site plans and building permits for 180 days while work continued on the Pending Comprehensive Plan. The City contends that the moratorium will help it to effectively implement the policies which it anticipates will be incorporated in the new comprehensive plan when it is finally in place. The Ordinance provided that the 180 day moratorium would begin on the effective date of the administrative rule approving the Ordinance. The City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the Ordinance. Normal rulemaking pursuant to Section 120.54, Florida Statutes, generally takes between 90 to 120 days. Many local governments experience a significant increase in development proposals immediately prior to the adoption of a new comprehensive plan. Many of these proposals are prompted by a fear as to the impact of the new plan and seek to acquire vested rights under the old plan. The City and DCA were concerned that such an increase in development proposals might complicate the planning process by rendering some aspects or assumptions of a new plan moot before the plan could even be adopted. Moratoria are frequently used by local governments in order to complete an effective comprehensive plan without the need for changes. In the year immediately proceeding the adoption of the Pending Comprehensive Plan by the City Commission (from September 1990 through September 1991), the City received seven CIAS applications. No CIAS applications had been received during the year prior. The City contends that many of the 1990/1991 applications were motivated by an attempt to obtain vested development rights. However, no persuasive evidence to support this speculation was presented. The City Commmission did not consider any reports, studies or other data in connection with the enactment of the Ordinance. At the time the Ordinance was adopted, the City Commission did not make any specific determinations that there were any immediate dangers to the public health, safety or welfare of the community nor was the Ordinance enacted as an emergency ordinance. After its adoption by the City Commission, the Ordinance was transmitted to DCA on September 5, 1991 for approval pursuant to Section 380.0552(9), Florida Statutes. The only information transmitted to DCA was a copy of the Ordinance. As indicated above, the City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the City's Ordinance. The City Planner contacted DCA to request approval of the Ordinance by emergency rule. The City Planner and DCA concurred in the conclusion that the purpose of the Ordinance would be defeated if it was not immediately implemented. The City Commission did not specifically ask or authorize the City Planner to request DCA to enact the Ordinance by emergency rule. The City's concerns included, among other things, that the conversions of residential properties to transient tourist accommodations would accelerate during the process of finalizing the Pending Comprehensive Plan. In addition, the City expects that its new comprehensive plan will reexamine the densities in coastal high hazard areas. By adopting a moratorium, the City sought to insure that any new developments will comply with the new densities ultimately adopted. On September 18, 1991, DCA filed the rule packet for the Emergency Rule with the Secretary of State and the Emergency Rule became effective on that date. DCA did not prepare an economic impact statement for the Emergency Rule. The rule packet consisted of: (a) a Certification Of Emergency Rule; (b) the Notice Of Emergency Rule; (c) a Statement Of The Specific Facts And Reasons For Finding An Immediate Danger To The Public Health, Safety And Welfare, (the "Statement of Specific Reasons") and (d) a Statement of the Agency's Reasons for Concluding that the Procedure Used Is Fair under the Circumstances (the "Agency Conclusions"). The Notice of Emergency Rule appeared in the September 27, 1991 edition of the Florida Administrative Weekly. In the Statement of Specific Reasons, DCA concluded that: ...Generally, a [comprehensive] plan revision process stimulates an accelerated rate of permit requests. Accelerated permitting including the acquisition of vested rights during a planning period will severly erode the City's ability to effectively revise and implement the comprehensive plan. Such accelerated development will also lead to further deterioration of current hurricane evacuation clearance time for the City. This action will increase the existing potential for loss of life and injury to person [sic] and property, will cause further deterioration of level [sic] of service on existing roadways and will lead to irreversible environmental degradation. Therefore this rule must be adopted by emergency procedures because of the potential immediate danger to the public health, safety and welfare. In the Agency Conclusions, DCA concluded: The emergency rulemaking is fair because (1) it immediately approves the ordinance as adopted by the City of Key West Commission and (2) normal rulemaking would moot the intent of the adopted ordinance since the City of Key West would be required to continue accepting applications for building permits, site plans, of [CIAS's] covering work projects or both, as set forth in Section 2 of ordinance 91-25 until the Department's rule approving the ordinance becomes effective. DCA's Statement of Specific Reasons was not reviewed or discussed with the City or its planner prior to its preparation. In deciding to promulgate the Emergency Rule, DCA considered the major public facilities and natural resource problems confronting the City and the City's proposed strategy to deal with these problems in the Pending Comprehensive Plan. DCA concluded that an immediate danger to the public health, safety, and welfare currently exists within the City justifying the approval of the Ordinance by emergency rule. The evidence clearly indicates that the City is facing many significant problems from a planning perspective. Petitioner contends, however, that there is no evidence that any of those problems present an "immediate" threat to the public health, safety or welfare. For the reasons set forth in the Conclusions of Law below, this contention is rejected. On October 10, 1991, DCA filed a rule packet for the Proposed Rule with the Secretary of State. The rule packet consisted of the Notice Of Proposed Rule 9J-22.013, the Estimate of Economic Impact on All Affected Persons (the "EIS",) a Statement of the Facts and Circumstances Justifying Proposed Rule 9J-22.013 (the "Statement of Facts"), a summary of the Proposed Rule, a Comparison with Federal Standards, a Statement of Impact on Small Business and the text of the Proposed Rule. The Notice of Proposed Rule 9J-22.013 appeared in the October 18, 1991 edition of the Florida Administrative Weekly. On October 24, 1991, DCA filed a Notice of Change with the Secretary of State, stating that the correct number for the Proposed Rule was 9J-22.014, since 9J-22.013 had already been used. The Notice of Change appeared in the November 1, 1991 edition of the Florida Administrative Weekly. DCA did not consider any appraisals, data, reports or other studies concerning the economic impact that could result from the imposition of a moratorium. Instead, DCA followed the approach it had used in approving prior ordinances enacted by the City and concluded that its role in reviewing the Ordinance for compliance with the Priniciples Guiding Development did not require an examination of the economic impact of the underlying policy decisions reached by the City Commission in adopting the Ordinance. The EIS states that: Costs and benefits will occur as a result of this ordinance and were considered by the City prior to adoption of the ordinance. The City did not provide any information to DCA on the economic impacts of the Ordinance or on the impact of the Ordinance on the value of properties affected by it. The evidence was unclear as to the extent to which the City Commission considered economic impacts in deciding to adopt the Ordinance. Several public hearings were held in connection with the adoption of the Ordinance and DCA assumed that interested parties had an opportunity to express their concerns regarding the economic impact of the Ordinance at these hearings. DCA did not inquire as to the number of projects under review by the City at the time the Ordinance was passed nor did it seek a determination as to whether any projects with vested rights were affected by the Ordinance. The City Planning Department has retained a consultant, as required by the Ordinance, to conduct an economic study of existing conditions and projections for future growth. The purpose of this study is to assist in developing future amendments to the Ordinance. The study is not final and was not considered by the Key West City Commission when the Ordinance was enacted. DCA concluded that the proposed moratorium adopted by the Key West City Commission was consistent with the Principles for Guiding Development. Therefore, DCA concluded that Section 380.0552 required it to approve the Ordinance. Petitioner has not presented any persuasive evidence to establish that the Ordinance is in any way inconsistent with the Principles for Guiding Development. Petitioner owns 6.8 acres of vacant real property on Atlantic Boulevard in the City. He purchased the property in 1974 with the intent to develop it. Petitioner's property is located in an R-2H zoning district. The City's future land use map designates Petitioner's property as multi-family. Petitioner has spent approximately $71,000.00 to hire architects, engineers, surveyors, planners, biologists and attorneys to aid him in preparing to develop the subject property. In 1989, Petitioner submitted applications for a Department of Environmental Regulation Surface Water Management permit, and an Army Corps of Engineers dredge-and-fill permit, but neither of those permits have been issued to date. Generally the City requires a developer to obtain these "higher-order" permits prior to issuing a building permit. Petitioner has never applied for or installed sewer service, water service or any other utility service to the property. Since he acquired the property, Petitioner has not cleared any vegetation on the property except for minor trimming adjacent to the roadway which was required by the City for safety purposes. In June of 1989, the City passed a resolution notifying the Department of Environmental Regulation that it opposed Petitioner's application to place fill upon the property. On April 10, 1991, Petitioner submitted a CIAS to the City for a proposed 96 unit residential development in three buildings on the subject property. Before the Ordinance was enacted, the City Planner prepared a report dated July 3, 1991 reviewing Petitioner's CIAS as required by the CIAS ordinance. In that review, the City Planner concluded: The project is located in the R-2H zoning district and conforms to all provisions of that district, thus requiring no variances or special exceptions. On August 6, 1991, the Key West City Commission considered Petitioner's CIAS. The City Commission refused to approve the Petitioner's CIAS application. Specifically, the City Commission determined that Petitioner's CIAS application was incomplete and that the "submerged land district" designation ("SL") applied to the Petitioner's property as an overlay zoning district because Petitioner's property is located in an area which is deemed to include wetlands and mangroves. The City Commission requested that the CIAS address the "submerged land district" before the CIAS application could be deemed complete. The City Planner was not present at the August 6, 1991 City Commission meeting. The "submerged land district" in Section 35.07(f), City of Key West Code, provides that the density and site alteration of "environmentally sensitive areas including but not limited to wetland communities, mangroves, tropical hardwood hammocks and salt ponds shall be zoned with a maximum density of one (1) unit per acre. Site alteration shall be limited to a maximum of ten percent of the total size." The "submerged land district" overlay zone applies to any parts of the property which fall within the description of "environmentally sensitive areas" in Section 35.07, City of Key West Code. Because there is confusion over the interpretation and applicability of the SL district and because the SL land use district does not appear on the City's official zoning map, it was not considered in the preparation of the July 3 Report. The evidence in this case was inconclusive as to whether Petitioner's property is located in a SL district and/or whether Petitioner's CIAS for his property can be approved under the City regulations in place prior to the adoption of the Ordinance. On August 22, 1991, Petitioner submitted an amendment to the CIAS as well as a Site Plan. The amendment to the CIAS contests the City's conclusion that Petitioner's property should be considered part of a SL district. As set forth above, during this time period, the City had began consideration of the Ordinance. The first hearing on the Ordinance was held on June 18, 1991 and the Ordinance was passed by the City Commission on September 3, 1991. The City Planner notified Petitioner by letter dated October 11, 1991, that his CIAS Site Plan review and approval had been "stayed" because of the enactment of the Ordinance and because of the project's "inconsistencies with the City's Pending Comprehensive Plan." Petitioner requested an exception from the effect of the Ordinance pursuant to the procedure contained in the Ordinance. A hearing was held before the City Commission and the request was denied.
The Issue The issues are: (1) what are the correct procedures and substantive criteria to be applied in reviewing Petitioners' proposed "local" changes to the Hammock Dunes Development of Regional Impact (DRI) Development Order (DO); (2) does Petitioners' application satisfy the applicable criteria for approval; and (3) do Petitioners or Respondent, Flagler County (County), have the legal ability or obligation through the Notice of Proposed Change (NOPC) to the DO to change certain obligations of Intervenor, Admiral Corporation (Admiral), contained in the DO and in separate agreements related to the performance of certain DO obligations.
Findings Of Fact The Parties Petitioners are the current owners and developers of certain real property within the Hammock Dunes DRI in the County. They are some of many developers of real property within that DRI. The County is a political subdivision of the State and the unit of local government responsible for issuing DOs for projects that are required to undergo DRI review within its geographic limits, including amendments to DOs of previously approved DRIs. Such reviews must be in conformity with the requirements of section 380.06. Admiral is the original developer of the DRI but no longer owns any property or entitlements in the DRI. Its interest in the proceeding is based on long-standing obligations to provide certain infrastructure, described below, that run with the land until the expiration of the DRI, and whether the County can extend those obligations without its consent by extending the expiration date of the DRI. Ocean Hammock is an incorporated property owners association comprised of approximately 1,500 unit owners within the DRI. Hammock Beach is an incorporated condominium association composed of approximately 184 condominium unit owners within the DRI. Hewson is an individual and an owner and resident of property within the DRI. History Preceding the Application On March 30, 1984, the County approved the original Hammock Dunes DRI by County Resolution 84-7. The resolution showed Admiral as the developer. Admiral is a wholly-owned subsidiary of ITT Community Development Corporation (ITTCDC). The DO covered 2,258 acres and entitled Admiral to construct a maximum of 6,670 dwelling units and related commercial, institutional, recreational, and other uses in 42 separate geographical areas known as "Clusters" covering 893 acres. The property is adjacent to the Atlantic Ocean, with approximately five miles of pristine beach bordering the DRI. Beginning in 1985 or 1986, development of the DRI began and now includes three subdivisions or phases: Hammock Dunes; Ocean Hammock; and Hammock Beach. Currently, 33 percent of all single-family homes authorized for construction in the DRI have actually been constructed; all platted and permitted condominiums have been constructed; and all Clusters have been platted. Due to financial considerations of their owners, one or two Clusters in the DRI have no vertical development. The general and special conditions of development are contained in a 54-page document identified as Attachment A to the DO. See Joint Ex. 1, Attachment A, pp. A-1 through A-54. The original DO included a DRI Master Development Plan, identified as Exhibits 17.5.1 and 17.5.2 in Attachment A. The Master Development Plan is basically a sketch plan that geographically depicts the uses authorized by the DO. The first exhibit depicts generally where the 42 residential Clusters and other uses were to be located. See Attachment A, p. A-45. The second exhibit is a Residential Cluster Data Table, which describes the type of development for each Cluster and designated the maximum number of dwelling units that may be built within each Cluster. See Attachment A, p. A-46. The DO rezoned all of the property within the DRI as Planned Unit Development (PUD), which is a zoning district in the County zoning code. Also, section 17.5 of the DO described the substantive conditions for development relating to density, residential clusters, allowable building height, building spacing, and flexibility considerations. Subsection 17.5.g. provides in part that "any changes [to the project] must first be approved through the site development plan review procedures of Section 17.6." Section 17.6 prescribes the PUD review procedures that apply to submitted development proposals. See Joint Ex. 1, pp. 63-68. The introductory language in section 17.6 states that "[t]his project shall be subject only to the following [PUD] review provisions which are an elaboration of the review provisions of Article X." Joint Ex. 1, Attachment A, p. A-47. During the PUD review process, section 17.6 generally requires a pre-application conference by the applicant and County staff, the submission of a detailed site development plan which addresses specific issues set out in subsection 17.6(c), and approval (platting) of the site development plan leading to permitting. Id. Section 17.6 has not been changed or modified since the original DO was approved. The DO also required Admiral to construct certain specific items of infrastructure associated with the DRI. Among the requirements were that Admiral construct two additional lanes on the Intracoastal Waterway bridge, to occur when the Florida Department of Transportation and County determined that a Level of Service C was met on the existing two lanes; and that Admiral four-lane the roads and bridges located on Palm Harbor Parkway between Clubhouse Drive and Florida Park Drive, to occur when traffic counts on these road segments exceeded 10,000 average daily trips. See Attachment A, §§ 4.1.b and 4.7. Neither of these prerequisites to construction of these infrastructure items has yet occurred. Because DRIs generally take a substantial period of time to complete, the development plans are subject to periodic amendment in order to adjust to changing market conditions, financial conditions, and other variables. Since its approval in 1984, the DO has been amended five times. The first amendment to the original DO, completed in July 1995, revised the Master Development Plan in the following respects: (a) residential acreage was reduced from 893 acres to 888 acres; (b) the maximum number of dwelling units was reduced from 6,670 to 4,400; (c) Cluster 1 was split into Clusters 1 and 1(a), resulting in an increase in the number of Clusters from 42 to 43; and (d) the maximum allowable building height in the Medium High density category was reduced from 20 stories to 12 stories. See Joint Ex. 2. Also, it realigned the spine road, clarified infrastructure construction obligations, and changed the geographic location, configuration, and area of Residential Clusters and other uses, including the golf course, within the boundaries of the DRI. Finally, Exhibits 17.5.1 and 17.5.2 were replaced by Exhibits 3A and 3B to the DO, and the amendment required the County to approve any successor developer to Admiral unless ITTCDC guaranteed all applicable DRI requirements, obligations, and conditions. The second amendment to the original DO was completed in March 1998 and generally revised the Master Development Plan as follows: (a) the number of residential Clusters was reduced from 43 to 35 (numbered as 1, 1(a), and 2 through 34) together with changes to location, configuration, and other uses of the residential Clusters; and (b) total authorized residential acreage was increased from 888 acres to 916 acres. See Joint Ex. 3. Unless or until the pending NOPC is approved, the 1998 Master Development Plan still applies to the DRI. In addition, the 1998 amendment provided for the conveyance of 33 acres of beachfront land at the intersection of 16th Road and the beach, previously intended to be a County park, from the County to the developer to enable the developer to construct part of a Jack Nicklaus signature golf course. The golf course was intended to be a buffer between development in the DRI and the beach. The developer was still required to construct a smaller public park on land retained by the County at the 16th Road access to the beach. Finally, although no revisions to section 17.6 were made, the amendment added a new section 17.10, which provided some specific PUD development criteria for Cluster 34. On November 24, 1999, ITT Corporation (then known as ITT Industries, Inc.), the parent corporation of ITTCDC, entered into a Guaranty Agreement (Agreement) with the County regarding Admiral's obligations to provide additional infrastructure if certain transportation thresholds were exceeded. See Admiral Ex. 1. The Agreement provided in part: The obligations of the Guarantor under this Guarantee Agreement shall be independent, absolute and unconditional and shall remain in full force and effect until the earlier of (i) such time as the Major Obligations have been performed and discharged . . ., or (ii) such time as the Development Order, including all past and/or future amendments and extensions thereof, shall no longer be in effect. The County did not execute the Agreement. However, ITT and ITTCDC unilaterally agreed to increase the existing bond guaranteeing Admiral's DO obligations from $3 million to $10 million in exchange for the County releasing its right to review and approve any successor developer as provided in the 1995 DO amendment. This Agreement further provided that the obligations of the guarantor would remain in effect until the obligations described therein were performed in compliance with the DO, or until the DO and/or any amendments or extensions thereof were no longer in effect. Id. On December 17, 2001, the DO was again amended. See Joint Ex. 4. However, that amendment was repealed by the County on October 7, 2002. See Joint Ex. 5. Besides repealing the 2001 amendment, the 2002 ordinance modified certain requirements relating to public safety and park construction. Neither the 2001 nor 2002 amendments changed the proposed number or location of dwelling units within the DRI. In 2003, the DO was amended a fifth time to extend the build-out date by five years and eleven months, or from March 28, 2003, to February 28, 2009. See Joint Ex. 6. This amendment did not affect the permitted number of dwelling units, residential acreage, or residential Clusters, nor were any revisions made to section 17.5 or 17.6 of the DO regarding the PUD designation and review procedures. Accordingly, sections 17.5 and 17.6, and Revised Exhibits 3A and 3B, as adopted by the 1998 amendments, remained in effect when Petitioners filed the NOPC that is the subject of this proceeding. Petitioners' predecessor developer was Lowe Ocean Hammock, Ltd. (Lowe). On December 20, 1996, Lowe executed a Development Order Allocation Agreement with ITTCDC, wherein those parties agreed that no applications would be filed to amend the DO without the written consent of the other party. See Admiral Ex. 5, p. 9. As one of Lowe's successor developers in the DRI, Petitioners became subject to this consent requirement through its inclusion in the deed by which Petitioners obtained ownership of their interest in the DRI. See Admiral Ex. 6A. Admiral contends that the responsibility for constructing the two additional lanes on Palm Harbor Parkway still remains with ITTCDC, but that the responsibility for constructing the two additional lanes on the Intracoastal Waterway Bridge was assumed by the Dunes Community Development District (DCDD), a community development district created in 1985 in the DRI. Neither Petitioners nor the County is a party to the agreements by which ITTCDC or DCDD assumed responsibility for construction of these two infrastructure projects. Petitioners did not obtain Admiral or ITTCDC's written consent before filing the instant NOPC application. Admiral, ITTCDC, and ITT wrote two letters in 2009 and one in 2010 stating their objections to the NOPC and maintaining that such objections would only be withdrawn if their obligations under the Agreement and the associated bond were either terminated by the County or assumed by a successor developer. The letters indicated that their obligations expired on February 28, 2009, or the then-current DRI expiration date. The County considered the letters of objection but determined that the extension of the build-out date of the DRI was the result of an act of the Florida Legislature and therefore out of the County's legal control. Thus, the County determined that it would not consider those issues in connection with the NOPC application. Sometime after it adopted the original DO, the County amended Article III of its LDC by adding and/or amending sections 3.04.00 through 3.04.04, which set forth the processes and substantive criteria for the creation of new PUDs. However, the 1984 DO was never amended to incorporate the new sections of the LDC by reference or to change the DO's PUD provisions to mirror those of the current LDC. Petitioners' NOPC Application Pursuant to section 380.06(19), on February 27, 2009, Petitioners filed a sixth amendment to the DRI DO. The first iteration of the current NOPC requested: (a) recognition of the three-year build-out date extension authorized by the Legislature in section 380.06(19)(c); (b) creation of a new residential Cluster 35 consisting of 34 acres and assigned a Medium-High density and designated "Ocean Recreation Hotel"; and (c) reallocation of 1,147 approved but un-built dwelling units from Clusters 21-34 into the new Cluster. Cluster 35 would be located on land designated by the DO as the beach club, portions of Cluster 33, and a part of the Ocean Hammock Golf Course. Of the 34 acres, eight would be located north of 16th Road on land currently occupied by a 77-foot high building, commonly known as the "Lodge," which contains a restaurant, 20 hotel rooms, offices, a golf pro shop, locker facilities, a swimming pool, spa facility, parking lot, and landscaping. The remaining 26 acres, south of 16th Road, currently feature a golf driving range, landscaped areas, buffer, and open space. Sixteenth Road is a public road that provides access to the beach, public beach parking, and public restroom facilities. Petitioners initiated the NOPC because they had dwelling unit entitlements that could not be used in the Clusters from which the units would be transferred because the land in the donor Clusters had been fully platted, developed, and/or sold. As a consequence, no more dwelling units could be constructed in the donor Clusters. On June 19, 2009, Petitioners submitted the second iteration of the current NOPC application. In that iteration, the size of the proposed new Cluster 35 was reduced from 34 to 24 acres; the number of units to be reallocated to Cluster 35 was reduced from 1,147 to 561 units (including 20 from the hotel); and the total number of dwelling units in the entire DRI was proposed to be reduced by 600, from 4,400 to 3,800. After reviewing the amended NOPC, the County staff recommended approval, with conditions to assure consistency with the Plan and compatibility with existing development. However, after Admiral submitted letters of objection, and considerable public opposition to the proposal surfaced, on February 11, 2010, a third iteration of the NOPC was submitted to the County. This iteration proposed the following amendments to the DO: (a) recognizing the automatic extension of the build-out date for the DRI authorized by the Legislature in section 380.06(19)(c); (b) amending section 17.5.a. by reducing the total number of authorized dwelling units within the DRI from 4,400 units to 3,800 units; (c) modifying Exhibits 3A and 3B to create a new Cluster 35 encompassing only 12 acres (rather than 24 acres), and designating the new Cluster as Ocean Recreation Hotel with a maximum building height of 77 feet, and a reallocation of 541 un-built dwelling units from Clusters 21-24, 26, 27, and 29-34; (d) modifying condition 4.4 to allow the relocation, if necessary, of 16th Road farther south to enlarge the construction area for the new units, with the realignment occurring only after Petitioners applied for building permits for construction within Cluster 35; and (e) agreeing to a public hearing during the site development stage of the process. The final version of the NOPC was reviewed by the Northeast Florida Regional Planning Council and Department of Community Affairs. Both agencies agreed that the proposal did not constitute a substantial deviation. The County staff agreed with this determination and recommended that the NOPC be approved subject to certain conditions, including one that before a development permit be issued for Cluster 35, the applicants submit maps, exhibits, and other supporting materials to show compliance with the LDC. Finally, the staff recommended that the designated residential acreage in the DRI be increased from 916 acres to 960 acres to accommodate the new Cluster and to reflect the actual residential acreage (948 acres) that had previously been approved and developed. On April 5, 2010, the Board of County Commissioners (Board) held a public hearing to consider the NOPC. The Board found the requested changes did not constitute a substantial deviation and approved that part of the NOPC. It also approved the reduction in the number of approved dwelling units from 4,400 to 3,800. The Board further found the revisions to be consistent with the County Plan. However, it denied the application to the extent that it would have created a new Cluster 35 and reallocated 541 residential units to that Cluster. Finally, the Board acknowledged that the Florida Legislature had extended the DRI expiration date and concluded that no formal action was necessary in that regard. The Board's decision was memorialized in Resolution No. 2010-22, which states in pertinent part that the request to create a new Cluster 35 and transfer 541 units from other Clusters was being denied for two reasons: that it would adversely affect the orderly development of the County in contravention of LDC section 3.04.02.F.1.; and that it would adversely affect the health and safety of residents and workers in the area and would be detrimental to the use of adjacent properties and the general neighborhood in contravention of LDC section 3.04.02.F.2. See Joint Ex. 10. No specific findings of fact were made as to how Cluster 35 was inconsistent with these provisions. This appeal followed. Because this proceeding is de novo in nature, the County and Intervenors have raised additional grounds for denying the application. These grounds were also raised at the local hearing but were not addressed in Resolution 2010-22. The Procedures for Reviewing the NOPC Petitioners contend that the Board's review of a NOPC involves only two steps: (a) a determination as to whether the revisions constitute a substantial deviation requiring further review and analysis; and (b) a determination as to whether the revisions are consistent with the local comprehensive plan. If the revisions do not require a substantial deviation analysis, and they are consistent and compatible with the local plan, the NOPC would be approved, and any future development would then be controlled by the PUD review process contained in the DO. They also assert that it is inappropriate to have a PUD review concurrent with the NOPC review, as the Board did here; instead, they argue that the PUD review process should occur at the site development plan stage. The process described by Petitioners would normally apply were this not a unique NOPC requesting substantial revisions to the DO (but not regional impact implications) in the sense that it requests creation of a new Cluster where no residential development had been previously permitted, and the proposed residential development will occur in an area specifically prohibited for development by the DO. Requests to redistribute uses on property subject to PUD zoning, or to amend the sketch plan for an approved PUD zoning, are normally treated by the County as a rezoning of the PUD, even if, as here, the property has previously been assigned PUD zoning. The LDC labels this process as a "reclassification" of the property, which triggers the consideration of other LDC criteria. See § 3.04.02, LDC. When this occurs, a change to the PUD must go through the same type of process that the original adoption of the PUD went through, which is a rezoning process. This procedure contemplates that a simultaneous NOPC/PUD review takes place, and the County is authorized to take into account the general issues of public health, safety, and welfare described in sections 3.04.02.F.1. and 2., as well as any other sections in the article that may apply. The evidence shows that this procedure is used by many local governments throughout the State, including the County, and was specifically used by the County in 1998 when the last substantial changes to the Master Development Plan were requested by predecessor developers. While conflicting testimony was submitted on this issue, the more persuasive evidence supports a finding that these procedures and substantive criteria are the most logical and reasonable interpretation of the County's LDC and the DO, and they should be used in reviewing the NOPC. Does the NOPC Satisfy Applicable Criteria? Consistent with above-described procedure, in determining whether the NOPC may be approved, the following process should be followed. First, it is necessary to determine whether the revisions are a substantial deviation, as defined by section 380.06(19), creating further regional impacts that require additional review and analysis. Second, it is necessary to determine whether the proposed revisions are consistent with the County's Plan, as required by section 163.3194(1)(a). The record below does not disclose the specific Plan provisions reviewed by the County for consistency or compatibility. However, County Planner Mengel indicated that prior to the Board's decision, he made "a very cursory review" that relied largely upon representations by the applicants and concluded, as did the Board in its Resolution, that the revisions are consistent with the Plan. In addition, four policies in the Future Land Use Element (FLUE) of the Plan relating to compatibility were addressed by Petitioners during the DOAH evidentiary hearing: policies 13.1, 13.2, 13.3, and 13.5. Also, objective 3 and policies 3-3 and 3-6 of the Recreation and Open Space Element of the Plan were addressed by the County. The next consideration is whether the NOPC revisions comply with applicable LDC criteria since a simultaneous DRI/PUD review is being made. Finally, Petitioners are vested only as to what was approved in the 1984 DO, as later amended. Therefore, it is necessary to determine whether the revisions being sought are vested development rights. Substantial Deviation The parties have stipulated, and Resolution 2010-22 acknowledges, that the NOPC does not constitute a substantial deviation from the DO requiring further review and analysis. Consistency with the Comprehensive Plan Section 163.3194(1)(a) requires that all development orders be consistent with the local government's adopted comprehensive plan. Resolution 2010-22 states that the NOPC is consistent with the County Plan. See Joint Ex. 10. At hearing, evidence regarding FLUE Policies 13.1, 13.2, 13.3, and 13.5 was offered by Petitioners' expert, Kenneth B. Metcalf. Although compatibility is not defined in the Plan, he opined that the FLUE, and especially the foregoing policies, are the Plan provisions that focus on compatibility, and that to the extent these provisions are applicable to the proposed changes, the NOPC revisions are not inconsistent with these provisions or the FLUE. This testimony was undisputed. Highway A1A is a north-south route that runs along the western boundary of the DRI. It has received a scenic highway designation by both the State and federal governments and is more commonly known as the A1A Scenic Highway (Scenic Highway). It includes not only A1A, but also the public roads that run from A1A through the DRI to the beach, including 16th Road and the park at its terminus at the beach next to proposed Cluster The 16th Road park is superior to the other beachfront parks in the County. Also, 16th Road serves as the entryway to the beach from A1A and is the beach access road most heavily used by residents of the communities surrounding the DRI. The County has expended more planning attention and funding to the 16th Road entryway to the beach than any other beach access road in the County. To obtain state and federal designation of the roadway as a scenic highway, the County was required to complete a scenic highway corridor management plan to ensure its protection. Also, the County has adopted protective measures regarding the Scenic Highway as part of the Recreation and Open Space Element of the Plan. The County and Intervenors contend that the NOPC is inconsistent with objective 3 and policies 3-3 and 3-6 of the Recreation and Open Space Element of the Plan. Objective 3 requires the County to preserve and enhance "[t]he natural, recreational, archeological, scenic, historical and cultural resources of the A1A Scenic Highway." Policy 3-3 requires the County to "support the River and Sea Scenic Highway Corridor Management Plan," while policy 3-6 requires the County to "improve recreational facilities without adversely impacting natural resources along the Scenic Corridor." The management plan for the Scenic Highway emphasizes "context sensitive design" for development occurring within the corridor. This means that whatever is built around the corridor should fit in or blend with the location where it is proposed. The mass and scale of development that is authorized under the NOPC will dwarf the 16th Road park and marginalize the public beach access. Also, those persons occupying the new dwelling units in Cluster 35 (up to 561 units) will be concentrated directly at the intersection of the beach and the park. These impacts, whether collectively or singularly, would change the pristine, rural character of the beachfront and park at 16th Road, which continues to exist despite the development in the DRI to date. Therefore, the revisions conflict with the corridor management plan and are inconsistent with the requirement in policy 3-3 that the County support that plan. Policy 3-6 requires that the County "improve recreational facilities without adversely impacting natural resources along the Scenic Corridor." When the DRI was originally approved in 1984, there were 20 dune cuts distributed across the five miles of beach bordering the DRI, which provided direct access to the beach. The DO required all but four to be restored, i.e., filled and stabilized, with each remaining dune cut providing access to one of the four public parks on the beach. One of the remaining dune cuts is at the 16th Road park, which is adjacent to proposed Cluster 35. Besides the adverse impacts caused by the mass and scale of development adjacent to that public park, the NOPC allows Petitioners to relocate 16th Road and the 16th Road park facilities further south. The dune cut at 16th Road would have to be abandoned as an access point to the beach. This would require the construction of a dune walkover, relocation of restroom facilities, and relocating public parking further from the beach. Collectively, the impacts to natural resources and recreational facilities conflict with objective 3, which requires the County to preserve the natural and recreational resources of the Scenic Highway. The revisions also contravene policy 3-6, which requires the County to improve recreational facilities without adversely affecting natural resources along the Scenic Corridor. For the reasons stated above, the NOPC is inconsistent with objective 3 and policies 3-3 and 3-6 of the Recreation and Open Space Element of the Plan and in these respects is inconsistent with the County Plan. Land Development Regulations Sections 3.04.02.F.1. and 2. require that in order to approve a PUD reclassification application such as the one submitted by Petitioners the following criteria must be met: The proposed PUD does not affect adversely the orderly development of Flagler County and complies with the comprehensive plan adopted by the Flagler County Board of County Commissioners. The proposed PUD will not affect adversely the health and safety of residents or workers in the area and will not be detrimental to the use of adjacent properties or the general neighborhood. In making the following findings regarding the impact of the NOPC on residents, adjacent properties, and the general neighborhood, the undersigned has relied upon the testimony presented to the Board and evidence submitted at the DOAH hearing. See Joint Ex. 9. The proposed new development is immediately adjacent to the beach and a public park, and it will eliminate the intended buffer between other DRI development and the ocean for which the golf course now serves. While the DRI is not fully built out, it is 26 years old and is substantially developed and platted. At this stage of development in the DRI, the residents of the area and the County have the right to rely on the stability of the Master Development Plan. Substantial changes to the Master Development Plan such as those proposed here will likely cause adverse impacts to residents owning property in the DRI and to the community as a whole. The present Lodge building, while 77 feet high, is configured with its narrowest end facing the beach, minimizing any visual impact to the public using the beach and unit owners looking out to the ocean. This building orientation also minimizes shadowing of the beach adjacent to the site. The Lodge building blends into the area where it is located and by appearance is no more intensive than a single-family beachfront home found in other parts of the County. By contrast, the scale and intensity of development permitted by the NOPC will obstruct or eliminate ocean views of property owners, principally in Cluster 33 behind the golf course where several condominium buildings are now located. The evidence shows that these unit owners with an obstructed view can also expect a substantial loss (around 45 percent) in value of their properties. Likewise, the relocation of the existing access to the public beach and relocation of the public park will adversely impact the public since they will no longer have the ease of access to the beach and use of facilities the current park and beach access provide. Finally, the rural character of the beach area would be lost, and the new development would not be compatible with the adjacent residential areas. While Petitioners suggest that Cluster 35 will be compatible with adjacent areas because the land uses (residential) are the same, compatibility is better defined as whether two land uses can co-exist over time without one having an adverse effect on the other. Given the mass and scale of development that can occur in the buffer area (golf course) between the ocean and the other DRI development, the new Cluster will have an adverse effect on adjacent Clusters. As such, the NOPC will not be compatible with adjacent land uses. Collectively, these considerations support a finding that the proposed development will adversely affect the orderly development of the County, and it will be detrimental to the use of adjacent properties and the general neighborhood. Compliance with Section 14.5 and the Golf Course Plat The County and Intervenors contend that the reallocation of 561 residential dwelling units to the new Cluster 35 with an assignment of the "Ocean Recreation Hotel" community type is not a land use permitted by section 14.5 of the DO, this conflicts with the plat and deed restrictions recorded to enforce its terms, and section 14.5 must be amended before the NOPC can be approved. The essence of the argument is that Petitioners have no vested right to develop that portion of the DRI in this manner. Section 14.5 provides that: Land identified for golf course usage on the Master Development Plan map . . . shall be deed and plat restricted to ensure that the usage of this land is limited to golf courses (including associated or appropriate golf club facilities), open space, parks or, if approved by the County Commission, other appropriate recreational usages. . . . Joint Ex. 1, Attachment A, p. A-36. This provision in the DO has never been amended. Because the final configuration of the two proposed golf courses (Hammock Dunes Course and Ocean Hammock Course) was not known at the time, section 14.5 further provided that: Applicant at the time of platting shall identify the specific acreage for golf course use. The plat shall show the boundaries and configurations for golf course use. The plat shall show the boundaries and configuration of the golf courses. The plat and all deeds of land within the area so identified as golf course usage on the plat shall contain restrictions limiting the usage of the property platted to golf courses (including appropriate associated golf club facilities), open space, parks or, if approved by the County Commission, other appropriate recreational or governmental usages. As noted earlier, the 1998 NOPC amendment granted the developer's request for the County to convey back to the developer 33 acres of property originally designated for the 16th Road public park. In exchange, the developer conveyed two parcels within the DRI to the County, one of which expanded the size of an oceanfront park on Malacompra Road, while maintaining a smaller oceanfront park, with improvements, at 16th Road. The exchange was made so that the developer could increase the amount of oceanfront acreage available to the developer for the design and construction of the Ocean Hammock Golf Course and golf clubhouse. As noted above, one of the primary purposes of the exchange was that the golf course would serve as a buffer between the other development and the ocean. Consistent with the intent of section 14.5, Lowe, one of the successor developers to Admiral, submitted the Plat for the Ocean Hammock Golf Course, which was approved by the County on November 1, 2001. On December 10, 2001, the County and Lowe executed a Plat Addendum covering the land described in the golf course plat. See Respondent Exhibit 10. Section 6 of the Addendum states that: The parcels shown hereon will be perpetually used as golf course land, lake, clubhouse, appropriate associated golf course facilities, open space, parks, dune preservation or such other appropriate recreational or governmental usages approved by the Board of County Commissioners. (Emphasis added) When read in conjunction with the recorded Plat, Plat Addendum, and deed restrictions running with the golf course assumed by Petitioners when they obtained ownership of the golf course in 2006, section 14.5 strictly limits the uses allowable on the lands within the Ocean Hammock Golf Course Plat to a golf course, associated golf course facilities, open space, or upon approval by the Board, other appropriate recreational uses. The most reasonable interpretation of those documents, as further explained by testimony at hearing, is that Petitioners' proposal to reallocate up to 561 dwelling units to the proposed Cluster 35 within the golf course land and assign the "Ocean Recreation Hotel" community type to that Cluster, is not a use permitted by section 14.5. Petitioners contend, however, that despite their inclusion in the golf course plat, the various uses occurring on the Lodge property (e.g., a 20-unit lodge, swimming pool, parking lot, and landscaping) were never intended to be limited to use by golfers, and that other development can be approved by the County on land not devoted exclusively to the golf course. However, the County has always interpreted section 14.5, the Plat, and the Plat Addendum to mean that the golf course land will remain a golf course in perpetuity and cannot be developed for residential purposes. Notwithstanding contrary evidence presented by Petitioners, the County's interpretation of those documents has been credited as being the most persuasive. Given these considerations, Petitioners have no vested right under the current DO to develop the 12 acres for residential purposes and must request an amendment to section 14.5 in order to authorize another form of development. For this reason, the NOPC should be denied. The Legislature Extension of the DRI Expiration Date Section 380.06(19)(c), adopted in 2007, provides that the expiration dates for DRIs under active development on July 1, 2007, were extended for three years, regardless of any prior extension. Based on this provision, by operation of law, the expiration date for the instant DRI, February 28, 2009, was extended by three years to February 28, 2012. Section 14 of chapter 2009-96, Laws of Florida, extended the expiration date of DRIs then having an expiration date of September 1, 2008, through January 1, 2012, by two additional years. Similarly, section 46 of chapter 2010-147, Laws of Florida, also extended the expiration date for DRIs then having an expiration date of September 1, 2008, through January 1, 2012, again by two additional years. The extensions for DRIs provided in those provisions do not apply to the instant DRI, because the expiration date for the instant DRI does not fall within the September 1, 2008, through January 1, 2012, time period. Thus, the expiration date for the instant DRI is February 28, 2012. Although Admiral did not consent to Petitioners filing the NOPC request, the mutual obligations of Petitioners and Admiral created under the various contracts associated with Admiral's guaranty, and their impact on Petitioners' ability to file the application, are matters to be resolved in the appropriate circuit court. Equitable Estoppel Intervenors claim their members relied on a marketing video that asserted, among other things, that no more oceanfront condominiums would be built within Hammock Beach, and that Petitioners are equitably estopped from developing any buildings on proposed Cluster 35. A review of the standard condominium purchase contracts used in the DRI shows, however, that the purchasers clearly acknowledged that they could not, and did not, rely on oral representations or representations contained in marketing materials. Other Issues All other issues raised by the parties have been considered and are either rejected or found to be matters that need not be addressed in order to resolve this dispute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order determining that the NOPC is not a substantial deviation; extending the expiration of the DO to February 28, 2012, by virtue of legislative action in 2007; approving the reduction in residential units from 4,400 to 3,800; determining that the proposed revisions in the NOPC to create a new Cluster 35 and transfer 561 dwelling units to that Cluster are inconsistent with one objective and two policies of the County Comprehensive Plan; determining that the new Master Development Plan (which creates a new Cluster 35 and transfers 541 units) is inconsistent with criteria in LDC sections 03.02.04.F.1. and 2.; and determining that Petitioners have no vested right to construct up to 561 dwelling units on 12 acres of land located in the Ocean Hammock Golf Course that is now platted and restricted in perpetuity for golf course purposes only. DONE AND ENTERED this 6th day of April, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2011.
The Issue Whether the Ochlocknee Management Corporation has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Initial Purchase. In January, 1986, Ochlocknee Management Corporation (hereinafter referred to as "Ochlocknee"), began negotiations for the purchase and development of land located on Buck Lake Road (hereinafter referred to as the "Buck Lake Property"). On January 25, 1986, a document indicating an intent to sell 100 acres of the Buck Lake Property to Ochlocknee was executed. On October 31, 1986, a Contract for Sale was entered into between Ochlocknee and the owners of the Buck Lake Property. Pursuant to the Contract for Sale, Ochlocknee agreed to purchase 100 acres of the Buck Lake Property (hereinafter referred to as the "100 Acres"). The 100 Acres were to be developed in three phases by Ochlocknee. The development was named Avondale. In February of 1987, the 100 Acres were rezoned and platted. The Development of Units I, II and III. Development of Avondale Unit I began in March, 1987. In August, 1987, the Unit I plat was recorded. All roads, utilities and storm water for Unit I were complete. In April, 1988, development of Avondale Unit II began. The development of Unit II began approximately 8 months after the Unit I plat was recorded. In October, 1988, the Unit II plat was recorded. All roads, utilities and storm water for Unit II were complete. In May, 1989, development of Avondale Unit III began. The development of Unit III began approximately 7 months after the Unit II plat was recorded. In November, 1989, the Unit III plat was recorded. All roads, utilities and storm water for Unit III were complete. During the construction of Unit III Ochlocknee intended to purchase an additional parcel of the Buck Lake Property. This property was to be developed as additional phases or units of the Avondale development, including Avondale Unit IV, the development which is the subject of this proceeding. When constructed, the main road running through Units I, II and III was intended to continue through, and serve, Avondale Unit IV. The road is the only road providing access between Unit IV and Buck Lake Road. Utilities for Unit III were designed and stubbed to serve Unit IV. The weight of the evidence failed to prove that any action which Leon County took in approving the development of Units I, II, or III could have been reasonably relied upon by Ochlocknee in its development of Unit IV. Most of Leon County's actions in approving the development of Avondale were taken before the Unit IV property was even purchased. Additionally, the evidence failed to prove that Leon County specifically reviewed any plans concerning Ochlocknee's plans to develop Unit IV until after the preliminary plat for Unit IV was filed for approval. The Second Purchase. In November, 1988, Ochlocknee began negotiations for the purchase of the additional parcel of the Buck Lake Property to be developed as Unit IV. The property consisted of 40.5 acres and was to be developed as Unit IV, the development at issue in this proceeding, and Unit V. In March, 1989, the owners of the 40.5 acres applied for rezoning of the 40.5 acre parcel from A-2 (agricultural use) to R-1 (residential use). In March, 1989, Ochlocknee entered into a Contract for Sale and Option, pursuant to which Ochlocknee was to purchase the 40.5 acres. Unit IV was to consist of 10 acres of the parcel. The 10 acres abut Unit III. The remaining 30.5 acres of the parcel were to be developed as Unit V. In May, 1989, the 40.5 acre parcel was rezoned as R-1, limited use. The zoning limited septic tanks on the property to 2.2 units per acre. On June 27, 1989, Ochlocknee purchased the 10 acres to be developed as Unit IV. The Regional Stormwater Facility. In April, 1988, Poole & Associates, Inc. (hereinafter referred to as "Poole"), prepared plans and designs for a regional stormwater facility for 126 acres of the Buck Lake Property. Poole provided the engineers for Avondale. The plan developed by Poole was intended to handle stormwater for all of Units II and III, all of what was to be Unit IV, part of what was to be Unit V and part of the Buck Lake Property which was not to be developed by Ochlocknee. This regional stormwater facility will hereinafter be referred to as the "Stormwater Facility". The plans and designs for the Stormwater Facility were completed before Unit IV was purchased by Ochlocknee and before Unit IV was rezoned from A-2 to R-1. In July, 1989, Ochlocknee began construction of the Stormwater Facility. Ponds used in the Stormwater Facility are located on Unit III. In November, 1989, when the Unit III plat was recorded, the Stormwater Facility was substantially completed. The Stormwater Facility was generally approved upon the recording of the Unit III plat. Recording of the Unit III plat and the approval of the Stormwater Facility only applied to the use of the Stormwater Facility for Unit III. The use of the Stormwater Facility for Unit IV was not approved or even reviewed by Leon County in November, 1989. Ochlocknee was required to maintain the Stormwater Facility for an additional year after it was approved for Unit III. After approval of the Stormwater Facility for Unit III, problems arose with the Stormwater Facility. These problems began as early as August, 1989 based upon an August 31, 1989, letter from Broward Davis & Assoc., Inc., to Ochlocknee. In a letter dated November 22, 1989, from the Respondent's engineering inspectors, Poole was provided with a "punch list" of problems associated with Units I, II and III, including problems associated with the Stormwater Facility. The punch list was developed during a meeting held on November 21, 1989. Ochlocknee informed Leon County that the problems raised in the letter referred to in finding of fact 29 would be resolved in 30 days. The problems continued, however, into 1990. Efforts continued during the remainder of 1989 and early 1990 to resolve the problems. On January 17, 1990, a new Environmental Management Act became effective in Leon County. Ochlocknee was required to insure that its proposed use of the Stormwater Facility for Unit IV complied with the Act. In a letter dated February 22, 1990, Leon County notified Poole that preliminary plans for the development of Unit IV which had been submitted to Leon County had been reviewed. Poole was informed that additional information concerning the preliminary site plans was needed before Unit IV could be approved for development. Among other things, Leon County informed Poole that additional information concerning the use of the Stormwater Facility for Unit IV would have to be submitted. Unit IV Development. In October, 1988, Poole prepared a preliminary site plan for the development of Unit IV. These plans were prepared before the property which constitutes Unit IV was purchased or rezoned from A-2 to R-1. On June 27, 1989, Ochlocknee purchased the 10 acres of Unit IV for $104,956.50. In November, 1989, Ochlocknee entered into an agreement with Poole to design roadways, utilities and obtain construction approvals for Unit IV. On December 1, 1989, preliminary plat approval for Unit IV was applied for. The preliminary plat was approved by the Tallahassee-Leon County Planning Department on January 10, 1990. On January 17, 1990, the City of Tallahassee approved the water distribution plans for Unit IV. On January 12, 1990, the City of Tallahassee agreed to provide water and electrical service for Unit IV. On February 2, 1990, a commitment for a construction loan for Unit IV was received by Ochlocknee. The Leon County comprehensive plan was submitted to the Department of Community Affairs on February 1, 1990. Ochlocknee should have been aware of the drafting of the comprehensive plan and the fact that it had been provided to the Department of Community Affairs for approval. 41 In March, 1990, Poole completed final construction drawings for the Unit IV roadways. In April, 1990, Ochlocknee received contracts for the construction of roadways and utilities for Unit IV. In May, 1990, Poole held an onsite pre-construction conference with Leon County officials, utility providers and construction personnel. Poole placed stakes for clearing limits on Unit IV during May, 1990. On June 29, 1990, Leon County approved roadway construction plans for Unit IV. At the time that the preliminary plat for Unit IV was filed by Ochlocknee for approval, Ochlocknee knew that the Stormwater Facility needed to be modified before development of Unit IV would be approved. Despite this knowledge, Ochlocknee chose to continue to propose that the Stormwater Facility be used for Unit IV. These problems continued throughout the time after the preliminary plat for Unit IV was filed. In May, 1990, Leon County informed Ochlocknee that a permit for clearing and grading, the last permit needed to begin construction, would not be issued until the Stormwater Facility proposed for Unit IV was modified and the problems previously identified by Leon County with the Stormwater Facility in 1989, were corrected. Construction on Unit IV has not commenced. Costs Associated with Unit IV. The cost of rezoning the 10 acres of Unit IV was $2,911.25 plus a $300.00 fee. The $300.00 fee was incurred in March, 1989, before the Unit IV property was purchased or the rezoning had taken place. Therefore, the fee was not incurred in reliance upon any representation from Leon County. The $2,911.25 cost was incurred between October, 1988 and May, 1989. This amount was incurred before the purchase of the Unit IV property or the approval of the rezoning. Therefore, this cost was not incurred in reliance upon any representation from Leon County. The cost of purchasing the 10 acres which are to be developed as Unit IV was $104,956.50. This cost was incurred in June of 1989. The only action taken by Leon County concerning any possible development of Unit IV prior to the time this cost was incurred was to approve rezoning Unit IV from A-2 to R-1. The cost of purchasing the 10 acres of Unit IV was not, therefore, incurred in reliance upon any action of Leon County other than approval of the rezoning of Unit IV. The cost of constructing the Stormwater Facility attributable to Unit IV was approximately $8,000.00. This cost was incurred between July, 1989, and November, 1989. Therefore, the cost was incurred after the Unit IV property was rezoned but before the preliminary plat and the development plans for Unit IV were approved by Leon County. Therefore, the cost of the Stormwater Facility attributable to the Unit IV property was not incurred in reliance upon any action of Leon County other than approval of the rezoning of Unit IV. Ochlocknee failed to present sufficient evidence to conclude what expenses were incurred by it in stubbing the road and utilities that run through Units I, II, and III are attributable to Unit IV. The weight of the evidence also failed to prove when any such expenses were incurred. These expenses were incurred sometime after the development of Unit I began (before the Unit IV property was acquired or rezoned) and sometime before Unit III was completed (before the preliminary plat for Unit IV was approved). Therefore, any expenses attributable to Unit IV for the road and utilities were incurred before Leon County took any action with regard to the development of Unit IV or were incurred only in reliance upon the rezoning of the Unit IV property. Engineering, surveying and permitting costs associated with Unit IV totalled $13,384.49. These costs were incurred between January, 1990 and May, 1990. Prior to the expenditure of these funds Leon County had approved the rezoning of Unit IV, the preliminary plat and some of the other plans for the development of Unit IV. All of these costs were incurred after Ochlocknee had been informed that there was a problem with the Stormwater Facility. All of the engineering costs were incurred before Leon County had indicated that it would approve the development of Unit IV. On April 25, 1990, Ochlocknee refinanced the note for the 10 acres of Unit IV. The new note was for $219,750.00. This amount was borrowed to refinance the cost of purchasing the 10 acres and to pay construction costs for the development of Unit IV. The funds intended for construction costs for Unit IV have not, however, been expended. The weight of the evidence failed to prove what costs Ochlocknee incurred in obtaining the $219,750.00 note. All of the costs incurred by Ochlocknee relating to the development of Unit IV were incurred in an effort to obtain approval from Leon County for the development of Unit IV. The costs were incurred before any representation from Leon County that development of Unit IV would be allowed to proceed. Some of the costs were incurred before the Unit IV property was rezoned from an agricultural use to R-1. Leon County had taken no action before approval of the rezoning. Some of the costs were incurred only in reliance upon the rezoning of the Unit IV property. Finally, all of the costs were incurred in an effort to obtain approval to develop Unit IV and before Leon County indicated through any action that development of the property would be allowed to proceed. These costs were incurred at a time when Ochlocknee should have known that the development of Unit IV would probably have to be consistent with the 2010 Comprehensive Plan. Procedure. On or about August 1, 1990, Ochlocknee filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County. The following information concerning the development of Unit IV was contained on the Application: "Ochlocknee Management" is listed as the "Owner/Agent." Question 3 of the Application requests the name of the project, including the name and address of each owner of, and interested party in, the project or property. "AVONDALE UNIT IV" was included as the response to question 3. The project is described as "22 Residential Lots on 10 acres, Proposed with Public Road, Water, and Recorded Plat." The project location is described as "AVONDALE WAY, SOUTH OF AVONDALE III." Total project costs are estimated at "$226,205.95" and it is estimated that "$126,952,24 " have been expended to date. "Progress . . . Towards Completion" is described as: (1) all utility site, drainage plans completed as of May 4, 1990; (2) preliminary plat approval 1/10/90, water plans approved 2/1/90 and environmental permit 6/27/90; and (3) the drainage facility located in Unit III is complete. "Preliminary Plat, Water Plan Approval, Environm. Permits" are included as forms of "government approval." The response to question 10 of the Application, which requests information concerning government action relied upon prior to committing funds towards completing the project, was "[s]ubdivision Ordinance for Preliminary Plat, The Letter of Agreement, Policy & Procedures Manual for Utilities and the Environmental Management Act for the Stormwater Permits." In a letter dated August 7, 1990, Ochlocknee was informed that its Application was being referred to a Staff Committee comprised of Jim English, Mark Gumula, Howard Pardue, Buddie Holshouser and Herb Thiele. By letter dated August 24, 1990, Ochlocknee provided additional information for the Staff Committee to consider. On August 27, 1990, a hearing was held to consider the Application before the Staff Committee. Barry Poole, of Poole, and Jody Elliott, of Ochlocknee, testified. By letter dated August 27, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Ochlocknee that the Application had been denied. By letter dated September 5, 1990, to Mr. Gumula, counsel for Ochlocknee appealed the decision to deny the Application. By letter dated October 5, 1990, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on October 25, 1990. During the hearing before the undersigned Ochlocknee stipulated that it had sought approval of its Application based upon "common law vesting" and not "statutory vesting" as those terms are defined in Leon County Ordinance 90- 31.
The Issue The issue presented for consideration herein concerns the standing of Petitioners to challenge the development order entered by the City of Alachua, Florida, granting DPI approval to Turkey Creek, Inc. That order dates from June 15, 1982. In particular, the Motion to Dismiss filed by Respondent Turkey Creek asserts that Petitioners are not members of the class of individuals delineated in Subsection 380.07(2), Florida Statutes, who would have standing to appeal the development order; in that Petitioners are neither "owners" or within other classifications of individuals who might file an action before the Florida Land and Water Adjudicatory Commission, which action is in opposition to the grant of the development order. RECORD Although a transcription was not made of the motion hearing, the following items which are attached to this Recommended Order constitute the factual basis for this decision. Attachment "A" is the Notice of Appeal of development order; Attachment "B" is the petition for review of development order with its attendant exhibits; Attachment "C" is the letter of referral from the Secretary to the Florida Land and Water Adjudicatory Commission to the Director of the Division of Administrative Hearings; Attachment "D" is the answer and affirmative defenses to the petition filed by Turkey Creek; Attachment "E" is the motion to dismiss filed by Turkey Creek; Attachment "F" is the notice of hearing related to the motion to dismiss; and Attachment "G" is the supplemental authority offered by Turkey Creek. For purposes of this Recommended Order, notwithstanding the answer of Turkey Creek wherein facts of the Petition are denied, the factual allegations related to the standing issue as made through the petition are deemed to be factually accurate, with the exception of those contentions pertaining to conclusions of law.
Findings Of Fact On January 4, 1982, the Turkey Creek Development of Regional Impact Application for Development Approval was filed with the City of Alachua, Florida, City Commission and North Central Florida Regional Planning Council in accordance with Chapter 380, Florida Statutes. It was filed by Turkey Creek, Inc., as applicant. Turkey Creek, Inc. is wholly-owned by Norwood W. Hope, N. Forest Hope and A. Brice Hope. Turkey Creek proposes to develop 5,300 residential dwelling units on 976+- acres, which constitutes a residential development of regional impact according to Chapter 380, Florida Statutes, and Chapter 22F-2.10, Florida Administrative Code, involving real property located in the City of Alachua, Alachua County, Florida, as included in the property description found as an exhibit to the petition document which is Attachment "B" to this Recommended Order. Prior to June 15, 1982, the City of Alachua had previously duly zoned or did simultaneously zone the said 976+-acres PUD and commercial to permit the development as specified in the said application. June 15, 1982, is the date when the City of Alachua adopted the development order for the Turkey Creek Development of Regional Impact. Following the action by the City of Alachua, the Petitioners in this cause, in the person of counsel, filed a notice of appeal of the development order. This appeal was made on June 28, 1982, and on that same date, the petition for review of that development order was filed with the State of Florida, Land and Water Adjudicatory Commission. On August 4, 1982, the matter was transmitted to the division of administrative Hearings for formal hearing by action of the Office of the Office of the Secretary of the Florida Land and Water Adjudicatory Commission. The case was subsequently assigned to this Hearing Officer and a motion hearing was conducted to consider a dismissal of this action based upon Respondent Turkey Creek's allegation that the Petitioners lack standing. The motion hearing was conducted on September 2, 1982. Petitioners are owners of real property included within the Turkey Creek development of regional impact and their property is adjacent or in close proximity to properties which were the subject of the City's zoning decision made in conjunction with approval of the development order.
The Issue Whether Sugarloaf Shores Section C Extension is a "major development" as defined by Section 6-222, Monroe County Code, and (in connection with Intervenor's amended plat proposal and dredge and fill application) should undergo major development review pursuant to Chapter 6, Article VII, Monroe County Code.
Findings Of Fact Sugarloaf Shores Section C Extension is a subdivision located in Section 2, Township 67 South, Range 27 East, Sugarloaf Key, Monroe County, Florida. (Prehearing Stipulation, Para. (e), No. 1). The plat of Sugarloaf Shores Section C Extension, shows 76 residential building lots and five deadend canals (connecting to Upper Sugarloaf Sound or Cross Key Channel) and a canal of approximately 900 feet paralleling the mean high water line of Upper Sugarloaf Sound; it was approved by Monroe County on July 5, 1972, and is recorded in Monroe County Plat Book 6, page 93. The subdivision contains 38.9 plus acres. (Prehearing Stipulation, Para. (e), No. 2; Joint Exhibit No. 1). Lloyd A. Good, Jr., purchased Sugarloaf Shores Section C Extension on October 8, 1973, and is the current owner and developer of the subdivision. (Prehearing Stipulation Para. (e), No. 3). At the time of his purchase, the land had been cleared. An east-west canal of approximately 600' in length and 50' in width had been excavated but unopened to Upper Sugarloaf Sound. A north-south canal or borrow pit of approximately 200' in length and 50' in width had also been excavated. Fill obtained from these excavations had been placed on the property. He subsequently placed approximately 800 yards of additional fill on the Southeast corner of the property. (Testimony of Good) The platted subdivision is landward of the mean high water line and contains a mixture of upland and wetland vegetation. A berm rises along the front of the property between Allamanda Drive and the existing (plugged) canal. The northern part of the property contains white, black, and red mangroves, red grape, a hardwood hammock, and a salt water marsh characterized by key grass, salicornia, and white and black mangroves. The western part of the property contains fresh water wetlands characterized by spike rush. The area south of the existing canal contains more mangroves and is permeated by transitional wetland or fresh water wetland plant species, with the higher elevations containing Lower Keys hardwood hammock species such as poison wood, black tooth and Jamaican dogwood. The salt marsh and black mangroves are subject to inundation from tidal exchange; the fresh water wetlands are subject to rain water flooding. (Testimony of Dennis) In 1973, Lloyd Good was familiar with regulatory restrictions on the use of wetland areas. As a Philadelphia attorney, he had "practiced in wetland areas in New Jersey . . . and . . . knew that the concept of deadend canals at that time was not feasible." (TR.65) He had decided to amend the original plat (and change the development plan) even before he purchased Sugarloaf Shores Section C Extension because he believed that under existing environmental laws the platted deadend canals would not be permitted. (TR.65) So he hired engineers to design a development plan acceptable to the U.S. Army Corps of Engineers and other governmental agencies having regulatory jurisdiction over dredge and fill activities in wetland areas. Because of other business interests, he temporarily halted work on the project between late 1973 and 1975. From 1975 to 1980, he worked with permitting officials from federal, state, and local regulatory agencies in an effort to devise a development plan for Section C Extension which would meet regulatory standards. In 1980, he hired a consultant to obtain the necessary federal, state, and local permits needed to carry out his revised development plan. Monroe County permitting officials told him not to apply for any local dredge and fill, or land clearing permits until he first obtained the required federal and state permits. (Testimony of Good) In 1980, Lloyd Good applied for a joint U.S. Army Corps of Engineers/Florida Department of Environmental Regulation permit to perform the dredging and filling necessary to carry out his revised development plan. In 1983, after extensive negotiation, both agencies issued him the required dredge and fill permits. The Department of Environmental Regulation permit was conditioned on Mr. Good obtaining Monroe County approval of an amended plat of Sugarloaf Shores Section C Extension conforming to the federal and state permits. (Joint Exhibit No. 21, Testimony of Good) During his initial discussions with Monroe County officials in 1981, Lloyd Good proposed rezoning the property to permit multiple-family residences; if rezoned, he expected that the project would be required to undergo "major development" review as defined by the Monroe County Code. But after meeting with members of the Sugarloaf Property Owners Association and discovering that they were violently opposed to multi-family development," (TR.73) he decided to retain the single-family nature of the original development and not seek a zoning change. Monroe County officials told him that by retaining the original zoning his development activities would not be subject to the "major development" review process. (Testimony of Good) On May 10, 1983, Lloyd Good submitted an application to Monroe County for authorization to dredge 42,400 plus/minus cubic yards of submerged lands, wetlands and uplands for roads and fill needed to develop residential lots within the Sugarloaf Shores Subdivision in accordance with his newly revised development plan. His application conformed to the federal and state permits already issued. (Prehearing Stipulation Para. (e) No. 4; Joint Exhibits No. 2 and 6) Mark Robinson, the county biologist assigned to review the dredge and fill application and prepare a biological report, asked Lloyd Good to have the state and federal permits amended to address several of his concerns. Mr. Good obtained the requested permit amendments, then asked that the biological report be completed. (Testimony of Good) On August 25, 1983, Dr. Jeffrey M. Doyle, Director of the Monroe County Planning and Zoning Department, issued an administrative ruling declaring Sugarloaf Shores Section C Extension to be a "major development" under the Monroe County Code. As grounds, he cited Section 6-222(1), which defines a "major development" project as a subdivision containing five acres or more of land or water, and Section 6-222(7)(b), which grants discretionary authority to zoning officials and the County Commission to designate an activity or use as a "major development" project if it "reflects sufficient scope, scale and size to justify its being designated . . . in order to ensure its reasonable implementation, if approved, and its proper review prior to such approval." Under his administrative ruling, the dredge and fill application would be subject to the comprehensive review procedures which apply to "major developments." (Joint Exhibit Nos. 32, 5) On September 21, 1983, Lloyd Good appealed Dr. Doyle's administrative ruling to the Monroe County Board of Adjustment. The issue before the Board of Adjustment (and subsequently before the County Commission) was whether Mr. Good's proposed dredge and fill activity (for the purpose of constructing the revised subdivision) was a "major development" as defined by the Monroe County Code, and whether compliance with "major development" review procedures was required before county dredge and fill permits could be issued. (Prehearing Stipulation, Para. (e) No. 6; Joint Exhibit No. 8). On November 2, 1983, the Monroe County Board of Adjustment upheld Dr. Doyle's decision and determined that the Section C Extension subdivision (to be created by the dredging and filling) was a "major development" under Chapter 6- 222(7)(b), Monroe County Code. (Prehearing Stipulation, Para. (e) No. 7; Joint Exhibits No. 11 and 12). On November 23, 1983, Lloyd Good appealed the Board of Adjustment's decision to the County Commission. (Prehearing Stipulation, Para. (e) No. 8; Joint Exhibit No. 13). On January 27, 1984, the County Commission, sitting as the Board of Appeals, adopted Resolution No. 042-1984, reversing the Board of Adjustment's decision of November 2, 1983. The resolution (giving no specific reasons for the reversal) remanded the matter to the County Planning and Building Department for normal processing of the related dredge and fill permits. It did not grant or deny any development or dredge and fill permit; it simply ordered that Lloyd Good's dredge and fill application would be reviewed under normal permitting procedures, not the more comprehensive procedures applicable to "major development" projects. (Prehearing Stipulation, Para. (e), No. 9; Joint Exhibit No. 14) The DCA did not appeal this resolution to a circuit court (within 30 days of its adoption) or to the FLAWAC (within 45 days of its transmission). The DCA did not challenge or question the County Commission's decision (that the proposed dredge and fill activities would not undergo "major development review") until it appealed the Commission's subsequent resolution granting the dredge and fill permit. (Testimony of Good, Dennis) On June 4, 1984, Lloyd Good submitted to the Monroe County Building Department 13 copies of a proposed amended plat for the Sugarloaf Shores Section C Extension. The amended plat incorporated his new development plan and reflected the dredging and filling approved by state and federal permits. (Prehearing Stipulation, Para. (e), No. 10; Joint Exhibit Nos. 18 and 21). On July 13, 1984, the County Commission adopted Resolution No. 195- 1984 approving Lloyd Good's application to dredge and fill. The resolution was transmitted to the DCA on July 27, 1984, which appealed it to the FLAWAC by notice filed September 10, 1984. 1/ The appealed resolution directs that the applied-for permit be issued subject to Lloyd Good's subsequent filing of an amendment to the Sugarloaf Shores Section C Extension plat. (Prehearing Stipulation, Para. (e), Joint Exhibit No. 19) Thereafter, on September 7, 1984, the County Commission adopted Resolution No. 224-1984, approving an "Amended Plat for Sugarloaf Shores Section C Extension." The DCA also appealed this resolution to FLAWAC by separate notice filed October 31, 1984. (Prehearing Stipulation, Para. (e), No. 12; Joint Exhibit Nos. 21, 22) The amended plat approved by Resolution No. 224-1984, replaces the original plat with a fundamentally new and different development plan. It alters the location of roads; eliminates the proposed deadend canals (except for the existing "plugged" canal); provides for wetland preservation areas in Tracts A, B, C, D, and F, and for the construction of a six-acre boat basin fronting the property on Upper Sugarloaf Sound; and reduces the number of single family residential lots from 76 to 55. RU-1 zoning is retained. The new development plan is preferable to the original plan in terms of environmental impact. The amended plat was processed in the same manner as all new plats in Monroe County. (Joint Exhibits No. 1, 21; Testimony of Dennis) The record is devoid of any documented expenditures made by Lloyd Good in reliance on County Commission approval of the original or amended plat.
Recommendation Based on the foregoing it is RECOMMENDED that pursuant to Section 380.07(4), Florida Statutes (1983), the Florida Land and Water Adjudicatory Commission enter an order: Reversing Resolution Nos. 195-1984 and 224-1984, because these resolutions approved development activities prior to their undergoing the "major development" review required by Section 6-222(1) and (6), Monroe County Code, as incorporated by Rules 27F-9.06 and 27F-9.17, Florida Administrative Code; Declaring the proposed Sugarloaf Shores Section C Extension a "major development" within the meaning of Section 6-222(1) and (6), Monroe County Code, and requiring the two development activities which would create it to undergo "major development" review prior to any approval; and Declaring that after undergoing the required "major development" review, these development activities would be eligible for approval, but that the disposition of the appeals in the instant cases does not reach the substantive issue of whether the proposed development should ultimately be approved, or disapproved. See, Section 380.08(3), Florida Statutes (1983). DONE and ORDERED this 21st day of January, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1986.
