The Issue The issue to be determined in this case is whether Amendment 10-01A to the Bay County Comprehensive Plan (“the Plan Amendment”), adopted by Ordinance 10-22, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The Parties The Department is the state land planning agency and, at the time of the adoption of the Plan Amendment, was charged with the duty to review comprehensive plan amendments and to determine whether they are “in compliance,” as that term is defined in section 163.3184(1)(b). Bay County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time. Petitioner Diane Brown resides and owns property in Bay County, but not in the Sand Hills STZ. Petitioner submitted comments to Bay County during the time between the transmittal and adoption hearings for the Plan Amendment. Intervenor Cedar Creek is a Florida corporation that owns approximately 1,007 acres of land within the Sand Hills STZ. Intervenor submitted comments to Bay County during the time between the transmittal and adoption hearings for the Plan Amendment. The Sand Hills STZ The Sand Hills STZ is one of three Rural Community STZs in Bay County. The Sand Hills STZ has a number of platted and unplatted subdivisions that were created before the adoption of the Bay County Comprehensive Plan. Within the Sand Hills STZ is a police station, a fire station, and a public school for Pre- Kindergarten through 12th grade. Residences and businesses in the Sand Hills STZ are on private wells and septic tanks. The public school is on central sewer and water. Existing land uses within the Sand Hills STZ include Agriculture, Public/Institutional, Conservation/Preservation, General Commercial, and Rural Residential. Lands designated Agriculture can be developed at one dwelling unit on ten acres ("1 du/10 ac"). Lands designated Rural Residential can be developed at 1 du/3 ac on unpaved roads and 1 du/ac on paved roads. This leads to some semantic confusion. Densities of 1 du/10 ac and 1 du/3 ac are rural densities, but a density of 1 du/ac is a suburban density. That means the Rural Residential land use designation allows for densities that are suburban in character and the rural community STZs are not altogether rural. Abutting the Sand Hills STZ on the north is Washington County. To the south are areas designated Agriculture/ Timberland. The community of Southport is located about five miles to the south. West of the Sand Hills STZ is the Northwest Florida Beaches International Airport and other lands subject to the West Bay Area Sector Plan. East of the Sand Hills STZ is Deer Point Lake/Reservoir, the County’s primary source of drinking water. Also to the east are 8,500 acres of land owned by the Northwest Florida Water Management District that are designated Conservation/Recreation. The Sand Hills region is hydrogeologically sensitive because of significant recharge which occurs throughout the region via ground and surface waters to Deer Point Lake/Reservoir. The Plan Amendment The Plan Amendment creates a new Policy 3.4.10 to guide development in the Sand Hills STZ. The Policy begins: The Sand Hills Area is an established and continually evolving community with unique character and environmental assets that warrant a special planning approach to ensure the preservation and protection of its distinctive qualities. Due to its beautiful natural landscapes, picturesque areas, and its strategic location east of the West Bay Area Sector Plan (Centered around the Northwest Florida Beaches International Airport) and nearby transportation corridors--State Road 77, County Road 388, and State Road 20, development and growth will continue to occur in the Sand Hills Community. The Sand Hills Rural Community Special Treatment Zone is an overlay area that has been established to maintain the area's character while protecting its significant natural resources and advancing Bay County's Wide Open Spaces strategy (Map 3.7). The Sand Hills Rural Community Special Treatment Zone encourages efficient development and infill within an area that has the capacity to service future growth. Guiding principles for the Sand Hills STZ are set forth in new Policy 3.4.10: Protect important recharge areas from the effects of irresponsible development. Create a sense of place by implementing design and landscape standards. Promoting civic and community uses, and providing interconnection between uses, community parks, and open space that protect and enhance the character of the Sand Hills Community. Provide for sustainable development and environmentally responsible design. Maintain the character of the Sand Hills Rural Community while providing for neighborhood commercial, retail, office, and civic uses located within designated commercial area and corridors, appropriately scaled to meet the needs of the Sand Hills Community. Promote an integrated network of local streets, pedestrian paths, and bicycle and equestrian trails. Access management policies that promote development patterns which reduce automobile trip length. Provide for a range of housing types for all ages, incomes, and lifestyles. Provide centralized utilities for all new developments in a planned, coordinated and efficient manner. Policy 3.4.10.1 would allow properties designated Rural Residential to increase from 1 du/ac to 4 du/ac if central water and sewer are available and other conditions are met as set forth in Policy 3.4.10.4. Policy 3.4.10.2 has special conditions applicable to commercial development, such as a maximum floor area ratio of 30 percent. General Commercial land uses are only permitted in three designated "Commercial Nodes." Policy 3.4.10.3 creates special conditions applicable to agricultural uses in the Sand Hills STZ. Policy 3.4.10.4 establishes criteria for new development in the Sand Hills STZ, including the requirement for a site analysis by a licensed engineer or geologist. This requirement is imposed to protect karst features and aquifer recharge areas. This Policy also requires enhanced stormwater treatment and buffers around karst features, low impact design and landscaping standards, and open space requirements. Policy 3.4.10.5 requires the County to complete a plan by January 2012 for the expansion of water and sewer facilities into the Sand Hills STZ and to "retrofit" existing septic tanks by connecting properties to central sewer lines. New developments, regardless of density, are required to connect to central sewer lines if they are within 1,000 feet. Policy 3.4.10.6 addresses roadway access management to reduce reliance on State Road 77 and preserve levels of service. Internal Inconsistency Petitioner contends that the Plan Amendment is inconsistent with existing Policy 3.4.4 which states, in part, that rural community STZs are intended: to promote infill development into existing rural developed areas that will allow residents to work, shop, live, and recreate within one relatively compact area while preserving the rural and low density land uses in the designated and surrounding areas. Petitioner has a misunderstanding about Policy 3.4.4 that is the basis for several of her objections to the Plan Amendment. Petitioner focuses on the words "preserving the rural and low density land uses" and fails to see that the primary purpose of the policy is to enhance communities out in the rural areas of Bay County by encouraging the creation of a "nucleus" of mixed land uses in a compact development, while preserving the rural character of the surrounding area. Petitioner also asserts that the Plan Amendment is inconsistent with Policy 3.4.4 because the policy refers to "existing" developed areas, but the Plan Amendment allows residential density increases on some lands that are currently undeveloped. Petitioner's interpretation of the wording in the policy is not the only interpretation that can be given to the words and it is not the interpretation that Bay County gives to the words. Bay County interprets existing developed areas as a general reference to the areas that are currently recognizable as the core of village-like features, rather than a finite group of parcels. Policy 3.4.4 refers to the designation of rural community STZs "consistent with the Wide Open Spaces Strategy." A 7-page document entitled "Wide Open Spaces Strategy" was admitted into evidence as Petitioner's Exhibit 41. It is stated in the strategy that: This policy is an attempt by the Board of County Commissioners to focus its infrastructure planning and construction efforts. In no way should this policy be construed to discourage anyone choosing to live in the rural area. Rather, the Board is establishing the parameters and expectations that should be associated with that choice. The significance of the strategy to a compliance determination is not clear. It does not appear in the Comprehensive Plan and it may not have been properly adopted by reference. See § 163.3711(1)(b), Fla. Stat. Policy 3.4.4 states that a rural community STZ is to be "designated" consistent with the strategy, but this Plan Amendment does not designate the Sand Hills STZ. There are general statements in the strategy that fail to account for more specific policies of the comprehensive plan. For example, the strategy states that the County will limit residential development in rural communities to 1 du/3 ac, even though the Comprehensive Plan clearly allows 1 du/ac on Rural Residential lands if the lands are on paved roads. Statements in the policy regarding rural services do not reflect the existing public services and utility planning in the Sand Hills STZ. These disharmonies between the Wide Open Spaces Policy and the Comprehensive Plan suggest that the strategy is a collection of general statements that are not intended to have the same force and effect as the policies of the Comprehensive Plan. The record evidence is insufficient to show the intended role of the strategy in Bay County's comprehensive planning. The record evidence is insufficient to show that the Plan Amendment is inconsistent with the strategy. Petitioner contends that the Plan Amendment is inconsistent with Policy 6.10.5 of the Conservation Element, which states: "The County will maintain rural densities and intensities of development in identified high aquifer recharge areas." The existing rural densities in the Sand Hills STZ (1 du/10 ac and 1 du/3 ac) are not changed by the Plan Amendment. The existing suburban densities of 1 du/ac cannot be increased unless the parcels are connected to central water and sewer systems. Therefore, the purpose of Policy 6.10.5--to protect aquifer recharge areas--is achieved by the Plan Amendment. The stated "performance measure" for Policy 6.10.5 is the maintenance of rural designations on the FLUM. The Plan Amendment maintains rural designations on the FLUM. Petitioner contends that the Plan Amendment is inconsistent with Policy 3.2.3 because it conflicts with the intent of the policy to limit the Sand Hills STZ to rural levels of service. However, Policy 3.2.3 does not prohibit the County from providing central services in the Rural STZs. The service area map for the Sand Hills STZ shows that central water and sewer services are already planned. The County already provides central sewer and water to the public school located in the Sand Hills STZ. Petitioner claims that the Plan Amendment, for the first time, allows general commercial uses within the Sand Hills STZ, but General Commercial uses were already allowed in the Sand Hills STZ. In summary, Petitioner failed to prove facts showing that the Plan Amendment causes the Comprehensive Plan to be internally inconsistent with any goal, objective, or policy of the Comprehensive Plan. Data and Analysis Petitioner asserts that there is insufficient data and analysis to support the need for increased residential density to meet population projections for the area. A local government can accommodate more than the projected population. See § 163.3177(6)(a)4., Fla. Stat. The Plan Amendment responds to growth pressures in the Sand Hills STZ, modifies antiquated subdivisions, and furthers numerous other general and specific goals, objectives, and policies of the Comprehensive Plan to promote well-designed, environmentally-protective, infrastructure-efficient, high- quality communities. Petitioner contends that the Plan Amendment is not supported by appropriate data and analysis regarding the protection of aquifer recharge areas. However, the evidence offered by Petitioner only established that she wants the Plan Amendment to be more protective. Petitioner's expert hydrogeologist, Dr. Kincaid, admitted that the County had taken "strong" and "aggressive" measures in the Plan Amendment to protect water quality, but said he wished the County had done more to address water withdrawals. There was no evidence presented indicating that there is insufficient water available to serve the Sand Hills STZ. The Northwest Florida Water Management District has exclusive authority to regulate water withdrawals in Bay County. See § 373.217(2), Fla. Stat. The Deer Point Lake Hydrologic Analysis is the principal data and analysis that the Plan Amendment is based upon. In addition, the Plan Amendment is supported by the analysis presented at the final hearing by Dr. Kincaid and Steve Peene. Petitioner did not present data and analysis showing that the Plan Amendment would be harmful to water resources. Petitioner contends that the Plan Amendment is not supported by data and analysis regarding impacts on species and habitats. Petitioner did not explain what additional data and analysis would be required regarding species and habitat when the lands affected by the Plan Amendment are already designated for residential and commercial development. Petitioner refers to comments made by the Fish and Wildlife Conservation Commission, but those comments are also unexplained, and are hearsay. The Conservation Element of the Comprehensive Plan addresses the protection of natural resources, species, and habitat. The Plan Amendment does not remove any goal, objective, or policy of the Conservation Element. Petitioner did not show the Plan Amendment would be harmful to species and their habitat. A large area where septic tanks are used can be expected to be a source of groundwater contamination because a significant number of septic tanks will fail. The Plan Amendment includes a new map which depicts priority areas for retrofitting existing parcels that use private wells and septic tanks and connecting the parcels to central water and sewer lines. Petitioner contends that the mapping is not supported by data and analysis. The priority areas were selected based on development density and proximity to Deer Point Lake. Those data are sufficient to support the mapping of priority areas. Petitioner produced no contrary data and analysis. In summary, Petitioner failed to prove facts showing that the Plan Amendment is not supported by relevant and appropriate data and analysis. Urban Sprawl Petitioner contends that the Plan Amendment encourages urban sprawl, but her evidence was not persuasive. According to Petitioner's theory of sprawl, every rural town and village would be an example of sprawl because they all "leap frog" from urban areas over agricultural and rural lands. Leap frogging as an indicator of sprawl usually involves a leap from an urban area to an area of undeveloped rural lands which will be transformed into urban or suburban land uses. That is not the situation here. The Plan Amendment's application of modern planning principles to enhance the quality and functionality of an existing rural community does not indicate urban sprawl. Petitioner contends that the Plan Amendment triggers most of the 13 indicators of urban sprawl that are set forth in section 163.3177(6)(a)9., but she failed to prove the existence of any indicator. The Plan Amendment does not promote the development of a single use or multiple uses that are not functionally related. It does not promote the inefficient extension of public facilities and services. It does not fail to provide a clear separation between urban and rural uses. In summary, Petitioner failed to prove facts showing that the Plan Amendment constitutes a failure of Bay County to discourage the proliferation of urban sprawl. Other Compliance Issues Petitioner contends that the Plan Amendment's provisions regarding infrastructure were not shown to be financially feasible, but the record evidence shows otherwise. Bay County has water and sewer facilities with sufficient capacity to serve the Sand Hills STZ. Furthermore, the new law eliminated the financial feasibility provisions of section 163.3177. Petitioner contends that the Plan Amendment improperly changes the FLUM, but the Plan Amendment does not change the FLUM. The rural community STZs are overlays that do not change FLUM designations. Petitioner contends that the Plan Amendment does not address hurricane evacuation times, but did not show that there is any legal requirement for Bay County to address hurricane evacuation times for amendments affecting lands outside of areas of hurricane vulnerability. Petitioner alleges that the Plan Amendment is inconsistent with the requirements of section 163.3177 related to energy conservation and efficiency, but the law cited by Petitioner was eliminated by the new law. Petitioner stated at the final hearing that her real objection is that the Plan Amendment promotes subdivisions far away from employment centers. Growth in the Sand Hills STZ is likely to be affected by and run parallel to growth in the adjacent West Bay Sector Plan because it is a developing employment center. Furthermore, the Plan Amendment is designed to make the Sand Hills STZ more self-sustaining, which would reduce vehicle miles. Petitioner contends that the Plan Amendment does not include sufficient standards and measures for the implementation of its new policies. The Plan Amendment is primarily self- implementing, in that it sets forth specific conditions for development. In addition, the Plan Amendment includes guiding principles that can be used in the application of existing land development regulations (LDRs) or the adoption of new LDRs. There also are references in the Plan Amendment to other regulatory programs that will be used to implement the policies. Petitioner claims the Plan Amendment was not coordinated with Washington County, but she did not prove the claim. In summary, Petitioner failed to prove facts showing that the Plan Amendment is not in compliance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment is in compliance. DONE AND ENTERED this 18th day of October, 2011, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2011.
The Issue The issue in this case is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Fiddler's Creek Community Development District.
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 Respondent, Mid-Keys Development Corporation (Mid-Keys), is the owner of Lot 98, Stirrup Key Subdivision, Monroe County, Florida; a property located on Florida Bay, a natural waterbody, and within that part of Monroe County designated as an area of Critical State Concern. On September 12, l989, Monroe County issued to Mid-Keys building permit No. 8920001017 to construct a single-family home on Lot 98. As permitted, the home would be constructed 20 feet landward of the top of a dike or berm which runs along the rear of the property, as well as approximately 20 feet landward of a mangrove fringe which parallels the shoreline of the property. 1/ Petitioner, Department of Community Affairs (Department) pursuant to Section 380.07, Florida Statutes, appealed the issuance of the subject permit, and contends that, as permitted, construction of the home would violate Monroe County's comprehensive plan and land development regulations. Succinctly, the Department contends that under existent regulations the proposed home must be set back 50 feet from the landward limit of the mangrove fringe. Central to the dispute in this case are the provisions of Section 9.5- 286, Monroe County Land Development Regulations (MCLDR) which provide: Sec. 9.5-286. Shoreline setback. All buildings and structures, other than docks, utility pilings, walkways, non- enclosed gazebos and fences and similar structures shall be set back twenty (20) feet from the mean high tide lines of man-made waterbodies and/or lawfully altered shorelines of natural waterbodies. All buildings other than docks, utility pilings, walkways, non-enclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural waterbodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist from the mean high tide line. (Emphasis added) The regulations do not, however, expressly define the location of the shoreline for purposes of assessing whether it is altered or unaltered, and thereupon rests the basis for the parties' dispute. In this regard, Mid-Keys contends that the development of Stirrup Key legally altered the shoreline, which it suggests a extends to the higher high tide line, and the Department contends that such development did not alter the shoreline, which it a suggests extends to the mean high tide line. The creation of Stirrup Key Subdivision. Stirrup Key is an island in Florida Bay, a natural waterbody, comprising approximately 50 acres. Currently the key is platted as Stirrup Key Subdivision; a residential community which is attached to Key Vaca by a short causeway. The character of Stirrup Key as it exists today is, however, decidedly different from what existed less than two decades ago. In March 1972, when Stirrup Key was purchased by William T. Mills, it was a low-lying island with an average elevation of two feet or less mean high water (MHW) and it was virtually untouched by man. Portions of its shoreline were covered with red mangroves, followed upland by transitional a species such as black mangrove, white mangrove, and buttonwood, and portions of its higher elevations contained some hammock. Following his acquisition of Stirrup Key in 1972, Mr. Mills, consistent with regulations existent at that time, sought and obtained the approval of all governmental agencies necessary to develop the key as it currently exists. Pertinent to this case, the Florida Department of Pollution Control (currently known as the Department of Environmental Regulation) on June 24, 1974, issued to Mr. Mills a dredge and fill permit and water quality certification to excavate on Stirrup Key an upland lagoon to minus 5.0 feet mean low water, together with an access channel, with the spoil from the excavation to be placed on upland, landward of mean high water. As a condition, the permit provided that "[n]o spoil below MHW but in upland spoil area diked along shoreline" and "[m]angrove fringe along shoreline will be preserved." Notably, the plans which were submitted to the Department of Pollution Control by Mr. Mills, and which were attached to the permit, established the boundary of the island at the mean high water line and designated the mean high water line as the shoreline. Also pertinent to this case, the State of Florida, Board of Trustees of the Internal Improvement Trust Fund, on July 22, 1974, issued to Mr. Mills a permit to dredge 72,265 cubic yards of material (1,265 cubic yards from sovereignty submerged land) from a proposed upland boat basin, together with an access channel and two circulation channels, with the spoil to be deposited on the uplands, and to construct a dike around the entire perimeter of Stirrup Key above the mean high water line. The Trustee's permit also provided that "[n]o spoil shall be deposited below mean high water but in upland spoil area diked along shoreline" and "[t]he mangrove fringe along shoreline will be preserved." Consistent with the foregoing permits, Mr. Mills undertook the development of Stirrup Key. In so doing, he constructed a dike around the entire perimeter of the island, with the toe of the dike landward of MHW, removed the transitional vegetation landward of MHW, and filled the area landward of MHW with limestone fill to an elevation of 4 to 9 feet MHW. Also consistent with his permits, Mr. Mills preserved the mangrove fringe along the shoreline. 2/ While the wetlands system of Stirrup Key has been altered by the removal of the upland transitional vegetation and the filling of the area lying landward of MHW, the function of the shoreline mangrove fringe has not been altered by the development of the island. That fringe, which extends approximately 3,000 feet along the shoreline and which measures from 60 to 100 feet in width at Lot 98, continues to provide, among other things, wildlife habitat for numerous species of birds; fisheries habitat for food, cover and refuge; shoreline stabilization; and storm surge abatement. In 1976 the plat of Stirrup Key Subdivision, which encompassed all the lands of Stirrup Key, was approved by Monroe a County and filed of record. That plat, as well as the survey of Lot 98, demonstrate that the boundaries of Stirrup Key follow the mean high water line. The Monroe County comprehensive plan and land development regulations. The Monroe County comprehensive plan, effective September 15, 1986, provides: 11. FUTURE LAND USE ELEMENT Sec. 2-101. Introduction. A fundamental component of any comprehensive land management program is a series of discrete policy statements by which individual land use decisions will be judged in the future. Indeed, a basic tenet of contemporary land management theory and the Local Government Comprehensive Planning Act, Sections 163.3161 et seq., Fla. Stat. is that land use decisions shall be consistent with a comprehensive plan. After a comprehensive plan or element or portion thereof has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted. All land development regulations enacted or amended shall be consistent with the adopted comprehensive plan or element or portion thereof. 163.3194(1), Fla. Stat. The Comprehensive Plan for Monroe County contemplates that the land use policy element and implementing regulations will be closely coordinated and designed to ensure fair and consistent land use decision-making. Incorporating the policy statements into the implementing regulations will go a long way toward overcoming many of the due process deficiencies that plague land use decision- making. Under this Plan, a request for development approval will be judged, not on the basis of an intuitive perception of the County's needs, the identity of the applicant, or the clamor of opponents, but on the adopted policies set out in the Plan. If the requested approval is inconsistent with these adopted policies, it should be denied, or the policies should be changed through the established procedure for amendments. If the proposed development is consistent with the Plan, it should be approved. Linking individual decisions to adopted policies will help to bring consistency, fairness, and a comprehensiveness to the development review process. The purpose of this element of the Monroe County Comprehensive Plan is to establish official land use policies that will guide future land use decisions in the County . . . . Sec. 2-102. General. A. OBJECTIVES 1. To establish a land use management system that protects the natural environment of Monroe County. Sec. 2-103. Natural Environment. The Florida Keys constitute a unique and irreplaceable natural resource of local, regional, state, national and international value. The Florida Keys are an island archipelago constituting a tropical experience accessible by automobile from the a continental United States. As such, the Keys are a vacation and residential resource unmatched in beauty, character and security in the continental Untied States. The natural environment of the Florida Keys -- uplands, wetlands, and nearshore waters -- is the central element of this distinctive character. In the Florida Keys, a distinct visual character, native and tropical vegetation, water-dependent recreation, distinct culture and an oceanic experience come together to make a desirable place to live and visit. It is essential, therefore, that the natural environment of Monroe County be conserved, and where appropriate, enhanced and restored. All future actions, both public and private, should be carried out in a way so as to ensure that the essential ingredients of Monroe County character are preserved and protected for existing and future generations. OBJECTIVES To manage and control the use of land so that the natural environment of Monroe County is protected. POLICIES To protect natural, undisturbed lands from significant disturbance. To protect threatened and endangered species and their habitats from human activities that would expose such species to displacement or extinction. To conserve the habitat of endemic species of plants and animals. Sec. 2-115. Enforcement A major component of any future land use element is the need to strictly enforce implementing regulations. If Monroe County is to achieve the promise of this Plan, it is essential that all persons involved in the land development process adhere to the requirements of this Plan and that the integrity of the development review process be protected. Marine Resources The great value attributed to Monroe County's marine resources is due to their crucial role in the local economy, and in providing a wide range of natural amenities and services. Health and integrity of the marine system is a fundamental prerequisite if these resources are to continue to provide social, economic, and environmental benefits that we have at times taken for granted. Mangroves, seagrass, and coral reefs, all of which are susceptible to pollution and dredging, are extremely important in providing food and shelter for myriad forms of marine life, providing storm protection, and maintaining water quality. If uses and activities such as dredge and fill, destruction of natural vegetation, use of pesticides and fertilizers, improper sewage and solid waste disposal continue indiscriminately and uncontrolled; the ability of the marine system to function effectively will deteriorate, thereby resulting in the loss of many natural services and socioeconomic benefits to society. Therefore, it is imperative that such uses and activities be carefully regulated so as to insure conservation and protection of resources and long-term maintenance of their productivity. Marine Resources Management Policies Recognizing the crucial role that the marine environment plays in the local economy, the protection, conservation, and management of marine resources will be viewed as an issue requiring the County's utmost attention. In an effort to protect and conserve marine resources, emphasis will be placed on protecting the entire marine ecosystem. To this end, maintenance of water quality; protection of marine flora and fauna, including shoreline vegetation; and preservation of coral reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system. Generic Designations All marine grass beds in waters off the Florida Keys. All patch reef coral and other reef formations found in the surrounding waters off the Keys. All shore-fringing mangrove and associated vegetation extending up to 50 feet laterally upland from the landward limit of the shoreline mangrove. Management Policies These biotic communities will be preserved to the fullest extent possible. The Monroe County land development regulations, likewise effective September 15, 1986, provide: Sec. 9.5-3. Rules of construction In the construction of the language of this chapter, the rules set out in this section shall be observed unless such construction would be inconsistent with the manifest intent of the board of county commissioners as expressed in the Monroe County Comprehensive Plan, or an element or portion thereof, adapted pursuant to chapters 163 and 380, Florida Statutes (1985). The rules of construction and definitions set out herein shall not be applied to any section of these regulations which shall contain any express provisions excluding such construction, or where the subject matter or context of such section is repugnant thereto. A. Generally: All provisions, terms, phrases and expressions contained in this chapter shall be liberally construed in order that the true intent and meaning of the board of county commissioners may be fully carried out. Terms used in this chapter, unless otherwise specifically provided, shall have the meanings prescribed by the statutes of this state for the same terms. In the interpretation and application of any provision of this chapter, it shall be held to be the minimum requirement adopted for the promotion of the public health, safety, comfort, convenience and general welfare. Where any provision of this chapter imposes greater restrictions upon the subject matter than a general provision imposed by the Monroe County Code or another provision of this chapter, the provision imposing the greater restriction or regulation shall be deemed to be controlling. f. Nontechnical and technical words: Words and phrases shall be construed according to the common and approved usage of the language, but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law shall be constructed and understood according to such meaning. m. Boundaries: Interpretations regarding boundaries of land use districts on the land use district map shall be made in accordance with the following, as partially illustrated in figure 1 [following this section]: Boundaries shown as following or approximately following the shorelines of any key or causeway or other island shall be construed as following the mean high water line of such island or key. In many instances, the boundary lines have been intentionally drawn seaward of the shoreline so that the shoreline itself will be visible. Sec. 9.5-286. Shoreline setback All buildings and structures, other than docks, utility pilings, walkways, non- enclosed gazebos and fences and similar structures shall be set back twenty (20) feet from the mean high tide line of man-made waterbodies and/or lawfully altered shorelines of natural waterbodies. All buildings other than docks, utility pilings, walkways, non-enclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural waterbodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist from the mean high tide line. (Emphasis added) The shoreline, altered or unaltered? While the Monroe County land development regulations do not expressly define the term "shoreline" with reference to a specific point for purposes of determining whether a shoreline has been lawfully altered or unaltered, a reading in pari materia of the rules of construction and the shoreline setback requirements compels the conclusion that such determination is made by reference to the mean high water line of Stirrup Key when it was developed. This definition of shoreline is consistent with Section 177.28(1), Florida Statutes, which defines the legal significance of the mean high water line as: Mean high-water line along the shores of land immediately bordering on navigable waters is recognized and declared to be the boundary between the foreshore owned by the state in its sovereign capacity and upland subject to private ownership . . . . It is likewise consistent with the peculiar and appropriate meaning in law that has established the shoreline at the mean high water line. See: Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548 (1894), Borax Consolidated v. City of Los Angeles, 296 U.S. 10, 56 S.Ct. 23, reh. denied 296 U.S. 664, 56 S.Ct. 304 (1935), Axline v. Shaw, 35 Fla. 305, 17 So. 411 (1895), Board of Trustees of the Internal Improvement Trust Fund v. Walker Ranch General Partnership, 496 So.2d 153 (Fla. 5th DCA 1986), and Helliwell v. State, 183 So.2d 286 (Fla. 3rd DCA 1966). It is also consistent with the expressed intent of the developer of Stirrup Key and the governmental agencies that permitted such development, and it is consistent with Monroe County's land development regulations which define boundaries of islands which are shown as following the shoreline to be at the mean high water line. 3/ Accordingly, the shoreline of Stirrup Key, and more particularly Lot 98, is unaltered and a 50-foot setback from the landward limit of existing mangroves is mandated by the MCLDR.
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 reversing Monroe County's decision to issue permit number 8920001017, and deny Mid-Keys' application for such permit. It is further recommended that such final order specify those items set forth in paragraph 8, Conclusions of Law, as the changes necessary that would make Mid-Keys' proposal eligible to receive the requested permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of June 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June 1990.
The Issue The issues in this case are (1) whether the City of Panama City's (the City) Small Scale Comprehensive Plan Amendment No. 04-20S adopted by Ordinance No. 1985 (the Plan Amendment) is "in compliance," as that term is defined by Section 163.3184(1)(b), Florida Statutes, and (2) whether the petition challenging the Plan Amendment should be dismissed as untimely.
Findings Of Fact The Parties Robert E. Moore owns a home and resides at 1310 Kristanna Drive, Panama City, Florida. The northwestern property line of Mr. Moore's home is adjacent to the northeastern corner of the Property. JE 7; PE 98-B at RM.2 There is an approximate 100-foot-wide Bay County maintained canal or drainage ditch (canal) that forms the northern boundary of the Property, see Endnote 1 and PE 50 at 7, which runs in an east-to-west direction at the northern portion of his home. This canal eventually leads to North Bay to the west.3 Goose Bayou is located south of the Property. Mr. Moore taught respiratory care at Gulf Coast Community College for approximately 23 years and is retired. His residence was affected by a hurricane which passed through the area in September 2004. He noticed water appearing half-way up his driveway, which is not on the canal. He is concerned with the placement of additional homes in this area in light of his experience with the water level after the recent storm event. (Generally, Mr. Moore stated that there is a two- foot difference between low and high tide in this area. T 133, 137.) Mr. Moore, as well as the other Petitioners, made oral and written comments to the City Commission during the Plan Amendment adoption hearings. See City's Unilateral Pre-Hearing Stipulation at 5, paragraph E.4.; T 213. The St. Andrews Bay Resource Management Association (RMA) was established in 1986 and is a citizen's organization devoted to the preservation of the quality of St. Andrews Bay and its surrounding ecosystems. T 194. (St. Andrews Bay is a larger body of water which includes North and West Bay and Goose Bayou. See generally JE 12, Map 1.) The RMA has approximately 100 members. The RMA uses, but does not own, an office on the Panama City Marine Institute campus located within the City. The RMA occasionally conducts seminars or conferences and offers several programs for citizens, e.g., sea turtle nest watch, a water sampling program (Baywatch), and a sea grass watch program. The RMA meets every month except during the summer. T 195-196. The RMA opposes the Plan Amendment, in part, because of concerns with the effect of development on what Ms. Shaffer characterized as the "pine islands." Linda Anne Yori owns and resides in a house at 908 Ashwood Circle, Panama City, Florida, which is "just off Kristanna" Drive and to the east. See PE 98-C at the blue X. She teaches middle school science at a local public school. She has observed the Property, and generally described the Property, and vacant property to the north, as "upland hammock with salt marsh." T 209. In general, Ms. Yori opposes the Plan Amendment because she "believe[d] the environmental impact would be too great." Mary Rose Smith owns and resides in a house on Ashwood Circle, Panama City, Florida, two houses away from Ms. Yori's residence. Ms. Smith regularly jogs throughout the neighborhood. She believed that there are approximately 400 homes in Candlewick Acres and six vacant lots remaining. T 214- 215. As a result of recent hurricanes in the area, she observed flooding approximately half-a-mile upland along Kristanna Drive from the west-end to the east (half a mile to the turn off to Ashwood). PE 98-D at the blue 1/2 designation and blue line. While she cannot say for certain where the water came from, she believed the water "came from the bay or the bayou." T 220. The Bay County Audubon Society (BCAS) conducts membership and board meetings within the City limits and also owns a piece of property in the City. BCAS has approximately 400 members. Members live within the City. BCAS is concerned with the environment and with "the density of the proposed development" and "access to the pine islands." T 409-411. The City is the local government unit responsible for approving the Plan Amendment at issue in this proceeding. § 163.3187(1)(c), Fla. Stat. The Application, Review, and Adoption of the Plan Amendment On or about May 11, 2004, James H. Slonina, P.E., the president of Panhandle Engineering, Inc., filed an application on behalf of Robert H. and Barbara B. Hansman, requesting the City to annex "approximately 9.9 acres including lots, paved roadways and bridged drives" and further requested a land use designation to allow proposed residential development." The Property, see Endnote 1, is designated on a Bay County parcel map. A flood zone map is also included, but lacks clarity. The Property is vacant. JE 13. The purpose of the annexation and request for land use designation "is to accommodate the development of a 13+/- lot single-family residential waterfront development adjacent to North Shore Subdivisions." The application also stated: To support the residential home sites, there are adequate adjacent public roadways and utilities. Due to the unique physical configuration of the property, traditional RLD lot standards may not [sic] applicable. While we would prefer to pursue an RLD-1 designation, the application is submitted contingent upon confirmation of an appropriate land use designation and an approval of the proposed project. If another course of action is available, which would allow for the development of 13+/- single-family residential lots on 9.9 acres, please advise. JE 13. (It is represented throughout this record that the land use designation is requested for approximately 6.8 acres rather that approximately 9.9 acres. See, e.g., JE 7 at 1; JE 11 at 12-13.) The application was reviewed, in part, by Mr. Thomasson. JE 7. The staff report4 dated July 30, 2004, stated that the request is to amend the City's FLUM from Conservation (as previously designated by Bay County) to RLD with a Zoning District classification of RLD-1. (The staff report referred to several permitted uses under RLD-1. JE 7 at 2. The permitted uses for RLD-1 are those contained in the City's "Comprehensive Planning and Land Development Regulation Code (LDRC)" at section 4-6.1.2.a. JE 4 at IV:8-9. However, the propriety of the RLD-1 Zoning District classification for the Property is not at issue in this proceeding. T 266.) The staff report also stated that the Property "is currently zoned conservation, abuts property to the North that is designated conservation Land Use category in the County and is just North of an existing Special Conservation Treatment Zone," which is indicated on a map on page 1 of the staff report. JE 7 at 1. The staff report stated that "[w]ater and sewer infrastructure and other urban services are available to this property." See T 286-287, 301-303, 307-308; JE 7 at 1. Under the background section, it is stated that "[t]he property has been seen as environmentally significant and has been the object of an effort to purchase for perpetual protection by a local land trust organization. It is adjacent to an existing development to the East." Id. The Plan provides that an RLD land use district "is intended to provide areas for the preservation of development of low-density neighborhoods consisting of single-family dwelling units on individual lots" with a density of "[n]o more than five dwelling units per acre." The allowed intensity is "[n]o more than 40% lot coverage as determined by dividing the impervious areas by the gross area of the site or lot." JE 3 at 1-2. The staff report contained findings of fact with citations to the Plan, including the Future Land Use Element, the Coastal Management Element, and the Conservation Element. References to the LDRC are also provided. See also T 285-311, 315-317, 320-321; JE 7 at 2-3. Thereafter, specific findings are made: Staff finds that this property, as a part of the St. Andrews estuary, serves as a breeding, nursery, feeding and refuge are for numerous marine creatures, birds and upland wildlife. The three pine and oak hammacks [sic] are a few of a rare estuarian resource. The marsh throughout the area serves as home for seagrass and other marine organisms that are integral with the biodiversity of the estuary. There also exists a [sic] archaeological sites [sic] consisting of an ancient Indian midden that has already been classified by the Director of the Florida State Division of Historical Resources as deservant [sic] of mitigation and potentially eligible for the National Historic Registry (see attached documentation). The site overall has a biotic community of nearly 90% of it [sic] total area. Staff findings are that this proposed Land Use Amendment is inconsistent with the above listed mandates of the Comp Plan. Staff also finds that the proposed Land Use is inconsistent with the LDR Code, in that it is not in harmony with the Comp Plan (Subsection 2-5.5.6.e. above), as well as the requirements of the environmental protection standards of Section 5-5. This decision hinges on the whether the City intends to enforce it's [sic] environmental protection standards of the Comp Plan and the LDR Code and if the site is seen as environmentally significant. JE 7 at 4 (italics in original). Ultimately, staff recommended approval only with the following conditions: 1.) that the fullness of the subject property be designated as a Conservation Special Treatment Zone [CSTZ][5] and that the pine and oak hammacks [sic](as referred to as "Pine Islands" in the Bay County Comp Plan) are prohibited from being developed; and 2.) that the area of the subject property that is beyond the mean high tide of the mainland portion, which specifically means the marshes/wetlands and the oak and pine hammacks [sic], shall be placed in a conservation easement and dedicated to either the City, or a third-party land trust or conservancy. JE 7 at 4. (Mr. Hammons, the City Manager, disagreed with the staff report, in part, because there was no data to support several findings. T 119-124.) On August 9, 2004, the Planning Board of Panama City met in regular session to consider the application. The request was to approve a small scale land use amendment to the FLUM of the Plan from Conservation (under the Bay County Comprehensive Plan) to RLD with a zoning classification of RLD-1 for the Property. JE 11 at 2. But see Finding of Fact 15. Mr. Fred Webb and Dr. Frasier Bingham were present on behalf of the applicant. Mr. Webb advised that the Bingham's and the Webb's owned the property which consisted of approximately 6.5 acres of uplands. But see Finding of Fact 29 regarding the ownership of the Property. In part, Mr. Webb stated that the grass beds would not be impacted and that there was no legitimate environmental complaint. Dr. Bingham stated that he is an ecologist, specializing in shallow water ecology. JE 11 at 3. He said his family had purchased the upland property in 1948 and the submerged land in the 1960s. Beginning in 1991, Dr. Bingham stated he tried to get the government to purchase the property, but to no avail. He also recounted attempts to obtain permits from DEP and the United States Army Corps of Engineers (Corps). See, e.g., PE 60, 63-64.6 He believed that the bridge problem, identified by the Corps had been solved. JE 11 at 3 and 13. (There is no persuasive evidence in this record that the Corps has approved any permits for development of the Property.) Mr. Webb stated that all maintenance to the bridges and other utilities would be the responsibility of the association (for the developed Property) and not the City and that the City would only be responsible for police and fire. Id. at 4. Mr. Thomasson addressed the Planning Board. JE 11 at The staff report previously mentioned is incorporated in the minutes. Staff felt that the CSTZ designation would be the most appropriate designation due to the environmental issues and that the RLD-1 designation would be the least intense land use available under the Plan. Board member Pritchard inquired whether the application was incomplete "as it doesn't address the environmental issues." Mr. Thomasson stated the applicant did not believe there would be any environmental impact, while staff believed the property to be environmentally significant. JE 11 at 8. Dr. Bingham again addressed the Planning Board to refute the staff's findings of fact. Dr. Bingham said that "the wetlands would not be impacted, the grass beds would not be impacted, and the stormwater runoff already goes into the grass beds, which are, in his opinion, fine grass beds" and that "that 13 houses would not have any significant impact." He indicated that soils were not at issue and that the "property is sandy, not special." Id. at 9. Mr. Webb indicated that "they had evaluated the environmental aspects and added the raised bridges, swales, etc." JE 11 at 9. Numerous individuals spoke in opposition to the request. Apparently, by a show of hands "a large majority of those present were in opposition to the request." JE 11 at 12. It appears that two persons spoke in favor of the request. Id. at 9-11. Mr. Webb confirmed that the application requested approval of the land use designation and annexation for 6.8 acres. JE 11 at 12. He also advised that a limited liability corporation owned the 6.8 acres, while there are different owners of other parcels. Mr. Webb indicated that "only the uplands on the islands were being annexed," although "he was not sure the properties were 'islands' in legal terms." Id. at 13. Mr. Webb indicated that he was willing to indemnify the City against any legal expenses arising from this request. Id. The requested land use change was approved by a vote of three to two. Id. at 14. On September 28, 2004, the City Commission considered Ordinance No. 1985 pertaining to the requested land use designation change and Ordinance No. 1995 pertaining to the annexation of the Property. These Ordinances were read by title only as a first reading. JE 10 at 293-294. During this meeting, the minutes (JE 10) reflect that Mr. Webb stated that they would only be developing the upland islands and proposed to use bridges, which he says "the environmental regulatory community has considered to have almost no environmental impact. He said that the addition of thirteen single family residential homes to an area that has seven hundred homes will not materially affect level of service." JE 10 at 289. Several of the people who appeared before the Planning Board also appeared opposing the application for annexation and land use designation change. JE 10 at 290. Mr. Martin Jacobson, Planning and Zoning Manager for Bay County filed a formal letter of objection to the annexation. Id. Mr. Fred Beauchemin opposed the annexation and responded to eleven items which were discussed by Mr. Webb and Dr. Bingham during the Planning Board meeting, including representations of impacts to grass beds, wildlife resources, and soils. JE 10 at 290-292. Mr. Webb continued to feel that there would not be any destruction of the marshes. Id. at 292. Dr. Bingham again noted that he is a shallow water marine ecologist and felt that he was informed about the environmental situation on the Property. Id. at 293. After brief discussion by some of the Commissioners, Ordinance Nos. 1985 and 1995 were approved by a vote of three to two. JE 10 at 293-294. By a letter dated November 9, 2004, Daniel Shaw, A.I.C.P., memorialized the October 5, 2004, Bay County Commission's unanimous decision to contest the potential annexation of and land use change to the Property, referring to several provisions of the Bay County Comprehensive Plan. T 228; PE 69. Mr. Shaw opined that "[c]learly, development proposed for the annexed Pine Islands violates the County's Comprehensive Plan." PE 69 at 2. He further stated: What's more the proposed annexation also violates the City's Comprehensive Plan. City Policy 5-5.2, 5-5.3 related to preservation of Environmentally Significant Resources would prohibit the proposed development. The property is a part of the St. Andrews estuary, and serves as a breeding/refuge area for numerous marine creatures, birds and wildlife. The three pine and oak hammocks are a truly rare estuarine resource for Bay County and for the State of Florida. The marshlands contain valuable sea grass beds and are home to numerous marine creatures, which are integral to the biodiversity of the estuary. Finally, the property contains valuable archeological sites, consisting of ancient Indian middens that are classified by the State Division of Historical resources, and potentially eligible for the National Historic Register. I would concur with staff's memorandum of August 9, 2004, which cites numerous other examples of where the development would violate the City's plan. PE 69 at 2 (emphasis in original). Mr. Shaw also stated that the Property is located in the coastal high hazard area, within a "V" zone for flood regulations.7 He stated that "[t]hese designations argue for prohibiting development for public safety and infrastructure investment purposes." Again, Mr. Shaw stated that Bay County opposed the potential annexation and subsequent land use reclassification. PE 69 at 3. Mr. Shaw also testified during the final hearing and reaffirmed his prior position. T 232-245. Mr. Shaw stated that the Property, prior to annexation by the City, was designated Conservation under the Bay County Comprehensive Plan, which allows for limited residential use and the preservation of pine islands (an outright prohibition).8 He was not qualified, however, to make a determination whether any portion of the Property is a pine island. T 247. Mr. Shaw thinks that Bay County allows up to 15 units per acre in the coastal high hazard area. T 254. On November 9, 2004, the City Commission met and considered a final reading of Ordinance Nos. 1985 and 1995. Several people appeared opposing both ordinances including Mr. Moore, Ms. Smith, Ms. Yori, and others. JE 8 at 3-14; JE 9 at 3-5. Mr. Webb again addressed the City Commission and stated, in part, that "nothing in the marsh would be touched." He also indicated that he would fully indemnify the City in the event of a lawsuit. JE 8 at 14-21; JE 9 at 5. Dr. Bingham also addressed the Commission. JE 8 at He stated that he has designed an environmentally friendly community of 13 home sites. He indicated that he had a Ph.D. in shallow water marine ecology and attended Florida State University and the University of Miami. He said that he was thoroughly familiar with the Panama City area and had worked with a large list of groups as an ecologist. He reiterated that the homes sites will take up 6.8 acres and will be entirely uplands and no marshes or swamps. He said that he is trying to use one fifth of the property that he owns and "there are no wetlands involved in this particular operation that will be damaged." JE 8 at 23. He also indicated that there will be raised bridges constructed on the Property, and according to him, were suggested by the Corps. Id. After brief comments by several Commissioners, the Commission approved the annexation and land use designation change by a vote of three to two. JE 8 at 26-27, 30-31. Toward the end of the November 9, 2004, hearing, the City Attorney, Rowlett Bryant, advised that the minutes of the September 28, 2004, Commission meeting would be included with the minutes of the November 9, 2004, public hearing. In other words, the November 9, 2004, Commission meeting was the public hearing held on the application for the annexation and the land use designation change. JE 8 at 27-30. Mr. Bryant also noted that the Ordinance No. 1985, related to the land use designation, would be RLD-1 and that the prior reference to Special Treatment Conservation Zone in the title of Ordinance No. 1985, considered on September 28, 2004, was a recommendation of staff and was deleted from Ordinance No. 1985, which was approved by the City Commission on November 9, 2004. JE 8 at 31-32. Ordinance No. 1985, in fact, changed the land use designation of the Property (approximately 6.8 acres) "from Conservation (a Bay County Land Use designation) to Residential- Low Density-1 as described in Small Scale Amendment 04-S20." JE 1 at 2. However, Petitioners and the City agree that "[t]he city assigned a future land use map designation to the parcel of Residential Low Density in Ordinance No. 1985." See T 11, lines 10-23; Petitioners' Prehearing Stipulation at 2, IV.2. Data and Analysis As more fully discussed in the Conclusions of Law, "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth; the projected population of the area; the character of undeveloped land; the availability of public services; the need for redevelopment, including the renewal of blighted areas and the elimination of non-conforming uses which are inconsistent with the character of the community; the capability of uses on lands adjacent to or closely approximate to military installations; and, in rural communities, the need for job creation, capital investment, and economic development that will strengthen and diversify the community's economy." § 163.3177(6)(a), Fla. Stat. Florida Administrative Code Rule 9J-5.006(2) provides for "land use analysis requirements" and requires, in part, that the future land use element "be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2) F.A.C." Subsection 9J-5.006(2)(b) requires "[a]n analysis of the character and magnitude of existing vacant or undeveloped land in order to determine its suitability for use, including where available: 1. Gross vacant or undeveloped land area, as indicated in paragraph (1)(b); 2. Soils; 3. Topography; 4. Natural resources; and 5. Historic resources." Further, "all goals, objectives, policies, standards, finding and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." Fla. Admin. Code R. 9J-5.005(2)(a)(emphasis added). "Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The data shall be the best available existing data, unless the local government desires original data or special studies." Fla. Admin. Code R. 9J-5.005(2)(c). Petitioners question whether the record contains relevant and appropriate data, which was existing and available on or before November 9, 2004, to support the Plan Amendment. Petitioners further question whether the analysis of that data is adequate. The application, JE 13, requested approval of annexation of and a change in the land use designation for, as amended, approximately 6.8 acres. Aside from identifying the parcel in question, in relation to Goose Bayou and the subdivision to the east, the application does not contain adequate data and analysis to support the Plan Amendment. Mr. Slonina, a professional engineer and expert in civil engineering, testified during the final hearing as to the due diligence he and his firm performed in support of filing the application with the City. T 424. Mr. Slonina has been on the Property many times. T 456. As part of the due diligence, Mr. Slonina analyzed the area proposed for development on the Property, which are the upland areas, and, in part, stated that these areas are primarily free draining sands and have fairly high percolation rates. T 425, 453. He also characterized upland areas as fairly clean sands and satisfactory for development in this area based on his experience. He also examined the upland and wetland soils to determine suitability for a "post and beam timbered bridge system" that would be pile supported over the wetlands bridging upland areas. He opined that the soils on the uplands were nothing unique and were suitable for low density residential and suitable to support the bridge system he described. T 428, 442, 458-459. See also P 50, Attachment A. Regarding utilities which might be available to the Property, during the due diligence phase, he identified, from utility maps, the location of the closest water and sewer which could serve the Property, adjacent to the Property to the east. He also analyzed the ability of fire protection to be provided to the Property and concluded that it was feasible. T 428-432, 460-461. See also JE 7 at 1 regarding "utility and other urban services availability" and P 50 at 14-16 for a discussion of "utilities." Mr. Slonina also opined that a stormwater system could reasonably be designed for the Property and that it was feasible to design a stormwater system that would capture stormwater runoff before it went into the bayou. T 432-435. Mr. Slonina examined flood zone information and determined that the Property was "very typical" and that the flood zone information available would not preclude residential development on the Property. T 434-435, 450. But see Endnote 7. From a traffic concurrency standpoint, he examined traffic engineering data on trip generation for 13 single-family homes and determined that there was adequate capacity for that additional loading on "the only roadway that connects to the [P]roperty." His traffic impact analysis was limited "through the residential streets." T 435-436, 439-441. Mark O. Friedemann, is the executive vice-president at the Phoenix Environmental Group, Inc., an environmental consulting firm. T 466. Mr. Friedemann was retained on or about January 7, 2005, by the City's counsel for the purpose of "doing a basic assessment of the property and whether it was suitable for some type of development, residential in particular." T 474-475. Prior to conducting a survey of the Property, aerial photographs, data from the Florida Natural Areas Inventory, and various maps were reviewed. Id. Mr. Friedemann and an assistant conducted a field survey of the Property on January 12, 2005. They collected basic water quality data, observed wildlife, conducted several soil observations pits, looked for scat, and examined the vegetative community on the Property. T 476. For the purpose of the survey, the Property was divided into areas 1 through 4, which are labeled on CE 5, Figure 2. T 478. These upland areas were the major focus of the assessment along with the interior (wetland/marsh) areas. T 478, 565. CE 5 at 2, Figure 2. Mr. Friedemann and his assistant arrived on the Property at approximately 9:00 am on January 12, 2005, during low tide. They left the Property as the tide was starting to return. T 517, 532, 548. Area one is a rectangular portion of the Property, which runs north to south and forms most of the eastern boundary of the Property and is adjacent to Candlewick Acres. Area two is another upland area which is in the northwest portion of the Property and west of area one. Area three is in the southwest portion of the Property and southwest of area two. Area four is a small upland portion, which is almost due south of area one in the southeastern portion of the Property. CE 5 at 2, Figure 2; see also Endnote 6. Mr. Friedemann accessed area two from area one by walking along a path/spoil pile, which runs east to west and forms part of the northern boundary of the Property (the approximately 100 foot canal is north of and adjacent to the path/spoil pile). He walked to area three by stepping across a small rivulet of no more than a foot in width. He walked to area four from area three, stepping over another small tidal- influenced rivulet that passed between areas three and four. He approached area one from area four walking across "a rather high area." Mr. Friedemann "did not get the impression that area two was surrounded" by wetlands, salt marsh, or tidal mud flats. T 479-481, 500, 517, 556-557. He stated that area three would be surrounded, but was unsure about area four. T 556-559. Some of the areas photographed would be potentially inundated during high tide. T 521-525. Mr. Friedemann's report also contained, in part: water quality data taken on January 12, 2005; and a list of species seen on the same date; a recent undated aerial of the Property and surrounding area, downloaded from the DEP website, which was also magnified; and several aerials (dated 1953, 1962, 1967, 1974, 1978, and 1986) of the Property including the surrounding areas. Mr. Friedemann opined, based on his review of aerials, that there may have been a timber operation ongoing on the Property in the past although he would not hazard a guess. T 540. The report also included several photographs taken of the four areas, during the site visit on January 12, 2005. CE 5 at x-xxii. Although he did not "review any set of plans," or have any opinion regarding any specific development proposal, Mr. Friedemann opined that based on his observations in the field, "there is a viable project that could be built on this parcel."9 T 482, 501-502, 511, 520. Mr. Friedemann provided an analysis of the Property by and through his testimony regarding photographs taken of the Property during his site visit. From a biological or ecological perspective, he did not observe anything on the Property which would preclude residential development. He further opined that what he observed was not unique in the panhandle of Florida. T 501-502. Mr. Friedemann did not conduct a wetland delineation of the Property. T 556. However, the record contains an infrared Conceptual Site Plan dated October 22, 2002, indicating vacant land to the north of the Property, and residential areas to the east of the Property and east of the vacant parcels to the north. This particular site plan provided for the approximate wetland boundaries of the Property identified as south parcel (4). PE 98-D and PE 50 at Exhibit 1. Mr. Friedemann indicated that he had not observed the Property during a hurricane, during periods of high wind, or during periods of a combination of high wind and high tide. He agreed that the tides in the United States can be lower during the winter than they are during the spring and that the highest tides may be experienced during the spring called neap tides. T 532-533. Mr. Friedemann was also referred to a December 30, 2004, document apparently prepared by Panhandle Engineering, Inc., sheet number 2 of 4, CE 16, which delineated 13 lots. T 533. See Endnote 6. (City Exhibit 16 was admitted into evidence as an authentic document; however, there was no testimony regarding the preparation of this document. T 535-537.) Comparing sheet 2 of 4 with Figure two of CE 5, area two is depicted as being surrounded by rush marsh and connected to area one and area three by drawn-in bridges. Compare PE 50, Attachment E, Sheet 1 of 2, dated July 31, 1998, depicting the Property with 13 lots configured, interspersed with a "conservation area" designation and Attachment A, Figure 4., Project Base Map, depicting upland areas on the Property, interspersed with a "marsh" designation with PE 98-D south parcel (4) and "approximate wetland boundary. See also Endnote Mr. Friedemann stated that the indication of rush marsh on sheet number 2 of 4 did not comport with his observations of the Property during his site visit. He was unaware of this drawing. T 534-538. Gail Easley, A.I.C.P., an expert in urban and regional planning, opined that the Plan Amendment was consistent with various provisions of the City's Plan, the State Comprehensive Plan, and the West Florida Regional Strategic Policy Plan. She also opined the Plan Amendment was supported by data and analysis regarding the suitability of the Property for the RLD land use designation. In support, Ms. Easley stated in part: Understanding that the amendment is not really permitting the use, but understanding that the amendment establishes the uses that are allowed as I testified earlier, the suitability data that is available in addition to the data and analysis here in the Comprehensive Plan includes the information from Panhandle Engineering about, more specifically about the availability of facilities and services and the suitability of soils for use of residential low density, as well as the analysis contained in Mr. Friedemann's report regarding environmental issues and the suitability of this site for residential low density. So I found plenty of evaluation of suitability. T 586. See also T 610-611. Ms. Easley also opined that the Plan Amendment does not threaten coastal and natural resources in violation of Florida Administrative Code Rules 9J-5.006, 9J-5.012, and 9J- 5.013, and Sections 163.3177 and 163.3178, Florida Statutes, because she considered the data and analysis in the Plan, "as well as the suitability and capability [sic] analysis that were submitted by Panhandle Engineering and Mr. Friedemann demonstrated that there was not a violation of these provisions." T 617. Ms. Easley also stated that there was adequate data to support a need for residential (RLD) development on the Property. See, e.g., T 584-585, 621-622, 629-630, 632-634. See also JE 3 at Future Land Use Data, 1-1 - 1-10. During cross-examination, Ms. Easley was asked to identify the particular Panhandle Engineering report which she reviewed to support her opinion. The report is not in evidence. However, Ms. Easley stated: "It was a report that they prepared that addressed issues of suitability of the site with regard to the availability of water, the availability of sewer, the capacity for water and sewer, soil conditions on the site, and traffic situations on the site. I'm sorry, I do not recall the date of that particular suitability analysis, but it was prepared by Panhandle Engineering, and I reviewed it as a part of my analysis." T 626. Ms. Easley was also asked to provide the source of her data and analysis about environmental conditions on the site and she replied: "Two places, there is information in the City's data and analysis with regard to the vacant land analysis, as well as general environmental conditions in or around the City, I reviewed that data and analysis that I mentioned earlier. I also saw information specific to this parcel from Mr. Friedemann's report." T 627. Ms. Easley indicated that there was no specific data and analysis contained in the City's Plan about the Property, although the Plan referenced areas adjacent to the City. T 628. Ms. Easley reiterated that natural resources are considered during the plan amendment process. It also occurs during permitting. T 642. She again stated: "The suitability analysis was contained in two different reports. As I testified earlier, Mr. Slonina's report from Panhandle Engineering addressed soils and soil suitability. And Mr. Friedemann's report looked at other kinds of environmental issues. I reviewed both of those reports and determined that suitability analysis had been preformed to support the plan amendment." T 643. According to Ms. Easley, if there were environmental reasons creating an inconsistency with Rule 9J-5, then such reasons could serve as a basis for denial. T 643. (Ms. Easley also opined that a land use change to the FLUM "is an assignment of a land use category and the associated density and intensity, it is not a development activity." See T 587, 651.) Mark Llewellyn, P.E., is the president of Genesis Group. In October 2002, Genesis Group completed a planning and engineering analysis (Genesis Report)10 for Chandler and Associates, who, in turn, had a contract with the DEP to prepare an appraisal report for the Goose Bayou Marsh Property.11 The Goose Bayou Marsh Property included four parcels, including the south parcel (4), which is the Property in question, two north parcels (2 and 3), and the middle parcel (1), which is north and northeast of and adjacent (the west one- third) to the Property. All the parcels are vacant. See PE 98- D, which also appears at PE 50, Exhibit 1. Mr. Llewellyn identified three peninsular islands on the Property (south parcel 4)(PE 98-D at the blue X's), which roughly correspond with areas one and two in Mr. Friedemann's report at CE 5 at 2, Figure 2. T 160-161. See also Endnote 6. The two eastern peninsular islands (area one) are connected to the upland to the east, Candlewick Acres. The third peninsular island, located in the northwest corner of the Property, can be accessed, according to Mr. Llewellyn, by a berm or other geographical feature to the north of the Property and south of the drainage canal. Id. See also T 397. There is one larger upland island and a smaller upland island toward the southwest and southern portions of the Property, which appear to be surrounded by wetlands, waters of the state, salt marsh, or tidal mud flats. T 160-164. Each peninsular island and upland island is less than 20 acres. Mr. Llewellyn's analysis is consistent with the approximate wetland boundaries identified in the Conceptual Site Plan, PE 98-D. Mr. Llewellyn opined that the Property could be developed as a single-family development without having an impact on the Property if it is designed and maintained properly. T 157, 172. See also Endnote 6. The Genesis Report provided an analysis of the four parcels. Apparently the south parcel (4), the Property, contained approximately 16.2 acres as follows: wetlands 9.8+/- acres; upland islands 3.5+/- acres; peninsula uplands 2.9+/- acres; or 6.4+/- acres of total uplands. T 163; PE 50 at 12. Parcels 1-4 are analyzed in light of several factors, including but not limited, to the Bay County Future Land Use and Comprehensive Plan. The following is an analysis of the Bay County Future Land Use and Comprehensive Plan as applied to the north parcels (2 and 3): The Bay County Comprehensive Management Plan identifies the North Parcel's Future Land Use Designation as Conservation. The purpose of this land use is to identify public and private lands held for conservation of natural features. Allowable uses for this designation are natural resource protection, flood control, wildlife habitat protection, passive of recreation, silviculture and residential densities up to 2DU/acre. Commercial development is prohibited for properties with this land use designation. Additionally, the upland islands located on these parcels fit the definition for "Pine Islands" as defined in the Bay County Comprehensive Plan. A Pine Island is defined as a small upland area generally 20 acres or less, usually characterized by typical pine flatwood vegetation, which are surrounded by waters of the State, wetlands, salt marsh, or tidal mud flats. The Bay County Comprehensive Plan prohibits development on any "Pine Island". This means that it will be extremely difficult to develop the upland areas located on this parcel. PE 50 at 2. See also PE 50 at 2 (II.B.) and 13 (IV.B.) regarding the Panama City Future Land Use. (The Genesis Report was prepared approximately two years prior to the City's annexation of the Property. The City did not annex the vacant land to the north (parcels 1-3), which is part of the subject of the Genesis Report.) Regarding the analysis of parcels 1, and 4, the Property, and referring to the Bay County Future Land Use and Comprehensive Plan, it is noted that "[t]he same issues apply to this parcel." PE 50 at 7 and 13. The Genesis Report discussed wetlands on the Property: The wetlands within the property consist of estuarine salt marshes, which are connected to Goose Bayou and West Bay. According to an environmental assessment prepared by Biological Research Associates (BRA) the marshes are tidally influenced and dominated by black rush. Other species include seaside goldenrod, seashore dropseed grass, sea purslane, glasswort, salt grass, marsh hay cord grass, sea lavender, Chinese tallow, saw grass, cork wood, and saltbrush. Additionally, the salt marsh is habitat for two listed bird species; the snowy egret and the little blue heron (see Attachment A). As previously stated, a wetland delineation has been completed for this parcel and accepted by FDEP and ACOE. PE 50 at 13. The Genesis Report also provided a brief discussion of flood plain and cultural resource considerations, and also provided an analysis of site planning and engineering, including access, utilities, owner site plan/lot lay out, and probable development costs. PE 50 at 13-15. Regarding south parcel 4, the Property, the Genesis Report concluded, in part, that "[t]his parcel has limited development potential." A cost estimate is provided. It is also concluded that water and sewer could be provided without incurring significant increases in development costs. "Development of the upland islands would require bridges, which significantly increases the development cost. There is no guarantee that the development within the wetlands would be permitted at this time." PE 50 at 16. The Genesis Report also included a report prepared by Biological Research Associates, which appears as Attachment A to PE 50. Mark Andrew Barth, vice president/senior ecologist for Biological Research Associates, was one of the two signatories to a section of the Genesis Report and also testified during the final hearing. T 175; PE 50, Attachment A. He reiterated that they prepared a preliminary environmental assessment for a proposed acquisition by a State agency. T 176, 180. (While unclear, it appears that his study area included the approximate western one-third of the Property, see, e.g., T 189; PE 50, Attachment A, Figures 1, 3-4, although other portions of the Property were studied. See, e.g., Finding of Fact 93.) Referring to PE 98-C and the Property (outlined in black) and the vacant land to the north outlined in red, Mr. Barth testified that they are "mainly comprised of salt marsh and scattered pine dominated islands." According to Mr. Barth, the term "pine islands," "describes isolated upland patches within the salt marsh." T 177. The salt marshes consist of vegetation that extends beyond the water level usually in very shallow water. T 178. The Property is part of an estuary system, Goose Bayou, for example. Id. See also T 381; JE 12 at IV-14-16 and Map 1. The salt marsh is inundated by saline or marine water as opposed to fresh water. T 178. One of the most significant features of an estuary system "is providing nursery grounds and habitat for marine and estuarine fish and wildlife." T 179. Mr. Barth considered the Property, south parcel 4, PE 98-D, to be environmentally sensitive in light of the combination of estuarine and upland areas which are undisturbed. T 185-186. Mr. Barth did not have enough information to assess specific impacts to the surrounding salt marsh and water in light of a proposed development on the Property. He felt it depended on the type of development. T 182. "Middens" have been found on the south side of the Property, in and around area 3 (CE 5 at 2, Figure 2). See, e.g., T 558-559; PE 50, Genesis Report at 13 and Attachment A at 6-7 and Attachment E, Figure 4, Project Base Map and Figure 5, PBY139 Base Map. Ultimate Findings of Fact Regarding Adequacy of Data and Analysis Ultimately, whether the Plan Amendment is based upon relevant and appropriate data and analysis is a close question. This is particularly true here where critical portions of Mr. Friedemann's analysis are based on information, e.g., Mr. Friedemann's photographs, collection of water quality samples, and observations of the Property (species seen and terrain), which post-dated the City's adoption of the Plan Amendment on November 9, 2004. As a result, his analysis of this information has been disregarded, notwithstanding the lack of an objection to the admissibility of his report, CE 5. See Conclusions of Law 110-114. (Mr. Friedemann also provided several aerials of the Property and surrounding area which pre-date the date of adoption of the Plan Amendment and have been considered along with his analysis of this data.) Also, to the extent that Ms. Easley relied on Mr. Friedemann's report (CE 5) and the post- adoption information collected by Mr. Friedemann and his analysis of that information, her opinions have also been disregarded. Nevertheless, Petitioners have the burden to prove, by a preponderance of the evidence that the Plan Amendment is not based upon relevant and appropriate data and analysis, which Petitioners have not done. Accordingly, based on a review of the entire record in this proceeding, it is ultimately concluded that the Plan Amendment is based on relevant and appropriate data and analysis, except as otherwise stated herein. See § 163.3177(6)(a), Fla. Stat.; Fla. Admin. Code R. 9J-5.005(2), 9J-5.006(2), and 9J-5.012-.013. Consistency with the City's Plan, the West Florida Strategic Regional Policy Plan, the State Comprehensive Plan, and the City's Comprehensive Planning and Land Development Regulation Code Petitioners contend that the Plan Amendment is inconsistent with several provisions of the City's Plan: Future Land Use Element Policy 1.1.1.10; Coastal Management Element Goal 1, Objective 5.1, and Policies 5.1.1 and 5.1.3.3, and Goal 3; and Conservation Element Goal 1, Policies 6.6.2, 6.6.2.3, and 6.6.2.4. Petitioners contend that the Plan Amendment is inconsistent with several provisions of the LDRC: subsections 2- 5.5.6, 5-5.1, 5-5.2, 5-5.3, and 5-5.6.3.e. Petitioners also contend that the Plan Amendment is inconsistent with Section 187.201, Florida Statutes, and the West Florida Strategic Regional Policy Plan. The Plan Amendment changes the land use designation on the Property to RLD. The Plan Amendment is not a development order. See Strand v. Escambia County, Case No. 03-2980GM, 2003 WL 23012209, at *4 (DOAH Dec. 23, 2003; DCA Jan. 28, 2004), aff'd, 894 So. 2d 250 (Fla. 1st DCA 2005). It does not authorize any development to occur on the Property. Further, a special treatment zone, as used in the City's Plan, is not a FLUM land use district. Based on the plain and ordinary meaning of the various Plan provisions at issue, the Plan Amendment does not alter or interfere with the City's ability to maintain the quality of coastal resources; restrict the City's ability to maintain regulatory or management techniques intended to protect coastal wetlands, water quality, wildlife habitat, and living marine resources, for example, or prohibit the construction of docks, piers, wharves, or similar structures; interfere with the City's ability to provide for or have available adequate areas for public waterfront access or to provide the circumstances necessary for the conservation, protection, and use of natural resources; or interfere with the City's ability to enforce guidelines in its LDRCs related to, for example, the protection and conservation of the natural functions of existing soils, wetlands, marine resources, estuarine shoreline, stormwater management, wildlife habitat, or flood zones. Petitioners did not prove that the Plan Amendment is inconsistent with cited portions of the City's Plan, the State Comprehensive Plan, and the West Florida Strategic Regional Policy Plan. Further, the Plan Amendment need not be consistent with the City's LDRCs because it is not the subject of "in compliance" review.12
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order concluding that the Plan Amendment, adopted by the City of Panama City in Ordinance No. 1985, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 6th day of October, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 2005.
Findings Of Fact On January 15, 1993, Westinghouse Communities of Naples, Inc., (Westinghouse) filed a Petition with the Secretary of the Florida Land and Water Adjudicatory Commission (FLWAC), seeking establishment by rule of the Pelican Marsh Community Development District (CDD) in an unincorporated area of Collier County, Florida. The Secretary certified that the contents of the Petition were complete and on March 12, 1993, forwarded the Petition to the Division of Administrative Hearings. On May 3, 1993, Westinghouse filed an Amended Petition with the FLWAC Secretary. The Amended Petition revised related provisions contained in Paragraph 10 and Exhibit 7 of the original Petition. The amendments address delivery of water, wastewater and irrigation service within the CDD and set forth the obligations of the proposed CDD and the Collier County Water-Sewer District related to the construction, ownership and operation of interim and permanent facilities for such services. The FLWAC Secretary determined that the contents of the Amended Petition were complete and on May 21, 1993, forwarded the Amended Petition to the Division of Administrative Hearings. Notice of the date and location of the public hearing was published in the Naples Daily News, a daily newspaper in Naples, Florida on May 13, 20, 27 and June 3, 1993. A copy of such notice was served upon the Department of Community Affairs as required by Rule 42-1.011, Florida Administrative Code. Notice of the hearing was published by the FLWAC's Secretary in the Florida Administrative Weekly on May 14, 1993, as required by Rule 42- 1.010(1)(b), Florida Administrative Code. Westinghouse submitted a copy of the Petition to the Collier County Board of County Commissioners ("Board") on February 26, 1993 and submitted a copy of the Amended Petition to the Board on April 16, 1993. As required by Section 190.005(1)(b)1, Florida Statutes, Westinghouse paid the $15,000 filing fee to the Board. A public hearing before the Board was held on May 4, 1993. Such hearing is optional pursuant to Section 190.005(1)(c), Florida Statutes. Upon completion of the hearing, the Board adopted Resolution No. 93- 187 through which it determined that the establishment of the CDD was in the best interests of the county and its citizens and that the county was supportive of the establishment of the CDD. A transcript of the county hearing was filed with the FLWAC on May 4, 1993. If approved by the FLWAC, the CDD will be an independent special purpose local government as authorized by Chapter 190, Florida Statutes, with power to plan, finance, construct, operate and maintain the community infrastructure (except as to certain water and sewer services discussed elsewhere herein) within the jurisdiction of the CDD. The CDD will manage and finance basic services for the residential community known as Pelican Marsh. The 2,075 acres of the community development to be serviced by the CDD is located north of the City of Naples within an unincorporated area of Collier County. To the north of the CDD lies unimproved land, residential subdivisions and Immokalee Road (County Road 846). To the east is unimproved land and the site of a proposed extension of Livingston Road. To the south is Vanderbilt Beach Road (County Road 862), the site of a proposed extension of Vanderbilt Beach Road, and Pine Ridge subdivision. To the west is North Tamiami Trail (U.S. Highway 41). The land within the proposed CDD is currently zoned as "Urban Residential", "Activity Center" and "Proposed Activity Center". Westinghouse has entered into the record, as Exhibit "C", an Application for Public Hearing for Rezone and Conditional Use Requests and a draft Planned Unit Development document for a portion of the community consisting of approximately 1086.5 acres. The draft Planned Unit Development document authorizes a mixture of land uses, including single and multi-family housing, limited to 780 dwelling units and a 27-hole golf course with clubhouses. Westinghouse has acknowledged in its Amended Petition that the Collier County Water-Sewer District is the permanent supplier of all water, wastewater and irrigation service in the CDD and that the CDD shall be obligated to convey all water, sewer and irrigation facilities to the County and its Water-Sewer District upon completion. Westinghouse also acknowledges certain rights and obligations of the CDD with respect to the construction and operation of interim water, wastewater and irrigation facilities. The cost of such facilities will be borne by the CDD through various types of financing mechanisms. Only those persons who receive the benefit of the services will pay the costs involved in provision of the facilities. Summarization of Testimony and Evidence Mr. Louis H. Hoegsted is Executive Vice President of Westinghouse Communities of Naples, Inc., the corporation that filed the Petition and Amended Petition in this matter. Mr. Hoegsted has general responsibility for planning the Pelican Marsh community, including the filing of the petitions. Westinghouse, a Florida corporation, has developed the community of Pelican Bay in Collier County, Florida. Mr. Hoegsted was involved as the company representative in the formation and operation of the former Pelican Bay Improvement District, created by special act of the Florida Legislature. Pelican Bay was merged by Collier County into the County Water-Sewer District. Mr. Hoegsted identified Westinghouse's Composite Hearing Exhibits "A" through "R". All of the below-described documents were prepared under the supervision of Mr. Hoegsted. The exhibits identified by Mr. Hoegsted are as follows: Composite Exhibit "A" includes four exhibits numbered "A-1" through "A-4". Exhibit "A-1" is a General Location Map, which identifies the site of the proposed CDD. Exhibit "A-2" is a Boundary Map of the area to be served by the CDD. Exhibit "A- 3" is a Boundary Map of the land area included within the jurisdiction of the CDD. Exhibit "A-4" is a copy of the Collier County Comprehensive Plan Map, as amended June, 1993. Exhibit "B" is the Preliminary Development Agreement of May 20, 1993 executed between the Florida Department of Community Affairs and Westinghouse. Exhibit "C" is a copy of a draft Planned Unit Development document which upon adoption would establish the zoning for a portion of the proposed development. Composite Exhibit "D" is made up of 12 separate exhibits identified as Exhibits "D-1" through "D-9" with subparts. Exhibit "D-1" is the Petition filed with the FLWAC in this case. Exhibit "D-2" is a map showing the location of the land area to be serviced by the CDD. Exhibit "D-3" is a metes and bounds description of the CDD. Exhibit "D-4" is composed of the written consent of Westinghouse Communities of Naples, Inc. and the Manatee Fruit Company, as owners of land within the CDD. (Also filed as Exhibit "R-1" is an additional consent of the remaining land owners within the CDD.) Exhibit "D-5" (including subparts a-c) is composed of drawings showing the Collier County waste water service system, potable water service system and the drainage outfalls. Exhibit "D-6" is the proposed schedule and cost estimates for construction of CDD infrastructure. Exhibit "D-7a" is a copy of the Collier County Comprehensive Plan Future Land Use Map. Exhibit "D-7b" is a copy of the Department of Community Affairs compliance letter related to the Collier County Comprehensive Plan, as amended. Exhibit "D-8" is an acknowledgment by Westinghouse that Collier County is authorized to regulate the provision of water and sewer facilities within the CDD. Exhibit "D-9" is a Statement of Economic Impact for the CDD by Fishkind & Associates, Inc. Composite Exhibit "E" consists of 12 exhibits identified as "E-1" through "E-9" including subparts. Composite Exhibit "E-1" includes the Amended Petition filed with the FLWAC in this case. Exhibit "E-2" is a map showing the location of the land area to be serviced by the CDD. Exhibit "E-3" is a metes and bounds description of the CDD. Exhibit "E-4" is composed of the written consent of Westinghouse Communities of Naples, Inc. and the Manatee Fruit Company, as owners of land within the CDD. Exhibit "E-5" (including subparts a-c) is composed of drawings showing the Collier County waste water service system, potable water service system and the drainage outfalls. Exhibit "E-6" is the proposed schedule and cost estimates for construction of CDD infrastructure. Exhibit "E-7a" is a copy of the Collier County Comprehensive Plan Future Land Use Map. Exhibit "E-7b" is a copy of the Department of Community Affairs compliance letter related to the Collier County Comprehensive Plan, as amended. Exhibit "E-8" is an acknowledgment by Westinghouse that Collier County is authorized to regulate the provision of water and sewer facilities within the CDD. Exhibit "E-9" is a Statement of Economic Impact for the CDD by Fishkind & Associates, Inc. Composite Exhibit "F" includes four items. Exhibit "F-1" is the prehearing stipulation filed in this case. Exhibit "F-2" is a Memorandum of Agreement between Westinghouse and Collier County related to the provision of water, wastewater and irrigation facilities and services within the proposed CDD. Exhibit "F-2a" is a draft copy of an interlocal agreement related to the provision of water, wastewater and irrigation facilities and services within the proposed CDD. Exhibit "F-2b" is a copy of Collier County Resolution No. 93-187 indicating that the Board of County Commissioners supports the establishment of the CDD. Composite Exhibit "G" consists of two items: Exhibit "G-1", a Westinghouse letter dated February 26, 1993 submitting the Petition to Collier County; and Exhibit "G-2", a Westinghouse letter dated April 16, 1993 submitting the Amended Petition to Collier County. Exhibit "H" is a photocopy of the $15,000 check from Westinghouse to Collier County constituting the filing and processing fee. Composite Exhibit "I" includes Exhibit "I-1", a letter dated February 26, 1993 transmitting the Petition to David Coburn of the FLWAC, and Exhibit "I-2" a letter dated May 3, 1993, transmitting the Amended Petition to Mr. Coburn. Composite Exhibit "J" includes four exhibits. Exhibit "J-1" is Mr. Coburn's letter of notification dated March 12, 1993 to the Florida Department of Community Affairs (DCA) transmitting the Petition for DCA review. Exhibit "J-2" is Mr. Coburn's letter of notification dated March 15, 1993 to the Southwest Florida Regional Planning Council (SWFRPC) transmitting the Petition for SWFRPC review. Exhibit "J-3" is Mr. Coburn's letter of notification dated May 5, 1993 to the DCA transmitting the Amended Petition for review. Exhibit "J-4" is Mr. Coburn's letter of notification dated May 5, 1993 to the SWFRPC transmitting the Amended Petition for review. Composite Exhibit "K" consists of two exhibits, "K-1" and "K-2", both letters from Mr. Coburn to the Florida Division of Administrative Hearings transmitting the Petition and Amended Petition, dated March 12 and May 21, 1993, respectively. Composite Exhibit "L" includes six exhibits. Exhibit "L-1" is a certified copy of the notice of publication of receipt of Petition and notice of hearing as published in the Florida Administrative Weekly. Exhibits "L-2" through "L-6" are the tear sheets from the Naples Daily News setting forth notice of the hearing held in this case. Exhibit "M" consists of excerpts from the Collier County Comprehensive Plan. The complete official copy of the Collier County Comprehensive Plan was filed with the Hearing Officer prior to the hearing and is transmitted with the record established during the hearing. Exhibit "N" is a letter from the Florida Department of Community Affairs to Collier County stating that the DCA had determined that the relevant Comprehensive Plan Amendment was in compliance with state law. Exhibit "O" is a copy of the State Comprehensive Plan for the State of Florida appearing in Chapter 187, Florida Statutes. Exhibit "P" consists of a white paper dated March, 1993 and prepared by Dr. Lance deHaven-Smith, a political economist. The report addresses growth management considerations and the proposed establishment of the Pelican Marsh CDD. Composite Exhibit "R" consists of two parts. Exhibit "R-1" is an additional consent of the remaining land owners within the CDD. (Exhibit D-4 contains the originally filed consent documents.) Exhibit "R-2" is an updated estimate of proposed infrastructure construction costs and deadlines. As Executive Vice President of Westinghouse Communities of Naples, Inc., Mr. Hoegsted directed the planning and preparation of the Petition and Amended Petition filed in this matter. The consultants who reviewed the project on behalf of Westinghouse were directed to assume that the CDD would provide all services and facilities which it was able to provide under Sections 190.011 and 190.012, Florida Statutes, with the exception of the County's provision of water, wastewater and irrigation services and facilities. (As addressed elsewhere herein, the County Water and Sewer District is to be the sole provider of water, wastewater and irrigation water within the Water-Sewer District boundaries in accordance with Collier County Ordinance Nos. 78-10, 79-33, 88-76, 90-86 and 90-87.) The consultants were directed to consider the factors enumerated in Subsection 190.005(1)(e), Florida Statutes. Based upon review of their analysis, Mr. Hoegsted asserts that all statutory criteria have been satisfied. There is no evidence to the contrary. The Statement of Economic Impact prepared for the CDD by Fishkind & Associates, Inc., includes an analysis of economic costs and benefits to all persons directly affected by the Petition, estimates the impact of the CDD on competition in the open market and describes the source of information and methodology used in preparing the statement. According to the statement, the creation of the CDD will not constitute a significant burden to either the State of Florida or Collier County. There is no evidence contrary to that contained within the Fishkind report. Thomas R. Peek is a professional engineer with Wilson, Miller, Barton and Peek, Inc., an engineering consulting firm located in Naples, Florida. Mr. Peek was accepted as an expert in civil engineering related to provision of infrastructure development in Southwest Florida communities. Mr. Peek is familiar with the CDD and with the status of the development approvals and related land development permits and approvals from local and state authorities for the Pelican Marsh community. He is knowledgeable as to the steps involved in engineering basic systems, facilities and services for community developments. He opined that there is a high probability for quality long term infrastructure maintenance by an independent special district government. Mr. Peek testified that he had reviewed the Amended Petition and attachments and that they contained no information inconsistent with engineering considerations raised by the state or the Collier County Comprehensive Plans. It is anticipated that the CDD will be requested to provide water management, utilities, roads, landscaping and street lighting. Mr. Peek is unable to predict whether the CDD will be asked to exercise any additional powers pursuant to Section 190.012(2), Florida Statutes. Such additional powers relate to certain public improvements and community facilities as parks, fire prevention, schools, security, and mosquito control. Mr. Peek opined that the land within the proposed CDD is of sufficient size, compactness and contiguity to be developable as one functionally interrelated community and is amenable for a CDD, that there are no land features or facilities which could make the benefits of the CDD difficult to provide, and that the CDD will not be inconsistent with the Collier County local government comprehensive plan. There is no evidence contrary to that provided by Mr. Peek. His testimony is accepted. Dr. Lance deHaven-Smith is a political science professor and provost of the Broward County campus of Florida Atlantic University. He was accepted as an expert in political science and in alternative ways to provide community infrastructure. Dr. deHaven-Smith reviewed the Petition from a general infrastructure and growth management policy perspective. He further addressed the relevant statutory criteria. Based on his review he prepared a report, "Growth Management Considerations in the Proposed Establishment of the Pelican Marsh Community Development District". The report is identified as Westinghouse Exhibits "D-9" and "E-9". According to Dr. deHaven-Smith, Collier County has experienced substantial growth in recent years, requiring a rapid expansion in infrastructure for transportation, water, waste water treatment, law enforcement, recreation, and many other services. Community development districts play an important role in growth management by facilitating large scale, high quality development and relieving local governments of the burden of paying for and managing many of the services and public works that such developments require. According to Dr. deHaven-Smith, to the extent that there are weaknesses in the state's growth management system, community development districts provide a means of appropriate controlled development. Even though the state has adopted a state comprehensive plan, the need for CDDs exists, especially in areas such as Collier County where growth is at a rate twice that of other Florida communities. Accordingly, Dr. deHaven-Smith opined that the CDD is a good tool in the growth management process. Dr. deHaven-Smith described the manner in which the CDD would operate and carry out the powers prescribed in the development order for Pelican Marsh District. He opined that, relative to the alternatives for providing the infrastructure necessary for the Pelican Marsh community, the CDD mechanism is the most appropriate alternative. He further noted that although the CDD has a range of specific and general powers, it is controlled by substantive and procedural limitations and would be subservient to Collier County. Dr. deHaven-Smith reviewed the statutory factors and related information that must be considered in order to establish a CDD. He opined that all statements within the petitions are true and correct, that the creation and establishment of the CDD is not inconsistent with applicable portions of the state and local comprehensive plans, that the area of land within the CDD is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community, that the CDD is the best alternative for delivering community development services and facilities, that the services and facilities are compatible with the capacity and uses of existing local and regional community development services and facilities, and that the area to be served is amenable to separate special-district services and facilities. There is no evidence contrary to the witness' testimony which is hereby accepted. David Crawford is Director of Planning and Governmental Relations with Westinghouse Bayside Communities, Inc. He has 15 years experience in the planning of infrastructure provision for community development and has been involved in the preparation of comprehensive plans for several Florida counties. He testified as to the permitting and development approval status of the Pelican Marsh community and the physical characteristics and situations to be found within the area of the proposed CDD, including two existing roadways, a drainage canal, an outfall and various utilities which cross the property. Mr. Crawford described the state comprehensive plan and how the establishment of the CDD would be consistent with and facilitate certain enumerated policies in the plan. Mr. Crawford stated that the CDD will not be inconsistent with the Collier County Comprehensive Plan. With respect to state concurrency requirements, Mr. Crawford asserted that the CDD is the best method to provide sustained infrastructure to a community. Mr. Crawford stated that the CDD is a responsive, efficient, timely and economic means of providing services to a community's future population without over-burdening the existing residents. He asserted that the land within the CDD is of sufficient size, compactness and contiguity to be developable as one functionally interrelated community and that the land area in the CDD is amenable to separate special-district government. According to Mr. Crawford, the establishment of the CDD will not create any incompatibility with the existence of any regional systems, services or facilities. In Mr. Crawford's opinion, the establishment of the CDD will not overburden the Collier County government with respect to providing maintenance over the long-term infrastructure to the proposed development nor overburden the taxpayers of Collier County. Furthermore, he opined that the CDD will not be a needless or unacceptable proliferation of local government in view of the six factors required to be considered for its establishment under Chapter 190. Mr. Crawford testified that it is not premature to establish the CDD before issuance of the final development order under Section 380.06, Florida Statutes. Because infrastructure construction activities require construction permitting from the county, it is unlikely that the CDD would construct infrastructure inconsistent with the eventual development order to be issued by the county. There is no evidence contrary to the testimony of Mr. Crawford and it is accepted. Gary L. Moyer serves as district manager for twenty-three community development districts throughout the state. As a district manager, he coordinates the planning, financing, construction, operation, and maintenance of infrastructure provided to new community developments. Mr. Moyer was accepted as an expert in district management and government. Mr. Moyer reviewed the factors used in FLWAC's determination regarding whether the petition should be approved. He concluded that all criteria were satisfied. Within the context of his expertise, Mr. Moyer opined that all statements in the Amended Petition to be true and correct, that the CDD is compatible with all state and local comprehensive plans, that the land area of the CDD is of sufficient size and compactness and is sufficiently contiguous to be developable as one functional interrelated community, that the CDD is the best alternative for delivering the proposed services and facilities to the development, that the CDD is not incompatible with the capacity and uses of existing local and regional community development services and facilities, and that the area to be served is amenable to separate special-district government. Mr. Moyer noted that the CDD will be subject to the same checks, balances and accountability as other general purpose governmental entities. The CDD Board of Supervisors is governed by state ethics laws, "Government in the Sunshine," public records law and statutes related to accountability of public officials. Mr. Moyer noted that, once established, the CDD becomes a "partner" with local government in achieving the goals and objectives of the community. Mr. Moyer stated that the operations of the CDD must be in accordance with local government's comprehensive plan and construction standards. He further noted that the CDD must supply planning documents to the local government to ensure consistency with the local comprehensive plan. There being no evidence to the contrary, Mr. Moyer's testimony is accepted as being credible on these issues.
Conclusions Having considered the entire record in this cause, and without evidence to the contrary, it is concluded that: All statements contained within the Petition have been found to be true and correct. Section 190.005(1)(e)1., Florida Statutes. The creation and establishment of the CDD is consistent with applicable elements or portions of the state comprehensive plan and the Collier County comprehensive plan, as amended. Section 190.005(1)(e)2., Florida Statutes. The area of land within the CDD is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Section 190.005(1)(e)3., Florida Statutes. The CDD, in accordance with applicable state and local law and the Memorandum of Agreement executed by Westinghouse and Collier County, is the best alternative available for delivering community development services and facilities to the area that will be served by the CDD. Section 190.005(1)(e)4., Florida Statutes. In accordance with applicable state and local law and the Memorandum of Agreement executed by Westinghouse and Collier County, the community development services and facilities of the CDD will be compatible with the capacity and uses of existing local and regional community development services and facilities. Section 190.005(1)(e)5., Florida Statutes. The 2,075 acre tract of land that will be served by the CDD is amenable to separate special-district government, in accordance with the provisions of Chapter 190, Florida Statutes, and the Memorandum of Agreement between Westinghouse and Collier County. Section 190.005(1)(e)6., Florida Statutes. DONE and ISSUED this 10th day of September, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1490 APPENDIX "A" NAMES AND ADDRESSES OF WITNESSES Louis H. Hoegsted Westinghouse Communities of Naples, Inc. 801 Laurel Oak Drive, Suite 500 Naples, Florida 33963 Thomas R. Peek Wilson, Miller, Barton & Peek 3200 Bailey Lane at Airport Road Naples, Florida 33942 Dr. Lance deHaven-Smith 5935 North West 96 Drive Parkland, Florida 33076 David Crawford Westinghouse Bayside Communities 9200-101 Bonita Beach Road, South West Bonita Springs, Florida 33923 Gary Moyer 10300 North West 11 Manor Coral Springs, Florida 33071 APPENDIX "B" LIST OF DOCUMENTARY EVIDENCE Composite Exhibit "A" Exhibit "A-1" is a large General Location Map, which outlines the general location of the proposed Pelican Marsh community within Collier County. Exhibit "A-2" is a Boundary Map of the development to be served by the CDD. Exhibit "A-3" is a Boundary Map of the land area to be included within the jurisdiction of the CDD. Exhibit "A-4" is a copy of the Collier County Comprehensive Plan Map, as amended June, 1993. Exhibit "B" Exhibit "B" is the Preliminary Development Agreement, dated May 20, 1993 between the Florida Department of Community Affairs and Westinghouse. Exhibit "C" Exhibit "C" is a draft of Planned Unit Development document which may establish the zoning for a portion of the proposed development. Composite Exhibit "D" Exhibit "D- 1" is the Petition filed with the FLWAC. Exhibit "D-2" is a map showing the location of the land area to be served by the CDD. Exhibit "D-3" is a metes and bounds description of the CDD. Exhibit "D-4" is composed of the written consent of Westinghouse Communities of Naples, Inc. and the Manatee Fruit Company, as owners of land within the CDD. (Exhibit "R-1" is the additional consent of the remaining land owners within the CDD.) Exhibit "D-5" is composed of drawings showing the Collier County waste water service system, potable water service system and the drainage outfalls. Exhibit "D-6" is a proposed schedule of the deadlines and cost estimates to construct CDD infrastructure. Exhibit "D-7" is a copy of the Collier County Comprehensive Plan Future Land Use Map. Exhibit "D-7b" is a copy of the Department of Community Affairs compliance letter related to the Collier County Comprehensive Plan, as amended. Exhibit "D-8" is an acknowledgment by Westinghouse that Collier County is authorized to regulate the provision of water and sewer facilities within the CDD. Exhibit "D-9" is a Statement of Economic Impact for the District by Fishkind & Associates, Inc. Composite Exhibit "E" Exhibit "E-1" is the Amended Petition. Exhibits "E-2" through "E-9" are identical to Exhibits "D-2" through "D-9" except for a minor change to the Acknowledgement in Exhibit "E-8". Composite Exhibit "F" Exhibit "F-1" is the Prehearing Stipulation signed by Collier County and Westinghouse with attachments and filed in this case. Exhibit "F-2" is a Memorandum of Agreement between Westinghouse and Collier County related to the provision of water, wastewater and irrigation facilities and services within the proposed CDD. Exhibit "F-2a" is a draft copy of an interlocal agreement related to the provision of water, wastewater and irrigation facilities and services within the proposed CDD. Exhibit "F-2b" is Resolution No. 93-187 of Collier County indicating that the Board of County Commissioners supports the establishment of the CDD. Composite Exhibit "G" Exhibit "G-1" is a letter from Westinghouse to Collier County, dated February 26, 1993, submitting the Petition to the county. Exhibit "G-2" is a letter from Westinghouse to Collier County, dated April 16, 1993, submitting the Amended Petition to the county. Exhibit "H" Exhibit "H" is a photocopy of the $15,000 check constituting the filing and processing fee from Westinghouse to Collier County. Composite Exhibit "I" Exhibit "I-1" is a transmittal letter from Attorney Kenza van Assenderp to David Coburn of the Florida Land and Water Adjudicatory Commission dated February 26, 1993 which accompanied the Petition. Exhibit "I-2" is a transmittal letter from Attorney Kenza van Assenderp to David Coburn of the Florida Land and Water Adjudicatory Commission dated May 3, 1993 which accompanied the Amended Petition. Composite Exhibit "J" Composite Exhibit "J" consists of four letters of notification from David Coburn, Secretary of the Florida Land and Water Adjudicatory Commission to the Florida Department of Community Affairs and the Southwest Regional Planning Council transmitting the Petition and Amended Petition. Composite Exhibit "K" Exhibit "K-1" is a letter dated March 12, 1993 from David Coburn to the Florida Division of Administrative Hearings transmitting the Petition. Exhibit "K-2" is a letter dated May 21, 1993 from David Coburn to the Florida Division of Administrative Hearings transmitting the Amended Petition. Composite Exhibit "L" Exhibit "L-1" is a certified copy of the notice of publication of receipt of Petition and notice of hearing as published in the Florida Administrative Weekly. Exhibits "L-2" through "L-6" are the tear sheets from the Naples Daily News setting forth notice of the hearing held in this case. Exhibit "M" Exhibit "M" consists of excerpts from the Collier County Comprehensive Plan. The complete official copy of the Collier County Comprehensive Plan was in the possession of the Hearing Officer at the time of the hearing and is transmitted with the record established during the hearing. Exhibit "N" Exhibit "N" is a letter from the Florida Department of Community Affairs to Collier County wherein notice was given of its determination that the Comprehensive Plan Amendment was in compliance with state law. Exhibit "O" Exhibit "O" is a copy of the State Comprehensive Plan for the State of Florida appearing in Chapter 187, Florida Statutes. Exhibit "P" Exhibit "P" is a March, 1993 report prepared by Dr. Lance deHaven-Smith regarding growth management considerations and the proposed establishment of the Pelican Marsh Community Development District. Exhibit "R" Exhibit "R-1" is an additional consent of the remaining land owners within the CDD. (Exhibit D-4 contains the originally filed consent documents.) Exhibit "R-2" is an updated estimate of proposed infrastructure construction costs and deadlines. COPIES FURNISHED: David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission 311 Carlton Building Tallahassee, Florida 32301 Kenza Van Assenderp, Esquire Post Office Box 1833 Tallahassee, Florida 32302-1833 Richard D. Yovanovich, Esquire 3301 Tamiami Trail East Naples, Florida 33962-4976
Findings Of Fact Background The Parties Respondent, City of Hialeah (City), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive plans and amendments thereto. Petitioners, Edmond J. Gong and Dana L. Clay (petitioners), reside in Coconut Grove, Florida and own at least two parcels of property within the City. The parties have stipulated that petitioners are affected persons within the meaning of the law and have standing to challenge the remedial amendment in issue here. The Nature of the Dispute In 1991 and 1992, the City adopted three sets of land use amendments to its comprehensive plan known as amendments 91-1, 91-2 and 92-1. Each set of amendments generated objections by the DCA, and the matters were later sent to the Division of Administrative Hearings and were assigned Case Nos. 91-6340GM, 92-3113GM and 92-7517GM, respectively. Petitioners did not participate in any of these proceedings. To resolve the objections raised by the DCA, the City and DCA negotiated a stipulated settlement agreement in December 1993, which was executed by the City on January 28, 1994. Pursuant to that agreement, on April 21, 1994, the City adopted a remedial amendment (Ordinance 94-27) known as amendment 94R-1. After reviewing the amendment, on June 2, 1994, the DCA issued a cumulative notice of intent to find such amendment in compliance. On June 7, 1994, the South Florida Regional Planning Council also found the amendment to be in compliance. Finally, on July 11, 1994, the DCA's motion to dismiss Case Nos. 91-6340GM, 92-3113GM and 92-7517GM was granted. Petitioners, who participated in the local hearings concerning the adoption of amendment 94R-1, timely filed their petition for administrative hearing on June 23, 1994, challenging the propriety of that amendment for various reasons. The petition was assigned Case No. 94-3506GM. Although petitioners failed to plead any procedural issues in the initial petition, respondents have agreed that petitioners may raise certain procedural objections regarding amendment 94R-1 since the procedural issues were raised in their objections and comments filed with the City during the adoption process of the amendment. Procedurally, petitioners argue that the local government did not comply with all statutory requirements in noticing its proposed approval of the settlement stipulation and its later intent to adopt an ordinance. As to the DCA, petitioners argue that the state agency did not comply with the law in publishing its cumulative notice of intent on June 2, 1994, and that the notice contained erroneous rule citations and lacked a geographical map. Substantively, petitioners complain that before final approval of amendment 94R- 1 was given, the local government and DCA did not consider the enactment of Chapter 94-338, Laws of Florida, which created a multijurisdictional tourism, sports and entertainment special district known as the Blockbuster Park Special District, and they did not consider the traffic impacts of a recently opened connector to Interstate 75 and an interchange within the City that connects traffic from the connector to the Florida Turnpike. Finally, they contend that the amendment improperly redesignated more than ten acres of land from residential to commercial land use. Amendments 91-1, 91-2 and 92-1 involve ten amendments to the plan, all originally found not to be in compliance by the DCA. To cure three of those deficiencies, the City rescinded three ordinances leaving seven plan amendments to be remediated. Petitioners challenge the validity of these seven amendments but none change the use on their property. In reality, though, petitioners rely principally on their procedural objections in seeking to have a determination made that the amendment is not in compliance. Were the Notice Requirements Met? After the DCA and City reached an agreement in principle to resolve the DCA's objections to the plan amendments, a settlement agreement was prepared for execution by the City's mayor and DCA Secretary. Before the mayor could sign the agreement, however, the City Council's approval and authorization were required. Such approval and authorization to sign the agreement came in the form of a resolution adopted at a public hearing held on January 25, 1994. The agreement was later signed by the mayor and DCA Secretary on January 28 and March 3, 1994, respectively. The City had originally intended to consider the item at its January 11, 1994 meeting. Timely publication of notice was given for that meeting on December 27, 1993, in the regular edition of The Miami Herald, a newspaper of general paid circulation published daily in Dade County. At the January 11 meeting, however, the City discussed the matter but then deferred final action on the item until its next meeting on January 25, 1994. Accordingly, it republished a notice of its January 25 meeting in the Zone 4 Northwest Neighbors section of the Herald. The Zone 4 Northwest Neighbors section is an insert in the Herald each Thursday and Sunday and contains news pertaining to the northwest portion of Dade County, including the City. Because all copies of the Herald delivered and sold in northwest Dade County contain this particular Neighbors insert, the City complied with the requirement that the advertisement be published in a newspaper of general paid circulation within the jurisdiction of the City. Since petitioners reside and work outside of northwest Dade County, they say they did not receive the Neighbors insert in their paper and thus they were not aware of the January 25 hearing. There is no requirement, however, that the advertisement be published in other parts of Dade County. It is noted that even though they should have received notice of the January 11 hearing through the advertisement published in the regular edition of the Herald on December 27, 1993, they did not attend the hearing. The four-inch notice published on page 15 of the January 16, 1994 edition of the Neighbors section reads as follows: At its regular meeting of January 25, 1994, the Hialeah City Council will consider the following Resolution in addition to other business. Members of the public are invited to attend; the meeting begins at 7:00 p.m. at Hialeah City Hall, 501 Palm Avenue, Hialeah, Florida. RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, AUTHORIZING THE MAYOR TO ENTER A STIPULATED SETTLEMENT AGREEMENT IN CASE NOS. 91-6340GM, 92-3113GM AND 92-7517GM, ENTITLED "DEPARTMENT OF COMMUNITY AFFAIRS VS. CITY OF HIALEAH" NOW CONSOLIDATED BEFORE THE STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS FOR TRANSMITTAL TO THE FLORIDA DEPART- MENT OF COMMUNITY AFFAIRS. Applicable state law (s. 163.3184(16), F.S.) called for the notice to be published at least ten days prior to the hearing. In addition, general provision 3 of the settlement agreement provided in part as follows: This agreement has been approved by the governing body at a public hearing advertised in an adver- tisement published at least 10 but not more than 15 days prior to the hearing in the format prescribed for advertisements in Section 163.3184(15)(c) and Section 163.3187. Assuming the day of the hearing is not counted in computing the ten days, the City would have had to publish the notice by Saturday, January 15, 1994, in order to meet the ten-day requirement. Because the Neighbors section was not published on Saturdays, but rather only on Thursdays and Sundays, the City opted to publish the notice on Sunday, January 16, 1994, or just nine days before the hearing. This was necessary since the item was deferred at the January 11 hearing, and the City presumably was unable to meet the deadline for having an ad published only two days later in the Thursday, January 13, 1994 edition of Neighbors. Even so, petitioners were unable to show any prejudice by virtue of the City failing to meet the ten-day notice requirement. The settlement agreement called for the City to adopt certain remedial amendments by ordinance. These amendments are contained in Ordinance No. 94-27. Although state law (s. 163.3184(16)(d), F. S.) requires that the City hold only one advertised public hearing on a compliance amendment at the adoption stage, in accordance with the City Charter, two hearings were scheduled for that purpose on March 22 and April 12, 1994. A single one-quarter page advertisement in the regular edition of the Herald was published on March 17, 1994, or five days before the first hearing. The law (s. 163.3184(15)(b)2., F. S.) also requires that the hearing be "approximately 5 days after the day that the second (i. e., adoption stage) advertisement is published." The advertisement referred to both hearing dates and noted that their purpose was "to receive comments from interested parties on the Stipulated Settlement Agreement between the City of Hialeah and the Florida Department of Community Affairs related to the 1990 and 1991 Cycles I and II plan amendments to Hialeah's Comprehensive Plan." The advertisement also contained a list of the ten plan amendments and a map showing the portion of the City affected by each of those amendments. Although petitioners contended that the map was illegible in some respects, they nonetheless read the notice in the newspaper and attended both hearings to voice their objections to the ordinance. Notwithstanding petitioners' objections, on April 12, 1994, the City adopted the ordinance. Contrary to petitioners' assertion, the City complied with the notice requirements for both hearings. Assuming arguendo that the statutory notice requirements were not strictly met, petitioners failed to demonstrate that they were prejudiced by such an error. After reviewing the ordinance, on June 2, 1994, the DCA published in the Neighbors section of the Herald a cumulative notice of intent to find the plan amendments and remedial plan amendment in compliance. The advertisement was one-quarter page in size, identified the plan amendments in issue, advised readers that the amendments were in compliance, gave a location where such amendments and comments could be reviewed, and offered a point of entry to affected persons. Therefore, its content was sufficient to inform the public of the action being taken. The DCA concedes that in the notice, however, it cited rule 9J-11.012(8) as the provision dealing with the contents of a petition to challenge the amendments found to be in compliance when in fact the correct citation should have been rule 9J-11.012(7). There is no section (8) in the rule. The notice also cited former rule 22I-6.010 as the rule dealing with intervention when in fact that rule has been renumbered as rule 60Q-2.010. Even so, petitioners were unable to show how they were prejudiced by these minor errors, especially since they knew the nature of the action being proposed by the DCA, and they timely filed their petition for hearing to challenge the amendment. The DCA policy is to publish its notice of intent to find an amendment in compliance in the same local newspaper as the local government uses for its publication. The DCA also pointed out that by advertising in the Neighbors section as opposed to the regular edition of the Herald, it saved several thousand dollars. Therefore, the DCA used the Neighbors section of the Herald. At the same time, the DCA has never included in its advertisement a map showing the location of the land use changes being proposed. This is because the local government advertisements have already included a map, and the DCA notice is simply for the purpose of advising the public which ordinances are in or out of compliance. In the absence of any showing of prejudice, and in view of petitioners' failure to demonstrate to the exclusion of fair debate that the plan amendment as a whole is incompatible with, does not further or take action in the direction of realizing, the goals of the law, the cited procedural errors are insufficient to support a finding that amendment 94R-1 is not in compliance. The plan amendment Since 1986, petitioners have owned two parcels of undeveloped property in the southern one-half and northwestern one-quarter of Tract 24 of Section 28, which is located in the western part of the City. The property consists of approximately six acres located at the northeastern intersection of West 76th Street and the Hialeah-Hialeah Gardens Boulevard. The property has been designated on the future land use map as low density (single-family) residential, which allows up to twelve units per acre. Petitioners have not specifically pled or shown how amendment 94R-1 adversely affects their property. Instead, they simply argue that the plan amendment is not in compliance because the City did not consider the impacts of "drastically changed circumstances" before adopting the remedial ordinance, and the City improperly reclassified a small tract of land. These claims will be considered below. Effective June 3, 1994, Chapter 94-338, Laws of Florida, became law. That law created a multijurisdictional tourism, sports and entertainment special district more commonly known as Blockbuster Park. That legislation, however, is not relevant to this proceeding for several reasons. First, there is no mechanism to consider multijurisdictional impacts in the local planning process. Second, the special act did not become law until after the amendment process here had been completed. Since the City was only required to consider the best available data present at the time the amendment was being reviewed and adopted, consideration of the special law was neither necessary or appropriate. Third, the act itself does not authorize a development. If and when a development order is approved, the City can update its plan to take into account any impacts from the project. As to the contention that the City and DCA failed to take into account the six-lane connector road completed on December 31, 1993, or two years after the plan amendments were adopted, the impact of the connector road is identified and discussed on pages 21 and 23C of the future land use element contained in the remedial amendments. At hearing, it was further explained that the connector road is a limited access regional road under the control of Dade County, and not the City. This means that there is no access to the connector from properties which front on the road, and local access will be limited to three major road intersections. No land use changes along the road have been proposed, and the City has adequately addressed the circulation map requirements in the plan and how the internal circulation routes would be compatible with the major connectors. This being so, it is found that the City and DCA gave adequate planning consideration to the connector. Finally, petitioners contended that certain land was improperly redesignated from single-family residential to multi-family and commercial use. They complain that this is inappropriate since the land is close to a school and does not lie near a major intersection. The evidence shows, however, that such redesignation was appropriate since the land is located at an intersection and lies just across the street from an existing five-acre commercial tract. Moreover, the multi-family part of the tract will serve as a buffer between the commercial use at the intersection and the existing single-family use to the south. Then, too, the proximity of a nearby school to the west will serve to reduce trip time for persons shopping in the area while dropping off or picking up children from the school. Finally, some types of commercial use in residential neighborhoods can serve valid planning purposes, and the City has already established a pattern of having some schools located near commercially designated property. The redesignation is found to be reasonable and based on appropriate planning considerations. Although no proof was submitted by petitioners regarding any other parts of the plan amendment, respondents demonstrated that all remaining parts are supported by adequate data and analysis and are in compliance. Accordingly, petitioners have failed to prove to the exclusion of fair debate that remedial amendment 94R-1 is not in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining the City of Hialeah comprehensive plan amendment to be in compliance. DONE AND ENTERED this 11th day of October, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3506GM Petitioners: 1-2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4-20. Partially accepted in findings of fact 5-8. 21-24. Partially accepted in findings of fact 9. Partially accepted in findings of fact 10 and 11. Partially accepted in finding of fact 4. 27-29. Covered in preliminary statement. Rejected as irrelevant. Rejected as unnecessary. 32-35. Rejected as irrelevant. 36-38. Partially accepted in finding of fact 6. 39-41. Partially accepted in finding of fact 11. 42. Rejected as unnecessary. Respondent DCA: 1-12. Covered in preliminary statement. 13. Partially accepted in finding of fact 1. 14. Partially accepted in findings of fact 2 and 13. 15. Partially accepted in finding of fact 1. 16-19. Partially accepted in findings of fact 6-8. 20-22. Partially accepted in finding of 9. 23-25. Partially accepted in findings of fact 10 and 11. 26. Partially accepted in finding of fact 6. 27. Partially accepted in finding of fact 11. 28. Partially accepted in finding of fact 6. 29-30. Partially accepted in finding of fact 10. 31-55. Partially accepted in findings of fact 13-17. Respondent City: Because the City's proposed recommended order was not timely filed, the undersigned has considered the contents of the proposed order but has not made specific rulings on each proposed finding of fact. See Sunrise Community, Inc. v. DHRS, 14 F.A.L.R. 5162 (DHRS, 1992), affirmed 619 So.2d 30 (Fla. 3rd DCA 1993). Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the more credible, persuasive evidence, subordinate, or unnecessary to the resolution of the issues. COPIES FURNISHED: Mr. Edmond J. Gong Ms. Dana L. Clay 6161 Blue Lagoon Drive, Suite 370 Miami, FL 33126 Terrell K. Arline, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 William M. Grodnick, Esquire 501 Palm Avenue, 4th Floor Hialeah, FL 33010 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue Have the Intervenors timely challenged the Hamilton County adoption of its comprehensive plan under the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes? If allowed to pursue their challenge, what is their burden of proof? Is it pursuant to Section 163.3184(9), Florida Statutes, (1991), the "fairly debatable" standard? Is it pursuant to Section 163.3184(10), Florida Statutes, (1991) the "preponderance" standard? Did Hamilton County (the County) fail to adopt its comprehensive plan within sixty (60) days from the receipt of written comments from the Department of Community Affairs (DCA) as required by Section 163.3184(7), Florida Statutes (1991)? If it did, was that failure jurisdictional thereby voiding the adoption process? Within the adopted plan, is Policy V.2.13 requiring special permits for hazardous and bio-medical waste treatment facilities and for their placement in areas designated agricultural and located with the rural area of Hamilton County, consistent with plan adoption requirements set forth in Chapter 163, Florida Statutes, (1991), Chapter 9J-5, Florida Administrative Code, the State Comprehensive Plan set forth in Chapter 187, Florida Statutes (1991) and the North Central Florida Regional Policy Plan? Within the adopted plan is Policy 1.15.1 prohibiting the disposal of medical, bio-hazardous, hazardous or solid waste by incineration or by other methods which produce air pollution, other than by facilities permitted, legally sited and operated as of July 23, 1991, consistent with plan adoption requirements set forth in Chapter 163, Florida Statutes (1991), Chapter 9J-5, Florida Administrative Code, the State Comprehensive Plan as set forth in Chapter 187, Florida Statutes, and the North Central Regional Policy Plan? More particularly must these policies meet and do they meet the requirements for surveys, studies and data set forth in Section 163.3177(6)(a),(8) and (10)(e), Florida Statutes (1991) and Rule 9J-5.005(2), Florida Administrative Code?
Findings Of Fact In December, 1990, Hamilton County prepared a proposed comprehensive plan. That proposal was submitted to the Department in accordance with Section 163.3184(3)(a), Florida Statutes. Within the Conservation Element of the proposed plan the County included Policy V.2.13, which stated: The County shall only allow hazardous and bio-medical waste treatment facilities as special permits within areas designated agricultural and located within the rural area of the County. Further, the County's land development regulations shall include conditions for such approval of a hazardous and bio-medical waste treatment facility as a special permit regarding the location, site design, buffer requirements, access to principal arterials and major intersections, requirements for appropriate public facilities, and require- ments which consider wind currents in relationship to population centers, which will direct any incinerated materials or noxious odors from these population centers. In no case shall a hazardous or bio-medical waste treatment facility be located within an Environmentally Sensitive Area as designated within this Comprehensive Plan. Policy V.2.13 was associated with Objective V.2 which states: The County shall include within the land development regulations, by 1992, provisions for the conservation, appropriate use and protection of the quality and quantity of current and projected water sources, water recharge areas and potable water wells. There was no specific data and analysis in the proposed plan directed to Policy V.2.13. Other policies associated with Objective V.2 addressed water issues. In the data and analysis which the County submitted to DCA with its proposed comprehensive plan the County did identify known pollution problems. This included a reference to point discharges for wastewater, non-point sources of water pollution, point air pollution sources and non-point sources of air pollution. None of the known activities were associated with hazardous and bio- medical waste treatment facilities. The data and analysis associated with the Conversation Element in the proposed plan also identified watersheds, wetlands, lakes, flood prone areas, and current water sources. The data and analysis further discussed the circumstances related to watersheds, wetlands, rivers, lakes, flood prone areas and air quality as the County perceived the existing conditions for those topics. Finally, the data and analysis spoke to the issue of projected water needs. No mention was made concerning how the aforementioned data and analysis would be considered in granting special permits for hazardous and bio-medical waste treatment facilities. On April 14, 1991, DCA transmitted its comments to the County concerning the proposed comprehensive plan and supporting data and analysis, together with its objections and recommendations for modifications to the proposed comprehensive plan. This activity was in accordance with Section 163.3184(6), Florida Statutes. The report that was transmitted is known as the "ORC" Report. The County received the ORC Report on April 22, 1991. The ORC Report made a number of objections to the objectives and policies set forth in the Conservation Element to the proposed comprehensive plan and recommendations for modifications to the same. The ORC Report specifically objected to Policy V.2.13 wherein the DCA stated: Policy V.2.13 does not describe the 'special permits' concerning hazardous and bio-medical waste treatment facilities within agricultural areas, does not define the extent of the buffers, and does not prohibit these facilities in conser- vation areas. The general recommendation to improve Policy V.2.13, among policies found within the Conservation Element, was to this effect: Provide data and analysis to support the above- referenced policies. Revise the policies to identify the specific implementation programs or activities that will be undertaken by the County to achieve the goal and objectives with which the policies are associated. Eliminate or define all conditional and vague language. Revise the Future Land Use Map to support the revised policies. The County then held two public hearings related to the adoption of a comprehensive plan. See Section 163.3184(15), Florida Statutes (1991). The first public hearing was held on June 18, 1991. At that time no decision was reached to adopt a comprehensive plan. The public hearing was adjourned. On July 23, 1991, the County reconvened the public hearing related to the comprehensive plan adoption. Following the second public hearing associated with the plan adoption, the County in the person of its Board of County Commissioners who had conducted the public hearings, adopted a comprehensive plan for Hamilton County. The adopted comprehensive plan was transmitted to DCA on July 30, 1991. The transmittal letter supporting the adopted comprehensive plan noted that the comprehensive plan was adopted on July 23, 1991. The transmittal letter pointed out the changes to the adopted comprehensive plan which were not reviewed by DCA when DCA considered the proposed comprehensive plan. As with the proposed comprehensive plan, the County submitted data and analysis with the adopted comprehensive plan pointing out the data and analysis accompanying the adopted comprehensive plan which had not been reviewed by the DCA when it considered data and analysis supporting the proposed comprehensive plan. Within the conservation element to the adopted comprehensive plan Objective V.2 remained as set forth in the proposed comprehensive plan. Certain policies associated with Objective V.2 had changed. However, Objective V.2. and its associated policies set forth in the adopted comprehensive plan continued to address water issues. In particular, Policy V.2.13 did not change with the plan adoption. Additional data and analysis submitted by the County supporting the Conservation Element to the adopted comprehensive plan deleted the Suwannee River State Park as a conservation area. Specific references were made to Jumping Gully Creek, Swift Creek, Hunter Creek and the Withlacoochee River and activities associated with those water bodies. However, as with the proposed plan it was not explained how the County intended to use the original and additional data and analysis in deciding special permit issues for hazardous and bio-medical waste treatment facilities. When the County adopted its comprehensive plan it added an objective and a policy that had not been included with the proposed comprehensive plan in the category of objectives and policies for both urban development areas and rural areas in the Future Land Use Element. New Objective I.15 stated: Residential areas shall be protected from uses which cause or result in greater than average noise, hazards or odors. The associated Policy I.15.1 stated: No medical, bio-hazardous, hazardous, or solid waste shall be disposed of by incineration or by any other method which produces air pollution emissions subject to permitting by the Department of Environmental Regulation within Hamilton County, unless the use or facility was permitted and otherwise legally sited and operated as of July 23, 1991. The supporting data and analysis which the County provided the Department with the adopted comprehensive plan did not address Objective I.15 nor Policy I.15.1, with the exception that residential land use projections are described. The adopted plan provided specific information concerning future residential land use. That description was supported by a residential land use need methodology and analysis of future residential land use needed. As with the proposed plan, the adopted plan included a reference to industrial land use within the Future Land Use Element. In both the proposed plan and the adopted plan in Policy 1.3.1 it was stated: Lands classified as industrial consist of areas used for the manufacturing, assembly processing or storage of products. Industrial development may be approved in areas of the County not designated industrial on the Future Land Use Plan upon submission and approval of a development plan which shall include at the least: an industrial site plan; traffic plan; and traffic impact studies; provisions for the construction and maintenance of a wastewater treatment system meeting requirements of the State of Florida for that use; and a submission of a Future Land Use Plan Map amendment to Industrial classification. Industrial uses shall be limited to an intensity of less than or equal to 1.0 floor area ratio. The data and analysis associated with industrial land use which had been provided with the proposed comprehensive plan remained consistent with the adopted comprehensive plan when describing the methodology for identifying projected industrial land use. The comments in the data and analysis supporting the proposed and adopted plans indicated: Projecting the need for additional acreage for industrial use cannot be approached using a methodology similar to those used for residential and commercial Future Land Use needs. This is due to the fact that there is no direct relationship between population and industrial location. The additional future acreages for industrial location are anticipated to occur on a site specific basis as needed at the time industrial activities are proposed. Within the adopted comprehensive plan, Future Land Use Element related to urban development areas and rural areas is found the general industrial land use classification. The general industrial land use designations are located in the central area of the county to the southwest of the City of Jasper along County Road 249. There is an additional limited industrial land use classification within the urban development area and rural area category. It identifies industrial opportunities at interchanges on Interstate 75. At these interchanges, upon submission of a site plan that comports with development standards, with due regard for safety and adequate access, light industrial development is allowed which does not require an air emission permit from the State of Florida. Industrial land use designations as well as other land use designations were based upon an analysis of the amount and character of undeveloped land in the county, reliable population projections and growth patterns anticipated for the area, together with the availability of the public services to accommodate the projected population. The adopted comprehensive plan includes a Future Land Use Map and Map Series found within the Future Land Use Element of the adopted plan which depicts industrial land use. Intervenors' property carries a general industrial classification in the future land use designation in the adopted plan. Intervenors' property is not located on the Interstate 75 corridor and therefore would not be considered for this special industrial land use classification. The North Central Florida Regional Planning Council (the Council) assisted the County in preparing its proposed and adopted plans. The Council staff were engaged in that process as early as 1986. From that point forward the Council staff conducted field surveys relating to land use, compiled data from existing data sources and reviewed population projections and growth patterns in Hamilton County. The Council staff compiled information concerning public facilities, recreational and solid waste facilities, information relating to physical capacity for those facilities and information concerning the financing of capital projects. In anticipation of the requirements set forth in Section 163.3177(6)(a), Florida Statutes, the Council staff conducted field surveys of existing land use to determine the character of undeveloped land in the county. The staff reviewed the population projections of the University of Florida Bureau of Business and Economic Research. These activities were designed to assist the County in analyzing the amount of land necessary to accommodate projected growth and the availability of public services. The Council staff was responsible for preparing the proposed plan statement related to goals, objectives, and policies. The staff also prepared the Future Land Use Plan Map. The documents prepared by the Council staff were subject to review and workshops were held to consider those matters. Modifications were brought about through public comments presented at the workshops. The Council staff prepared an evaluation, appraisal and review report to examine the success of previously adopted comprehensive plans. Following the conduct of workshops the public sessions for plan adoption were held on June 18, and July 23, 1991. As representative for the County, the Council staff invited the Department to send representatives to attend the public hearing sessions. The Department was represented at those sessions. In the public hearings related to the plan adoption, there was considerable public testimony expressing concern about health and environmental impacts involved with the incineration of bio-medical waste. In particular, remarks were made about air emissions of mercury and dioxins and the disposal of ash residue from the incineration process. Documents were also presented by members of the public who opposed waste incineration. One document was from the United States Environmental Protection Agency, entitled Seminar-Medical and Institutional Waste Incineration: Regulations, Management, Technology, Emissions and Operations. Another document was entitled Hazardous Waste News #82, June 20, 1988, identified as a weekly news and resource for citizens fighting toxins. A third document was entitled "Facts" related to definitions within Section 403.703, Florida Statutes and observations from the author of this document concerning Intervenors intended operations of a bio-medical incineration facility in Hamilton County. Finally, there was a document from the Hamilton County School Board calling for a buffer zone between any school in the county and facilities which incinerated or otherwise disposed of substances through incineration or other disposal means which would create air emissions from the destruction of solid waste, hazardous substances, bio-hazardous waste and biological waste as defined within Section 403.703, Florida Statutes. The Hamilton County School Board also expressed a desire to completely prohibit the incineration or other disposal of those substances which were generated outside Hamilton County. The EPA document spoke in terms of the emissions from incinerators as being particulate and gaseous emissions. The particulate emissions being constituted of char and soot and minerals in the form of metals, silicates and salts. The gaseous emissions referred to in the EPA document were constituted of combustible emissions such as hydrocarbons, carbon monoxide, PCDD and PCDF and noncombustible emissions, such as nitrogen oxides, HCLs, hazardous compounds such as POHCs, products of incomplete combustion such as dioxins, and uncondensed volatile metals in excess air. Dr. Ralph Dougherty, an expert in environmental mass spectrometry, analytical chemistry and the chemistry of waste incineration, provided expert testimony concerning the significance of some of the information provided to the County in its public sessions. This testimony was presented at the administrative hearing. Dr. Dougherty did not attend the public hearing associated with the plan adoption. Dr. Dougherty in addressing the waste stream that is created by bio- medical waste described how the incineration process in destroying polyvinyl chloride, PVC plastic, saran wrap and neoprene converted those materials to chlorinated organics such as dioxin. As Dr. Dougherty established, dioxins are very hazardous substances. Kenneth Krantz appeared for the Intervenors at the public sessions for the plan adoption. At that time Basic Energy Corporation was known as TSI Southeast, Inc. (TSI). He provided written information to the county commissioners concerning the TSI bio-medical waste disposal business intended to be located in Hamilton County. TSI took no issue with Objective I.15 which was adopted on July 23, 1991. Intervenors proposed different text for policy I.15.1 and requested adoption of two additional policies I.15.2 and I.15.3 which would place some restrictions on solid waste disposal but would allow an opportunity for operating the TSI facility in the county. Information provided by Krantz in the public sessions indicated that TSI intended to operate a business to incinerate solid, bio-medical and solid municipal waste, together with a waste recycling area, Pelletizer area and turbine-generator area. Krantz addressed the county commissioners concerning county building permit information about the facility, permitting by the St. Johns River Water Management District and the State of Florida, Department of Environmental Regulation. Information was provided concerning square footage for buildings within the overall TSI facility. Information was provided by TSI concerning the intended pollution control systems as being constituted of fabric filters and dry-lime injection systems, together with a detailed description of pending permit applications before the Department of Environmental Regulation for additional incineration units. Information provided by TSI addressed the expected constituents of the air emissions to include carbon monoxide, volatile organic compounds, nitrogen oxides, organics such as dioxide, sulphur dioxide, hydrogen chloride and particulate matter. A site location map and schematic showing the flow within the waste stream was also provided. TSI also provided information at the public sessions about the Intervenors anticipated emissions rates for two previously permitted units and the third and fourth units that were being considered by the Department of Environmental Regulation. This data about emission rates included a comprehensive listing of anticipated emissions by pollutant type to include projected measurements of omissions for units one and two which would deal with medical waste combustion and units three and four which would deal with medical waste combustion and possibly refuse-derived fuel (RDF). As commented on by members of the public who appeared at the public sessions for adopting the plan, information provided by the Intervenors verified that significant amounts of pollutants would be discharged into the air through Intervenors' operations. TSI provided information concerning the modeling that was done to measure concentration levels for the expected pollutants. Information was provided concerning the incineration process and the manner in which calculations were made concerning expected emissions levels. Information was provided concerning anticipated annual and short term emission rates for the four units intended to be operated by the TSI. The technical information about the intended TSI facility was through documents that appeared to be from an engineering consulting firm. All information provided in the public sessions that has been described was properly available to the county commissioners when adopting the plan. The information provided at the public sessions which has been described was not presented to the Department with the adopted plan. As stated, on July 30, 1991, the County submitted its plan to the Department to determine if the adopted plan was in compliance with the requirements of law. See Section 163.3184(8), Florida Statutes (1991). On September 12, 1991, DCA issued a notice of intent to find the adopted plan, not "in compliance". See Section 163.3184(10), Florida Statutes (1991). Pursuant to that provision, DCA filed a petition with the Division of Administrative Hearings setting forth the reasons for its decision to find the adopted plan not "in compliance". That petition was filed on September 23, 1991. The DCA took no issue with Policies I.15.1 and V.2.13. On February 20, 1992, Intervenors petitioned to intervene in the not "in compliance" case. As identified in the statement of issues, the Intervenors were and continue to be opposed to the adoption of Policies I.15.1 and V.2.13. On March 17, 1992, an order was entered which granted the Intervenors leave to intervene. Intervenors own property in Hamilton County. As contemplated by Section 163.3184(16), Florida Statutes (1993), DCA and the County engaged in settlement discussions. This culminated in a stipulated settlement agreement executed by DCA and County on November 24, 1993. The stipulated settlement agreement is referred to in the statute as a compliance agreement. Intervenors did not join in the settlement. On January 18, 1994, the County adopted the remedial amendments, referred to in the statute as plan amendments pursuant to a compliance agreement called for by the compliance agreement. The remedial plan amendments were submitted to the Department for consideration. On March 10, 1994, DCA issued a cumulative notice of intent addressing the compliance agreement amendments and the plan. DCA gave notice that it attended to find the plan and remedial comprehensive plan amendments/compliance agreement amendments "in compliance" with Sections 163.3184 and 163.3187, Florida Statutes. Notwithstanding that the Intervenors did not submit further pleadings within 21 days of the publication of the cumulative notice of intent, the Intervenors were allowed to proceed with their challenge to the plan that was not the subject of the compliance agreement leading to the compliance agreement amendments.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered finding the Hamilton County comprehensive plan to be "in compliance" with the exception that Policy V.2.13 is only "in compliance" in its latter sentence, the remaining language in Policy V.2.13 is not "in compliance". DONE and ENTERED this 21st day of April, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1995. APPENDIX "A" CASE NO. 91-6038GM The following discussion is given concerning the proposed fact finding by the parties: Intervenors' Facts: Paragraph 1 is subordinate to facts found. The first sentence to Paragraph 2 is contrary to facts found. The remaining sentence is subordinate to facts found. Paragraph 3 is rejected in its suggestion that there is a perpetual ban on bio-hazardous waste incineration. It is otherwise not necessary to the resolution of the dispute. Intervenors' Facts: Paragraphs 1 through 7 are subordinate to facts found. Paragraph 8 is not relevant. Paragraphs 9 through 12 are subordinate to facts found. Paragraph 13 is not necessary to the resolution of the dispute. Paragraph 14 is subordinate to facts found with the exception that the date of adoption was January 18, 1994. Paragraphs 15 through 22 are subordinate to facts found. Paragraph 23 is not relevant. Paragraph 24 is subordinate to facts found. Paragraph 25 constitutes legal argument. Paragraph 26 is subordinate to facts found. Paragraphs 27 through 31 are not necessary to the resolution of the dispute. Paragraphs 32 through 38 are subordinate to facts found. Paragraphs 39 and 40 are not necessary to the resolution of the dispute. Paragraph 41 is rejected to the extent that it is suggested that it constitutes agency policy. Paragraphs 42 through the first phrase in 49 are subordinate to facts found. The latter phrase in Paragraph 49 is not necessary to the resolution of the dispute. Paragraphs 50 through 58 are subordinate to facts found. Paragraph 59 constitutes legal argument. Paragraphs 60 through 75 are subordinate to facts found. Paragraphs 76 through 82 are rejected as not constituting allowable analysis of data presented in support of the plan adoption. Paragraphs 83 and 84 are not necessary to the resolution of the dispute. Paragraph 85 is subordinate to facts found. Paragraph 86 is not necessary to the resolution of the dispute. Paragraphs 87 through 91 are rejected to the extent that it is suggested that some lesser standard is involved with consideration of data for optional plan elements as opposed to mandatory plan elements. See Section 163.3184(8), Florida Statutes (1991) and Section 120.57(1)(b)15, Florida Statutes (1993). Paragraph 92 is acknowledged but did not form the basis for fact finding in the recommended order. Paragraph 93 is rejected as intended to interpret Policy I.15.1 as an absolute prohibition against waste incineration in the County. Paragraph 94 constitutes legal argument. Paragraphs 95 through 102 are not relevant. Paragraphs 103 through 105 are not necessary to the resolution of the dispute. Paragraphs 106 through 108 are subordinate to facts found with the exception of the rejection of Policy V.2.13 in part. COPIES FURNISHED: David L. Jordan, Esquire Terrell L. Arline, Esquire Suzanne Schmith, Certified Legal Intern Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 John H. McCormick, Esquire Post Office Box O Jasper, FL 32052 William L. Hyde, Esquire Gunster, Yoakley, Valdes-Fauli and Stewart, P.A. 515 North Adams Street Tallahassee, FL 32301 Donald J. Schutz, Esquire Suite 415 535 Central Avenue St. Petersburg, FL 33701 Linda L. Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue Whether the City of Fernandina Beach (“City” or “Respondent”) Future Land Use Map Amendment, adopted by Ordinance 2019-08 (“FLUM Amendment”), qualifies as a small scale development amendment to the City Future Land Use Map (“FLUM”); and, if so, whether the FLUM Amendment is “in compliance” as that term is used in section 163.3187(5)(a), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing ATC is a not-for-profit Florida corporation with a substantial number of members who reside in, own property in, or operate businesses in the City. ATC is an affected person under chapter 163, part II. ATC’s Petition for Administrative Hearing was timely filed. Members of ATC submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Sierra Club is a national nonprofit organization with 67 chapters, including the Nassau County Sierra Club Group with a substantial number of members who reside in, own property in, or operate businesses in the City. Sierra Club participates in activities and outings on the Egans Creek Greenway (“Greenway”) for its members and the general public and has organized and participated in the removal of invasive species in the Greenway. Sierra Club is an affected person under chapter 163, part II. Sierra Club’s Petition for Administrative Hearing was timely filed. Members of Sierra Club submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Petitioners have standing to maintain these proceedings because they are affected persons and presented (or had their attorney or representative present) comments at the adoption hearing of the proposed FLUM Amendment. The City is a municipal corporation of the State of Florida with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. The City provided timely notice to the parties and followed the plan amendment procedures required by the City’s codes and chapter 163, part II. The subject property is located within the City’s jurisdiction. Amelia Bluff is a Florida limited liability company conducting business in the City. By virtue of its ownership of the property that is subject to the FLUM Amendment and this dispute, Amelia Bluff is affected by the challenge to the FLUM Amendment and has standing to intervene in this proceeding. The Subject Property The Property is part of a larger parcel of approximately 15.07 acres (the “School Board Property”) that was previously owned by the School Board of Nassau County (the “School Board”). The School Board Property was essentially undeveloped, though it had been used as outdoor classroom space for the high school. The School Board Property is located on the east side of Citrona Drive and is bounded on the west by Fernandina Beach High School/Middle School. The School Board Property is bounded on the south by the Hickory Street right-of-way, which is an access to the Greenway. Across from the Hickory Street right-of-way is Shell Cove, a residential subdivision that, according to the City Staff Report, is zoned R-2 with a Medium Density Residential FLUM designation. Shell Cove, which is completed, is of greater density than the proposed Amelia Bluff subdivision. The School Board Property is bounded on the north by a tract of undeveloped property. According to the City Staff Report, the property to the north is zoned R-1 with a LDR FLUM designation. The School Board Property is bounded on the east by 200 to 400 feet of publicly-owned, predominantly wetland property. That property merges into the western edge of the main channel of Egans Creek. The Egans Creek Greenway then extends eastward from the western edge of Egans Creek. The School Board Property includes a relatively steep bluff running generally from the northwest corner of the Property at Citrona Drive, diagonally to the southeast to the Hickory Street right-of-way. The elevation of the upland portion of the School Board Property, which is the portion proposed for development, is from 18 to 20 feet above sea level at its northwest corner, to 11 to 12 feet above sea level at its southeast corner. Roughly 3.76 acres of the School Board Property at and east of the toe of the bluff consists of jurisdictional wetlands, dominated by wetland vegetation, at an elevation of 1 to 2 feet above sea level. The upland portion of the School Board Property includes the 10.29 acres of the proposed subdivision. Those uplands were, at the time of the June 2016 purchase by Amelia Bluff, fully wooded with predominantly hardwood species, interspersed with pine, holly and other species. The 10.29 acres of the proposed subdivision are appropriately zoned R-1 for low-density residential development. The Property that is the subject of the FLUM Amendment consists of approximately 6.40 acres of uplands within the 10.29 acres of the proposed subdivision. The Property is designated on the FLUM as Conservation. The remainder of the proposed subdivision is designated on the FLUM as LDR. The evidence indicates that there is no difference in the nature of the tree cover in the 6.4 acre Property and in the remaining acreage of the proposed subdivision. Maritime Forest/Maritime Hammock There was a good deal of testimony directed to the issue of whether the trees on the Property constitute a “maritime forest” or an imperiled “maritime hammock.” The tree cover on the Property, as established by the tree survey, consists largely of live oak, laurel oak, and water oak, interspersed with magnolia, pine, red maple, and other species. Ms. Jetton described the cover of the Property as maritime forest, and stated that “maritime forest” is identified as an imperiled community in the Florida Natural Areas Inventory (“FNAI”) and designated in the Egans Creek 2015 Greenway Management Plan (“Greenway Management Plan”) as such. Although a “maritime hammock” is designated as an imperiled vegetative community, a “maritime forest” is not. Ms. Jetton later clarified her testimony, stating that “I probably shouldn't have said ‘hardwood hammock.’ I'm accustomed to using that term in the Florida Keys. I know this is a maritime forest, but it is composed of hardwood trees, live oak trees, pine trees.” When asked about the terms “maritime forest” and “maritime hardwood hammock,” she stated that “it was a faulty use of my words. I should have stuck with ‘maritime forest.’” There was little to suggest that the Property contains a “maritime hammock,” which is a specific type of imperiled vegetative community identified in the FNAI and the Greenway Management Plan. Mr. Gerald indicated that it did not. Rather, Mr. Gerald indicated that the type of “maritime forest” that exists on the Property, i.e., a forest on a barrier island, is “very common throughout the mainland, throughout Nassau County, Duval County, St. Johns, Clay, all the way out through pretty much all of North Florida.” It is not an imperiled or unique community, as is a maritime hammock. The Ecological Assessment of Egans Creek Greenway indicates that maritime hammock communities associated with the Greenway “are located along the eastern part of the Greenway,” with another near an indeterminate stretch of Jasmine Street and bisected by a wide and deep canal that is not surficially connected to Egans Creek, and a third set at the southern portion of the Greenway that appear to be adjacent to a beach dune community. There is nothing in the Ecological Assessment to suggest that a maritime hammock community exists to the west of the Greenway. The evidence is insufficient to support a finding that the Property contains an imperiled “maritime hammock” as described in the FNAI and the Ecological Assessment of Egans Creek Greenway. There is little question that the Property is a beautifully wooded tract. However, the issue is not whether the Property merits preservation, but whether the FLUM Amendment, that will allow for the development of the Property as the Amelia Bluff subdivision, is inconsistent with the Comprehensive Plan. Egans Creek Greenway The Greenway is a system of approximately 317 acres of publicly-owned waterways, marshes, and wetlands that extends in a north-south direction through Amelia Island, separating the City’s beaches from its downtown and commercial areas. Egans Creek is not an Aquatic Preserve or Outstanding Florida Water. Egans Creek flows into the Amelia River and the Fort Clinch State Park Aquatic Preserve. The Greenway is a regional drainage facility that receives untreated stormwater from areas including part of the original plat of the City. Water quality in Egans Creek is degraded, though the creek is not designated as “impaired.” The City’s Greenway Management Plan provides that “[t]he primary purposes of the project are to protect this sensitive natural area from development,” and that “[a]ll of the property encompassed in this project will be designated as recreational/wetlands and protected in the City’s future land use plan.” The Greenway extends from the western bank of the Egans Creek channel eastward. The Greenway is separated from the Property by 200 to 400 feet of publicly-owned, predominantly wetland property, the first hundred feet or so of which is dense willow/wax myrtle/Chinese tallow shrub, and then brackish march to the Egans Creek channel. Procedural History of the Amelia Bluff Subdivision In June 2016, Amelia Bluff entered into a contract to purchase the 15.07-acre School Board Property from the School Board. The School Board Property includes the 6.4-acre Property. Amelia Bluff proposed to develop the upland portion of the School Board Property, including a significant portion of the Property, for the proposed subdivision. On September 27, 2016, the School Board filed an application to vacate a 60-foot right-of-way known as Gum Street extending through the School Board Property in connection with the School Board’s intent to sell the School Board Property to Amelia Bluff, memorialized as City Planning Advisory Board (“PAB”) Resolution 2016-24. On August 10, 2017, the School Board, Amelia Bluff, and the City executed a Memorandum of Understanding (“MOU”), which memorialized the parties’ understanding of the conditions of the City’s agreement to vacate a portion of Gum Street extending through the School Board Property. The MOU stipulated that Amelia Bluff would (i) provide access to the abutting properties owned by the Florida Department of Transportation (“FDOT”) located on the eastern boundary of the School Board Property through the creation of a City right-of-way to connect Hickory Street to the property owned by the FDOT; (ii) transfer the wetlands portion of the School Board Property to the City for conservation; and (iii) donate $115,000 to the City for land conservation efforts, to be paid at the conclusion of all legal challenges and/or appeals for all subdivision approvals. On August 15, 2017, the City adopted: (i) Ordinance No. 2016-40, which vacated a portion of Gum Street; and (ii) Resolution 2017-123, which approved the MOU. On November 29, 2017, the School Board conveyed the School Board Property to Amelia Bluff. On February 16, 2018, Amelia Bluff filed an application for preliminary plat approval for the subdivision. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed to the City approximately 3.76 acres of jurisdictional wetlands in two parcels (3.63 acres and 0.13 acres in size) and dedicated to the City approximately 0.917 acres for the right-of-way connection between Hickory Street and the FDOT property. The City accepted the conveyance of wetlands and dedication of right-of-way on March 20, 2018, pursuant to Resolutions Nos. 2018-39 and 2018-40, respectively. On April 11, 2018, the PAB reviewed the application for preliminary plat and issued a recommendation of approval. On May 1, 2018, the Commission approved the preliminary plat for the Amelia Bluff subdivision. On May 10, 2018, the City’s Technical Review Committee (“TRC”) reviewed and approved the preliminary plat for technical completeness and issued a compliance letter on May 14, 2018 (SPR 2017-09), authorizing the commencement of subdivision infrastructure improvements. In August 2018, Amelia Bluff commenced work on subdivision infrastructure improvements. On October 18, 2018, Amelia Bluff applied for final subdivision plat approval. The City and Amelia Bluff determined that the Property was designated Conservation under the Comprehensive Plan and would require a Comprehensive Plan amendment to change the FLUM designation of the Property from Conservation to LDR. On November 15, 2018, Amelia Bluff filed the application for the FLUM Amendment to change the Conservation designation of the Property. City professional staff reviewed the FLUM Amendment application and determined that the FLUM Amendment sought by Amelia Bluff was consistent with the Comprehensive Plan and Land Development Code, and furthered the objectives of the Comprehensive Plan. The determination was memorialized in a Staff Report prepared for consideration by the PAB prior to the PAB’s regular meeting on January 9, 2019. On January 9, 2019, the PAB reviewed the applications for the FLUM Amendment and final plat and issued recommendations of approval for the FLUM Amendment (PAB 2019-01) and final plat (PAB 2018-26). On February 19, 2019, the Commission approved the FLUM Amendment on first reading. On February 21, 2019, Amelia Bluff stopped work on the subdivision infrastructure improvements pursuant to the City’s request. On April 16, 2019, the Commission adopted: (i) Ordinance No. 2019-08, which approved the FLUM Amendment to change the FLUM designation of the Property from Conservation to LDR, allowing up to four residential dwelling units per acre; and (ii) Resolution 2019-57, which approved the final subdivision plat. Because of Petitioners’ pending challenge, the effective date of Ordinance No. 2019-08 is delayed. The Ordinance provides: “If challenged within 30 days after adoption this Ordinance may not become effective until the state land planning agency or the Administration Commission, respectively, issues a final order determining that the adopted ordinance is in compliance pursuant to Section 163.3187, Fla. Stat.” Similarly, Resolution 2019-57 provides “[t]his Resolution shall become effective on the same date as Ordinance 2019-08 (a small scale Future Land Use Map Amendment that becomes effective pursuant to Section 163.3187, Fla. Stats.)” Thus, development may resume without any further action by the Fernandina City Commission if the FLUM Amendment becomes effective. Other Governmental Authorizations On December 28, 2017, the St. Johns River Water Management District (“SJRWMD”) issued Amelia Bluff an Environmental Resource Permit, No. 151737-1 (“ERP”), which notice was recorded in Official Records Book 2177, Page 1100 of the Public Records of Nassau County, Florida on February 15, 2018. On May 14, 2018, the Florida Department of Environmental Protection (“FDEP”) issued Amelia Bluff Permit No. 0003152-107-DWC, which authorized Amelia Bluff to construct a domestic wastewater collection/transmission system on the site, and accepted Amelia Bluff’s Notice of Intent to Use the General Permit for Construction of Water Main Extensions for PWSs. The Proposed Subdivision The proposed subdivision consists of 30 lots, designed with two entrances from Citrona Drive, and two cul-de-sacs. The legal description for the final plat approved on April 16, 2019, in Resolution 2019-57, describes the proposed subdivision as containing “10.29 acres more or less.”3/ In addition to the property conveyed to the City or dedicated to the city as right-of-way, the final plat depicts Tract “C” (0.25 acres) as a “recreation/open space tract” that is removed from development. The proposed subdivision was initially designed with stormwater detention ponds near the front of the subdivision, near Citrona Drive and away from the bluff. However, placement at that location would have required extensive grading and tree clearing to direct the flow of water against its natural flow direction. After discussion with City staff, the decision was made to reconfigure site drainage so that stormwater would be directed via overland flow and drainage structures from northwest to southeast, generally following site topography. Stormwater from lots, sidewalks, and streets will be directed to two dry detention ponds located at the southeast portion of the subdivision, and adjacent to the bluff. By allowing stormwater to follow the natural topography, grading and clearing for stormwater purposes will be minimized. The two dry detention ponds are connected by a 12-inch pipe approximately 100 feet in length that is designed to equalize water levels in the ponds. The ponds have a discharge structure in the southernmost pond that is designed to discharge treated stormwater after a 25-year storm to the bottom of the bluff. Efforts were made to design utilities, the stormwater system, and the roadways and associated structures to avoid particular specimen trees within the rights-of-way. In addition, Tract “C” located near the northwest corner of the subdivision, as well as portions of Tract “A” in the vicinity of the dry detention ponds were preserved due to an abundance of trees at those locations. The subdivision is designed with a 25-foot wetland buffer that prohibits removal of native vegetation or other disturbance within 25 linear feet of the jurisdictional wetlands. The buffer encompasses the entirety of the bluff. It was noted during the hearing that the buffer terminates near the southwest corner of the proposed subdivision. It was explained, credibly, that the 25-foot buffer is to buffer wetlands, and that there were no wetlands within 25 feet of the southwest corner that required a buffer. It was also noted that several lot lines extended into the wetland buffer. The buffer will be marked and restrictions recorded. Much of the evidence offered by Petitioners was directed to concern that the disturbance of the Property and removal of trees would destabilize the “relic dune” upon which the proposed subdivision is to be built. The testimony regarding that issue was conclusory, and not based on site- specific studies. However, Dr. McPhillips noted that there is residential development up and down the Greenway, and that the adjacent Shell Cove subdivision had experienced no evidence of dune collapse. Work Completed to Date In June 2016, after Amelia Bluff contracted to purchase the School Board Property, the owner representative, Wirt Beard, met with City planning staff to engage in preliminary discussions regarding the development of the proposed subdivision. At that time, Amelia Bluff and the City planning staff noted that the Property was subject to a Conservation designation on the FLUM. The planning director at the time, Marshall McCrary, indicated that it was his opinion that the FLUM Conservation designation was a “scrivener’s error,” and that it would be taken care of. Considerable discussions regarding the abandonment of the Gum Street right- of-way then commenced, and the Conservation designation was essentially disregarded. Nonetheless, there is no question but that Amelia Bluff knew and understood at that time that the Property was not designated for development. Amelia Bluff’s decision to proceed with development planning and construction was not taken without considerable support by the City. Despite the fundamental issue of whether the proposed subdivision could go forward in light of the unresolved Conservation designation, the City proceeded with a number of actions that would have led Amelia Bluff to the reasonable conclusion that the matter was, in fact, being “taken care of.” As set forth previously, the City entered into the MOU with Amelia Bluff and the School Board that required Amelia Bluff to establish a City right-of-way through the Property to connect Hickory Street to FDOT property and to transfer roughly 3.76 acres of wetlands on the Property to the City for conservation, upon which the City would vacate a portion of Gum Street extending through the Property. Ordinances approving the MOU and vacating the Gum Street right-of-way were adopted on August 15, 2017. The sale of the School Board Property to Amelia Bluff was then closed on November 29, 2017. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed the 3.76 acres of jurisdictional wetlands to the City, and dedicated 0.917 acres for the FDOT right-of-way. The City accepted both by resolution on March 20, 2018. On February 16, 2018, Amelia Bluff filed its application for preliminary plat approval. On April 11, 2018, the PAB reviewed the application for preliminary plat and recommended approval, which was approved by the Commission on May 1, 2018. On May 10, 2018, the TRC issued a compliance letter authorizing the commencement of subdivision infrastructure improvements. Amelia Bluff commenced work on infrastructure improvements for the Project in August 2018. When work was suspended on February 21, 2019, pursuant to the City’s request, the stormwater collection system was substantially complete, stormwater ponds had been cleared and constructed, and the stormwater collection system had been installed. In addition, roads had been cleared and curbs installed. City Commission FLUM Amendment Meetings The undersigned viewed and listened to every minute of the City Commission meetings of February 19, 2019; March 19, 2019; and April 16, 2019. The exclusive theme of those meetings was whether the Conservation designation of the Property was a “scrivener’s error.” The staff presentations were directed solely to the historic zoning and land use designations of the Property. Aerial photographs going back to 1943, and plats going back nearly as far, formed the temporal starting point of the presentations. Charts, maps, and plans were presented and discussed that showed the Property to be subject to a residential “zoning map” designation starting in 1961 and extending through the 1990 FLUM. The Property then became subject to a Wetlands Protection zoning map designation in 1993 and FLUM designation in 1997. In 2005, the Property appeared with a LDR designation in the City GIS FLUM Map. The Property was then made subject to the Conservation designation in 2006, a designation that was adopted by City ordinance. Regardless of how the Property became subject to the Conservation designation, that is its official designation, adopted by ordinance, reviewed by the state land planning agency, and not subject to any timely challenge. The staff presented little or no “data and analysis” as to the compliance of the FLUM Amendment itself with the Comprehensive Plan for consideration by the Commission. The discussion of the FLUM Amendment by the Commissioners involved the alleged “scrivener’s error,” the cost associated with litigating a Bert Harris Act “takings” claim if the FLUM Amendment was denied, the cost of acquiring the Property from Amelia Bluff and the source of funds to do so, and nothing more. Though the evidence establishes that the Commission had “data and analysis” as to the compliance of the FLUM Amendment to the Comprehensive Plan, there was not a whisper of acknowledgment or direct evidence of consideration. Several Commissioners, and particularly Mr. Chapman and Mr. Kreger, made statements that their votes to approve the FLUM Amendment were driven solely by the assumption that the Conservation designation was an error, with Commissioner Chapman discussing the cost of buying the Property in lieu of other sensitive lands in the community, stating that “I cannot justify giving up . . . 452 acres of land for six, I just can’t do it,”4/ and Vice-Mayor Kreger stating explicitly at the April 16, 2019, meeting that “to me, this is a mapping error, . . . I made the motion and I will vote yes on this.”5/ The undersigned is convinced that, at least as to the public discussions of the issue, little consideration was given to whether the FLUM Amendment was consistent with the Comprehensive Plan. If the issue in this case was whether the Commission actually considered available data and analysis supporting consistency, the evidence would suggest the answer is “no.” However, the issue in this de novo proceeding is whether data and analysis that was available to the Commission at the time of the adoption of the FLUM Amendment, and whether that data and analysis, together with any subsequent analysis, establishes that the FLUM Amendment is “in compliance” with the Comprehensive Plan under a “fairly debatable” standard. Available Data and Analysis Section 163.3177(1)(f) requires all plan amendments to be based upon relevant and appropriate data and an analysis by the local government that may include, but is not limited to, surveys, studies, and other data available at the time of adoption of the plan amendment. Section 163.3177(2) requires the elements of the Comprehensive Plan to be supported by data and analysis. Likewise, section 163.3177(6)(a)8. requires FLUM amendments to be based upon an analysis of data. Section 163.3178(2) states that a local government’s coastal management element of its Comprehensive Plan must be based upon studies, surveys, and data. When the application for the FLUM Amendment was filed, Amelia Bluff provided the City with a substantial volume of information for consideration by City staff, and to which the Commission had access at the time it voted to approve the FLUM Amendment. The surveys, studies, and data included: a site survey prepared by Manzie & Drake Land Surveying; engineering plans for the proposed subdivision, including water and sewer design and stormwater system design prepared by Gillette & Associates, Inc.; a wetland delineation, wetland survey, and documents conveying all wetlands to the City; a topographic survey; preliminary and final plats which include a depiction of the upland/wetland buffer; stormwater modeling data and site drainage calculations prepared by Gillette & Associates, Inc.; the SJRWMD ERP; a geotechnical and soils report for the stormwater model and roads prepared by AGES of Jax, Inc.; a tree survey with input from an arborist; and a wildlife assessment prepared by LG2 Environmental Solutions, Inc. Challenges to the Plan Amendment Small Scale Development Amendment Section 163.3187 applies to “small scale development amendments,” which may be adopted when “[t]he proposed amendment involves a use of 10 acres or fewer.” Petitioners allege that the FLUM Amendment is not a small scale development amendment since the 6.4 acre FLUM Amendment is part of a use, i.e., the proposed subdivision, that is greater than 10 acres in size. The FLUM Amendment is designed to change the land use category on the 6.4-acre Property. Both Ms. Gibson and Mr. Teeple testified credibly that the size of a FLUM amendment application is the acreage of the property on which the land use category is to be changed. Mr. Teeple testified that, in his extensive experience, he was unaware of any instance in which the 10-acre threshold was applied to the applicant’s total acreage, on the size of a “parent parcel,” or on the overall size of a development of which a FLUM amendment parcel was a part. Ms. Jetton testified on behalf of Petitioners that the Amelia Bluff subdivision is the “use,” which includes “the lots, the driveways, the stormwater ponds, the entire use,” although only the land use designation on the 6.4 acres would be amended. She asserted that the FLUM Amendment “should have been for the Conservation land with an explanation along with it that it would be part of a use that includes” the entire proposed subdivision. Her opinion as to “use” notwithstanding, Ms. Jetton testified that if the FLUM Amendment had occurred prior to the plat approval, “and they only offered the Conservation land as a small scale amendment, then that would have met the statute,” and the FLUM Amendment would properly be for the 6.4 acres for which the land use category change was being sought. Ms. Jetton, and Petitioners, rely exclusively on St. George Plantation Owners Association, Inc. v. Franklin County, Case No. 95-5124GM (Fla. DOAH Feb. 13, 1997; Fla. ACC Mar. 27, 1997). That case will be discussed in the Conclusions of Law herein. The preponderance of the evidence demonstrates that it is the established and accepted practice of the City and the regional council to base the determination of whether an amendment is a small scale amendment on the size of the property subject to modification. That determination is consistent with the plain language of the statute and is accepted as reflecting an accurate application of the standards for a small scale FLUM amendment. Internal Inconsistency In the Joint Pre-hearing Stipulation, Petitioners identified the specific goals, objectives, and policies of the Comprehensive Plan that they assert render the FLUM Amendment inconsistent with the Comprehensive Plan. Each of those goals, objectives, and policies is addressed as follows: Policy 5.07.09. The City shall prohibit any development activity that would potentially endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to existing drainage structures and natural drainage patterns. Ms. Gibson testified that the City applied this policy and found that it was met as evidenced by modifications to the original stormwater system design and the permitting of the stormwater system by the city and the SJRWMD. As originally configured, the stormwater system would have required significant regrading and virtual clear-cutting of the entire Property to allow stormwater to flow against the natural topography of the land to the front of the proposed subdivision adjacent to Citrona Drive. With input and direction from the City, the system was redesigned to direct stormwater generally from the high point of the property to its low point at the southeastern corner, following the natural topography of the proposed subdivision. All stormwater is to be directed to the permitted stormwater facility. The 25-foot upland buffer is not designed or intended to treat stormwater. The stormwater system consists of dry detention ponds, which are preferred by the SJRWMD. The vertical percolation rate is calculated at 42.8 feet per day. The horizontal percolation rate was calculated at 0.6 feet per day. Mr. Gillette testified that the stormwater system was designed to manage 100 percent of the stormwater from a 25-year storm event, which exceeds the City requirement of a system capacity to handle a 10-year storm event. The treatment volume does not include infiltration and percolation of stormwater. Mr. Desilet reviewed the drainage plans and calculations and determined that they were in compliance with the City Land Development Code. He further confirmed that Amelia Bluff received a stormwater permit from the SJRWMD as required by the Local Development Order. The system is designed and engineered such that flow from the proposed subdivision in its post-development state does not exceed flow from the proposed subdivision in its pre-development state. The system is designed to hold and treat stormwater on site from a 25-year storm. After that, stormwater will be allowed to “pop-off” to the stormwater drain and culvert. Nonetheless, the preponderance of the evidence establishes that any water leaving the site will be treated stormwater, meeting both permitting and water quality standards. Mr. Gillette testified that the modeling performed in support of the stormwater system indicates that for a mean storm event (5.4 inches of rain), pre-development stormwater outfall from the proposed subdivision is 3.8 cubic feet per second (“CFS”), while post-development outfall is expected to be 0.67 CFS. For a 25-year storm event, pre-development stormwater outfall from the proposed subdivision is 16 CFS, while post- development outfall is expected to be 5.6 CFS. Mr. Desilet testified that the engineered stormwater system proposed by Amelia Bluff “addresses water quality by providing the minimum required treatment volume and infiltration under [SJRWMD] guidelines.” As such, he testified that under rules governing the SJRWMD, “[i]f the specified volume required by the pervious area of the site is provided, and it's shown that it infiltrates in the system and it meets other site criteria in the [SJRWMD] code, it is presumed to meet state water quality standards.” Consistent with Mr. Desilet’s testimony, Florida Administrative Code Rule 62-40.432(2)(a), which is applicable to the SJRWMD, provides that “[w]hen a stormwater management system complies with rules establishing the design and performance criteria for such systems, there shall be a rebuttable presumption that the discharge from such systems will comply with state water quality standards.”6/ The stormwater system complied with the applicable rules, thus leading the SJRWMD to issue a stormwater permit to Amelia Bluff. There was no persuasive evidence introduced to rebut the presumption that state water quality standards would be met. The City reviewed Amelia Bluff’s stormwater plans for compliance with the City’s Land Development Code and determined that water quality was addressed, and that the data and analysis regarding stormwater from the proposed subdivision was compliant with the Comprehensive Plan. The evidence offered to establish that the stormwater system designed for the proposed subdivision would “endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to . . . natural drainage patterns” was not persuasive. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.09. Policy 5.07.12. The City shall require low-impact development strategies or conservation-based landscape planning and installation, water efficient irrigation, and appropriate measures that promote conservation of water resources and reduction of non-point source pollution as part of sustainable water management for new public and private development. New waterfront development shall be designed so that stormwater runoff and erosion are retained on-site or are channeled so as not to degrade water quality of adjacent waters. Ms. Gibson testified that the City required Amelia Bluff to apply low-impact development strategies, including its dedication of all wetlands to the City; the requirement of the 25-foot, naturally vegetated wetland buffer; modifications to the stormwater system to account for the natural topography of the land; and modification and realignment of infrastructure to preserve significant trees. Mr. Teeple testified that the proposed density of less than three units per acre is less than the four units per acre allowed under the LDR designation, thus supporting his opinion that Amelia Bluff applied a low-impact development strategy. Petitioners’ alternatives to the low-impact development strategies identified by Ms. Gibson included clustering all development onto that portion of the proposed subdivision currently designated as LDR, requiring swales in lieu of a “focused” drainage pattern, and increasing the width of the buffer. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its low-impact development policy was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. There are different ways to measure the effectiveness of low-impact development strategies, and people may -- and do -- disagree as to the appropriate means to accomplish the policy. The issue is not, however, which strategies should be implemented, but whether the City’s decision to accept Amelia Bluff’s strategy was beyond fair debate. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.12. Objective 5.08. - Wetlands Protection and Preservation Petitioners assert that the FLUM Amendment is inconsistent with Objective 5.08. of the Comprehensive Plan, which provides as follows: The City shall direct incompatible land uses away from wetlands, and shall protect and preserve wetlands from physical and hydraulic alterations, in order to maintain the following functions: natural biological functions . . . natural drainage systems impacting sedimentation patterns, salinity distribution, flushing characteristics . . . shielding other areas from wave action, erosion, or storm damage; storage areas for stormwater and flood waters; natural recharge areas; and natural water filtration processes that serve to purify water. Objective 5.08. is implemented through the City’s wetland Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.08.05. The City shall continue to ensure the protection and mitigation of wetlands, consistent with existing state and federal regulations, and shall ensure the following: Land uses which will have little or no adverse impact on wetlands; Standards and criteria for wetlands which possess significant functional value; and Activities that would provide direct public benefits and that would exceed those benefits lost to the public as a result of the degradation or destruction of wetlands. Policy 5.08.06. The City shall protect wetlands from impacts of adjacent development, and shall ensure through regulations included in the Land Development Code: Proper siting of development structures and infrastructure, including clustering of development away from wetlands; Location of buffer zones of native vegetation around wetlands and surface water bodies to prevent erosion, retard runoff, and provide habitat; and Setback of buildings and other structures from wetlands and water bodies. Policy 5.08.08. In instances in which development is proposed that is adjacent to a wetland, the boundary of a wetland transition area shall be established by an on-site field survey . . . . The City shall maintain land development regulations which ensure that the transition area provides a buffer between wetlands and upland development. Such buffer shall ensure existing vegetation is not disturbed; where new vegetation is required, plants or ground cover native or appropriate to a wetlands transition area shall be used. The data and analysis established clearly that the Property encompassed by the FLUM Amendment includes no wetlands, and that the proposed subdivision will result in no direct degradation, destruction, or impact to wetlands. Ms. Gibson testified that the Wetlands Protection and Preservation objective and policies were advanced in several ways, including the dedication of all wetlands on the School Board Property to public ownership so as to protect and preserve the wetlands, the creation of the wetland buffer between wetlands and the upland development, and the requirement -- enforced through the plat and engineering documents, Homeowners’ Association covenants, and City code provisions -- that native vegetation be maintained in the buffer. Petitioners argued that wetlands are adjacent to the proposed subdivision, that stormwater can drain from the proposed subdivision to the wetland, and that, ipse dixit, there will be an adverse affect on the wetlands. That allegation was not proven, and is inconsistent with the SJRWMD stormwater permit creating a presumption that the stormwater system complies with water quality standards. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wetland protection and preservation objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.08., or Policies 5.08.05, 5.08.06, or 5.08.08. Objective 5.10. - Wildlife Planning. The City shall encourage development and management of resources in a manner which sustains local wildlife, their habitat and the ecological services of the land, and shall protect significant habitats of populations of threatened or endangered species in accordance with the provisions of the Endangered Species Act (ESA) 16 USC 1531, and Florida Administrative Code Division 68A. Objective 5.10. is implemented through the City’s wildlife management Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.10.01. When reviewing development proposals for public or private development, the City shall take into account the following strategies: * * * Preserve native vegetation and habitat types; Preserve forested areas, the understory and native soil associations; and Avoid activities that dehydrate landscape features or alter seasonal water flows or duration of inundation to wetlands, hammocks or water bodies. Policy 5.10.02. The City shall protect significant habitats for native wildlife and vegetation in areas of known environmentally sensitive habitats, including habitats of endangered species. The Land Development Code shall be updated with regulations to ensure that prior to the issuance of development permits in such areas, detailed inventories and assessments of impacts of development shall be conducted. If on-site habitat will be disturbed by new development, the habitat shall be relocated or the impacts mitigated, if viable by virtue of its size, configuration, and connecting habitat. . . . Mr. Teeple testified that the donation of wetlands and the efforts taken, as described herein, to minimize impacts to trees on the Property, is consistent with the Comprehensive Plan. When confronted with the fact that the proposed subdivision will not “preserve the forested areas, the understory, and the native soil associations,” Mr. Teeple testified credibly that Policy 5.10.01 “doesn't say ‘preserve all native vegetation and all habitat types.’ It's incongruous with the nature of development.” The data and analysis demonstrate that Amelia Bluff made efforts to preserve native vegetation and forested areas on the property, as described herein, though it is without question that the Property will be subject to the normal impacts of low- density development. Compliance with the stormwater standards is sufficient to demonstrate that there will be no adverse water quality or water quantity impacts from the stormwater collection and management system, and that the system will not alter seasonal water flows or duration of inundation to wetlands, hammocks, or water bodies. Dr. McPhillips testified as to her concern that the buffer vegetation on the northern -- and more elevated -- side of the proposed subdivision will be desiccated, and that the vegetation on the southern -- and lower -- side near the dry detention ponds will, from time to time, become saturated. Her concern was that trees at the buffer would not be able to generate interfacial friction between the roots and soil to stabilize them under any appreciable wind load. However, Dr. McPhillips was not familiar with the adjacent Shell Cove subdivision, which has similar characteristics, or the requirements of the SJRWMD and the calculations required for a stormwater permit. Her opinions were not supported by specific facts as to how the site will hold or drain water, and were more in the nature of “pure opinion” testimony based on her admittedly extensive professional education and experience. The data and analysis was adequate to establish that the stormwater management system would not result in adverse impacts resulting from the system, including dehydration of landscape features. As to Policy 5.10.02, the evidence indicated that the City Land Development Code required detailed inventories and assessments of impacts of development. As part of the data available to the City, Amelia Bluff provided a wildlife survey. The survey established that the Property contained no environmentally sensitive habitats, including habitats of endangered species. The known environmentally sensitive habitats in the form of wetlands have been protected through conveyance to public ownership and the establishment of naturally vegetated buffers to protect off-site habitat. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wildlife planning objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.10., or Policies 5.10.01 or 5.10.02. Objective 5.11. - Tree Preservation and Urban Forestry. The City shall commit to preservation of community trees and the urban forest to improve air quality, community health, quality of life, aesthetics, and energy conservation. Objective 5.11. cannot be read in isolation from the policies adopted to implement the objective. Those policies include Policy 5.11.09., which requires the City’s Land Development Code to “protect and retain existing trees and require replacement of trees lost to land clearing,” with the objective of “achiev[ing] no net loss of trees per development site,” as well as “[m]aintenance of a Tree Fund for payments in lieu of replanting or mitigation of protected trees.” Mr. Platt testified that the City’s objective has been met through a number of strategies and policies applied to Amelia Bluff. Mr. Platt and Ms. Gibson testified that individual lots will be required to submit a land clearing application at the time of the single-family home permit, and the lot grading and tree removal associated with each individual lot will be reviewed on a parcel-by-parcel basis at that time. The City's Land Development Code has provisions for the protection of noninvasive, healthy trees larger than five inches in diameter at breast height (“DBH”) within five feet of a home footprint. For any tree in the protected class that must be removed, the City has a mitigation and minimum planting ordinance which requires that any tree planted as part of mitigation be a noninvasive, native tree, at a minimum of two and a half inches DBH and eight feet in height. In addition to the foregoing, the City Land Development Code has a provision that allows for up to 50 percent of on-site mitigation to be accomplished through an “inch-for-inch” payment to a tree mitigation fund. That provision is, according to Mr. Platt, rarely used, though it is consistent with Policy 5.11.09 described above. As indicated previously, Amelia Bluff set aside several areas of the proposed subdivision, both within the Property and within the remaining generally indistinguishable acreage, for protection of both important specimen trees and clusters of trees, most notably Tract “C” (0.25 acres) near the northwest corner of the proposed subdivision, areas around the dry detention ponds (0.17 acres), and tree “islands” in the cul- de-sacs. In addition, Amelia Bluff worked with the City to realign roadways and utilities to avoid particular trees. Petitioners assert that Objective 5.11. has not been met because the overall forest will be altered, not only through the installation of infrastructure, but also through the clearing that will be necessary for homes and driveways. Petitioners argue that the inevitable thinning of the forest and damage caused through construction activities will weaken the remaining trees, and diminish the storm protecting qualities of an unbroken forest. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 5.11. was supported by data and analysis, including the tree survey and the retention/removal plan. It was a legislative decision to accept the plans and specifications, when considered in conjunction with the related policies and the City’s Land Development Code, as being in compliance with the Comprehensive Plan. People clearly, and in good faith, disagree as to the best means of preserving the urban forest. Development, even of low density, by its very nature entails a modification of the natural state. However, the issue is whether the City’s determination that the FLUM Amendment, including protections proposed by Amelia Bluff, was, beyond fair debate, in error. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Tree Preservation and Urban Forestry Objective 5.11. Objective 6.05. - Open Space. Open spaces shall be protected within urbanized areas for their aesthetic, health, environmental, and economic benefits. The City shall continue to maintain standards in its land development regulations for the provision and maintenance of open space in the community, including in private developments and publicly owned lands. Objective 6.05. is implemented through the City’s open space Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policy: Policy 6.05.03. Privately-owned open space, such as those within subdivisions or PUD developments, which consist of a conservation future land use or contains environmentally sensitive lands, shall be protected through the acquisition of conservation easements. There was surprisingly little or no testimony offered by anyone other than Ms. Gibson and Mr. Teeple regarding the consistency of the FLUM Amendment with this objective and policy. Mr. Teeple testified to the difficulty in applying Policy 6.05.03 -- despite the provision that open space “within subdivisions or PUD developments, which consist of a conservation future land use . . . shall be protected through the acquisition of conservation easements” -- due to “the out- of-sequence process that we're going through by dealing with land use last.” Had the FLUM Amendment been considered “in- sequence,” there would have been no subdivision to which Policy 6.05.03 would have applied. Several witnesses testified that had the sequence of events not been skewed by Mr. McCrary’s ill- advised statement that the “scrivener’s error” would be taken care of, a number of issues created as a result of the amendment of the FLUM after plat approval would not have been problems. This appears to be one. It does appear that Policy 6.05.03. was designed to apply to open space lands within a developed subdivision, ensuring through a conservation easement that such designated open space lands would not be encroached upon. That scenario does not present here. The evidence establishes that all of the “environmentally sensitive lands” on the School Board Property were conveyed to the City. Though the Property is forested, it is of a nature common throughout north Florida, and not imperiled “maritime hammock.” Amelia Bluff conveyed all wetlands on the Property to the City. Amelia Bluff also placed 0.25 acres into “recreation/open space, preserved significant stands and individual trees, and donated $115,000 to the City for land conservation efforts. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 6.05. and Policy 6.05.03. was supported by data and analysis as described above. Though a facially credible argument can be made that the Property is land designated as Conservation within a “subdivision”, under the specific -- and peculiar -- facts of this case, the legislative decision to adopt the FLUM Amendment as being consistent with the Comprehensive Plan, when considered in conjunction with the related policies and the City’s Land Development Code, was fairly debatable. Objective 6.10. - Egans Creek Greenway. The City shall protect Egans Creek Greenway for its value as a recreational asset, for its significance as an outstanding natural resource, and for its role in providing wildlife habitat. The Amelia Bluff subdivision does not front onto the Egans Creek Greenway. Rather, the easternmost edge of the Property is from 200 to 400 feet removed from the Greenway. The Greenway was protected by the dedication of all wetlands that were part of the School Board Property to the City. The Greenway is further protected by the establishment of the 25-foot naturally vegetated upland buffer. As established herein, any stormwater discharged from the dry detention ponds is not reasonably expected to result in the violation of water quality or water quantity standards established by the SJRWMD or the City. While recognizing the value of the Egans Creek Greenway, the evidence does not demonstrate that the proposed subdivision will impair the Egans Creek Greenway’s value as a recreational asset, its significance as an outstanding natural resource, or its role in providing wildlife habitat, and does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 6.10. Policy 1.02.04. Decision on amendments to the FLUM shall be based on an analysis of the suitability and compatibility of the proposed use, based on the following factors: Type and density or intensity of surrounding uses; Zoning districts in the surrounding area; Demonstration of adequate water supply and water supply facilities; Appropriateness of the size of the parcel compared to the proposed use; Physical condition of the site, and the suitability of soils and topography for the proposed use; Suitability of the site based on the presence or absence of natural resources, environmentally sensitive lands, flood zones, or historic resources; Compatibility factors; Impact on adopted levels of service standards and quality of service standards; and Location in a Coastal Upland Protection Zone (CUPZ). Petitioners’ argument on this point is essentially that the FLUM Amendment is not supported by relevant data and analysis in the form of the assessments called for in the policy. That argument is separate and apart from the issue of whether the FLUM Amendment creates an internal inconsistency with the policy. As set forth herein, the data available to the City, and the analysis of that data, met the substantive requirements of Policy 1.02.04. Thus, the record does not support a finding that the FLUM Amendment is inconsistent with Policy 1.02.04. Data and Analysis Petitioners’ last argument is, as expressed in section II.a.(3) of the Joint Pre-hearing Stipulation, the FLUM Amendment is inconsistent with various provisions of section 163.3177, including that the proposed FLUM Amendment be based on “accurate” data and analysis. In that regard, section 163.3177(1)(f) provides that: All . . . plan amendments shall be based upon relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the . . . plan amendment. (emphasis added). Section XI of the Joint Pre-hearing Stipulation then identifies the following issues as remaining for disposition: Whether the [FLUM] Amendment is based upon appropriate data and analysis including the character of the undeveloped land, soils, topography, natural resources, and suitability of the property for the proposed use in accordance with Section 163.3177(6), Florida Statutes. Whether the development . . . ensures the protection of natural resources and the compatibility of adjacent land uses as required under Section 163.3177(3). Whether the development . . . directs future land uses that are incompatible with the protection of wetlands and wetland functions in violation of section 163.3177(6), Florida Statutes. Whether the development . . . will adversely impact water, wetlands, wildlife, habitat, soils, native vegetative communities, existing natural preserve areas, and other natural and environmental resources pursuant to Section 163.3177(2), (6), Florida Statutes. (emphasis added). Ms. Gibson testified that the FLUM Amendment is supported by information described in paragraph 73, and described in further detail throughout these Findings of Fact. The availability of the data was corroborated by Mr. Platt, Mr. Desilet, Mr. Gillette, and Mr. Gerald. Though there was little evidence that the data and analysis was fully considered by the Commission,7/ the evidence established that there was substantial data “available at the time of adoption of the . . . plan amendment,” and that the data was, at a minimum, analyzed and considered by City staff. Consistency of the FLUM Amendment with section 163.3177(2), (3), and (6) has been addressed in conjunction with the specific Comprehensive Plan objectives and policies set forth in detail herein. Based thereon, Petitioner did not prove beyond fair debate that the FLUM Amendment is not based upon relevant and appropriate data and analysis, or are otherwise inconsistent with section 163.3177(1)(f), (2), (3), and (6). Conclusion In analyzing the consistency of the FLUM Amendment with the Comprehensive Plan, the undersigned gave full attention to not only the witnesses and evidence produced by the parties, but also to the public comment taken during the evening of July 15, 2019. This project has clearly evoked a great deal of justifiable passion from people who are concerned, invested, and involved in their community. However, the burden applicable in proceedings of this nature -- beyond fair debate -- is substantial. The decision that was made by the City officials was, as discussed herein, a legislative decision. Regardless of the extent that their attention may have been misdirected to the issue of whether the adopted and valid Conservation designation was a “scrivener’s error,” the data and analysis in support of the FLUM Amendment was available. Under the specific facts of this case, the decision of the elected City officials to approve the FLUM Amendment, regardless of their publicly stated reasons, was one that reasonable persons could differ over, and was therefore “fairly debatable.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the City of Fernandina Beach Comprehensive Plan FLUM Amendment adopted by Ordinance No. 2019-08 on April 16, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 16th day of September, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 16th day of September, 2019.
The Issue Whether the City of Miramar Comprehensive Plan Amendment, adopted by Ordinance No. 1901 on October 17, 2018, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing Petitioners own and reside on property located at 17428 Southwest 36th Street in Miramar, Florida. Petitioners submitted oral and written comments, recommendations, or objections to the City during the period of time between, and including appearances at, the transmittal hearing and the adoption of the Plan Amendment. Petitioners’ house is approximately 430 feet north of the property subject to the Plan Amendment (the “Subject Property”). Petitioners’ property is separated from the Subject Property by a residential canal, approximately 100 feet of wetland or marsh area, and a City street right-of-way. The residential canal is owned and controlled by Petitioners’ homeowner’s association. From the backyard of their home, Petitioners enjoy observing and photographing birds and wildlife that utilize the canal, including birds that can be seen from Petitioners’ property in the trees on the Subject Property and flying between the properties. The City is a Florida municipal corporation with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. Univision is a Delaware limited liability company authorized to transact business in Florida. Its principal business address is 500 Frank West Burr Boulevard, Teaneck, New Jersey 07666. Univision is the owner of the Subject Property. Lennar is a Florida limited liability company, whose principal business address is 700 Northwest 107th Avenue, Suite 400, Miami, Florida 33172. Lennar is under contract to purchase the Subject Property. Existing Conditions The Subject Property is approximately 120 gross acres of mostly undeveloped property. The Subject Property contains 102.2 acres of wetlands and 15.5 acres of uplands. At least 80 percent of the wetlands are covered by Melaleuca trees, which is an invasive species. Melaleuca is listed by federal and state agencies as a noxious weed, making it illegal to possess, sell, cultivate, or transport in Florida. The uplands on the Subject Property are limited to areas previously developed with radio transmission towers, a control room, and filled roadways connecting the on-site improvements. The improvements, with the exception of the fill roads, were removed in approximately 2017. The radio towers were secured by guy wires anchored by concrete blocks. The areas of the Subject Property underneath the guy wires were maintained to prevent vegetation from growing up into the guy wires. The areas where the concrete supports have been removed are wet, and the areas that were beneath the former guy wires contain fewer Melaleuca and some native vegetation, like sawgrass and ferns. However, the upland areas are also currently growing exotic grasses and Australian Pine, which are also invasive species. The Subject Property is currently designated on the City’s Future Land Use Map (“FLUM”) as “Rural.” Pursuant to the City’s Comprehensive Plan, the Rural land use category allows the following types of development: (1) residential development at a density of one dwelling unit per 2.5 gross acres (1du/2.5 acres); (2) agricultural and related uses, including crops, groves, horse and cattle ranches, private game preserves, fish breeding areas, and tree and plant nurseries; (3) parks; (4) police and fire stations, libraries, and civic centers; (5) special residential facilities, such as group homes; and (6) public utilities, including wastewater pumping stations, electrical utility substations, and telecommunications transmission facilities. The Plan Amendment The Plan Amendment changes the FLUM designation of the Subject Property from Rural to “Irregular (3.21) Residential,” which allows residential development at a density of 3.21du/acre.4/ Lennar proposes to develop 385 units on the property-- the maximum allowable under the Plan Amendment. Under Lennar’s development proposal, all of the on- site wetlands will be impacted. The Plan Amendment Process Broward County municipalities have a unique plan amendment review process. Each amendment to a municipal comprehensive plan must be consistent with, and incorporated into, the Broward County Land Use Plan (“BCLUP”). This Plan Amendment, as with all other municipal amendments, was reviewed and approved through both the County’s and City’s approval process. The Board of County Commissioners held an adoption public hearing on March 20, 2018, and approved Ordinance No. 2018-12, amending the BCLUP to change the County FLUM designation of the Subject Property from Agriculture to Irregular (3.21) Residential. On October 17, 2018, the City Commission held a duly advertised second public hearing, wherein the City voted to adopt the Plan Amendment. Lennar Permitting Lennar pursued permitting of its proposed development of the Subject Property during the Plan Amendment review process. On or about September 11, 2018, the Broward County Environmental Protection and Growth Management Department (“EPGMD”) issued an environmental resource license (“ERL”) for the proposed development. The ERL is based on Lennar’s site plan for the site, not the Plan Amendment. The ERL recognizes that the impacts on the Subject Property wetlands are unavoidable and determines that off-site mitigation is required to address any impacts on those wetlands. On or about September 11, 2018, the South Florida Water Management District issued an environmental resource permit (“ERP”) for the proposed development. The ERP is based on Lennar’s site plan and other required documents, not the Plan Amendment. The ERP provides that off-site mitigation is required to address any impacts on the Subject Property wetlands. On or about December 14, 2018, the Army Corps of Engineers (“ACOE”) issued a permit for the development proposed, based upon Lennar’s site plan and other required documents. The ACOE permit provides that off-site mitigation is required to address any impacts on the Subject Property wetlands. Petitioners’ Challenge Section 163.3177(2) directs that “the several elements of the comprehensive plan shall be consistent,” in furtherance of the major objective of the planning process to coordinate the elements of the local comprehensive plan. Petitioners allege the Plan Amendment is not “in compliance” because it creates internal inconsistencies with the existing Comprehensive Plan. Petitioners’ challenge rests on four provisions of the Comprehensive Plan: Future Land Use Element (“FLUE”) Goal (unnumbered), FLUE Policies 3.5 and 6.10, and Conservation Element Policy 7.3 (“CE Policy 7.3”). FLUE Goal (unnumbered) The City’s Comprehensive Plan contains one overarching goal for the FLUE, which reads as follows: Maintain a long-range future land use pattern which promotes orderly and well- managed growth and development of the community, producing quality neighborhoods, enhancing the city’s aesthetic appeal, conserving the natural environment and open space, supporting a vibrant economic tax base, and minimizing risks to the public’s health, safety, and welfare. (emphasis added). The goal is the singular goal for the overall FLUE, which includes 12 different objectives and many more policies for each objective. The purpose of the goal is to set the initial framework; it is a very broad statement setting the direction for the City’s long-term goals, but does not provide any measurable standards or specifics regarding implementation. Petitioners’ challenge focuses on the underlined phrase, and argues that the Plan Amendment is internally inconsistent with the goal’s direction to “conserv[e] the natural environment and open space.” The Subject Property is not currently designated as either “Recreation and Open Space” or “Conservation.” The Subject Property is private property that, by virtue of its land use designation, has always been intended for development as one of the uses allowable within the Rural land use category. Further, Eric Silva, the Director of the City’s Community and Economic Development Department, testified that the goal’s direction of “conserving the natural environment and open space” relates only to those areas that have been designated by the City, or another agency, for protection. The Recreation and Open Space Element (“ROS Element”) sets forth the specific objectives and policies to accomplish the City’s goal to “[p]rovide adequate and accessible parks and facilities to meet the recreation needs of all current and future Miramar residents.” In the ROS Element, the City has established a level of service standard of four acres of park and open space for each 1,000 City residents. Petitioners introduced no evidence that the Plan Amendment would diminish the amount of land designated for open space in the City, or otherwise impede the City’s progress toward the adopted standard. To the contrary, Mr. Silva testified that the City has over 300 extra acres of park space and that this Plan Amendment will not impact the City’s adopted level of service for parks and open space. Likewise, Petitioners introduced no evidence to support a finding that the Plan Amendment would reduce the amount of land designated for “Conservation” in the City. Rather, Petitioners argue that the Subject Property should be converted to a nature preserve, or otherwise placed in conservation use. The issue in this case is not whether the City should designate the Subject Property for a different use, but whether the designation the City proposes is consistent with the comprehensive plan. Petitioners did not prove the Plan Amendment is inconsistent with the FLUE Goal. FLUE Policy 3.5 Petitioners next contend the Plan Amendment is inconsistent with FLUE Policy 3.5, which directs the City to “[c]onsider the cumulative and long-term effects of decisions regarding amendments to the Land Use Plan Map and revisions to the Future Land Use Element.” Petitioners’ concerns here are similar to those with the FLUE Goal--the Plan Amendment will reduce green space and open space, which could be preserved under the existing Rural designation. Petitioners’ expert witness conceded that it is impossible to determine that the City did not consider the cumulative and long-term effects of the Plan Amendment. Moreover, the City introduced abundant evidence that it considered, during the lengthy Plan Amendment process, all impacts of the Plan Amendment on the City’s resources and infrastructure. Petitioners did not prove the Plan Amendment is inconsistent with FLUE Policy 3.5. FLUE Policy 6.10 Next, Petitioners argue the Plan Amendment is inconsistent with FLUE Policy 6.10, which states, “The City shall consider the impacts of land use plan amendments on wetland and native upland resources, and minimize those impacts to the maximum extent practicable.” Here, Petitioners focus on the density allowed under the Plan Amendment. Petitioners argue that the Plan Amendment is inconsistent with this policy because it allows development of 385 units, which will maximize, rather than minimize, impacts to the on-site wetlands. Petitioners argue that the residential density allowed under the existing Rural designation would yield development of only 48 units, which would provide for conservation of at least some of the wetlands on site, thereby minimizing the wetland impact. Petitioners’ argument ignores the fact that the Rural designation allows other types of non-residential development that may be as intense as residential, such as a civic center or fire station, or uses that require fewer improvements, but have a destructive effect on wetlands, such as horse or cattle ranches. The issue of whether the Plan Amendment minimizes impacts to wetlands is not determined by the mathematical function 48 units < 385 units. Instead, the determination hinges on the meaning of “minimizing impacts” in the City’s Comprehensive Plan. Under the City’s Comprehensive Plan, impact of development on wetlands must be considered in partnership with the County, and is dependent upon the value assigned to those wetlands, pursuant to the wetlands benefit index (“WBI”), as set forth in the Conservation Element. Based on the following relevant analysis, the Petitioners did not prove the Plan Amendment is inconsistent with FLUE Policy 6.10. CE Policy 7.3 Finally, Petitioners challenge the Plan Amendment as internally inconsistent with CE Policy 7.3, which reads as follows: The City shall distribute land uses in a manner that avoids or minimizes to the greatest degree practicable, the effect and impact on wetlands in coordination with Broward County. Those land uses identified below as being incompatible with the protection and conservation of wetlands and wetland functions shall be directed away from wetlands, or when compatible land uses are allowed to occur, shall be mitigated or enhanced, or both, to compensate for loss of wetland functions in accordance with Broward County Code of Ordinances, Chapter 27, Article XI, Aquatic and Wetland Resource Protection. Compatibility of Land UsesRelative to the Wetland Benefit Index (WBI) Wetland Benefit Index Land Use Compatibility 1. Wetlands with a WBI value greater than or equal to 0.80 1. There is a rebuttable presumption that all land uses except for conservation uses are incompatible. 2. Wetlands with a WBI value less than 0.80 2. All land uses are compatible, provided that the wetland impact compensation requirements of Chapter 27, Article XI, are satisfied. Source: Broward County Code of Ordinances, Chapter 27, Article XI, Aquatic and Wetland Resource Protection CE Policy 7.3 is more specific than FLUE Policy 6.10 regarding the City’s direction to minimize impacts of development on wetlands. Petitioners’ planning expert opined that the Plan Amendment is inconsistent with this policy because it does not “avoid or minimize” the impact of wetlands at all, much less “to the greatest degree practicable,” as directed by the policy. Petitioners’ expert based his entire argument solely on the first sentence of the policy. Petitioners’ planning expert explained, incredulously, that, in his opinion, the rest of the policy “doesn’t matter.”5/ The opinion of Petitioners’ expert was not persuasive. The Policy must be read in its entirety; and, when read as such, the Plan Amendment is consistent with the policy. The first sentence of the policy is precatory and direction-setting. It states the City’s intent to distribute land uses in a way that minimizes wetland impacts. The following sentences describe in more detail how that direction will be accomplished, and specifically reference the incorporated chart. The policy provides that land uses identified in the chart as incompatible with wetland protection “shall be directed away from wetlands.” By contrast, the policy provides that for land uses identified as compatible, wetland impacts “shall be mitigated . . . in accordance with the Broward County Code of Ordinances, Chapter 27.” It is undisputed that the wetlands on the Subject Property have a WBI value of less than .80. Pursuant to the chart, then, all uses of the Subject Property are compatible with the wetlands on-site, as long as the wetland impact compensation requirements of the Broward County Code are followed. The policy clearly provides that no development, regardless of density or intensity, must be directed away from the wetlands on the Subject Property. If the WBI value of the on-site wetlands was .80 or higher, pursuant to this policy, Petitioners’ position that the Subject Property should be placed in Conservation use would be presumed correct, although rebuttable. To that end, Petitioners introduced expert opinion testimony as to the quality of the wetland areas on-site which were previously maintained by the property owner--namely the areas under the guy wires. In the opinion of Petitioners’ wetlands expert, the on-site wetlands could be restored to higher quality if the Melaleuca trees were removed and the stumps sprayed to prevent regrowth. Petitioners’ argument is irrelevant to a determination of whether the Plan Amendment is consistent with this policy. Having established that the WBI value of the on-site wetlands is below .80, the issue of whether the on-site wetlands could be restored is irrelevant. Chapter 27 of the Broward County Code governs application for, and issuance of, an ERL for wetland alteration. On September 11, 2018, Broward County issued an ERL to Lennar for its proposed development of the Subject Property. Petitioner introduced no evidence to support a finding that the provisions of Chapter 27 were not satisfied by the County in issuing the ERL. Petitioners did not prove the Plan Amendment is inconsistent with CE Policy 7.3.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by City of Miramar Ordinance 1901, on October 7, 2018, is “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 26th day of June, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 26th day of June, 2019.
