The Issue Does the Department of Business and Professional Regulation, Division of Condominiums, Timeshares and Mobile Homes’ (“the Division”), approval of timeshare developers’ requests to provide purchasers with a public offering statement via a website link amount to an unadopted rule within the meaning of section 120.52(8)(a), Florida Statutes (2017).1/ Also, does the Division’s approval of timeshare developers’ requests to provide purchasers with public offering statements via a website link amount to an invalid exercise of delegated legislative authority within the meaning of section 120.52(8)(c).
Findings Of Fact The following findings of fact are based on exhibits accepted into evidence, admitted facts set forth in the pre- hearing stipulation, and matters subject to official recognition. Relevant Statutes and Rules Pertaining to Timeshares Chapter 721 of the Florida Statutes is known as the “Florida Vacation Plan and Timesharing Act” (“the Act”). § 721.01, Fla. Stat. The Florida Legislature intends for the Act to “[p]rovide full and fair disclosure to the purchasers and prospective purchasers of timeshare plans.” § 721.02(3), Fla. Stat. The Division is the state agency responsible for enforcing the Act. Section 721.10(1), Florida Statutes, provides that a purchaser2/ can cancel a contract to purchase a timeshare interest “until midnight of the 10th calendar day following whichever of the following days occur later: (a) The execution date; or (b) The day on which the purchaser received the last of all documents required to be provided to him or her ” (emphasis added). Section 721.10(1) further provides that “[t]his right of cancellation may not be waived by any purchaser or by any other person on behalf of the purchaser. Furthermore, no closing may occur until the cancellation period of the timeshare purchaser has expired.” A “public offering statement” is the term describing a single-site timeshare plan or a multisite timeshare plan, including any exhibits attached thereto as required by sections 721.07, 721.55, and 721.551. Section 721.07(6)(a) requires that a timeshare developer “shall furnish each purchaser” with “[a] copy of the purchaser public offering statement text in the form approved by the division for delivery to the purchasers.” (emphasis added). Florida Administrative Code Rule 61B-39.004(1) provides that “a developer of a single-site timeshare plan shall deliver to every purchaser of the single-site timeshare plan a single-site purchaser POS.” (emphasis added). Rule 61B-39.004(1) mandates that a public offering statement shall contain: A copy of the single-site registered public offering statement text as prescribed in Section 721.07(5), Florida Statutes, and Rule 61B-39.003, F.A.C.; A copy of the exhibits prescribed in Sections 721.07(5)(ff)1., 2., 4., 5., 8., and 16., Florida Statutes, as applicable. Pursuant to Section 721.07(6)(b) and Section 721.07(5)(ff)19., Florida Statutes, if the single-site is one created as a tenancy-in-common, the purchaser shall receive the document or documents creating the tenancy-in-common, including at a minimum a Declaration of Covenants, Conditions and Restrictions; and Any other exhibit that the developer has filed with the division pursuant to Section 721.07(5), Florida Statutes, and Rule 61B-39.003, F.A.C., which the developer is not required but elects to include in the purchaser POS pursuant to Section 721.07(6)(d), Florida Statutes. In short, a public offering statement contains all of the documents that a timeshare developer is required to give to a purchaser. Its purpose is to apprise a purchaser of everything that he or she needs to know about a timeshare. As a result, a public offering statement can be as much as 100 pages long. Section 721.07(3)(a)1. requires that: Any change to an approved public offering statement filing shall be filed with the division for approval as an amendment prior to becoming effective. The division shall have 20 days after receipt of a proposed amendment to approve or cite deficiencies in the proposed amendment. If the division fails to act within 20 days, the amendment will be deemed approved. The Division allows timeshare developers to provide purchasers with a POS through “alternative media.” As set forth in rule 61B-39.008(1), Developers may provide purchasers with the option of receiving all or any portion of a single-site or multi-site purchaser POS through alternative media in lieu of receiving the written materials in the format prescribed in Rule 61B-39.004 or 61B- 39.006, F.A.C., as applicable. The purchaser’s choice of the delivery method shall be set forth in writing on a separate form which shall also disclose the system requirements necessary to view the alternative media, which form shall be signed by the purchaser. The form shall state that the purchaser should not select alternative media unless the alternative media can be viewed prior to the 10 day cancellation period. The alternative media disclosure statement shall be listed on the form receipt for timeshare documents in the manner prescribed in DBPR Form TS 6000-7, Receipt for Timeshare Documents, or DBPR Form TS 6000-7, Receipt for Multisite Timeshare Documents, as both of which are referenced in Rule 61B-39.003, F.A.C. Rule 61B-39.001(1) defines “alternative media” as “any visually or audibly perceptible and legible display format which may require the use of a device or a machine to be viewed, including CD-ROM, microfilm, electronically transferred data, computer disk, computer or electronic memory, cassette tape, compact disk or video tape.” Rule 61B-39.008(3) provides that: Prior to delivery of the purchaser POS through alternative media, the developer must submit to the division a copy of the purchaser POS through the alternative media proposed to be used by the developer together with an executed certificate, using the form prescribed in DBPR Form TS 6000-8, the Certificate of Identical Documents, referenced in Rule 61B-39.003, F.A.C., certifying that the portion of the purchaser POS delivered through the proposed alternative media is an accurate representation of and, where practical, identical to the corresponding portion of the written purchaser POS. Facts Specific to the Instant Case Orange Lake Country Club, Inc. (“Orange Lake Country Club”), is the “developer” within the meaning of section 721.05(1) for the timeshare plans known as Orange Lake Country Club Villas, a Condominium (“Orange Lake”); Orange Lake Country Club Villas III (“Orange Lake III”); and Orange Lake Country Club Villas IV, a Condominium (“Orange Lake IV”). The aforementioned timeshare plans shall be collectively referred to as the “Orange Lake Timeshare Plans.” The Orange Lake Timeshare Plans are “single-site timeshare plans” as defined by rule 61B-39.001(13). Via letters dated April 24, 2015, Orange Lake and Orange Lake III filed amendments to their alternative media disclosure statements with the Division. In addition to providing for purchasers to receive documents such as the POS in writing or via CD-ROM, the amended alternative media disclosure statements gave purchasers the option of receiving documents through the internet at http://orangelake.com/legaldocuments/index.php. The amended alternative media disclosure statements contained a notice that a PDF reader and one of three web browsers (Internet Explorer 9 or above, Google Chrome, or Firefox) were required. The amended alternative media disclosure statements instructed purchasers how to access documents through the link: Open the link, http://orangelake.com/ legaldocuments/index.php. in your web browser. Enter the user name: hoEXliday and password: welcome! Follow the following steps: Step 1: Please select the link to your resort. Step 2: Please select the Condominium, if applicable. Step 3: Please select the State where you purchased. Step 4: Please select the Public Offering Statement. Via letters dated April 28, 2015, the Division approved the amended alternative media disclosure statements “for filing and use in the timeshare plan.” Before retiring, Mr. Rudisill worked as a regional service manager for York International. He oversaw 50 service technicians and sales engineers. Mr. Rudisill used a computer at work and had an e-mail address associated with his position at York International. Mr. Rudisill acquired his first home computer 35 to 40 years ago and has owned a home computer ever since. He currently has an e-mail address and internet access via three different web browsers. Ms. Rudisill has no reported employment history. She uses a home computer and has an e-mail address. The Rudisills maintain a permanent residence in Georgia but travel to Florida for vacations. Between 2002 and 2015, the Rudisills purchased approximately 11 timeshare interests for use as vacation residences. Neither Mr. Rudisill nor Ms. Rudisill read any of the public offering statements associated with the aforementioned timeshare purchases. Ms. Rudisill considers she and her husband to be well- versed with the process of purchasing timeshares. On June 14, 2015, the Rudisills executed purchase agreements to acquire week 32 for unit 5280 at Orange Lake and week 29 for unit 87911 at Orange Lake III. These purchases were made so that they would have vacation residences. Both acquisitions utilized the alternative media disclosure statements that had been approved by the Division on April 28, 2015. As noted above, the Rudisills had the option to receive documents in written format, via a CD-ROM, or through a website link. The Rudisills placed their initials next to a box indicating they agreed to accept documents electronically via a link to http://orangelake.com/legaldocuments/. On June 14, 2015, the Rudisills executed documents pertaining to the Orange Lake and Orange Lake III timeshares stating that “[t]he undersigned acknowledges that the items listed below have been received and the timeshare plans and specifications have been made available for inspection.” The aforementioned items included “Public Offering Statement Text.” However, neither Mr. Rudisill nor Ms. Rudisill ever attempted to access the link provided to them by the Orange Lake Country Club. Neither Mr. Rudisill nor Ms. Rudisill ever asked for the documents to be provided in a different format. The Rudisills initiated the instant litigation in order to cancel the purchase agreements. They cannot afford the timeshares and are unable to travel. There is no allegation that Orange Lake Country Club coerced the Rudisills into purchasing the timeshares at issue or took advantage of them in any way.
The Issue The issue is whether the City of Miami (City) should be issued Consolidated Environmental Resource Permit (ERP) and Letter of Consent to Use Sovereign Submerged Lands Permit No. 0217762-002-EI (Permit) for the Dinner Key Managed Mooring Field in the Biscayne Bay Aquatic Preserve in Miami, Florida.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner resides at the Dinner Key Anchorage, Coconut Grove, Florida. He has filed an Amended Petition challenging the issuance of the Permit. However, he presented no evidence at hearing to support the allegations in his Amended Petition or to demonstrate how his substantial environmental interests are affected by the Department's action. Therefore, he lacks standing to bring this action. The Department is the state agency with regulatory jurisdiction over the disputed activities. The Department has proposed to authorize the construction of a managed mooring field in, on, and over surface waters in the Biscayne Bay Aquatic Preserve in Miami. (A mooring field uses anchoring devices that are embedded into the bay bottom and used to secure boats in the subject area.) The City will operate and manage the mooring field in accordance with a management plan attached to and incorporated in the proposed Permit. The City is the applicant for the Permit. It owns and operates three municipal marinas including the Dinner Key Marina in Coconut Grove. The City proposes to create a managed mooring field in the waters off Dinner Key Marina. Those waters are part of the Biscayne Bay Aquatic Preserve, a legislatively- created aquatic preserve which is to "be preserved in an essentially natural condition." See § 258.397(1), Fla. Stat. (2006). Background In the waters off Dinner Key Marina, there is an unregulated, unmanaged anchorage area. (Unlike a mooring area, in an anchorage area vessel owners drop their own anchoring devices, such as I-beams, steel beams, cement blocks, engine blocks, and other similar devices down to the bay bottom to secure their vessels.) In 1994, the City sought the assistance of the Miami-Dade County Department of Environmental Resource Management (DERM) to examine the effects of the Dinner Key Anchorage on City waters and to determine the feasibility of creating a managed mooring field in the area. The historical use of the unregulated, unmanaged anchorage area by vessel owners created issues for the City. The City's concerns included diminished water quality from illegal vessel discharges of waste and a chronic problem with derelict vessels. Also, they included the improper use of anchors and ad hoc anchoring systems that damaged the seagrass and other submerged resources of the bay bottom. In addition, during Hurricane Wilma in 2005, there were two recorded deaths of anchorage vessel owners who elected to stay on their vessels and which utilized unsafe anchoring systems. DERM conducted a biological assessment of the City- owned bay bottom adjacent to the Dinner Key Marina on December 7, 1994, and January 11, 1995. The assessment had three purposes: (1) to identify specific areas which are best suited for a designated mooring facility; (2) to identify environmentally sensitive areas where anchoring or mooring should be prohibited or discouraged; and (3) to identify the location of submerged and/or derelict vessels. DERM identified five main mooring areas and made recommendations as to future designation and use. Three of those areas are the subject of the City's Permit application. The "shallow south anchorage" (identified as the vessel exclusion area or Area 5 in the Permit) had a water depth ranging from one to four feet. Seagrass was dense throughout the area but anchor lines, chains, and debris had created some barren areas. The debris included vessel hulls, engine blocks, outboard motors, and other items comprising the ad hoc anchoring systems. Based on the shallow water depth and the presence of a diverse benthic community providing considerable habitat value, DERM recommended that no vessels moor or anchor in the "shallow south anchorage." The "deep south anchorage" (identified as Project Area 4 in the Permit) lay between the south channel leading into the Dinner Key Marina and vessel exclusion Area 5. Water depth ranged from eight to ten feet. Moderate to sparse seagrass beds were observed in this area. DERM recommended this area as a potential overflow mooring area if the "east anchorage" did not provide sufficient mooring space. The "east anchorage (identified as Project Area 3 in the Permit) was located between the main and south channels leading into the Dinner Key Marina. DERM recommended this area as the principal mooring facility based on the existing water depth and presence of minimal benthic resources. DERM's submerged and/or derelict vessels survey counted twenty to forty wrecked and derelict vessels sunk in the waters within the assessment area. DERM also observed that the existing debris and anchoring systems drag across the bay bottom and destroy existing seagrass beds. DERM warned the City that it was liable for adverse impacts to submerged resources of the City-owned bottom lands. In 2000, the City sought the assistance of the Department to help create a Technical Assistance Team (TAT). The purpose of the TAT was to examine the Dinner Key anchorage area, gather information from various experts, conduct public meetings, and make recommendations to the City concerning creating a managed mooring and anchoring facility. The TAT consisted of volunteers from the Department, the United States Coast Guard, the City's Marine Patrol, the Florida Fish and Wildlife Conservation Commission, assorted marine industry professionals, and the boating public, including several vessel owners from the Dinner Key anchorage. The TAT volunteer group studied the current and future anchorage situation. The group convened public meetings at City Hall located at Dinner Key Marina for one year beginning in June 2001. The TAT then submitted a Final Report to the City Manager and the City's Waterfront Advisory Board in June 2002. The Final Report consisted of extensive findings and recommendations regarding the creation of Managed Anchorage and Mooring Fields in the Dinner Key Marina area. That document has been received in evidence as City Exhibit 3 and Department Exhibit 29. The Final Report identified the physical features, shoreline activities, benthic resources, and historic and existing uses of the Dinner Key Marina harbor area. It also identified and described five potential mooring fields which were approximately the same five identified by DERM in 1995. In terms of physical characteristics, benthic resources, and existing uses, the areas were largely unchanged since the 1995 DERM assessment. The Final Report identified several management concerns for the Dinner Key study area that needed to be addressed by the City. These included lack of full-service boatyard facilities in the area; inadequate dinghy access to uplands; inadequate use by boaters in the area of available sewage pump out facilities at the Dinner Key Marina; unauthorized repair of vessels on site; and upland stormwater runoff. Other concerns included submerged debris and ad hoc anchor systems which caused adverse impacts to valuable benthic resources. Also, unsecured anchoring systems presented serious safety concerns even during mild storm events. Accordingly, the Final Report concluded that penetrating anchor systems would provide the highest vessel security and minimize benthic disturbances. The Final Report also concluded that approximately ten percent of the vessels surveyed were abandoned or neglected and presented a significant navigational and public safety concern. To remedy that situation, since 2003 the City has spent $345,000.00 removing over two hundred and forty damaged and derelict vessels from City waters. Approximately ninety percent were removed from the Dinner Key area. Based on the TAT's report and recommendations, the City proceeded with the design and permitting of managed mooring fields in the Dinner Key Marina area. The Proposed Permit In contrast to an area of random or voluntary mooring, a managed mooring field will have an engineered anchor and buoy system at each designated mooring. The City's proposed design is an auger anchor that is screwed into the bay bottom to a depth of fifteen feet or more. A synthetic line with shock absorbers vertically connects to a buoy so that there is no horizontal chain dragging across the submerged resources of the bay bottom. The City's application proposes a managed mooring field that will accommodate two hundred twenty-five vessels in Phase I identified as Areas 3 and 4 on sheet 1 of 27 of the Permit drawings. The mooring field will accommodate vessels ranging from twenty-five to one hundred and ten feet in length. Areas 1 and 2 are not proposed to be used for mooring as a part of this project and Area 5 is a vessel exclusion area due to the depths and resources that are present. Only Area 5 contains sovereign submerged lands owned by the Board. Sheet 1 of 7 of the Permit drawings shows that the southeast border of the City- owned submerged lands run through Area 5, such that only eighteen regulatory buoys will be installed on sovereign submerged lands. If Areas 3 and 4 reach capacity and future mooring is proposed in Area 6, then a new application must be submitted to the Department for permitting of Phase II. The Permit does not authorize mooring in Area 6. The project is located in Biscayne Bay, within the Biscayne Bay-Card Sound Aquatic Preserve, an Outstanding Florida Water, adjacent to Dinner Key Marina. The entire mooring field will be managed by the City in accordance with the management plan attached to the Permit. That plan has been received in evidence as Department Exhibit 21. The project consists of installing seventy regulatory buoys to identify the mooring field as well as vessel exclusion areas as shown in sheet 7 of 7, and installing two hundred twenty-five mooring buoys to be used by all of the vessels within the managed mooring field. Both the mooring buoys as well as the regulatory buoys will be installed using auger anchors as shown in sheet 7 of 7 of the permit drawings. Eighteen regulatory buoys will be installed on sovereign submerged lands as part of the vessel exclusion area (Area 5). Creation of the vessel exclusion area presents many benefits to seagrass and animal resources in this area. The shallow depth throughout Area 5 increases the potential for adverse impacts from propeller scarring, groundings, ad hoc anchoring systems, and derelict and abandoned vessels. Petitioner's Challenge The only disputed issue remaining for adjudication is whether the proposed project meets the public interest test in Florida Administrative Code Rule 18-18.006(3)(b)(ii). That rule is a part of Florida Administrative Code Rule Chapter 18-18, which governs the sale, lease, transfer, or use of Board-owned submerged lands within the Biscayne Bay Aquatic Preserve. The rule in question requires that in order to use these sovereign submerged lands, the City must demonstrate that the use, and the project planned in conjunction with the use, are in the public interest. The foregoing rule applies in this case because a portion of Area 5, the vessel exclusion area, is sovereign submerged lands on which eighteen regulatory buoys will be installed. Based upon the evidence found above, the record supports a finding that the use of those lands, and the project planned by the City with this use, are in the public interest and satisfy the rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order issuing Consolidated Environmental Resource Permit and Letter of Consent to Use Sovereign Submerged Lands No. 0217762-002-EI to the City of Miami for the Dinner Key Managed Mooring Field in the Biscayne Bay Aquatic Preserve. DONE AND ENTERED this 26th day of July, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2007. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Andrew Marshall Post Office Box 330561 Miami, Florida 33233-0561 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kevin R. Jones, Esquire City Attorney's Office 444 Southwest Second Avenue Suite 945 Miami, Florida 33130-1910 Gregory M. Munson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Vroom acquired an existing, incomplete condominium project of 96 units on the ocean side of U.S. Highway #1 at mile marker, 83.2, Islamorada, Florida. The project, now called Beacon Reef, is to be finished as a luxury facility with complete recreational facilities, including those for water-oriented sports. In February, 1980, Vroom filed a short-form application with DER for a permit to construct a private 425 foot x 6 foot pier for the condominium with four-finger piers on "T" sections, ranging in length from 335 feet to 240 feet, spaced 55 feet apart, and install 97 pilings, a maximum 450 feet seaward so as to provide one boat slip for each unit. The old existing dock will be removed (DER #3). A subsequent revision (DER #4) aligned the proposed pier with the one of Petitioner, who owns the property adjacent to the south. Following DER's appraisal (DER #1 and #2) and Vroom's agreement to use a small boat and motor to move the construction barge (DER #6), DER noticed its intent to issue the permit on May 19, 1980 on the finding that, pursuant to Sections 253.123 and 403.087, Florida Statutes, and Section 17-4.07, Florida Administrative Code, "the project will not adversely impact navigation, marine resources, nor water quality, providing the following stipulations are met: Construction shall not be initiated until Department of Natural Resources' approval is received. Construction barge shall be maneuvered in position with a small fifteen foot boat with a small 50 hp or less outboard motor. There shall be no fuel nor sewage pump-out facilities. No live-aboards shall be permitted. A day marker shall be placed approximately 30 feet waterward of each end of the outward "T" section to define and mitigate destruction of adjacent shallow water areas. Vroom accepted these restrictions and at the hearing, further agreed to place channel markers from the pier to the closest navigable point about 1/2 mile away so as to eliminate one of the concerns of the South Florida Regional Planning Council (DER #7). DER's two environmental specialists' testimony and appraisal concluded that the construction and use of the pier would not adversely impact on the water quality or biological resources nor interfere with navigation. The substrata is generally hard rock with scattered turtle grass and cuban shoal- weed found seaward as the water depth increases. This type of bottom is called "flats" as it is shallow with a uniform or gradually-sloping bottom; it is the typical feeding ground for one of the popular sports fish called Bonefish. Although these fish are easily frightened by the noise of a boat engine, the record does not reveal that this is harmful to the fish. The Petitioner speculated, surmised or opined that the use of the pier would damage or have an adverse impact on the water quality and marine resources, and interfere with navigation. However, beyond the allegations, no evidence was presented in support of these contentions.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation grant the application of Vroom International, Inc. to build a pier in connection with its Beacon Reef Condominium, Islamorada, Florida, subject to the restrictions stated in the intent to issue, together with the requirement that markers be installed and maintained on either side of a channel connecting the pier and the closest and best navigable waters. DONE and ENTERED this 16th day of October, 1980, in Tallahassee, Florida. HAROLD E. SMITHERS Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980. COPIES FURNISHED: Richard H.M. Swann, Esq. GASTON, SNOW, ET AL. 2809 Ponce de Leon Boulevard Suite 550 Coral Gables, FL 33134 H. Ray Allen, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Fred Tittle, Esq. Post Office Drawer 535 Tavernier, FL 33070 Vroom International, Inc. c/o John P. Wilson Upper Keys Marine Construction Box 18AAA Key Largo, FL 33037 =================================================================
The Issue The issue in this case is whether the Future Land Use Map (FLUM) Amendment, LUPA1-2000/04, adopted by the Village of Wellington (Village) on December 12, 2000, by ordinance numbers 2000-27, 2000-30, 2000-31, is "in compliance" as defined in and required by the "Local Government Comprehensive Planning and Land Development Regulation Act," Chapter 163, Part II, Florida Statutes (the Act).
Findings Of Fact The Parties DCA is the agency of the State of Florida charged with responsibility to review local government comprehensive plans and amendments under Part II, Chapter 163, Florida Statutes. The Village is a municipal corporation located within Palm Beach County. It was not incorporated on December 31, 1995. However, its Village Council sits as the governing board of the ACME Improvement (Drainage) District, which has essentially the same geographic boundaries as the Village and has been in existence since the mid-1970's. It adopted the FLUM Amendment that is the subject of these proceedings. The Village is bordered on the south by the Arthur R. Marshall Loxahatchee National Wildlife Refuge (Refuge), which is part of the Florida Everglades. Polo has a deed to the property subject to the FLUM Amendment. Friends is a Florida not-for-profit corporation. The corporate purpose of Friends includes monitoring and ensuring the proper implementation of the State's growth management laws. In Palm Beach County in particular, that would include protection of the Refuge and the Everglades. Audubon is a Florida not-for-profit corporation. It is legally distinct from but affiliated with the statewide Audubon of Florida and the National Audubon Society. The corporate purpose of Audubon is to promote the understanding of and interest in wildlife and the environment that supports it and to further the cause of conservation of all natural resources. In particular, like Friends, that also would include protection of the Refuge and the Everglades. Friends' Standing--"Business" in the Village In 1995, Friends established the Loxahatchee Greenways Initiative, which was a planning effort to show how greenways and habitat protection were compatible with growth. The Initiative produced a publication called the Loxahatchee Greenway Project. While the Village of Wellington was incorporated after the date of the publication, the study area for the Greenways Project included lands adjacent to and within the current Village boundaries. While land now within the Village was not a "major component" of the Project, the Project contained a recommendation to link conservation lands located to the north of the Village with the Refuge, which is located on its southern border. In 1999, Friends opened an office in West Palm Beach and hired a community planner, Joanne Davis, to further another planning initiative called the Palm Beach County Green Initiative. The primary focus of this Initiative was to look at the impacts of development on the Everglades and to promote education and advocacy on these issues in Palm Beach County, including the Village. To further the purposes of the Green Initiative, Friends prepared and distributed several publications throughout Palm Beach County, including the Village. These publications included a pamphlet called "The Citizens Guide to Smarter Growth in Palm Beach County." This document was intended to educate people throughout Palm Beach County, including the Village, on the values of better planning for growth to protect the environment. It listed the Village as one of the cities in Palm Beach County and was made available throughout the County's library system. Another educational publication of the Initiative was a newspaper insert in the Sunday edition of the Palm Beach Post entitled "Smart Growth Building Better Communities and Protecting the Environment in Palm Beach County," which was distributed throughout the County, including in the Village. Both of these publications were intended to educate people in Palm Beach County, including in the Village, about development and its impacts on the Everglades and to promote appropriate planning, which issues are central to the issues in this proceeding. Friends' Palm Beach County Green Initiative and local office are funded in part by private foundation grants. The purpose of these grants includes education and advocacy on issues related to development in Palm Beach County and the Everglades. The goal of these grants is to encourage better development in the area, which includes the Village, so as to better protect the Everglades. Friends must report to these foundations on the progress toward achieving the goals of the grants. Friends could lose financial support if it fails to meet the goals of these grants. However, there was no evidence of any fund-raising activities with the Village. (No more than 7 of Friends' 3,631 members have mailing addresses in the Village.) Friends' employees have participated to a limited extent in planning and development activities other than the FLUM Amendment at issue in this case. The evidence was that employees of Friends monitored and participated in at least one meeting and one site visit relating to Big Blue Trace, another tract of land designated Conservation on the Village's FLUM. Friend's participation was in response to concerns about a change to the FLUM designation of Big Blue Trace. Friends ascertained from its participation that no change was being considered by the Village. Friends also participated to a limited extent in monitoring efforts by various governments in collaboration to purchase Section 34, which is within the Village, as part of a plan to resolve the Village's drainage problem--a problem involved in FLUM Amendment in this case. It is not clear from the evidence whether employees of Friends attended the public auction on Section 34 held in the Village. Friends' local community planner, Joanne Davis, also monitors and attends meetings regarding the Comprehensive Everglades Restoration Plan (CERP), which is a joint state and federal process to restore the Everglades. While these meetings are not held in the Village, CERP specifically addresses, among other things, the activities of the Village's drainage district, ACME, and calls for the use of Section 34 as an attenuation area for a storm water treatment area (STA) for storm water leaving the Village before it gets into the Refuge. Friends was very involved in the FLUM Amendment at issue in this case. Besides submitting oral and written comments to the Village during the time between the transmittal hearing and the adoption hearing, three employees of Friends met with the Village's City Manager before the amendment was adopted. Friends' Executive Director, Charles Pattison, wrote two letters to the Village regarding the Amendment before it was adopted, one to the City Manager and the other to the Mayor. Both of these persons responded in writing to Pattison before the Amendment was adopted. Counsel for the Village elicited testimony from Pattison that Friends did not feel constrained, inhibited, or prevented from conducting its business by the Village's comprehensive plan. But it potentially could be. For example, the comprehensive plan potentially could be written to limit public participation, which is essential to conduct of Friends' business. It also potentially could be written so as to plan poorly and damage the environment, which could have an adverse effect on Friends' membership and financial support. Audubon's Standing--"Business" in the Village Audubon was incorporated in 1966. As its name suggests, its focus is the Everglades; in particular, it focuses on the nearby Refuge. National Audubon has designated the local chapter as official "Refuge Keeper" of the Refuge. The group's mascot is the Everglades Kite, an endangered species known to use the Refuge and, for at least a time in the 1980's, the land subject to the FLUM Amendment. Audubon does not have an office or mailing address in the Village. It receives mail at a post office box in West Palm Beach. Due to the focus of its concern, the group has always been concerned about drainage of wetlands west of State Road (SR) 7 into the Refuge and the discharge of water east to tide, which is a loss of both estuarine and wetland habitat. The Village is located in this area of concern. In her capacity as Chairman of the Conservation Committee since 1980, Rosa Durando has attended hundreds of meetings on permitting activities at the South Florida Water Management District (SFWMD) and on land use issues before local governments over the years to promote concern for wetlands and the Everglades. Some of these involved activities in the area now within the boundaries of the Village. In her capacity as Chairman of Audubon's Conservation Committee, Durando was involved in the original adoption of the Palm Beach County comprehensive plan, which governed the lands within the Village until its incorporation. She questioned the extension of Forest Hill Boulevard west of SR 7. (After the extension took effect, SR 7 became the main road access into the Village from the east. After development in what is now the Village, Durando was on a panel that discussed whether the Village should incorporate. Durando also reviewed and commented on Palm Beach County’s plans to widen SR 7, which is a major north-south road through the east side of the Village. In the SR 7 Corridor Study which has been conducted in the last two or three years, Durando represented Audubon and made presentations to the Village and other agencies. Other land use issues Durando monitored for Audubon included the Northlake Corridor study, which was proposed to relieve traffic on SR 7. She opposed the creation of a Constrained Roadway At Lower Level of Service (CRALLS) designation--a type of traffic concurrency exemption--for Forest Hill Boulevard. When the Village adopted its initial comprehensive plan in 2000, Durando testified on behalf of Audubon in support of the Village's placing a conservation designation the land subject to the FLUM Amendment in this case. She also reviewed and commented on proposals to adopt best management practices for treating storm water in the Village. On behalf of Audubon, Durando reviewed and made comments on the Western C-51 basin study by SFWMD related to wetlands and drainage issues. The C-51 is a major canal that borders the Village to the north. The canal runs from Lake Okeechobee to the Lake Worth Lagoon. The northern part of the Village, called Basin A, drains into the C-51. While the Village did not exist at time, its drainage district, ACME, existed and was involved in this study. Durando also attended meetings and made presentations to SFWMD on the Lower East Coast Water Supply Authority and proposals for the Water Preserve Areas designed to buffer the Refuge and the Everglades. Durando's presentations raised concerns over the Village's drainage problems in Basin B, which drains the southern half of the Village into the Refuge. In 1979, Audubon challenged a permit issued by SFWMD to ACME to drain 900 acres of land in what is now Basin B of the Village for a development called the Wellington Country Place PUD. SFWMD, ACME, and Audubon settled the administrative challenge by agreeing to enlarge the proposed storm water detention area of the proposed water management system from 49 to 79 acres to increase protection of the Refuge from storm water runoff leaving the PUD. These 79 acres constitute virtually all of the very land that is subject to the FLUM Amendment in this case. In the early 1980's, Dr. and Mrs. Peacock, who were members of Audubon and residents of what is now the Village, discovered endangered Everglades (a/k/a Snail) Kites using the Wellington Country Place detention area. Subsequently, Audubon organized field trips to Peacock Pond during the 1980s to do bird watching. The detention area came to be known locally and among Audubon members as Peacock Pond. Durando personally visited Peacock Pond for bird-watching on several occasions in those years. She was there when environmental specialists for the US Fish and Wildlife Service and SFWMD visited the site and noted its importance as habitat for the Snail Kite. (As will be seen, events since approximately 1989 have led to dewatering of the area and degradation of its usefulness as habitat for Snail Kite and other wildlife, and bird-watching no longer takes place there. See Findings of Fact 49 and 66-67, infra. Nonetheless, the land still is often referred to as Peacock Pond.) About two years ago, Audubon was asked to make a presentation to the Boys and Girls Club, which is located in the Village adjacent to Peacock Pond. Durando responded and specifically discussed Peacock Pond. She also showed photographs of the area and discussed the value of wetlands. Audubon is supported with donations, grants, and membership dues to further the organization's work on behalf of the Everglades and on land development issues in the Village. Some of this money comes from people in the Village. There is a financial connection between the organization and the land use decisions of the Village. While there was no direct evidence of fund-raising activities with the Village, there was evidence that Audubon could lose financial support if it fails to meet its goals to protect the Refuge. Durando attended the Village's transmittal and adoption hearings on the FLUM Amendment on behalf of Audubon and spoke against the Amendment. At those hearings, she told the Village about the SFWMD permitting history of Peacock Pond and discussed its use and importance to Snail Kites. Counsel for the Village also elicited testimony from Durando that Audubon did not feel constrained, inhibited or prevented from conducting its business by the Village's comprehensive plan. But, as with Friends' business, it potentially could be--e.g., by limiting public participation, damaging the environment, or otherwise planning poorly. See Finding of Fact 14, supra. The Planning and Zoning History The FLUM Amendment applies to 80 acres, essentially Peacock Pond, which is centrally located in the 960-acre Wellington Country Place PUD. The PUD was created in 1976 when Palm Beach County rezoned the PUD to RE-Residential Estate District. This zoning classification has remained in effect on the entire PUD through final hearing in this case. In 1977, Palm Beach County approved the Wellington Country Place PUD Master Plan. The approved Master Plan includes 440 dwelling units with a gross density of 0.44 units per acre, plus equestrian recreation, civic, and commercial uses. It also designated Peacock Pond as a "Natural Reserve," which was included in the "open space" calculations for the PUD. Now, almost 25 years later, the PUD is about half built-out, with about 200 units left to be built. Within the PUD, Mallot Hill subdivision, a residential estate development, is located north of Peacock Pond. To the north and northeast of the Pond is a park, the Boys and Girls Club, and a fire station. Equestrian Club Estates is located to the west of the Pond. Undeveloped portions of the PUD are located to the east and south of Peacock Pond. Under the 1980 Palm Beach County Comprehensive Plan, the entire Wellington Country Place PUD was designated very low to low residential. In 1989, the County adopted a revised Comprehensive Plan, as required by the Act. The 1989 County Comprehensive Plan applied a future land use classification of Low Residential-1 (a maximum 1 unit per acre) to the entire PUD site. In 1999, the Village adopted its Comprehensive Plan, as required by the Act. The Village Plan designated the Peacock Pond site as Conservation and the remainder of the Country Place PUD as Residential. Under the Conservation future land use classification, parks and ball fields are permitted uses, and building coverage of 5 percent is allowed. The Peacock Pond property was not required to be operated as a storm water facility. The entire PUD, including the Peacock Pond property, is within the urban service area designated in the Village's Comprehensive Plan. Data and analysis in the Land Use Element of the Village's 1999 plan referred to Peacock Pond as one of the "two primary sites designated conservation in the Village." Data and analysis also referenced the phosphorus reduction goals of the Everglades Forever Act and discussed the need for "a plan for handling water quality and water quantity concerns in Basin B." Data and analysis in the Recreation and Open Space Element of the 1999 plan stated that Peacock Pond "continues to boast habitat for listed species and . . . could be a great resource if restored." Data and analysis in the Conservation Element of the Village's 1999 comprehensive plan recognized Peacock Pond's importance for wildlife and storm water treatment. Data and analysis referred to Peacock Pond as a "Significant Wellington Wetland and Preserve Area". Data and analysis at page CON 6 noted that Peacock Pond was established primarily for water quality treatment, and concluded by stating: "The Village is concerned with finding a long term solution to the problems at Peacock Pond so that it may be restored as a viable wetland reserve and become an integral part of Wellington’s natural areas." On the Conservation Map and Natural Resource Map in the Conservation Element, the site was labeled "Peacock Pond Natural Reserve." However, the map legend identified site as "Wetlands/Possible Wetlands" on the Conservation Map and as "Emergent Wetlands" on the Natural Resource Map. In addition, neither the data and analysis nor the Goals, Objectives, and Policies (GOP's) define "natural reserve." On the Future Equestrian Circulation Map in the Equestrian Preservation Element of the Village's 1999 plan, Peacock Pond is labeled "Natural Preserve," and the map legend identifies it as "Parks natural preserves." Neither the data and analysis nor the GOP's define either of these terms. On December 12, 2000, the Village adopted Ordinance No. 2000-27 which amended the Future Land Use Map of the Village Comprehensive Plan to designate the Peacock Pond site as "Residential B," which allows a maximum density of 1 unit per acre. Surface water management facilities are allowed in the residential future land use classifications of the Village's Comprehensive Plan and would be allowed on the Peacock Pond site if the Amendment becomes effective. In addition, under the Village's zoning regulations, storm water management facilities are allowed and even required in residential zoning districts. The 2000 FLUM Amendment also deleted the data and analysis referred to in Findings of Fact 36-38, supra, and replaced them with updated data and analysis. The FLUM Amendment did not, however, amend the maps identified in Findings of Fact 39-40, supra. Permitting and Operation of Peacock Pond Facility The evidence was that, at one time, Peacock Pond was part of one of the many headwaters of the Everglades. Having been both topographically and hydrologically connected to the Everglades, its soils are hydric--largely Okeelanta muck (approximately 75%), Tequesta muck, and Sanibel muck soils. Aerial photography suggests that, at some point, horticulture may have been attempted at Peacock Pond, as it was elsewhere in the vicinity. There are possible faint signs past perimeter and ditching on the site. However, if horticulture was attempted at the site, it was discontinued and abandoned well before 1965, quite possibly failing due to the muck soils. There was more persistent horticultural use north, east, and south of Peacock Pond, with attendant perimeter and infield ditching; in addition, ACME dug a drainage canal along the western boundary of the site by 1965. The Peacock Pond site was altered from natural conditions by these activities. Notwithstanding the agricultural history in the vicinity, the evidence indicates that Peacock Pond continued to function as a wet prairie through 1979, and aerial photography suggests that the site may have been used for open pasture during that timeframe. In 1979, the site was the major part of a large area of contiguous wet prairie within the PUD that was relatively undisturbed by agricultural activity. After approval of the Wellington Country Place PUD, ACME applied to the SFWMD for a surface water management permit for the PUD. The application proposed a 49-acre detention facility in part of Peacock Pond. Following review of the application, SFWMD's staff recommended approval of the application with a 49-acre detention facility. But, as mentioned previously, Audubon (and Florida Audubon) challenged SFWMD's intent to grant the application, and the challenge was settled by ACME's agreement to increase the size of the detention facility to 79 acres. In 1979, by Order No. 79-3, SFWMD issued the agreed permit for the system, which also included a 12-acre lake, canals, and collector swales. SFWMD's 1979 permit contemplated use of the Peacock Pond site as a "detention-type" surface water management facility. Generally, such a facility detains the water, allows the pollutants to settle, then pumps the water out. Characteristic of the time period, there was no vegetative requirement for the system and no mention of the detention area being a "filter marsh," as Petitioners contend, although that is essentially how it functioned. The permit simply required that an above-ground impoundment be constructed by placing a berm or dike around the detention area, which was larger than normal for a PUD the size of Wellington Country Place; no excavation was required. Pumps were required to be installed at the northwest corner of Peacock Pond to pump water into the site from the ACME canal to the west. The berm was to detain water on the site until it reached a certain level and then return it to the ACME canal through an outfall structure at the southwest corner of the site. From there, the water reentered ACME's system of Basin B canals. SFWMD calculated that Peacock Pond treated approximately 200,000,000 gallons of water a year in this way. After issuance of the 1979 permit, an above-ground impoundment was constructed, and the pumps were installed. The detention area was operated under the permit for approximately ten years--until approximately 1989. During that time, the pumps at the northwest corner of the property kept Peacock Pond hydrated, even in dry conditions. As a result, there was standing water in Peacock Pond virtually continuously, particularly in areas of isolated depressions, and Peacock Pond remained wetter, longer compared to surrounding areas. As a result, apple snails thrived there, and Everglades Kites began using Peacock Pond as habitat, especially in dry conditions when other habitat dried out. That is what resulted in siting of unusually large numbers of Everglades Kites in Peacock Pond in the mid-1980's. See Finding of Fact 26, supra. It appears that ACME stopped operating the water quality detention facility in accordance with the 1979 permit in about 1989. For reasons not explained by the evidence, no action was taken to enforce the permit conditions for the next five to six years. In about 1995, a local Audubon member reported the condition of Peacock Pond (including apparent illegal excavation and bull-dozing of cypress trees) to Rosa Durando, who complained to SFWMD. SFWMD inspected Peacock Pond in 1995, confirmed that ACME was not operating the facility in accordance with the 1979 permit, and found several violations. It was not established by the evidence in this case whether SFWMD performed an ecological assessment of the property at the time. Subsequently, on April 2, 1996, SFWMD issued notices of violation against ACME--by this time, a dependent district of the Village--and the Village. Polo also was cited for illegal unpermitted excavation in wetlands. During SFWMD enforcement proceedings, it was estimated that it would cost approximately $2.5 million to restore the drainage facility for operation in accordance with the 1979 SFWMD permit. However, SFWMD's 1979 permit unfortunately did not require ACME to acquire legal control over Peacock Pond, as applicants are now required to do. As a result, ACME and the Village were unable to take over and operate the surface water management facility because neither had ownership interest in the Peacock Pond property or the pumps and outfall structures, and neither had or could not get an access easement to the property from Polo. To settle SFWMD's enforcement action against ACME, the parties entered into a Consent Agreement on December 11, 1997. The Consent Agreement required ACME and the Village to undertake various actions, including obtaining from the landowner immediate temporary access to the property; filing an eminent domain or other actions to effectuate perpetual access to the property; and either filing an application to modify the permit, so as to eliminate the necessity of utilizing Peacock Pond for water quality treatment, or restoring the Peacock Pond facility. Pursuant to the Consent Agreement, the Village first instituted a court proceeding to obtain an easement over the Peacock Pond property so that it could be operated in accordance with the 1979 SFWMD permit. For reasons unclear from the evidence, this court action was unsuccessful. Next, the Village instituted an eminent domain action against Polo to obtain title to Peacock Pond property so that it could access and operate the storm water management facility. This eminent domain action resulted in a jury verdict of $5.2 million against the Village. (In addition, the Village had to pay attorney's fees in the amount of $1.5 million.) On November 8, 1999, following the eminent domain proceedings, Polo filed a claim against the Village under the Bert J. Harris Act, Section 70.001, Florida Statutes. The basis of the claim was that the Conservation designation applied to the Peacock Pond property by the Village inordinately burdened the property within the meaning of the Harris Act. The property owner claimed that the value of the property with the residential designation was $5.2 million, while the value of the property with the Conservation designation was only $200,000. On April 27, 2000, the Village offered to settle the claim by changing the future land use designation of the property from Conservation to "Residential B." At the final hearing in this case, SFWMD, Petitioners, and the Village agreed that $5.2 million was not a reasonable price to pay for the opportunity to spend another $2.5 million or more to restore Peacock Pond's ability to improve water equality, particularly given the larger Basin B drainage problems. The purpose of ACME was to drain and reclaim for development the acreage under its jurisdiction, including what later became the Village of Wellington. ACME, through manmade alterations, divided the land into two drainage basins: Basin A and Basin B. In relation to the Village's current boundaries, Basin A is to the north and discharges into the C- 51 canal which ultimately takes water to the east. Basin B is to the south. In total, Basin B drains an area of approximately 9,000 acres, which are more rural in nature. Drainage from Basin B is discharged through a set of pumps into the Loxahatchee Wildlife Preserve, an Outstanding Florida Water which basically forms the edge of the Everglades in this region, at an annual volume of about 40,000 acre feet per year. Section 373.4592, the Everglades Forever Act, regulates all discharge that flows into what is called the Everglades Protection Area, which includes the Refuge. SFWMD has studied sources of urban storm water entering the Everglades, and the Village is the highest source of phosphorus pollution of all areas in the Everglades Storm Water Program and the main source of pollution in Basin B. The Village contributes an average total phosphorus load to the Refuge of 164 ppb. The Everglades Forever Act requires the Village to meet established water quality standards by 2006. The default standard for phosphorus is an average total phosphorus load of 10 ppb. It is anticipated that the phosphorus standard to be adopted will be higher, but it cannot be ascertained at this time. The size of the jury verdict in the eminent domain case caused the Village great concern because one proposed solution to the greater Basin B drainage problems would require purchase of approximately 800 acres for use as a modern storm water treatment area (STA). Consequently, the Village hired a consulting team to evaluate the Peacock Pond facility and develop alternatives for addressing Basin B problems. (The consulting team included James Hudgens, Jay Foy, and Robert Higgins, all of whom testified for the Village as experts at the final hearing.) Following the eminent domain verdict, SFWMD also concluded that there were other solutions to the Basin B drainage problems which would be more cost effective than requiring the Village to purchase the Property for $5.2 million. Accordingly, on May 23, 2000, the Village and SFWMD entered into a Joint Cooperation Agreement which outlined a strategy for addressing Peacock Pond and for implementing a water quality improvement plan for drainage of Basin B. Among other things, this Agreement required the Village to submit an application to the SFWMD to modify the Peacock Pond permit and a Consent Agreement to either eliminate or substantially reduce the size of Peacock Pond. In addition, the Agreement required the Village's proposed modification to provide reasonable assurances and demonstrate that the water quality treatment, water quantity, and environmental benefits associated with the Peacock Pond permit are maintained through the facility or by other equivalent measures. Further, the Agreement provided that until the application to modify the Peacock Pond permit was approved by SFWMD, the conditions of the existing SFWMD permit would remain in full force and effect, but that SFWMD would stay any enforcement action concerning Peacock Pond until December 31, 2001, so long as the parties to the Agreement were carrying out the other provisions of the Agreement. The Village has since identified several other alternative possible solutions to Basin B drainage problems. One alternative is to acquire land outside the Village, construct an STA, and divert Basin B drainage to the STA. A second plan is to divert Basin B water away from the Loxahatchee preserve and the Everglades. A third alternative would be for the Village to utilize Aquifer Storage and Recovery (ASR) Wells. Finally, the Village has considered the utilization of a rock pit north of the Village in conjunction with an STA; the pit would hold the water, and the STA would treat the water. Additionally, other techniques could be used to reduce phosphorus discharge, such as: best management practices, which can be and to some extent have been instituted in the Village: chemical treatment of water to remove phosphorus; and controlling fertilizer. The FLUM Amendment does not prevent the Village from pursuing any of these alternatives. The Joint Cooperation Agreement is the last and most recent action taken by SFWMD regarding the property. At the time of the final hearing, the Village was in compliance with the Joint Cooperation Agreement and had filed an application to modify the permit for Peacock Pond. The modification would double the water treatment ability, not the size, of the Pond. By the time of final hearing, SFWMD had not yet acted on the application. Meanwhile, the existing surface water management facility on the Peacock Pond property cannot be changed or eliminated without a permit from SFWMD. Even if the FLUM Amendment takes effect, a SFWMD permit would be required before any development could take place on the property. Also, in order to develop the property, an amendment to the PUD Master Plan would have to go through the Village's development review process and be approved by the Village. The Amendment does not repeal, revise, or exempt Peacock Pond from the Village's Comprehensive Plan. The Village Comprehensive Plan has a drainage element which requires the Village to provide adequate drainage facilities which are subject to concurrency and level of service standards. Development of the Peacock Pond property would have to comply with these drainage facilities. Because the property is in the Village's urban service area, it is reasonable to assume that the Village or the developer will provide any necessary drainage facilities. Environmental and Natural Resource Characteristics When Peacock Pond was operated as required by the 1979 SFWMD permit, it was a high-quality wetland. Based on environmental assessments of the property performed by SFWMD in the 1986-1988 time period, it is clear that Peacock Pond had wetland characteristics in the 1980s. In 1986, SFWMD employees noted that Peacock Pond "supports diverse areas of wetland vegetation, including saw grass, cypress, carolina willow, pickerel weed, water lettuce, primrose willow and cat tails [sic]." In 1989, SFWMD staff wrote that Peacock Pond was "the only functional marsh habitat left in the Wellington area" and was "heavily used by both breeding and migrant birds and supports a large population of apples snails, used by the threatened limpkins and the endangered Everglades kite." Peacock Pond had substantial wetland vegetation, and wildlife associated with wetlands. As found previously, substantial numbers of the Everglades Kite were observed on the Property at times in the mid-1980's. When Peacock Pond failed to be operated in accordance with the 1979 SFWMD permit, its wetlands features and functions declined. With no water on the property, exotic plant species invaded. In addition, there was illegal unpermitted excavation, and cypress trees were bulldozed. Over time, improper operation of the facility had resulted in severe degradation of the wetlands on the property and the invasion of undesirable exotic vegetation, such as maleleuca and Brazilian Pepper. Unfortunately, the evidence establishes that Peacock Pond currently has no or very low natural resource and environmental values in terms of wetlands or wildlife. The site is devoid of any significant wetland functions or wildlife values. It is mostly dry and covered by exotic species, at least in part because it and the surrounding area have been drained. There are no Everglades Kites on the site; apparently, there have not been any for about 10 years. Any remaining wetlands on the site were variously described as "remnant," "isolated," and of "poor quality." It would not be impossible to restore Peacock Pond to some semblance of its condition in the mid-1980's. Restoration would require operation of the drainage facility in accordance with the 1979 SFWMD permit and eradication of exotic vegetation. If restored, wetland wildlife such as the apple snail and Everglades Kite probably would return. Indeed, in 1996, the Village submitted an application to the Florida Communities Trust to buy Peacock Pond. The FCT grant application mentioned the potential of Peacock Pond "to provide important habitat for listed and threatened species" and for "improving water quality." But the FCT has not purchased the property, and it now appears that it would cost the Village over $5 million to purchase the property, another $2.5 million to comply with the conditions of the 1979 SFWMD permit, plus the cost of eradicating exotic plants. Soil Suitability The testimony regarding soils and septic tank use in this area was not in substantial dispute. It was undisputed that Peacock Pond consists of "hydric" soils, mostly Okeelanta muck, Tequesta muck, and Sanibel muck. Hydric and muck soils are relatively unsuited for residential development. Nonetheless, residential development of land characterized by hydric or muck soils is common throughout Florida, including Palm Beach County, and the coastal plane of the United States. It was undisputed that approximately 89 percent of the soils in the Village are "hydric" soils. In these areas, it is standard residential construction practice to remove muck soils and replace them with other soils on which construction can take place. Substantial portions of the Village having hydric soils have been developed for residential uses in this manner. Also, the extensive dewatering through ditching and canal systems in the area has made the land more available and suitable for development. For these reasons, it cannot be said that Peacock Pond's soils are absolutely unsuitable for residential development. While there was evidence that Okeelanta soils in their natural state are not suitable for septic tanks, it is undisputed that the Okeelanta soils in the Wellington Country Place PUD are not in their natural state. Moreover, septic tanks can be used on such property by use of enough appropriate fill dirt. Septic tanks are used extensively in Wellington Country Place PUD; the entire PUD is on septic tanks except for the Equestrian Club Estates, a portion of the PUD on the west side. Further, much of the Village south of Pierson Road, where the Country Place PUD is located, is on septic tanks. There was some evidence of failure of septic tanks in the Village when inundated from heavy rains. But despite widespread use of septic tanks on land that contains hydric soils, including the Okeelanta muck, there was no evidence of substantial health problems. It is common for land that contains some wetlands to be designated residential. This is especially true in western Palm Beach County, including the Village, where much of the soils are hydric and contain wetland features. For example, there are other wetlands in the Wellington Country Place PUD that are designated residential, and there are other wetlands in the Village, outside of Country Place PUD, that have non- conservation land use designations. Conversely, it is relatively uncommon to have private land, such as Peacock Pond, designated Conservation without any density. The Village's Comprehensive Plan contains provisions that protect the wetlands and other natural resources. The Amendment does not exempt the Peacock Pond property from these provisions. Therefore, any development of the Property would have to be consistent with these Plan provisions. Functioning and Efficiency of Peacock Pond Facility Even if restored, Peacock Pond could not begin to solve the larger Basin B drainage problems and indeed may not even be effective enough to serve the Country Place PUD. Whether Peacock Pond is restored or not, the Village must seek alternatives to comply with the Everglades Forever Act. The Peacock Pond facility, as designed, was not very effective as a storm water quantity attenuation area. As designed, the facility can only hold about 1/2 inch of runoff from the Wellington Country Place PUD. Due to this limited capacity, the facility is barely adequate to serve the PUD and is of no use at all to the rest of the Village as a storm water attenuation area. In terms of water quality treatment, the Peacock Pond facility is also not very effective or efficient. If operated as permitted, without consideration of any vegetative uptake of nutrients, the facility would have only limited ability to remove phosphorus, about 32 kilograms per year. (Considering vegetative uptake of nutrients, the percentage of phosphorus removal would be higher but no estimate was calculated.) Also, the facility cannot provide adequate storm water quality treatment because of its inadequate design capacity. Without adequate storm water quantity attenuation capacity, the facility cannot treat for water quality effectively. Storm water treatment technology has advanced greatly since the permitting of the Peacock Pond facility in 1979. Both passive and active/harvested STA's are examples. A passive STA is designed to include vegetation utilized to remove nutrients from storm water but leaves the vegetation on site. An active/harvested STA is an emerging technology which goes one step further by actively cutting and removing the aquatic vegetation to an off-site location, thereby removing the nutrients from the system. As permitted, the Peacock Pond facility is neither a passive nor an active/harvested STA. It is only a detention area which holds the water and allows the nutrients to settle to the bottom, with limited, incidental uptake of nutrients by whatever vegetation happens to be onsite. A 1.5-acre active/harvested STA could perform the same water quality treatment function that Peacock Pond would perform if operated in accordance with the 1979 permit, assuming no vegetative uptake of nutrients. Moreover, the 1.5-acre STA could be located anywhere in Basin B. Another alternative to Peacock Pond is also available for addressing drainage in the Country Place PUD. The storm water management system permitted in 1979 included a 12-acre lake in addition to the 79-acre Peacock Pond facility. However, the development of the PUD thus far has actually generated 54 acres of lakes. Based on current development patterns, it is reasonable to assume another 37 acres of lakes will be generated by the build out of the Country Place PUD. Thus, the original 91 acres of storm water management areas planned for the PUD (a 12-acre lake plus the 79-acre Peacock Pond) is likely to be satisfied by development of the remainder of the PUD, even without retaining Peacock Pond as a drainage facility. It was indicated at final hearing that Polo would acquiesce in the future development of an additional 37 acres of lakes. However, Polo had not made any binding commitment to do so at the time of final hearing, and the requirement for Polo to add 37 acres of lakes in the future, as a condition to future development, has not yet been incorporated in a binding SFWMD permit. DCA Review and Approval of the FLUM Amendment The FLUM Amendment was transmitted to the DCA on June 20, 2000. Roger Wilburn supervised DCA's review of the Amendment. On September 8, 2000, the DCA issued its ORC report, which objected to the Amendment because the FLUM Amendment, which is essentially all that was included in the transmittal package to DCA, conflicted starkly with data and analysis in the existing Village Plan. Data and analysis in the existing plan of just one year prior justified designation of Peacock Pond as Conservation by its potential for restoration of important wetlands, wildlife habitat, water quantity treatment, and water quantity functions. A year later, and without adequate explanation, the Village was proposing to change the FLUM designation to "Residential B." Following the issuance of DCA's ORC report to the Village, Wilburn traveled to the Village for a meeting with Village officials and consultants to discuss DCA's objections. During these discussions and his visit to the site, Wilburn learned of the degradation of Peacock Pond, the development around the Pond, the Village's legal problems in gaining access to the site, and the Village's desire to pursue alternatives other than Peacock Pond to address its drainage issues. Based on this information, Wilburn advised the Village that it needed to update its data and analysis to reflect current conditions to support the proposed Amendment. After responding to DCA's ORC, the Village adopted the Amendment on December 12, 2000, and transmitted it to DCA along with the new supporting data and analysis. The supporting data and analysis included, among other things, the Joint Cooperation Agreement with SFWMD and the reports prepared by Village consultants Hudgens and Foy regarding the environmental assessment of Peacock Pond and its efficiency as a surface water management facility. In addition, the Village submitted revisions to the data and analysis in the Conservation Element of its Plan to reflect the new data and analysis and the changed circumstances regarding Peacock Pond. DCA also received comments on the Amendment from SFWMD. SFWMD did not object to the Amendment and, in its comments, informed DCA of its Joint Cooperation Agreement with the Village. DCA also received comments on the Amendment from the Treasure Coast Regional Planning Council. The Council found that the Amendment was consistent with its Strategic Regional Policy Plan. Based on the adoption transmittal package, Wilburn and his staff recommended that the DCA find the Amendment in compliance. DCA concurred with that recommendation and issued its Notice of Intent to find the Amendment in compliance on February 7, 2001.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the Village's FLUM Amendment LUPA1-2000/04, adopted on December 12, 2000, by ordinance numbers 2000-27, 2000-30, 2000-31, "in compliance." DONE AND ENTERED this 2nd day of October, 2001, in Tallahassee, Leon County, Florida. _______________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2001. COPIES FURNISHED: Terrell Arline, Esquire 1000 Friends of Florida 808 Greenbriar Drive Lake Park, Florida 33403 Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Thomas G. Pelham, Esquire Thomas G. Pelham Law Offices 909 East Park Avenue Tallahassee, Florida 32301-2646 Michael P. Donaldson, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32301 Christine P. Tatum, Esquire Village of Wellington 14000 Greenbriar Boulevard Wellington, Florida 33414-7615 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether the Petitioner, Geraldine Maguire, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to develop certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan.
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 28 acres of land located in Clay County, Florida. The subject property is known as “Elmwood Subdivision”. Elmwood was acquired in the early 1960s by Elliott Maguire and his spouse at that time. Elliott Maguire became sole owner of the Elmwood in 1964. Elmwood is bordered on the north by Shedd Road, on the east and part of the south by Brown’s Barn Road and on the west by Duval Avenue. All of the roads that surround Elmwood are unpaved Clay County roads. Clay County has maintained these roads before and after Mr. Maguire began to develop Elmwood. In 1978 Elliott Maguire and Geraldine Maguire deeded a sixty foot right of way on Barnes Barn Road to Clay County. Clay County accepted the right of way at a meeting of the County Commission on October 10,1978. The evidence failed to prove, however, that the right of way was given in reliance upon any promise or representation from Clay County concerning development of Elmwood. The easement was for right of way already used for Barnes Barn Road. The evidence failed to prove that the easement had anything to do with the development of Elmwood. Mr. Maguire decided to develop Elmwood during the 1970s. He created an unplotted subdivision with 23 lots, all over an acre in size. Mr. Maguire intended to sell the lots as single- family home sites. Mr. Maguire had the property cleared, swales and easements were graded and storm drainage structures were cleared and installed. Mr. Maguire hired a surveyor and an engineer for the project. Mr. Maguire, the surveyor and the engineer discussed the project with Mr. Bowles, Clay County Public Works Director at the time. The evidence failed to prove that John Bowles made any representations concerning the development of Elmwood. Easement and drainage work on Elmwood was completed in 1979. The first lots were sold in 1981. A total of 8 lots were sold between 1981 and 1984. A copy of the engineering plans for Elmwood were provided to Clay County in 1978. Government Action Relied Upon by Petitioner. Prior to September of 1985 Clay County did not require platting of subdivisions such as Elmwood. The only specific restriction on the development of Elmwood when Mr. Maguire began development was that the density was limited to one unit per acre. This restriction was part of the zoning category of the property. Detrimental Reliance. Mr. Maguire incurred costs in his development of Elmwood. Among other things, Mr. Maguire incurred expenses of approximately $20,000.00. Due to he adoption of the Clay County 2001 Comprehensive Plan in 1992, the remaining unsold 15 lots of Elmwood may be used for only 3 additional residences. The approximate fair market value of the 15 lots is approximately $12,000 to $15,000 per lot. The fair market value of the 3 allowable lots is $20,000 to $25,000. The evidence, however, failed to prove that any of the expenses incurred in developmenting Elmwood or the loss in value of the remaining lots is attributable to any representation of Clay County that Elmwood could be developed as an unplatted subdivision indefinitely into the future.
Findings Of Fact The Coral Reef Yacht Club is a non-profit Florida corporation with an active membership of over five hundred (500) families. The purpose of the club is to encourage water sports such as boating, fishing and skindiving. The club presently has a waiting list of approximately forty to fifty members wanting wet slips for their boats. Historically the boats berthed in Coral Reef's docks have been a fifty- fifty mixture of sail and power craft with a length between 22 to 45 feet. It is anticipated by the club that similar craft will use the new slips if constructed. Since the club's beginning 25 years ago it has leased submerged land for all of its docking facilities from the City of Miami, the fee simple owner. In June 1979, the lease agreement was renegotiated to add the submerged land over which the proposed project would be constructed. In consideration for that addition the club deeded an 18 foot strip of its property to Miami for a bicycle path parallel to South Bayshore Drive. The site of the proposed project is in that part of Biscayne Bay known colloquially as Dinner Key. Dinner Key is well suited to marina development. It had been a Pan American Clipper base in the 1930's. It is close to population centers and provides direct access to the Atlantic Ocean without passing through drawbridges. The Dinner Key area is delineated by a crescent of spoil banks which were created by dredging of channels out toward the deep water of Biscayne Bay, a navigable state water. These banks create a sheltered area for the mooring and berthing of small craft. Other marina facilities in the Dinner Key include Biscayne Yacht Club (56 slips), Dinner Key Marina (330 slips), Monty Trainer's (40 slips), Merrill-Stevens (56 slips), and the City of Miami Docks (50 slips). Coral Reef's dredge and fill application was filed with DER on July 10, 1979. It was denied on November 21, 1979 for the following reasons: The project would eliminate a productive and diverse seagrass bed in a 1.8 acre area. The removal of the seagrasses would result in a degradation of water quality contrary to Section 17-3.061 and 17-1.121, Florida Administrative Code. The project would interfere with the conservation of fish and wildlife contrary to Chapter 253, Florida Statutes. The proposal would conflict with the intent of the Biscayne Bay Aquatic Preserve Act [Section 258.165(3), Florida Statutes] to preserve the bay in its natural condition. The project as proposed in Coral Reef's application is to expand its present marina facility of 72 slips by adding 4,290 square feet of docking to accommodate 27 additional wet slips. In order for there to be an adequate draft of 7 feet, 6,400 cubic yards of submerged bottom would be dredged from an area of approximately 1.8 acres (200 ft. by 400 ft.). The spoil resulting from the dredging would be piped to an existing spoil bank 600 feet to the southeast of the site. Coral Reef proposes to stabilize the spoil by planting salt resistant grasses and shrubs on it. At present the Club's docks extend 460 feet out into Biscayne Bay. The proposed addition would add another 213 feet. At the final hearing Coral Reef amended its application by proposing to add rip-rap in piles 3 feet high and 12 feet center-to-center to be placed only under the main walkway of the new proposed dock area. DER was given the opportunity to request a continuance of the final hearing to have time to evaluate the amendment, but no continuance was necessary. The site of the proposed dock expansion has two distinct biological regimes. Under tic existing dock where there has already been dredging there is little bottom life but a considerable population of fish. The number of marine organisms is limited. There are no larger plants and there is approximately 1 inch of silt on the bottom. In the area of the proposed dredging the bottom is covered by a great number of invertebrates--mollusks and crustaceans. There are thick seagrass beds giving approximately 55 percent coverage over a sandy bottom. Turtle grass (thalassia testudinum) and cuban shoal weed (halodule wrighti) predominate there. The sea grasses ace important to the environment because (a) they are the base of the detrital food chain; (b) they provide erosion and turbidity control; and (c) they serve as a nursery ground and refuge for numerous marine organisms and small fish. The spoil island on which Coral Reef proposes depositing the new spoil has a stand of Australian pines and a fringe of red, white, and black mangroves, primarily on the west side of the island. The fauna over the grass beds in the proposed dredging area consist of fish such as french grunts, snappers, great barracuda, and the commercially valuable pink shrimp. If the proposed dredging takes place, the grass beds will be destroyed. They will not re-establish themselves because at the new bottom depth of 7 feet there will be insufficient light for repropogation. To prevent damages to the sea grasses which surround the spoil island measures must be taken to prevent the new spoil from washing off the island and smothering the grass. Coral Reef proposes retaining the spoil on the island by a 1.5 foot high sand bag dike on the east side of the island where most of the 6,400 cubic yards of spoil will be deposited. At no point would the slope of the spoil exceed 1 to 20. Turbidity curtains are proposed to be used during the time the spoil is deposited. No significant environmental damage is expected to result from this placement of the spoil. It is possible that the placing of rip-rap under the newly constructed docks as proposed would create a habitat for the small and medium size fish in the Dinner Key area. The surface of the rip-rap would provide a suitable substrate for marine fouling organisms such as barnacles to grow on, and if the interstices of the rubble are large enough, fish could find shelter there. The rip-rap proposal is offered to mitigate the admitted environmental damage which would result from the dredging. There is however, no way to determine either qualitatively or quantitatively if the benefit of the rip-rap would compensate for the harm of dredging. The importance of the seagrasses is well established while the environmental benefits provided by the rip-rap is only speculative at this time. The Miami Area has an acute shortage of boat slips. It is estimated by the Comprehensive Marina Development Study (February 1979) prepared by the Greenleaf/Telesca firm for the City of Miami that by 1985 there will be a shortage of 3,350 wet and dry boat slips. The City of Miami supports the proposed expansion of Coral Reef facilities as an aid in ameliorating the slip shortage. If the Coral Reef Marina were expanded, it is likely that some of the Coral Reef members who presently have their craft in public marina facilities would move them to the new Coral Reef slips, but no reliable estimate of the number of public slips which would thus be vacated has been made.
Recommendation For the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the State of Florida, Department of Environmental Regulation enter an order denying Coral Reef's application in File No. DF12-21762 to expand its marina facilities by dredging and filling in Biscayne Bay. DONE and RECOMMENDED this 31st day of October, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980. COPIES FURNISHED: Robert J. Paterno, Esquire TAYLOR BRION BUKER & GREEN 1451 Brickel Avenue Miami, Florida 33131 Randall E. Denker, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
