The Issue The issue in these cases is whether proposed amendments to Rules 40C-4.041, 40C-4.051, 40C-4.091, 40C-41.011, 40C-41.023, 40C-41.033, 40C-41.043, 40C-41.051, and 40C-41.063, and the related revisions to the Applicant’s Handbook: Management and Storage of Surface Waters are an invalid exercise of delegated legislative authority as alleged by petitioners.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioners in Case No. 97-0870RP, Consolidated-Tomoka Land Company; Indigo Development Group, Inc.; Indigo Group, Inc.; Indigo Group, Ltd.; Patricia Lagoni, as Trustee of Trust Nos. IDI-1, IDI-2 IDI-3 and IDI-4; Seaview Development Corporation; LeRoy E. Folsom; James S. Whiteside, Jr. and Joan W. Whiteside; Susan Spear Root; Susan R. Graham and Chapman J. Root, II, Trustees of the Chapman S. Root 1982 Living Trust; Daniel P. S. Paul, individually and as trustee of the Daniel P. S. Paul Charitable Remainder Trust; and Ava and Rufus, Inc. (petitioners), own real property within an area which will be affected by certain rules proposed by respondent, St. Johns River Water Management District (District). The District is authorized to adopt rules pursuant to Chapters 120 and 373, Florida Statutes. Petitioners in Case No. 97-0871RP, Samuel P. Bell, III and Anne Moorman-Reeves (petitioners), also own real property within an area affected by the proposed rules. Both groups of petitioners are substantially affected persons and thus have standing to inititate these rule challenges. Intervenor, Association of Florida Community Developers, Inc. (AFCD), is a not-for-profit corporation comprised of forty members, primarily developers. Its mission is to promote programs that encourage economic growth in Florida "through the responsible development of large-scale residential communities." Of its forty members, seven own property within the boundaries of the District and regularly apply for permits from the District for the development of large-scale residential or mixed-use developments and five regularly apply for permits on behalf of land owners. Only one member, however, Consolidated-Tomoka Land Company (Consolidated-Tomoka), which is already a party in Case No. 97-0870RP, owns property within the area affected by the proposed hydrologic basins. For the reasons cited in the Conclusions of Law, AFCD lacks standing to participate in this proceeding. The development of the proposed rules was formally initiated by the District in May 1994. At that time, the District began investigating the need for criteria including delineation of new hydrolgic basins, a recharge standard, water quality criteria, erosion and sediment control, a standard to limit drawdowns in wetlands, a special zone for the protection of habitat, and local government notification. After notice of rule development was published in October 1995, and several workshops were held, on January 17, 1997, the District published notice in the Florida Administrative Weekly of its intention to make certain revisions to Rules 40C- 4.041, 40C-4.051, 40C-4.091, 40C-41.011, 40C-41.023, 40C-41.033, 40C-41.043, 40C-41.051, and 41C-41.063, and related revisions to portions of a document known as the Applicant’s Handbook: Management and Storage of Surface Waters (Handbook). On February 12, 1997, by a 5 to 3 vote, the District’s Governing Board formally proposed to adopt those rules, with two amendments. In broad terms, the new rules create two geographic areas of special concern and impose more stringent permitting standards and criteria for systems within those areas. Claiming that the proposed rules were invalid on a number of grounds, petitioners in Case Nos. 97-0870RP and 97- 0871RP initiated these proceedings by filing petitions on February 21 and 24, 1997, respectively. In petitions which include almost every statutory ground for invalidating a rule under Section 120.52(8), Florida Statutes (1996), petitioners have first contended that Rules 40C-4.091(1)(a), 40C-41.011, 40C- 41.023, 40C-41.063(6)(a)-(d), and Handbook Sections 11.0(e), 11.5, 11.5(1), 11.5.2, 11.5.3, 18.1 and Appendix K, are invalid because they exceed the District’s grant of rulemaking authority. They also contend that Rules 40C-41.063(6)(a) and (d), and Handbook Sections 11.5.1, 11.5.4, and 18.1, are invalid because they enlarge the specific provisions of law implemented. They next contend that Rules 40C-4.051(7), 40C-4.091(1)(a), 40C- 41.011, 40C-41.023, 40C-4.041(2)(b), 40C-41.051(2), 40C- 41.063(6)(a), (b) and (d), and Handbook Sections 3.3.1(c) and (f), 11.5.2 and 11.5.4, are not supported by competent substantial evidence. They allege further that Rules 40C- 4.041(2)(b), 40C-4.051(7), 40C-4.091(1)(a), 40C-41.011, 40C- 41.023, 40C-41.051(2), and 40C-41.063(6)(a)-(d), and Handbook Sections 3.3.1(c) and (f), 11.0(e), 11.5, 11.5.1, 11.5.2, 11.5.3, 11.5.4, 18.1 and Appendix K are arbitrary and capricious. Petitioners next contend that Rules 40C-4.041(2)(b) and 40C- 41.063(6)(a)-(d), and Handbook Sections 3.3.1(c) and (f), 11.5.1, 11.5.2, 11.5.3, 11.5.4 and 18.1, are invalid because their alternative lower cost proposal substantially accomplishes the statutory objectives purportedly being implemented through the proposed rules and revisions. Finally, petitioners assert that Rule 40C-41.063(6)(d) and Handbook Section 11.5.4(d) are invalid because they fail to establish adequate standards to guide, and vest unbridled discretion in, the District. As a corollary to these claims and in the event they prevail on any issue, petitioners have requested attorney’s fees and costs under Section 120.595(2), Florida Statutes, on the theory the District’s actions were not substantially justified and there are no special circumstances which would make an award to petitioners unjust. The Proposed Rules Generally The proposed rules affect two geographic areas within the District designated as the Tomoka River and Spruce Creek Hydrologic Basins. The former basin is located almost entirely in the northeastern portion of Volusia County and covers some 150 square miles. The latter basin is located in the southeastern portion of Volusia County and covers 94 square miles. Together, the two basins make up more than twenty percent of Volusia County, and they include parts of the Cities of Daytona Beach, Ormond Beach, and Port Orange. Although the Tomoka and Spruce Creek Rivers, which flow through the basins, were designated Outstanding Florida Waters (OFW) on July 11, 1991, on balance, the water quality of both basins can only be characterized as fair. The Halifax River is a large estuarine system that lies north of the Indian River Lagoon and south of the Matanzas and Tolomato systems and parallel to the Atlantic Ocean. The Tomoka River Basin is at the northern end of the Halifax River, while the Spruce Creek Basin is at the southern end. The Halifax River connects with the Atlantic Ocean in only one place, Ponce Inlet, which is between the proposed basins. Because of this single connection, the estuary is a very low energy system due to minimal wave action, and the system is dependent on the basins that drain into the Halifax River. Thus, the water resources and the integrated components of habitat of the proposed basins are critical to the overall health and biological diversity for the entire region. The District regulates and controls the management and storage of surface waters through its Environmental Resource Permit (ERP) program, which has district-wide application. There are two types of permits relevant to these proceedings: stormwater and ERPs. The former permit is designed for smaller residential or commercial developments and primarily protects against the adverse impacts of stormwater runoff on water quality. An ERP is required for larger systems and covers a broad range of issues including water quality, water quantity, and biological concerns. Criteria for the issuance of individual and conceptual approval permits for systems which meet certain thresholds are found in Chapter 40C-4, Florida Administrative Code, while additional standards and criteria (over and above those found in Chapter 40C-4) for systems within specified designated areas of special concern are found in Chapter 40C-41, Florida Administrative Code. Such areas of special concern contain more stringent regulatory criteria, and they are designed to address specific problems in given areas where high quality resources need special protection, or rapid development adversely affects the water resources. In addition, by Rule 40C-4.091, the District has adopted and incorporated by reference a document known as the "Applicant’s Handbook: Management and Storage of Surface Waters" (Handbook) which "provides applicants, potential applicants, and others who are interested, with information regarding the permitting program for the regulation of surface water management systems under Chapters 40C-4, 40C-40, 40C-41, and 40C-400, F.A.C." This controversy involves a challenge, on numerous grounds, to proposed revisions to all or parts of three rules in Chapter 40C-4, six rules in Chapter 40C-41, and a number of related revisions in the Handbook. Chapter 40C-4 and the Handbook 10. Proposed Rules 40C-4.041(2) and 40C-4.043(1), and Handbook Sections 3.3.1 and 11.0, establish the new basins and make them subject to the provisions of Chapters 40C-4 and 40C-41 and the Handbook. The proposed basins are made up of smaller drainage basins associated with the tributaries to the Tomoka River and Spruce Creek. Besides the two new basins, the District has already established at least five other areas of special concern (basins) within its boundaries. Under current Chapter 40C-4, an ERP is required for the construction, alteration, operation, maintenance, abandonment, or removal of a surface water management system which serves projects with a total land area of 40 or more acres, provides for the placement of 12 or more acres of impervious surface, or has any wetland impact. Smaller projects need only obtain a stormwater permit from the District. By proposed amendments to Rules 40C-4.041(2)(b)3., 6. and (g), and Sections 3.3.1(c) and (f) and 11.0(e) of the Handbook, these thresholds within the two basins are reduced to 10 acres and 2 acres, respectively. Thus, if the revisions become effective, some projects which now qualify for stormwater permits will require a general ERP. It follows that any projects not exceeding these thresholds are exempt from permitting requirements. New provisions relative to exemptions from the permitting thresholds are found in Rule 40C-4.051(7) while the legal description of the two basins is found in Rule 40C- 4.091(1)(a) and Appendix K of the Handbook. Exempted from the permitting thresholds are those systems which meet the conditions for exemption set forth in subsection (2) of the rule, and systems "which consist of public road shoulder paving, outside the Riparian Habitat Protection Zone, which do not result in the creation of additional traffic lanes, and systems which consist of public turn lane construction outside the Riparian Habitat Protection Zone." In addition, related revisions to Sections 11.5, 11.5.1, 11.5.2, 11.5.3, 11.5.4 and 18.1 of the Handbook add four special basin "standards and design criteria" to the current District requirements. These are extra permitting standards that must be met in addition to standards contained in the District’s ERP rules. Three of the criteria are engineering related while the fourth creates a Riparian Habitat Protection Zone (RHPZ) along the Tomoka River and Spruce Creek. The same criteria now apply in the Econlockhatchee River and Wekiva River Hydrologic Basins, two other designated areas of special concern. Section 11.5.1 imposes a new "recharge standard" which requires ERP permittees to retain within the Most Effective Recharge Area (MERA) three inches of runoff from the directly connected impervious surface area. MERAs are defined as areas with Type A soils. There is no requirement under existing rules that stormwater and ERP permittees retain runoff for recharge purposes. Current standards require that a system not cause a net reduction in flood storage within a 10-year floodplain. Under proposed Section 11.5.2 of the Handbook, a system within the basins must not cause a net reduction in flood storage within the 100-year floodplain. The proposed stormwater management standard in Section prohibits the use of certain stormwater treatment methodologies, such as the use of detention with filtration systems, based upon the size of the system. Current District rules contain no such size-based restrictions. In Section 11.5.4, the District proposes to establish RHPZs along the Tomoka River and Spruce Creek. These RHPZs extend a minimum of 275, 320 or 550 feet landward from the waterward edge of the wetlands adjacent to the defined portions of each watercourse. For example, if the adjacent wetlands extend 400 feet landward of the water’s edge in an area where the rule defines an RHPZ width as 550 feet, 150 feet of uplands landward of the landward extent of the wetlands would be included in the RHPZ at that site. The RHPZ also includes a minimum 50- foot upland component. The RHPZ standard also provides that development within a designated RHPZ is presumed to adversely affect the abundance, food sources, or habitat of aquatic or wetland dependent species in the RHPZ. An applicant may rebut this presumption, however, by demonstrating that the "overall merits" of the proposed development offset the adverse impacts. Chapter 40C-41 Existing Chapter 40C-41 designates five geographic areas of special concern and establishes additional criteria and standards for systems constructed within those areas. By amendments to Rules 40C-41.011, 40C-41.023(5), 40C-41.033 and 40C-41.043(1), the District proposes to add the Tomoka River and Spruce Creek Hydrologic Basins as new geographic areas of special concern. By changes to Rule 40C-41.063(6)(a)-(d), the District has also proposed to codify the previously described recharge standard, 100-year floodplain standard, stormwater management standards and RHPZ as special requirements for systems constructed within the basins. As specific authority for adopting the proposed rules, the District has cited, in varying combinations, Sections 120.54(8), 373.044, 373.046(4), 373.113, 373.118, 373.171, 373.406, 373.413, 373.415, 373.416, 373.418, and 373.421(2), Florida Statutes. It also cites, in various combinations, Sections 120.54(8), 373.046, 373.118, 373.409, 373.413, 373.4135, 373.414, 373.415, 373.416, 373.421(2)-(6), 373.426, and 373.429, Florida Statutes, as the laws being implemented. Do the Rules Exceed the Agency’s Grant of Rulemaking Authority? Petitioners first contend that Rules 40C-4.091(1)(a), 40C-41.011, 40C-41.023 and 40C-41.063(6)(a)-(d), and Handbook Sections 11.0(e), 11.5, 11.5.1, 11.5.2, 11.5.3, 11.5.4, 18.1 and Appendix K exceed the agency’s grant of rulemaking authority. The challenged rules and sections generally fall into two broad categories: (1) the establishment of the new basins and their legal descriptions, and (2) the establishment of new basin criteria. Proposed Rules 40C-4.091(1)(a), 40C-41.011 and 40C- 41.023(5), and Sections 3.3.1, 11.0(e), 11.5 and Appendix K, fall into the first category while Rule 40C-41.063(6) and Sections 11.5.1, 11.5.2, 11.5.3, 11.5.4 and 18.1 fall into the latter. In adopting the rules and sections pertaining to the new basins and their respective boundaries, the District has relied upon Sections 120.54(8), 373.044, 373.046(4), 373.113, 373.171, 373.415, 373.418, and 373.421(2), Florida Statutes, as the specific authority for adopting the rules. In adopting the new basin criteria, the District relies upon Sections 120.54(8), 373.044, 373.046(4), 373.113, 373.171, 373.415, 373.418 and 373.421(2), Florida Statutes, as the specific authority. For the reasons given in the Conclusions of Law portion of this Order, the challenged rules and sections exceed the District’s rulemaking authority and are thus an invalid exercise of delegated legislative authority. Do the Rules Enlarge the Specific Provisions of Law Implemented? Petitioners next allege that Rule 40C-41.063(6)(a) and (d) and Handbook Sections 11.5.1, 11.5.4 and 18.1 are invalid because they enlarge the specific provisions of law implemented. Paragraph (6)(a) of the rule and Sections 11.5.1 and 18.1 propose to adopt the recharge standard while paragraph (6)(d) and Section establish the new RHPZs. The law being implemented for both standards is Sections 373.413, 373.414, 373.416 and 373.426, Florida Statutes. Section 373.413 provides that the District "may require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration" of a system "will not be harmful to the water resources of the district." Similarly, Section 373.416 authorizes the District to require permits on reasonable conditions necessary to assure that the operation and maintenance of the system "will not be harmful to the water resources of the district." Section 373.414 authorizes the District to require applicants to provide "reasonable assurance" that state water quality standards will not be violated. Finally, Section 373.426 protects "the water resources of the district" from improper abandonment or removal of surface water management systems. The statutes being implemented do not refer to a recharge standard or RHPZ. Neither do they refer to any "particular" program or duty which would authorize these rules. Therefore, Rule 40C-063(6)(a) and (d) and Sections 11.5.1, 11.5.4 and 18.1 enlarge the law being implemented and thus are invalid. Are the Rules Arbitrary and Capricious? Petitioners next contend that Rules 40C-4.041(2)(b), 40C-4.051(7), 40C-4.091(1)(a), 40C-41.011, 40C-41.023, 40C- 41.051(2) and 40C-41.063(6)(a)-(d), and Handbook Sections 3.3.1(c) and (f), 11.0(e), 11.5, 11.5.1, 11.5.2, 11.5.3, 11.5.4, and Appendix K are arbitrary and capricious. These rules and sections pertain to the proposed basin designation and boundaries, threshold revisions, and exemptions. A determination as to whether the rules and sections are supported by fact and logic is set forth below below. Basins The establishment of two new hydrologic basins is based on the District’s concern to protect the water resources within these areas from the affects of growth, new homes and related infrastructure being built in the area. That is to say, additional resource protections are necessary in the proposed basins due to development pressure. While the parties have sharply disagreed over the extent, if any, of development pressure, it is noted that the coastal areas of Volusia County to the east of the proposed basins are already intensely developed. It can be reasonably expected that the population pressure in those areas will lead to increased development in the proposed basins. In addition, there has already been significant permitting activity in the proposed basins, and the number of binding wetland determinations issued by the District (for future five-year periods of time) indicate future development. It is true, as petitioners assert, that Volusia County’s population grew only 8.7 percent from 1990-1995, or less than the statewide average growth rate of 9.7 percent for the same time period, and that its growth rate is less than many other counties within the District. The evidence shows, however, that by the year 2010, Volusia County’s population is expected to increase by 115,530 people, not an insignificant number. At the same time, there is a concentration of numerous Floridan aquifer wellfields within or adjacent to the new basins. Increased water withdrawals from those wellfields will cause adverse impacts. The coastal communities of Volusia County, who are the primary users of water, project an increase in the need for water by the year 2010 of between 60 percent to 100 percent. Finally, development leads to compacted soils, an increase in impervious surfaces and a loss of habitat for aquatic and wetland dependent species. These result in increased runoff rates, with related higher volumes and rates of stormwater runoff. Also, they cause the introduction of stormwater pollutants such as fuels, oils, heavy metals, fertilizers and pesticide into the water. The establishment of new basins addresses these concerns. Given these considerations, it is found that the designation of the basins as areas of special concern is not without logic or reason. The fact that the basin boundaries had not been separately drawn, or used for planning purposes, by the District prior to May 1994 does not detract from this finding. Therefore, Rules 40C-4.091(1)(a), 40C-41.011 and 40C-41.023, and Handbook Sections 3.3.1 (c) and (f), 11.0(e), 11.5 and Appendix K are not arbitrary or capricous. Recharge standard Rule 40C-41.063(6)(a) and Section 11.5.1 of the Handbook require in part that "[p]rojects, or portions of projects, in the Most Effective Recharge Areas must retain three inches of runoff from the directly connected impervious area within the Most Effective Recharge Area of the project." In addition, Section 18.1 contains a list of Type A soils for Flagler and Volusia Counties to determine whether a proposed project is in the Most Effective Recharge Area. Petitioners contend there is no rational basis for imposing this more stringent permitting criterion. In response to this objection, the District established that the proposed basins are within an area of recharge for the Floridan aquifer. Rainfall is the sole source of freshwater recharge for the Floridan and surficial aquifer systems. In other words, rainfall percolates into the ground and recharges the surficial aquifer which in turn recharges the Floridan aquifer. As noted earlier, the coastal communities of Volusia County have projected an increase of at least 60 percent in the need for water by the year 2010. While there is no direct evidential correlation between water supply demand and population growth, it can be reasonably inferred that the population increase of more than 115,000 persons by the year 2010 will likewise increase the demand for water. As water withdrawals from existing wellfields increase, saltwater intrusion can reasonably be expected to occur in greater proportions. Saltwater intrusion has the effect of contaminating the Floridan aquifer and lowering the surficial aquifer, both of which impact wetland communities and the base flow of streams. To the extent that recharge is diminished, the problems associated with those water withdrawals will be exacerbated. Type A soil, to which the recharge standard applies, has the highest infiltration rate. When impervious surfaces (over Type A soils) are directly connected to a stormwater pond, the rainfall will have an opportunity to percolate into the soil. Through the use of recognized "curve" numbers and historical rainfall data in the vicinity of the proposed basins, the District established that the retention of three inches of runoff in Type A soils should result in post-development recharge approximating pre-development recharge. In view of the above, and the fact that existing ERP, OFW and management of storage of stormwater requirements are not sufficient to provide for equivalent retention of stormwater for recharge purposes, the recharge standard has a rational basis. Therefore, Rule 40C-41.063(6)(a) and Handbook Sections 11.5.1 and 18.1 are not arbitrary and capricious. Floodplain storage criteria Rule 40C-41.063(6)(b) and Handbook Section 11.5.2 establish new floodplain storage criteria for systems in the two basins or any of their tributaries. More specifically, they provide that a system "may not cause a net reduction in flood storage within the 100-year floodplain" of the two basins. Currently, this "no net reduction" standard applies only to development within the 10-year floodplain. The parties agree that flooding has occurred within the boundaries of the new basins. Two factors which affect flooding are excessive runoff and inadequate floodplain storage. The size of a project and the amount of impervious surface are directly related to the amount of runoff generated. The amount of runoff affects flooding conditions in downstream areas. The District also established that fill results in the loss of floodplain storage. The loss of floodplain storage in one area will increase flood elevations in other areas, both upstream and downstream from where the loss of floodplain storage occurs. Compensating storage provides storage volume to make up for the fill that is placed in the floodplain. The new standard requires that systems within the basins must not cause a net reduction in flood storage within the 100-year floodplain. Thus, if an applicant proposes to construct a system which reduces the floodplain’s storage capacity, the applicant will be required to compensate for the lost storage capacity, thereby preventing an increase in flood elevation. Even petitioners’ expert witness Harper agreed that the rule’s objective is a "worthwhile goal." Given these considerations, it is found that the floodplain storage standard is supported by logic and reason, and Rule 40C-41.063(6)(b) and Handbook Section 11.5.2 are not arbitrary and capricious. Stormwater management standard Proposed Rule 40C-41.063(6)(c) and Handbook Section provide generally that when constructing new stormwater management systems which serve drainage areas in excess of 10 acres, an applicant cannot use detention with filtration as the sole stormwater methodology. They also provide that when retention systems are not feasible due to limited percolation capacity, "wet detention treatment or other treatment demonstrated to be equivalent to retention or wet detention . . . must be used." Under current standards, applicants may choose the type and location of stormwater treatment ponds. Thus, instead of locating a detention pond in an area of high filtration, an applicant can choose to locate the detention in an area of low filtration thereby discharging the stormwater to surface waters. The evidence shows that detention with filtration systems fail after a relatively short period of time because pollutants clog the filters that remove them. Once filters clog, water does not filter and the pond does not function as designed. Malfunctioning detention with filtration systems can cause localized water quality violations. The new standard curtails the use of detention with filtration. The evidence further shows that the Tomoka River has moderately elevated levels of nitrogen and elevated levels of total phosphorus. The water quality in Spruce Creek is similar with even higher levels of total phosphorus. Because detention with filtration systems is an ineffective way to remove nitrogen, dissolved phosphorus, and dissolved metals, the receiving water bodies will be improved if the less effective detention of filtration systems is eliminated. The new standard will achieve this goal. Even petitioners’ expert witness Harper acknowledged that the detention with filtration method is a poor stormwater management technique. Based upon the foregoing considerations, it is found that the stormwater management standard is based on logic and reason, and Rule 40C-41.063(6)(c) and Handbook Section 11.5.3 are not arbitrary and capricious, as alleged by petitioners. Riparian Habitat Protection Zone Proposed Rule 40C-41.063(6)(d) and Handbook Section establish an RHPZ along the Tomoka River and Spruce Creek. These new zones provide additional protection over and above that provided under the existing ERP program. As noted earlier, these zones extend a minimum of 275, 320, or 550 feet landward from the waterward edge of the wetlands adjacent to the defined portions of each water course, and they include a minimum 50-foot upland component. The rule and section presume that certain activities within the zones will "adversely affect the abundance, food sources, or habitat of aquatic or wetland dependent species provided by (the) Zone," and to overcome this presumption, an applicant must demonstrate "that the overall merits of the proposed plan of development, including mitigation as described in section 12.3 . . . provide a degree of resource protection . . which offsets adverse effects of the proposed system on the uplands and wetlands within the Zone." Finally, the rule and section provide that "[s]ome reasonable use of the land within the Protection Zone can be allowed." The record contains sharply conflicting testimony regarding the logic and reason for the zones, and the parties have devoted substantial portions of their proposed findings of fact to address this issue. In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence, and this evidence is embodied in the findings below. To begin with, similar RHPZs already exist in the Econlockhatchee and Wekiva River Hydrologic Basins, two other geographic areas of special concern. Like the existing RHPZs, the purpose of the new RHPZs is to protect the riparian wetland and upland areas which are necessary to sustain viable populations of aquatic or wetland dependent species. The Tomoka River and Spruce Creek systems are important and critical for the wildlife and overall ecology of eastern Volusia and Flagler Counties. The riparian habitat along the two systems consist of estuarine saltwater marsh, forested wetlands, including cypress and hardwood, freshwater marsh, hammocks, flatwoods, and sandhills. Aquatic and wetland dependent species need a combination of these riparian habitats for feeding, breeding, and nesting. These species are an integral component of the water resources. There is a critical relationship among the biotic components of the water resources such as the living plants and animals. Interdependent relationships exist between all of these components, and if one component is not present, the overall balance and health of the water resource is adversely impacted. Similarly, the entire food chain is impacted by the loss of an aquatic or wetland dependent species from the aquatic or wetland system. The proposed RHPZ widths are based on, and related to, the spatial needs of species rather than a specific width of wetlands and uplands. Spatial requirement is the area an animal needs to perform all of its life functions, such as foraging, breeding, denning, and nesting, without harassment or any kind of detriment in order to maintain a viable population. All experts agree that, in order to sustain a viable population, 50 to 500 individuals must be maintained. Current ERP rules do not provide for this degree of protection for these spatial requirements. Spatial requirement is determined by two methods. One method is to determine the distance for which a species is sensitive to disturbance when it is feeding or nesting. For example, if a species is intolerant to humans and would require a distance of 200 feet away from humans, then that would be the spatial requirement of that species. A second method is to determine a species’ home range requirement. Home range is the area within which a species moves in order to obtain requirements to help sustain life, such as food. For those species for which no data in the literature exists regarding spatial requirements, a technique known as "guilding" is used to group species based upon their nesting and feeding zones. The proposed 550-foot RHPZ width addresses the spatial needs for a majority of aquatic and wetland dependent species in cypress and hardwood swamps. In the salt marshes, the 320-foot width satisfies the spatial needs of a majority of the species. Where the river narrows and the canopy covers the riverbed, there is a uniform habitat not separated by the water body. Therefore, a 275-foot RHPZ straddling the river provides the 550-foot width necessary to maintain viable populations. Under current rules, in order to reduce or eliminate wetland impacts, an applicant may propose a buffer with a minimum width of 15 feet and an average width of 25 feet between the wetland and the system being proposed in order to address the secondary impacts to the habitat of wetlands. This buffer essentially acts as a cushion around the wetlands to protect the wetland habitat from adjacent wetland development. If the wetland is used by a listed species, then additional measures may be required in order to protect the nesting, denning or critical feeding habitat of that species in the wetland. Listed species, however, do not include all aquatic and wetland dependent species, and they include only those that are classified as endangered, threatened, or species of special concern. The new 50-foot upland component will be applied in areas where the wetlands extend beyond the appropriate 550, 320 and 275-foot widths. This extension is necessary and appropriate because the existing rules are designed to protect the intrinsic value of wetland habitat. They do not, however, include protection of the intrinsic value of upland habitat, which is used, for example, by frogs and turtles. In addition, existing rules do not protect upland foraging areas or wildlife corridors except for those limited areas needed for ingress and egress to the nest from the wetland. Finally, most aquatic and wetland dependent species are not a listed species, and thus they receive no upland habitat protection under existing ERP rules. In contrast, the new rule provides protection for spatial needs of all aquatic and wetland dependent species and their use of uplands for foraging, breeding, and nesting. While there are some flaws in the analyses used by the District to justify the zones, collectively there is sufficient credible and persuasive evidence found in the Center for Wetlands Study, the 1990 East Central Florida Regional Planning Council report, detailed ground and air investigations, the District’s regulatory experience, and its permitting experience with basin rules in the Wekiva and Econlockhatchee Basins, which have similar RHPZ dimensions, to support a finding that the rule and section are based on logic and reason. Therefore, Rule 40C- 41.063(6)(d) and Handbook Section 11.5.4 are not arbitrary or capricious. Exemptions Proposed revisions to Rules 40C-4.051(7) and 40C- 41.051(2) exempt from permitting requirements projects which are less than 10 acres in size and of less than 2 acres of impervious surface. Also exempted are single family dwelling units not a part of a larger common plan of development or sale, public road shoulder paving, and systems that qualify for a noticed general permit. In their objection, petitioners have contended that there is no rational basis for exempting these activities, and that in proposing the rules, the District failed to consider the cumulative impacts of these exempt activities. In responding to these objections, the District established that exempt projects are not expected to comprise a large number of permit applications for the basins. Accordingly, such projects will not individually or cumulatively significantly exacerbate flooding problems. From a water quantity standpoint, exempt projects will have a relatively minimal impact, while water quality standards will be preserved through the stormwater permitting program. As to fish and wildlife issues, exempted projects will likewise have a relatively minimal impact. With respect to exemptions for public road shoulder paving, single family dwelling units, and systems that qualify for a noticed general permit, these projects are so small that they are not likely to have a significant adverse impact, either individually or cumulatively. Economic considerations regarding hardships played a role in the District’s decision to exempt projects under the 10- acre threshold. More specifically, criteria designed for larger parcels of land cannot be reasonably applied to small, subthreshold projects without the property owner enduring difficulty and severe hardship. Thus, the 10-acre threshold was chosen as a balance between water resource protection and providing flexibility in project sizes to accomplish project development. Because smaller projects will not need to meet the 25-year, 24-hour water quantity ERP attenuation requirement, land will be saved, and the project designer will have more flexibility when designing a project that is exempted from ERP thresholds. Finally, the District’s stated purpose of not placing an unnecessary burden on citizens attempting to develop small projects is a sound, rational basis for creating the exemptions. Accordingly, Rules 40C-4.051(7) and 40C-41.051(2) are founded on logic and reason, and they are not arbitrary and capricious. Are the Rules Supported by Competent Substantial Evidence? As a corollary to the arbitrary and capricious allegation, petitioners further contend that proposed Rules 40C- 4.041(2)(b), 40C-4.051(7), 40C-4.091(1)(a), 40C-41.011, 40C- 41.023, 40C-41.051(2) and 40C-41.063(6)(a), (b) and (d), and Handbook Sections 3.3.1(c) and (f), 11.0(e), 11.5.1, 11.5.2, 11.5.4, 18.1 and Appendix K are not supported by competent substantial evidence. In other words, they contend that the underlying factual predicate for the foregoing rules is unreliable, undependable, or untrustworthy. For the reasons cited in the findings in paragraphs 28- 63 it is found that the factual underpinning for Rules 40C- 4.041(2)(b), 40C-4.051(7), 40C-4.091(1)(a), 40C-41.011, 40C- 4.023, 40C-41.051(2) and 40C-41.063(a), (b) and (d), and Handbook Sections 3.3.1(c) and (f), 11.0(e), 11.5.1, 11.5.2, 11.5.4, 18.1 and Appendix K is sufficiently reliable, dependable and trustworthy so as to constitute competent substantial evidential support for their proposed adoption. Do Rule 40C-41.063(6)(d) and Handbook Section 11.5.4(d) Vest Unbridled Discretion in, and Contain Inadequate Standards to Guide, the District? Petitioners next argue that Rule 40C-41.063(6)(d) and Section 11.5.4(d) of the Handbook are invalid because they fail to establish adequate standards to guide the agency’s determination, and they vest unbridled discretion in the District to make certain determinations. A contention made in the initial petitions that the same rule and section are vague has presumably been abandoned since this ground is not cited in the prehearing stipulation or petitioners’ proposed orders. Subparagraph (6)(d)1. of the challenged rule and paragraph (a) of the section specify that, for those development activities which involve the "construction, alteration, operation, maintenance, removal, and abandonment of a system" within the RHPZ, an applicant "must provide reasonable assurance" that the system "will not adversely affect the abundance, diversity, food sources or habitat (including its use to satisfy nesting, breeding, and resting needs) of aquatic or wetland dependent species." In subparagraph (6)(d)2. and paragraph (b) of the rule and section, it is "presumed" that the following activities will "adversely affect the abundance, food sources, or habitat of aquatic or wetland dependent species provided by the Zone: construction of buildings, golf courses, impoundments, roads, canals, ditches, swales, and any land clearing which results in the creation of a system." Under subparagraph (d)4. and paragraph (d) of the rule and section, the presumption may be satisfied by an applicant demonstrating that the overall merits of the proposed plan of development, including mitigation as described in section 12.3, Applicant’s Handbook: Management and Storage of Surface Waters, provide a degree of resource protection to these types of fish and wildlife which offsets adverse effects of the proposed system on the uplands and wetlands within the zone. Some reasonable use of the land within the protection zone can be allowed under this section. Therefore, the presumption can be rebutted through considerations of subparagraph 6(d)4. and paragraph (d). As explained by the District, the term "overall merits" means that, in the review of the permit application, all of the impacts of the site plan to the surface water resource by the construction of the system will be reviewed. In other words, the District will review the "overall merits" of a system by balancing any detrimental impacts within the RHPZ with beneficial environmental aspects of the plan. The goal, of course, is to achieve a project design whose merits allow a development to proceed and also protect the beneficial functions of the RHPZ. For example, in areas of the development that are not proposed for development, the applicant can provide an ecological benefit by restoring or enhancing functions to a portion of the RHPZ. Where there are areas outside the RHPZ that would add further beneficial functions to aquatic or wetland dependent species, those areas could be set aside and incorporated into an overall protection plan that would be part of the site plan. The District will apply the new "overall merits" standard in a permitting scenario similar to the manner in which the current Wekiva and Econlockhatchee River Basin standards are now being applied. In those hydrologic basins, similar standards, including the "overall merits" criterion, have been applied by the District for a number of years without difficulty, and numerous activities have been authorized within their respective RHPZs. In fact, District records show that only two permits for activities within those basins have ever been denied, while more than 560 permits have been issued since the establishment of the two basins. Further assistance and clarification are found in the mitigation provisions in section 12.3 of the Handbook, which contains fifteen pages of guidance. Both the rule and section specifically provide that "mitigation as described in section 12.3" may be utilized by an applicant in meeting this standard. This provision enables an applicant to offset adverse impacts to the abundance, food sources, and habitat of aquatic or wetland dependent species within the RHPZ by proposing mitigation alternatives described therein. Petitioners contend that these mitigation alternatives are impractical since they do not allow for mitigating upland impacts and that section 12.3 now applies only to the Econlockhatchee and Wekiva River Basins. However, the District established that the use of the techniques described in Section 12.3 will be extended to the two new basins. As to the mitigation of upland impacts, Section 12.3.2.2(d) specifically refers to upland preservation as a mitigation option. It is also noteworthy that petitioners’ expert witness Exum conceded that he has utilized, without difficulty or misunderstanding, the same provisions when processing applications for permits in the Econlockhatchee and Wekiva Basins. Therefore, there are adequate standards within the rule and section to guide the District’s determination of the "overall merits" of an applicant’s proposed development plan. Likewise, that portion of the rule and section do not vest unbridled discretion in the District to determine whether an applicant has rebutted the presumption created by the standard. Petitioners next contend that the provision in Rule 40C-41.063(6)(d)4. and Section 11.5.4(d) which allows an applicant to make "some reasonable use of the land within the Protection Zone" contains inadequate standards and places unbridled discretion in the District. This provision, however, is found to be reasonably specific, given the fact that the amount of development which can be permitted can only be determined on a case-by-case basis after the District considers the specific nature of the unique characteristics of the site, including the proposed development, and the type of water resources that are adversely affected by the development. To establish a fixed percentage of development that would be permissible would be arbitrary. Moreover, the same provision has been fairly applied for a number of years in two other basins, and petitioners’ experts have successfully dealt with this issue without difficulty. Therefore, this portion of the rule and section contains adequate standards and does not vest unbridled discretion in the District. Finally, petitioners contend that the same rule and section vest unbridled discretion in the District to determine what is an "aquatic or wetland dependent species." The evidence shows, however, that petitioners’ witnesses Exum and Godly were aware of the meaning of this term of art, and they had a common understanding of its meaning. Further detail or definition of the term is unnecessary. Therefore, that portion of the rule and section does not vest unbridled discretion in the District. Whether Petitioners’ Lower Cost Proposal Substantially Meets the Statutory Objectives Being Implemented? The District prepared a Statement of Estimated Regulatory Costs (SERC) for the proposed rules, as required by Sections 120.54(3)(b)1. and 120.541, Florida Statutes (Supp. 1996). A summary of the SERC was published with the proposed rules on January 17, 1997, in the Florida Administrative Weekly. On February 6, 1997, Consolidated-Tomoka, but no other petitioners, timely submitted to the District a good faith, lower cost, regulatory alternative to the proposed rules. The District rejected this alternative proposal and provided a statement of its reasons for doing so. The parties have stipulated that the alternative would impose less regulatory costs on petitioners than are imposed by the proposed threshold revisions, recharge standard, floodplain storage criteria, stormwater management standard, and Riparian Wildlife Habitat Zone. Consolidated-Tomoka, joined in by all other petitioners, next contend that Rules 40C-4.041(2)(b) and 40C- 41.063(6)(a)-(d), and Handbook Sections 3.3.1(c) and (f), 11.5.1, 11.5.2, 11.5.3, 11.5.4, and 18.1, are invalid because the alternative cost proposal substantially accomplishes the statutory objectives purportedly being implemented through the proposed rules. More specifically, they contend that the current District rules, along with the existing OFW designation of Spruce Creek and the Tomoka River, already provide adequate protection to the water quality and quantity within the proposed basins, and thus the existing rules accomplish the same statutory objectives at a lower cost to petitioners. The proposed revisions to Rule 40C-041(2)(b) and Section 3.3.1(c) and (f) provide that non-exempt systems within the two new basins will be subject to the threshold revisions contained in the rule and section. Thus, they will bring into the ERP regulatory framework projects that now otherwise require only a stormwater permit under Chapter 40C-42. These projects now contribute to flooding and will continue to do so in the future absent a rule change. Because petitioners proposed alternative (of adopting no rule) does nothing to address the flooding caused by these projects, it does not substantially accomplish the statutory objective of protecting water resources. The statutory objective of the proposed recharge standard in Rule 40C-41.063(6)(a) and Sections 11.5.1 and 18.1 is to protect the District’s water resources by replacing groundwater withdrawn from the Floridan aquifer for public consumption with potable freshwater from rainfall. The evidence supports a finding that a need for recharge exists, and petitioners’ own expert agreed that recharge is necessary to maintain groundwater supplies. The alternative that no rule be adopted does not advance the statutory goal of protecting water resources. The statutory objective being implemented by the proposed floodplain storage standard in Rule 40C-41.063(6)(b) and Section 11.5.2 is the protection of water resources by reducing flooding. Under current conditions, flooding problems occur, and existing rules only address floodplain storage for the 10-year floodplain. The new criterion will prevent a decrease in floodplain storage in the 100-year floodplain. This in turn removes the loss of floodplain storage as a cause of flooding, thereby accomplishing the statutory goal. The new standard will ensure that future development will maintain more floodplain storage than is maintained under existing rules and thus create less future flooding potential. The proposal that no standard be adopted does not accomplish this objective. The proposed stormwater management standard in Rule 40C-41.063(6)(d)(c) and Section 11.5.3 implements the District’s statutory objective of protecting the water resources by minimizing the impact of malfunctioning detention with filtration systems on the OFWs in the proposed basins that receive discharges from such systems. Existing regulations allow systems within the proposed basins to utilize detention with filtration systems. Petitioners’ proposal does not prevent this from occurring or address the statutory objective of the law being implemented. Therefore, it is not an appropriate alternative. Finally, as to the RHPZ standard in Rule 40C- 41.063(6)(d) and Section 11.5.4, petitioners contend that the District’s current buffer requirements are sufficient to protect upland habitat utilized by wetland dependent species. They also contend that the establishment of the RHPZ exceeds the District’s delegated legislative authority and thus there is no statutory objective to be implemented. Finally, they argue that the establishment of the RHPZ will not lead to any significant enhancement of the water quality in Spruce Creek or the Tomoka River. As to this proposed standard, the District’s statutory objective is to protect water resources from harm. Aquatic or wetland dependent species are, of course, an integral component of the water resources. If urbanization pressures continue, the two basins will lose valuable habitat for aquatic or wetland species. Current ERP rules do not provide for the protection of the spatial requirements of aquatic and wetland dependent species, such as habitat and food sources, in order to maintain viable populations. Indeed, the current buffer merely provides a cushion to the wetland from the upland development, and it is not designed to maintain nesting habitat for those species. Moreover, current rules only protect the uplands for species that are listed and that use uplands for nesting and denning. Unlisted species receive no protection, and even listed species are not provided habitat necessary to maintain other life functions such as foraging. Therefore, a no-rule alternative does not substantially accomplish the statutory objective of preventing harm to water resources, including the aquatic or wetland dependent species. As noted in paragraph 23, the proposed standard exceeds the District's rulemaking authority. For the reasons cited in the Conclusions of Law portion of this Order, however, this does not mean that the rule cannot substantially accomplish the statutory objective. Therefore, the contention that the prior determination of invalidity mandates a similar determination here is without merit. Finally, as to the contention that the new standard will not lead to any significant enhancement of the water quality, the evidence shows that the standard is not intended to enhance water quality in the streams, and thus the argument is irrelevant.
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.
Findings Of Fact The Petitioner has an option to purchase property located at 301-307 Island Way Boulevard, Island Estate, Clearwater, Florida, on which he proposes to construct ten townhouses. Initially Petitioner asked for two variances. The first variance was for 25.12 feet to allow construction on a lot only 124.88 feet wide. This variance was granted for this nonconforming lot. The second variance, for 13.24 feet to allow construction of the ten townhouse complex 12 feet from the side property line, was denied by the Clearwater Code Adjustment Board. The Board concluded the variance requested did not meet the requirements of Section 45.24 of the Clearwater Land Development Code. Petitioner presented evidence that if the lot had been 150 feet wide they would have had 90 feet to build on without requesting any variance. However, since the lot was nonconforming, in order to have 89 feet on which to place the building, the requested variance would be necessary. Petitioner also presented evidence that the construction of ten townhouses on this lot is necessary for the project to be on a solid economic basis. Subsequent to the denial of this variance by the Development Code Adjustment Board, Petitioner submitted plans, which have been approved by the City of Clearwater, to erect nine townhouses on this property without any variance needed. However, these townhouses would be smaller than would be the ten townhouses initially proposed and would provide a lesser return on the capital invested.
The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system ("OSDS") permit authorizing installation of an OSDS on property which Petitioner owns near the Suwanee River in Dixie County, Florida, in accordance with Section 8l.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is an owner, by joint tenancy, of real property located in Dixie County, Florida, more particularly described as part of Government Lot 1, Section 4, Township 11 South, Range 13 East; closely proximate to the Suwanee River at a location generally known as "New Pine Landing". The surrounding property is characterized by homes and mobile home,;, which have OSDS's installed and operating. The subject property has no improvements constructed thereon, although the Petitioner intends the placement of a 12X60 foot mobile home, containing two bedrooms and one bathroom. There is no OSDS of any type installed on the property at the present time. The subject property is approximately 18.5 acres in size. It was purchased on January 17, 1990, but the property in question has never been platted. On March 20, 1990, the Petitioner made application for an OSDS permit for the aforesaid property, which was denied by the Respondent's letter of denial dated April 23, 1990. The Petitioner was not afforded the opportunity to pursue an informal variance application through the variance procedure set up by the statute and rules cited hereinbelow. Rather, the Respondent, in its denial letter, indicated that, because of the perceived effect of the Governor's Executive Order, discussed hereinbelow, no variances were being granted and the variance procedure would be "bypassed" in favor of affording the Petitioner a formal administrative hearing before the Division of Administrative Hearings concerning the permit denial. The Petitioner testified generally concerning the character of the property in question and the general nature of the terrain and vegetation. The property is characterized by a wetland or swampy area at one end of the property and, in the area of the proposed installation site, the ground elevation is higher, with a benchmark elevation of 8.8 feet above mean sea level ("MSL"), as established by Herbert H. Raker, certified land surveyor, and depicted by Petitioner's Exhibit 2 in evidence. The Petitioner offered no testimony concerning the ground water levels, other than to say that at one point in time, he dug a three-foot-deep hole on the subject property near the septic tank installation site and observed no water in the hole. His testimony did not indicate at what season of the year the observation was made nor whether conditions were wet or dry at the time. The only concrete evidence concerning ground water level at this installation site was that offered by the Respondent, which indicates that the ground water level at the time of the site evaluation was 42 inches below the surface of the property in question at the proposed installation site and, through observation of "mottling1, of the soil, indicating the presence of dampness, that the wet season water table is 12 inches below the surface of the property. Likewise, the Petitioner professed to have no knowledge of the ten-year flood elevation for the property. The Respondent's evidence, derived from materials submitted by the Petitioner in furtherance of the application, consisting of a report from the Suwanee River Water Management District, establishes that the ten-year flood elevation is 14 feet above MSL for Suwanee River Mile 29, which corresponds to the location of the subject property. The property is also located within the regulatory floodway administered by the Suwanee River Water Management District. Rule 10D-6.047, Florida Administrative Code, mandates that before a mounded system for on-site sewage disposal can be installed, a certification by a registered engineer would be necessary to determine that installation of such a mounded system would not raise the level of the "base flood". No such engineering testimony or evidence has been offered in this proceeding, however. The Petitioner further testified in a general sense that it would be a hardship not to be able to) install the OSDS on the property, given the money paid to purchase the property and the intent by the Petitioner to use it for a residence. The Petitioner has no use for the property without being able to use it for a residence. The Petitioner, however, did not offer any testimony or evidence concerning alternatives to installing the proposed OSDS, nor did the Petitioner establish that installation of such a system or an alternative system would pose no adverse health effects on the Petitioner or members of the general public nor that it would pose no degradation to the surface or ground waters involved for purposes of the Petitioner establishing entitlement to a permit or a variance It should be remembered, however, that the Petitioners were not accorded the opportunity to avail themselves of the variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90-14, which it opines precludes it from granting any variances, or permits for OSDS within the ten-year flood elevation. This leads to its advising the Petitioner that to apply for a variance in this instance would be futile. The Governor's Executive Order, which incorporated the "Suwanee River Task Force" recommendation to preclude such system; beneath the ten-year flood elevation was entered on January 17 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit without prejudice to the Petitioner applying for and seeking a variance from the statutory and rule requirements related to permitting, for the reasons found and concluded above; and without prejudice to pursuing an OSDS permit application at a later time should the Petitioner become able to demonstrate that alternative methods of treatment and disposal of the sewage effluent in question can feasibly be performed within the bounds of the standards enunciated in the above-cited statutes and rules concerning on- site sewage disposal permitting. DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3120 Respondent's Proposed Findings of Fact: 1-9. Accepted. Petitioner's Proposed Findings of Fact: None filed. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Mary Ann White and Inman White P.O. Box 756 Old Town, Florida 32680 Frances Childers, Esquire Assistant District Legal Counsel HRS District 3 Legal Office 1000 Northeast 16th Avenue Gainesville, Florida 32609
The Issue Whether the Petitioner, Silver Sands Estates, Inc., has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to undertake development of certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that part of such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan?
Findings Of Fact The Property. Pursuant to Warranty Deeds dated August 15, 1975, and November 10, 1980, Silver Sands Estates, Inc. (hereinafter referred to as "Silver Sands"), acquired certain real property located in Clay County, Florida (hereinafter referred to as the "Property"). At the time Silver Sands acquired the Property, the applicable zoning district permitted the development of the Property for single-family residential development at a maximum density of one unit per acre. Development of the Property; Government Action Relied Upon by Silver Sands. In 1979-1980, Silver Sands prepared a development plan for the Property which included the planned single-family residential development known as "Little Rain Lake Estates." The planned development consisted of a total of 96 single-family residential lots. Phase One and Phase Two consisted of 13 lots in each phase. In approximately 1979-1981, Silver Sands improved and maintained an unpaved private road, Little Rain Lake Road, which was to be used for the development of Phases One and Two of Little Rain Lake Estates. The approximate costs to Silver Sands for these actions was $1,000.00. In 1979-1981, Silver Sands caused surveys, topographical surveys, and engineering plans to be prepared for the construction of a portion of Little Rain Lake Road as a paved dedicated road. Little Rain Lake Road was intended to serve Phases One and Two of Little Rain Lake Estates. The road was planned to eventually extend approximately 3,640 linear feet east from State Road 21. The approximate cost to Silver Sands for these items included the following: surveys, $4,000; topographic surveys, $6,000; engineering, $6,000. Plans for the construction of approximately 1,400 linear feet of Little Rain Lake Road were submitted to Clay County in 1980 for review and approval. This portion of Little Rain Lake Road was intended to serve nine of the lots within Phase One of Little Rain Lake Estates; the lots were shown on the plans for the road submitted to Clay County. The plans also depicted a temporary turnaround at the end of the 1,400 linear feet of the road submitted for approval. It was evident from the plans that Silver Sands planned a future extension of the road to serve the rest of Little Rain Lake Estates. Subsequent to the filing of the plans for the construction of the first 1,400 linear feet of Little Rain Lake Road, Clay County requested that Silver Sands submit the development plan for all phases of Little Rain Lake Estates (as described in Finding of Fact 3). Silver Sands complied with this request. Clay County was, therefore, aware of Silver Sands' plan to develop Little Rain Lake Road in conjunction with its development of Phases One and Two of Little Rain Lake Estates. On November 12, 1980, the proposed plans for the construction of the first 1,400 linear feet of Little Rain Lake Road were approved by Clay County. Between 1981 and 1991 eight lots within Phase One of Little Rain Lake Estates were sold. Silver Sands' Detrimental Reliance. In December 1980 and January 1981 Silver Sands constructed the first 1,400 linear feet of Little Rain Lake Road approved by Clay County. The cost of the construction was $26,845. In February, 1981, Clay County confirmed that the first 1,400 linear feet of Little Rain Lake Road approved by Clay County had been constructed pursuant to Clay County specifications. By Warranty Deed dated March 2, 1981, Silver Sands dedicated the portion of Little Rain Lake Road serving Phase One of Little Rain Lake Estates to Clay County. Also between 1981 and 1991, Silver Sands continued to maintain the unpaved and private portion of Little Rain Lake Road extending the remaining approximately 2,240 feet of the portion of Little Rain Lake Road intended to serve Phase One and Phase Two. The approximate cost to Silver Sands for these actions was $1,000.00. In 1997, Clay County requested Silver Sands to convey to the County approximately 34 acres of property along Little Rain Lake Road, formerly a part of Phases One and Two of Little Rain Lake Estates. Silver Sands conveyed the property to the County. Also in 1997, Clay County requested Silver Sands to dedicate the remaining approximately 2,240 feet of Little Rain Lake Road which had been surveyed and engineered by Silver Sands in 1979-1980. The County also requested Silver Sands to provide the surveys and plans which Silver Sands had prepared in 1979- 1980. Silver Sands dedicated the remaining portion of the road and provided the surveys and plans to the County. Rights that will be Destroyed. In 1991, Clay County adopted the Clay County 2001 Comprehensive Plan (hereinafter referred to as the "Comprehensive Plan"). Pursuant to the Comprehensive Plan the land use category applicable to development of the Property as single-family residential limits density to one unit per 10 acres. Under the provisions of the Comprehensive Plan adopted in 1990, Phases One and Two of the planned development of the Property cannot be developed for the 13 lots located in Phases One and Two which still remain in Silver Sands' ownership. The portion of the Property still owned by Silver Sands which has not been developed consists of the four lots in Phase One and the nine lots in Phase Two (hereinafter referred to as the "Subject Property"). The Subject Property does not include the lots in Phase One which were sold between 1981 and 1991 or the acreage conveyed to Clay County in 1997. If Silver Sands must comply with the Comprehensive Plan, the Subject Property cannot be developed for the 13 lots originally intended on the Subject Property in Phases One and Two of Little Rain Lake Estates. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
Findings Of Fact In 1950, Petitioner acquired lots 8 and 9, block 23, of Lone Palm Beach subdivision, third addition, which lots front on Boca Ciega Bay in Pinellas County, and she has held the property in free simple since. Petitioner's late husband, her predecessor in title, acquired the lots in 1941. They constitute the tip of man-made peninsula jutting bayward from a barrier island bordered on the other side by the Gulf of Mexico. In 1926, the lots did not exist as such, because the peninsula had not yet been built. Petitioner's exhibit No. 10. Since the creation of the lots, their aquatic periphery has varied continually, on account of accretion and reliction. In the first half of the last decade, wooden and metal stakes were sunk along the shoreline, landward of the water's edge. Since then, water has washed away Petitioner's beach, moving the shoreline inland an average distance of approximately thirty feet. Erosion has been more severe along the northern half of Petitioner's beach than along the southern half. Seawalls have been built along adjacent properties on either side of Petitioner's parcel. The evidence did not establish what proportion of this erosion may have been attributable to the effects of Hurricane Agnes or to the location of neighboring seawalls or to any other particular cause. In 1972, the Honorable C. Richard Leavengood, Petitioner's present husband, hired Rupert Osteen, a contractor, to build a seawall. Pinellas County issued a building permit to Mr. Osteen, covering a "Seawall - 356LF - Type D," Petitioner's Exhibit No. 5, on March 14, 1973. (In September of 1951, the Town of Redington Beach had issued a building permit for "Dredging and Filling behind Sea Wall Constructed on [what is now Petitioner's] Rear Property Line.") Construction began, but came to an abrupt halt in July of 1973, when Mr. Osteen was arrested for building a seawall "without having obtained the recommendation of the Chief of Engineers and the Authorization of the Secretary of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United States District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19, 1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United State District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19,1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army for a permit, pursuant to Sections 403 and 1344 of Title 33, United States Code. Petitioner applied for the "after the fact" permit at issue in these proceedings on May 10, 1974. At one point in the course of negotiations between Petitioner and Respondent, Mr. Douglas Jones, Chief of Respondent's Bureau of Permitting, indicated that Respondent would permit Petitioner to erect another seawall along the present mean high water line. Eventually, Respondent's staff notified Petitioner that it would recommended denial of an after the fact permit for the existing seawall, and Petitioner filed a request for administrative hearing, which initiated these proceedings. Aerial photographs dating back to 1942 were received in evidence. Respondent's Exhibits Nos. 5 through 11. None of these phontographs show land as far out in the water as the portion of the seawall Mr. Osteen finished. The partially completed seawall is further waterward tan the 1971 interface between land and water. Respondent's Exhibits Nos. 9 and 10. In November of 1973, Alan J. Burdette, Jr., a marine biologist, who is now employed by Respondent, inspected lots 8 and 9 of Lone Palm Beach subdivision and found water in the low area landward of the seawall. More recent photographs indicate that the seawall still stands somewhat offshore. E.g.., Respondent's Exhibit No. 16, taken on September 7, 1977. Mr. Bardette's inspection revealed oyster and fiddler crabs inside the seawall and clams just outside. Mangroves, which were not there at the time construction began, had sprung up. Removal of the seawall would create additional shallow bottom where algae, clams, oysters, mangroves and other marine life could flourish. Mr. R. S. Murali, a hydorgraphic engineer employed by Respondent, visited Petitioner's property the day before the hearing in this matter was held. While he was on the site, the wind blew from the southwest and waves with an average height between eight and nine inches struck Petitioner's unfinished seawall every 1.2 seconds. Mr. Murali discovered evidence of erosion under the seawall, which was caused by wave action. If the seawall were placed more landward, so that waves travelled up a sloping beach before striking it, the erosion problem could be significantly alleviated.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner's application for an after the fact fill permit authorizing the seawall which has already been constructed around lots 8 and 9, block 23, of Lone Palm Beach Subdivision, third addition, be denied. DONE and ENTERED this 30th day of November, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 APPENDIX Paragraph one of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant:. Paragraph two of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant, except for the date of the permit issued by the Pinellas County Water and Navigation Control Authority, which is immaterial. Paragraph three of Petitioner's Proposed Findings of Fact is apparently predicated on Petitioner's Exhibit No. 12, an uncertified copy of page 74 of Pinellas County's Plat Book 20. Although a handwritten notation on the exhibit reads "Plat Recorded June 21, 1937" such extraneous handwriting on an uncertified copy is not "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.". Section 120.58(1)(a), Florida Statutes (1975). The question of the Butler Act's applicability is a question of law rather than of fact and it has not been necessary to decide the question. Paragraph four of Petitioner's Proposed Findings of Fact has not been adopted, for the most part, because of lack of support in the evidence. Paragraph five of Petitioner's Proposed Findings of fact emphasizes that the testimony as to flora and fauna related to a time considerably after application for the after the fact permit was made. While this is true, what is at issue is the ecological consequences of leaving the seawall, so that the relevant time period is the time period beginning when the application was made and extending indefinitely into the future. COPIES FURNISHED: Ms. Carol Haughey, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. Ross H. Stanton, Jr., Esq. 280 Florida Federal Building 26274th Street North St. Petersburg, Florida 33704 Ms. Patricia M. Duryee, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DOROTHY B. LEAVENGOOD, Petitioner, vs. CASE NOS. 77-484 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondents. /
The Issue The issue on appeal is whether, pursuant to Clearwater Code of Ordinances Section 4-505, to sustain or reverse, with or without conditions, the decision of the Community Development Board on June 20, 2003, denying Cepcot Corporation's application to build a convenience store with two islands for pumping gas.
Findings Of Fact Petitioner The Cepcot Corporation (Cepcot) owns real property located at 657 Court Street in the downtown zoning district of the City of Clearwater (Property). On December 17, 2002, Cepcot filed a Flexible Development Application for a comprehensive infill redevelopment project (Application) on the Property. At the time of the proposal, the Property, which comprises 0.95 acres, was developed with a restaurant in a building that was the former Clearwater train station, a thrift store, and a park. The Application proposes the demolition of these improvements and their replacement with a 3200 square-foot convenience store and two gas pump islands. The Property fronts Chestnut Street to the south, East Avenue to the east, and Court Street to the north. The surrounding area is developed with office uses to the west and south, a privately owned utility plant to the north, and warehouse uses to the east. Upon the completion of the Memorial Causeway bridge, which is presently under construction, traffic to the beach will use Court Street and traffic from the beach will use Chestnut Street. In response to questions and suggestions from Respondent's staff, Cepcot revised the proposed site plan several times. The Application is presently complete. Respondent's Planning Department prepared a Staff Report, which finds that the proposed project does not meet certain requirements and recommends denial of the Application on several grounds. On June 17, 2003, Respondent's Community Development Board (CDB) considered the Application. CDB denied the Application and issued a development order explaining the reasons for denial as follows: The proposal is inconsistent with the adopted Community Development Code, the Comprehensive Plan, 1995 Clearwater Downtown Redevelopment Plan, and the Downtown Design Guidelines. The proposed automobile service station is not a permitted use within the downtown district. Approval of the proposed use may encourage other like uses and may be detrimental to downtown redevelopment. The proposal does not comply with the Flexible Development criteria as a comprehensive infill redevelopment project per Section 2-803. The proposal is not in compliance with the other standards in the Code including the general applicability criteria for Section 3-913. Most of the reasons cited for denial involve Respondent's Community Development Code (CDC), which is the land development regulations. The Property is in the Downtown District. CDC Section 2-901 states: "The intent and purpose of the Downtown District is to establish a mixed use downtown where citizens can work, live, and shop in a place which is the economic, governmental, entertainment and cultural focal point of a liveable city." CDC Section 2-902 sets forth the permitted uses within the Downtown District, and CDC Chart 2-100 lists permitted uses by zoning district. The proposed uses are not among the permitted uses for the Downtown District (or the Tourist District, to which portions of the record refer). CDC Section 2-903.C sets forth the following ten criteria to be applied in determining if the proposed use qualifies as a Comprehensive Infill Redevelopment Project (CIRP) that may qualify an otherwise non-permitted use: The development or redevelopment of the parcel proposed for development is otherwise impractical without deviations from the use, intensity and development standards; The development of the parcel proposed for development as a Comprehensive Infill Redevelopment Project will not reduce the fair market value of abutting properties; The uses within the comprehensive infill redevelopment project are otherwise permitted in the City of Clearwater; The uses or mix of uses within the comprehensive infill redevelopment project are compatible with adjacent land uses; Suitable sites for development or redevelopment of the uses or mix of uses within the comprehensive infill redevelopment project are not otherwise available in the City of Clearwater; The development of the parcel proposed for development as an comprehensive infill redevelopment project will upgrade the immediate vicinity of the parcel proposed for development; The design of the proposed comprehensive infill redevelopment project creates a form and function which enhances the community character of the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole; Flexibility in regard to lot width, required setbacks, height and off-street parking are justified by the benefits to community character and the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole; Adequate off-street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development; The design of all buildings complies with the Downtown District design guidelines in Division 5 of Article 3. CDC Section 3-913.A sets forth the General Applicability criteria. CDC Section 3-913.A.1 states: "The proposed development of the land will be in harmony with the scale, bulk, coverage, density, and character of adjacent properties in which it is located." CDC Section 3-913.A.5 states: The proposed development is consistent with the community character of the immediate vicinity of the parcel proposed for development."
Findings Of Fact The Petitioner is the owner of Lot 22 at Hatch Bend Upon Suwannee, a subdivision platted and recorded in 1979. Lot 22 lies at river mile 59 of the Suwannee River, as determined by the Suwannee River Water Management District. The Petitioner purchased the property for a site to construct a residence for his retirement. He desires an OSDS to serve a small dwelling which he proposes to construct on the site of approximately 1,000 square feet. The lot is two acres in size. The subject lot is high, level and well drained. In depth, it extends approximately 600 feet from the shoreline of the Suwannee River, upon which it has approximately 150 feet of river frontage. The lot is not subject to frequent flooding, however, as established by a registered land surveyor, the grade elevation of the lot is approximately 19.7 feet above mean sea level ("MSL"), with a benchmark elevation of 20.20 feet at the highest point. The ten-year flood elevation for river mile 59 was established, through information derived from the records of the Suwannee River Water Management District, and in evidence, to be 24 feet above MSL. Thus, the surface of the property involved and the septic tank system installation site lies beneath the ten-year flood elevation. The property, in other particulars, appears to comply with the statute and rules governing requirements for the grant of OSDS permits. That is, the water table level was shown to be more than 72 inches below the surface of the property, which is more than adequate in terms of separation of the proposed drainfield trenches from the ground water table. The soil lying beneath the property is "fine sand", which is a limited soil of an appropriate type for the successful functioning of an OSDS. Based upon mottling found in the soil, the water table during wet seasons is estimated to be at 72 inches below the surface, again, a more than adequate separation between the water table during wet seasons and the bottom of the proposed drainfield trenches. Thus, the subject site is amenable to the installation of an OSDS, but for the fact of its elevation beneath the required ten-year flood elevation. In terms of establishing entitlement to a variance from the subject rule concerning the prohibition of installation of drainfield trenches which will be subject to flooding based upon the ten-year flood elevation, the Petitioner offered no real concrete evidence. The Petitioner merely testified that it was a hardship for him not to be able to construct his proposed retirement home on the property because of the inability to obtain an OSDS permit; however, he did not establish that there were no reasonable alternatives to the normal OSDS proposed and applied for, as for instance, a mounded system so that the drain fields could be installed above the ten-year flood elevation or some other alternative sewage disposal and treatment system. Thus, the Petitioner did not establish that no reasonable alternative exists but to install the normal OSDS, nor did the Petitioner establish that installation of such a system beneath the natural grade would pose no threat to the public's health or the health of the Petitioner. The Petitioner did not establish that such a system would not pose an adverse impact on surface and ground waters in and in the vicinity of the proposed installation site. Thus, no entitlement to a variance from the permitting requirements in the statute and rules cited below was established. The Respondent takes the position that the variance and the permit application should be denied because the proposed installation site lies below the ten-year flood elevation, and, as the Respondent interprets the Governor's Executive Order No. 90-14, issued on January 17, 1990, which adopted Suwannee River Task Force Report Recommendation NO. 36 by reference, the variance request and the permit application should be denied because that Executive Order and the Report Recommendation it incorporates, in essence, calls for the prohibition of any installation of such systems below the ten-year flood elevation based upon a presumption that such would adversely affect public health and the ground and surface waters. The Respondent takes the position that it cannot discretionarily grant variances in such a situation because of the Executive Order.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the application of Vernon Merritt for an OSDS permit and for a variance from the above-discussed permitting requirements, be denied. DONE AND ENTERED this 18th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 18th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-3340 The Petitioner submitted no proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted. Accepted. Accepted. 4-5. Accepted, but not relevant and material. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Vernon Merritt P.O. Box 325 Inglis, FL 32649 Frances S. Childers, Esq. Assistant District 111 Legal Counsel Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609 =================================================================
The Issue The issues are whether respondents’ motions to dismiss the amended petitions should be granted on the ground they were not timely filed, or whether the time limitation for filing a request for hearing was equitably tolled.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioners, Judge Ray and Gerra Gatlin (petitioners or Gatlins), own a parcel of real property in the central portion of Baker County, Florida, generally located to the north of U. S. Highway 90 between Glen St. Mary and Macclenny, Florida. Respondent, St. Johns River Water Management District (District), is the state agency charged with the responsibility of issuing Water Resource Management (WRM) and Management and Storage of Surface Water (MSSW) permits within its boundaries. Respondent, Department of Transportation (DOT), is a state agency charged with the responsibility of maintaining the state highway system. On April 27, 1993, DOT filed two applications with the District seeking MSSW and WRM permits for a road widening and bridge replacement project on State Road 10, also known as U. S. Highway 90, in Baker County. After notices of receipt of application and intent to grant the applications were published in a local newspaper on June 3 and July 22, 1993, respectively, and no requests for a hearing were received, the District issued the two permits on August 10, 1993. On December 20, 1996, or 1,216 days after the permits had been issued, petitioners filed their petitions for administrative hearing to contest the issuance of the permits. The petition challenging the MSSW permit has been assigned Case No. 97-0803 while the challenge to the issuance of a WRM permit has been assigned Case No. 97-0804. As amended on February 10, 1997, the petitions generally allege that the Gatlins were not given actual notice of the WRM application as required by a District rule, DOT supplied inaccurate or false information in the applications as to the ownership of the property on which a portion of the work was to be performed, and the District's notice was confusing and misleading. Because of this, they contend the time limitation for challenging the permits was equitably tolled. Motions to dismiss the amended petitions on the ground they are untimely have been filed by the District and DOT, and they are the subject of these proceedings. Events Prior to Issuance of the Permits As early as 1990 or 1991, the DOT began planning for certain improvements to State Road 10 from County Road 125 in Glen St. Mary, Florida, east to State Road 121 in Macclenny, Florida. The work involved the widening of the road from two to four lanes and replacing an existing bridge. Excluding the work within the two municipalities, the total length of the project was less than two miles. On April 23, 1991, the DOT sent all property owners along U. S. Highway 90 a letter advising that a public meeting would be held on May 16, 1991, to discuss the proposed improvements. Although DOT records indicate that petitioners were on the mailing list, petitioners deny that they ever received a letter. In addition to a personal letter to each owner, notice of the meeting was published in a local newspaper. Another meeting with owners of property adjacent to S. Highway 90 was held on August 13, 1992, concerning the proposed project. Although a letter was sent to all property owners on July 21, 1992, advising that such a meeting would be held, petitioners deny that they ever received one. A notice of the meeting was also published in a local newspaper. The MSSW permit On April 23, 1993, DOT filed with the District an application, with various attachments, seeking the issuance of a MSSW permit. If approved, the permit would authorize DOT to construct surface water works, including the treatment of stormwater runoff by wet detention ponds, on an approximately eleven acre site. The application described the project as follows: The proposed facility typical section will be a four-lane roadway with a center turn lane through Glen St. Mary and unincorporated Baker Co. [T]hrough Macclenny, the typical section will be a two-lane roadway with a center turn lane. It further described the location of the project as follows: The segment of SR 10 (US 90) presented in this application begins approximately 500 feet west of the intersection of SR 10 and CR 125 and runs east to the intersection of SR 10 and SR 121. The project is located in Section 36, Township 2 south, and Range 21 east and Sections 31 and 32, Township 2 south, and Range 22 east in Baker County. In answer to a question regarding who owned the works to be constructed, DOT identified itself as the owner. The application did not require, however, that an applicant certify that it was the present owner of the property on which the proposed works were to be constructed. In fact, DOT followed its standard practice of not filling in the areas on the application form that asked for "Project Acreage" and "Total Acreage Owned" because it did not know exactly how much property it would need to acquire through exercise of its power of eminent domain until the District had approved the design of the proposed surface water works. It was clear, however, that DOT had the ability and intention to acquire whatever property was needed through eminent domain proceedings. Attached to the application were certain sketches. They did not depict the storm detention pond which was to be built on the Gatlins' property. Under an applicable District rule and statute, the District was required to give actual notice of the application only to persons who had previously filed a written request for such notice. Because petitioners had not made such a request, they were not given actual notice. In the absence of a written request, the statute allows constructive notice of the agency’s intended action to be provided by publication in a newspaper of general circulation in the county in which the work is to be performed. The specific requirements for this notice are found in Rule 40C-1.511(5), Florida Administrative Code. They include "a brief description of the proposed activity and its location," "location of the application," "statement of the District's intended action," "scheduled date of Board action," and "notification of administrative hearing opportunity." On July 22, 1993, the District published notice of its intended agency action in The Baker County Press, a weekly newspaper of general circulation published in Macclenny, Florida. The notice read, in pertinent part, as follows: The District gives notice of its intent to issue a permit to the following applicant on August 10, 1993: FLORIDA DEPARTMENT OF TRANSPORTATION, P. O. Box 1089, Lake City, Fla., 32056, application #4-003-0010AG. The project is located in Baker County, Sections 31, 32 & 36, Township 02 South, Ranges 21 & 22 East. The application is for the CONSTRUCTION OF A SURFACE WATER MANAGEMENT SYSTEM ASSOCIATED WITH THE WIDENING OF SR 10 (U.S. 90) FROM CR 125 TO SR 121. The receiving waterbody is the St. Mary's River. The file containing the above-listed application is available for inspection Monday through Friday except for legal holidays, 8:00 am to 5:00 pm at the St. Johns River Water Management District headquarters or the appropriate field office. The District will take action on the permit application listed above unless a petition for an administrative hearing is filed pursuant to the provisions of section 120.57, F.S., and section 40C-1.511. A person whose substantial interests are affected by the District’s proposed permitting decision identified above may petition for an administrative hearing in accordance with section 120.57, F.S. Petitions must comply with the requirements of Florida Administrative Code Rules 40C-1.111 and 40C- 1.521 and be filed with (and received by) the District Clerk, P.O. Box 1429, Palatka, Florida 32178-1429. Petitions must be filed within fourteen (14) days of publication of this notice or within fourteen(14) days of actual receipt of this intent, whichever occurs first. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under Section 120.57, F.S., concerning the subject permit application. Petitions which are not filed in accordance with the above provisions are subject to dismissal. Thus, the notice provided a brief description of the project and its location, the location of the application, the District's intended action, the scheduled date of Board action, and notification as to the right of a hearing. Although petitioners acknowledge that they never read the notice, they contend that, even if they had read it, the notice was nonetheless misleading and confusing in several respects. First, they point out that the legal notice identified the receiving waterbody as the St. Mary's River. The application, however, identified the receiving water as the South Prong St. Mary's River whereas the technical report of the District staff identified the receiving water as the Little St. Mary's River. The South Prong St. Mary's River and the Little St. Mary's River are the same river, and it eventually flows into the St. Mary's River approximately six miles north of petitioners' property. Therefore, the notice is technically correct since the larger St. Mary's River is the ultimate receiving water for the smaller tributary. Even if the notice was in error in this respect, however, for the reasons cited below, the error was immaterial and would not mislead or confuse readers. The notice provides further clarification on the project's location by stating that the project encompasses the "construction of a surface water management system associated with the widening of SR 10 (U.S. 90) from CR 125 to SR 121." This clearly alerts the reader that the project is on or near U. S. Highway 90 between Glen St. Mary and Macclenny, a short stretch of road less than two miles in length. Given this description, a reasonable person would not assume that the work would take place on the St. Mary's River, six miles to the north, as petitioners suggest. Petitioners also point out that the notice identified the location of the project as "Sections 31, 32 & 36, Township 02 South, Ranges 21 & 22 East," an area petitioners say encompasses some 1,900 acres of land. Because the MSSW project will actually involve only 11 acres of land, they contend the notice is misleading. Although the notice identifies three sections, and each section is one square mile, the notice alerts the reader that the project will be confined to the "widening of S. R. 10 (U. S. 90)" between Glen St. Mary and Macclenny, a relatively short stretch of roadway. Finally, the notice provided that a copy of the application was on file at the "appropriate field office" of the District should any member of the public desire more detailed information. Petitioners' property lies within Sections 31 and 36 and would therefore be affected by the application. Although they reside in Baker County, petitioners did not subscribe to The Baker County Press, and therefore they did not read the legal advertisement. Accordingly, a request for a hearing was not filed by petitioners by the August 10 deadline. When no requests for a hearing were filed within the fourteen day time limitation, the District took final agency action on August 10, 1993, and issued MSSW permit number 4-003-0010G. The WRM permit On April 27, 1993, DOT filed with the District an application, with attachments, seeking the issuance of a WRM permit. If approved, the permit would authorize the excavation and filling (dredging and filling) associated with the bridge replacement over the Little St. Mary's River, also known as the South Prong St. Mary's River, midway between Glen St. Mary and Macclenny on U. S. Highway 90. The dredge and fill project encompasses approximately one-half acre of land. The WRM application contained the same description and location of the project as did the MSSW permit application. Question 14 on the application form required an applicant to certify as to ownership of the property. The applicant could either indicate that it was the record owner of the property on which the proposed project was to be undertaken, or it could indicate that it was not the record owner, but it intended to have the requisite ownership before undertaking the proposed work. DOT checked off the box which indicated that it was the record owner. At hearing, a DOT representative agreed that this was an incorrect response since around 8,953 square feet of the land on which the dredging and filling would take place was then owned by petitioners. In hindsight, the DOT witness says he probably should have checked off both boxes since DOT owned most of the property and would acquire the remaining part through eminent domain proceedings before the project began. Acquisition of the land was clearly within DOT's power and authority. There is no evidence that DOT provided the information with the intent of misleading the District, or that the ownership information affected the District's decision. In 1988, the Department of Environmental Regulation (DER), now known as the Department of Environmental Protection, delegated its dredge and fill permitting authority to water management districts. In carrying out that delegation of authority, the districts were required to follow all applicable DER rules. One such rule, Rule 62-312.060(12), Florida Administrative Code, required that the District forward a copy of the application to and request comments from the adjacent waterfront property owners unless the number of owners was so extensive that personal notice was impractical. Petitioners own adjacent waterfront property, and it was not shown that the number of waterfront owners was so extensive that personal notice was impractical. To implement the above rule, question 5 on the application form required the applicant to identify all adjacent waterfront owners. DOT answered "See Attachment." At hearing, the individual who prepared the application "believed" that a list was attached to the application when it was filed with the District, but he could not locate a copy of the list in his file. The application was the first dredge and fill permit application for Baker County processed by the District. When the application was received by the District, a clerical employee reviewed the application to determine if it was complete. If an item was missing, the clerk was instructed to note the missing item on an "initial checkoff sheet." In this case, a "very, very cursory look" was made, and no box on the checkoff sheet was marked. This would indicate that the list was attached to the application. After this review was made, the application was sent to the technical staff for review. Whether the attachment was ever received by the District, and then lost or misplaced, is conjecture. In any event, a District witness acknowledged that there may have been a "mix-up" during the initial review. Because the District had no attached list, it gave no actual notice to adjacent owners, including petitioners, prior to publication of the notice. Therefore, the rule requiring actual notice on this type of application was not satisfied. Except for this instance, the District is unaware of any other occasion when a list of adjacent waterfront property owners, through inadvertence, was lost or not provided. On July 22, 1993, the District published notice of its intent to issue a permit in The Baker County Press. The notice read, in pertinent part, as follows: The District gives notice of the Intent to Issue a permit to the following applicant on August 10, 1993: FLORIDA DEPARTMENT OF TRANSPORTATION, P. O. Box 1089, Lake City, Fla., 32056, application #4-003-0010AG. The project is located in Baker County, Sections 31, 32 & 36, Township 02 South, Ranges 21 & 22 East. The application is for EXCAVATION AND FILLING ASSOCIATED WITH THE WIDENING OF SR 10 (U.S. 90) FROM CR 125 TO SR 121. The receiving waterbody is the St. Mary's River. The file pertaining to the above-listed application is available for inspection Monday through Friday except for legal holidays, 8:00 am to 5:00 pm at the St. Johns River Water Management District headquarters or the appropriate field office. The District will take action on the permit application listed above unless a petition for an administrative proceeding (hearing) is filed pursuant to the provisions of section 120.57, F.S., and section 40C-1.511, F.A.C. A person whose substantial interests are affected by the District’s proposed permitting decision identified above may petition for an administrative hearing in accordance with the requirements of Florida Administrative Code Rules 40C-1.111 and 40C-1.521 and be filed with (received by) the District Clerk, P.O. Box 1429, Palatka, Florida 32178-1429. Petitions for administrative hearing on the above application must be filed within fourteen (14) days of publication of this notice or within fourteen (14) days of actual receipt of this intent, whichever first occurs. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under section 120.57, F.S., concerning the subject permit application. Petitions which are not filed in accordance with the above provisions are subject to dismissal. Thus, the notice provided a brief description of the project and its location, the location of the application, the District's intended action, the scheduled date of Board action, and notification of hearing opportunity. Even though they did not read the notice, petitioners contend that it was "confusing and misleading to any readers." First, they point out that the legal notice identifies the receiving water as the St. Mary's River. Both the application and technical report of the District staff, however, identified the receiving water as the South Prong St. Mary's River. The South Prong St. Mary's River flows north and south and crosses under U. S. Highway 90 at the bridge replacement site. It eventually flows into the St. Mary's River, which is approximately six miles further north and forms the boundary between Florida and Georgia in that area. Therefore, the notice was technically correct since the St. Mary's River is the ultimate receiving water from the smaller tributary. Even if the notice erred in this respect, the error was immaterial and would not mislead the reader. This is because the cited sections, township, ranges and road being improved are all at least five miles south of the St. Mary's River, and thus the notice could not lull readers into believing that the project would actually be closer to that river, some six miles to the north. Petitioners also point out that, even though the dredge and fill project encompasses only one-half acre, the notice identifies the project as being located in Sections 31, 32, and 36, Township 2 South, Ranges 21 and 22 East, a tract of some 1,900 acres. These sections, township and ranges are the same ones included in the legal description of the then existing right-of-way for U. S. Highway 90 owned by DOT and which was attached to the application. While it is true that each section is one square mile, the actual work site within the sections was narrowed considerably by advice that the work would be "associated with the widening of SR 10" between Glen St. Mary and Macclenny. Given this information, a prudent person owning land on U. S. Highway 90 between the two municipalities would be alerted that the project might well impact his property. Finally, the notice provided that a copy of the application was on file for review if any member of the public desired more specific information. As a corollary to the above argument, petitioners contend that the notice implies that dredge and fill work will only be performed on DOT's existing right-of-way since the sections, township and ranges track the legal description of DOT's right-of-way along U. S. Highway 90. Again, however, only a "brief description" of the project's location is required, and the above description in the notice satisfies this requirement. Although petitioners reside in Baker County, they did not subscribe to the local newspaper, and therefore they did not read the legal advertisement. Accordingly, they did not file a request for a hearing. When no requests for a hearing were received within fourteen days after publication of the notice, on August 10, 1993, the District issued WRM permit number 12-003-0001G. C. Events After Issuance of the Permits On September 22, 1994, DOT sent to petitioners, by certified mail, a Letter of Notification regarding DOT's intention to acquire the interest in eight parcels of the Gatlins' property for the road improvement project. The letter was received by Gerra Gatlin on September 23, 1994. While the letter did not specifically state that a detention pond and bridge replacement project would be built on the Gatlins' property, it explained that DOT was currently planning the construction of a "highway facility" on State Road 10 and that its records indicated that petitioners owned property within the area which was needed for right-of-way on this project. The letter went on to describe the project in general terms, and it referenced parcel 140 which was owned by the Gatlins. On a separate parcel information sheet attached to the letter, parcel 140 was divided into three parcels: 140A, 140B, and 140C. The sheet noted that parts B and C were designated as "water storage" areas. Parcel 140B is 10.727 acres in size and will hold the stormwater detention pond currently being constructed by DOT. A portion of the dredge and filling related to the bridge replacement project will occur on parcel 140C. Ray Gatlin acknowledged that he became aware of a "pond" when he initially reviewed the packet, but he was not sure in which part of parcel 140 the pond would be located since the "printing was off" on the drawings, and he could not find parcel 140C. Therefore, he immediately hired a Jacksonville attorney, Robert S. Yerkes, to represent him and his wife in the condemnation matter. On October 31, 1994, Yerkes sent a letter to DOT requesting a copy of "the current right way map and construction plans, as well as the present schedule for aquisition and construction." On November 17, 1994, DOT sent Yerkes the right-of-way maps but noted that "[c]onstruction plans are still not available." Whether Yerkes requested the construction plans after that date is not of record. On May 22, 1995, a DOT right-of-way specialist met with Yerkes and Ray Gatlin regarding the acquisition of the Gatlins’ property. On July 19, 1995, DOT initiated an action in eminent domain against petitioners, and several other landowners, by filing a petition in the Circuit Court of Baker County. Among other things, the petition sought to condemn parcels 140A, 140B, and 140C owned by petitioners. An Order of Taking was entered by the court on September 6, 1995, which conveyed fee simple title of parcel 140, and its parts, to DOT. When Yerkes "didn’t get the job done," the Gatlins hired new counsel, who made an appearance on July 31, 1996. Just prior to the appearance of new counsel, and because of "a problem with the assessment," the Gatlins hired an environmental consultant, Peter M. Wallace, to verify whether DOT had correctly told them that no jurisdictional wetlands existed within the parcel being condemned. At this time, the Gatlins were in a dispute with DOT over the value of their property. After determining that wetlands existed on the parcel, Wallace made inquiry in late July 1996 with a District employee, Christine Wentzel, to ascertain if any permits had been issued to DOT for a project on U. S. Highway 90 between Glen St. Mary and Macclenny. Wentzel was unaware of any permits being issued, but she referred Wallace to Helen Cortopassi, who would have reviewed the applications three years earlier. Cortopassi told Wallace that no permits relating to this project had been issued. Because Wallace believed that the storm detention pond would impact wetlands, and therefore required a review by DER or the United States Army Corps of Engineers, he made similar inquiries with those two agencies regarding the issuance of permits. He was assured that those two agencies had not issued permits. In late September 1996, Cortopassi telephoned Wallace and advised him that a further review of her files revealed that two permits had been issued for the project. Because Wallace had inquired about permits for a project on U. S. Highway 90, and Cortopassi had created a file for the project under State Road 10 (rather than U. S. Highway 90), she had failed to discover them when Wallace first made his inquiry two months earlier. On October 15, 1996, Wallace went to the DOT office and reviewed its files pertaining to the project. He found copies of the issued permits and a set of construction plans which revealed a pond. A public records request filed by the Gatlins' counsel with DOT in September 1996 was later granted, and copies of the applications were eventually obtained from DOT on December 9, 1996, or almost three months after the request was made. Within fourteen days thereafter, or on December 20, 1996, the Gatlins filed their initial requests for a hearing. DOT did not begin work on the project until March 1997, or some three months after the requests for hearing were filed. Photographs received into evidence show that, in April 1997, some excavation work was being done around the bridge site. Work has continued during the pendency of this proceeding. At least a small portion of the storm detention pond will be built in wetlands. The District made no review of the wetlands impact associated with the pond. Had this been done, a disclosure of the pond in the dredge and fill permit application would have been required. Petitioners contend that, if actual notice of the WRM had been given, as required by rule, and a wetlands impact performed, in this way they would have had actual notice of the MSSW application by simply reviewing the WRM application. The District contends, however, that the content and manner of notice would not have changed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the motions to dismiss and dismissing the amended petitions for hearing in Case Nos. 97-0803 and 97-0804 with prejudice. DONE AND ENTERED this 14th day of July, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SUNCOM 278-9675 Fax Filing (904) 921-6847 \ COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1997. Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1489 Palatka, Florida 32178-1489 J. Victor Barrios, Esquire 1026 East Park Avenue Tallahassee, Florida 32301-1673 Susan K. S. Scarcelli, Esquire Post Office Box 3399 Tampa, Florida 33601-3399 Nancy B. Barnard, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Francine M. Ffolkes, Esquire Mary S. Miller, Esquire Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
