Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered by the Commission dismissing the Department's petition for the reasons set forth above. DONE AND ENTERED this day of September, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of September, 1997. COPIES FURNISHED: Anne Longman, Esquire Lewis, Longman and Walker, P.A. 125 South Gadsden Street, Suite 300 Tallahassee, Florida 32302 Steven H. Parton, Esquire Dennis Silverman, Esquire Division of Legal Services 625 Larson Building Tallahassee, Florida 32399-0333 Robert S. Cohen, Esquire Pennington, Moore, Wilkinson and Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Elsie Crowell, Chairperson Commission on Hurricane Loss Projection Methodology Larson Building, Fifth Floor Tallahassee, Florida 32399-0300
The Issue The issue to be determined in this case is whether the amendments to the Manatee County Comprehensive Plan (Manatee Plan) adopted by the Board of County Commissioners of Manatee County via Ordinance No. 13-10 on December 5, 2013, are “in compliance,” as defined in section 163.3184(1)(b), Florida Statutes (2013).
Findings Of Fact The Parties Katie Pierola is a resident and landowner in Manatee County. Mrs. Pierola made timely objections and comments to Manatee County on the 2013 Amendments. Greg Geraldson is a resident and landowner in Manatee County. Mr. Geraldson made timely objections and comments to Manatee County on the 2013 Amendments. Manatee County is a political subdivision of the State and has adopted the Manatee Plan, which it amends from time to time pursuant to section 163.3184, Florida Statutes. Robinson Farms is a Florida corporation doing business in Manatee County and owning real property in the County. It owns the property affected by the 2013 Amendments. The 2013 Amendments The 2013 Amendments would amend the Future Land Use Map of the Manatee Plan to change the future land use classification of approximately 20 acres of land owned by Robinson Farms from RES-1 to RES-3. The land is described by metes and bounds in Exhibit A to Ordinance No. 13-10. It is located on the north side of 9th Avenue Northwest, about 600 feet east of 99th Street. The RES-1 classification allows one dwelling unit per acre (du/a). The RES-3 classification allows up to three du/a. The General Introduction chapter of the Manatee Plan, Section D – Special Plan Interpretation Provisions, would be amended to add the following new text: D.5.16 Ordinance 13-10 (ROBINSON FARMS PLAN AMENDMENT) The 20± acre property identified as the Robinson Farms Plan Amendment and designated RES-3 on the Future Land Use Map pursuant to Manatee County Ordinance No. 13-10 shall be limited to a maximum of thirty eight (38) residential units. Coastal Evacuation Area and Coastal High Hazard Area All 20 acres of the Robinson Farms property is within the Coastal Evacuation Area (CEA). The CEA is defined in the Manatee Plan as: The evacuation Level A for a Category 1 hurricane as established in the regional evacuation study applicable to Manatee County, as updated on a periodic basis. Future Land Use Element (FLUE) Policy 2.2.2.4.2, which addresses the purposes of the CEA, states in part: To limit population in the Category 1 hurricane evacuation area requiring evacuation during storm events. To limit the amount of infrastructure, both private and public, within the CEA Overlay District and thereby limit magnitude of public loss and involvement in mitigating for loss of private infrastructure to Manatee County residents. To, through exercise of the police power, increase the degree of protection to public and private property, and to protect the lives of residents within the CEA, and reduce the risk of exposing lives or property to storm damage. All but 4.68 acres is within the Coastal High Hazard Area (CHHA). The CHHA is defined in the Manatee Plan as: The geographic area below the Category 1 storm surge line as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model, pursuant to applicable law, as updated on a periodic basis. FLUE Policy 2.2.2.5.2, which addresses the purposes of the CHHA, repeats the same purposes that are set forth above for the CEA. Relevant Goals, Objectives, and Policies Goal 4.3 of the Coastal Element of the Manatee Plan is: Protection of the Residents and Property Within the Coastal Planning Area from the Physical and Economic Effects of Natural Disasters Coastal Element Objective 4.3.1 states: Limit development type, density and intensity within the Coastal Planning Area and direct population and development to areas outside the Coastal High Hazard Area to mitigate the potential negative impacts of natural hazards in the area. Coastal Element Policy 4.3.1.1 states: Direct population concentrations away from the Coastal Evacuation Area FLUE Policy 2.2.2.4.5(a), which addresses development restrictions in the CEA, states: Prohibit any amendment to the Future Land Use Map which would result in an increase in allowable residential density on sites within the Coastal Evacuation Area. FLUE Policy 2.2.2.4.4(a) states, in part: The area designated under the CEA Overlay District on the Future Land Use Map shall also be subject to all goals, objectives and policies for any land use category overlaid by the CHHA District, except where policies associated with the CEA Overlay conflict with such goals, objectives and policies. In this event, policies associated with the CHHA Overlay District shall override other goals, objectives and policies. FLUE Policy 2.2.2.5.5(a), which addresses development restrictions in the CHHA, states: Prohibit any amendment to the Future Land Use Map which would result in an increase in allowable residential density on sites within the Coastal High Hazard Area Overlay District. FLUE Policy 2.2.2.5.4(a) states that, in the event of a conflict between CHHA policies and other policies in the Manatee Plan, the CHHA policies shall override. Data and Analysis Petitioners contend that the 2013 Amendments are not based on best available data and analysis as required by Florida Administrative Code Rule 9J-5.005(2). However, that rule was repealed in 2011. Section 163.3177(1)(f) requires that plan amendments be based on “relevant and appropriate data and analysis.” This section explains: To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. Petitioners contend that the proposed reclassification of the Robinson Farms property from RES-1 to RES-3 does not react appropriately to the data which show the Robinson Farms property lies within the CEA and CHHA. However, as explained in the Conclusions of Law, it is not the mapping of the CEA and CHHA that creates a conflict with the 2013 Amendments. The conflict is created by the policies which address future land uses in the CEA and CHHA. Internal Consistency Petitioners contend that the 2013 Amendments make the Manatee Plan internally inconsistent with Coastal Element Objective 4.3.1 and Coastal Element Policy 4.3.1.1 which require “population concentrations” to be directed away from the Coastal Evacuation Area. No evidence was presented by Petitioners or by Manatee County on the County’s interpretation of the term “population concentrations.” However, FLUE Policy 2.2.2.4.5(a) prohibits any increase in residential density in the CEA. Therefore, assuming as we must that the Manatee Plan is internally consistent, it follows that “population concentrations” in Coastal Element Objective 4.3.1 and Policy 4.3.1.1 means any increase in residential density. Because the 2013 Amendments increase residential density in the CEA, they are inconsistent with this objective and policy. Because the 2013 Amendments would amend the Future Land Use Map to increase allowable residential density on a site within the CEA they are inconsistent with FLUE Policy 2.2.2.4.5(a), which prohibits any amendment to the Future Land Use Map that would increase allowable residential density on sites within the CEA. Because the 2013 Amendments would amend the Future Land Use Map to increase allowable residential density on a site within the CHHA they are inconsistent with FLUE Policy 2.2.2.5.5(a), which prohibits any amendment to the Future Land Use Map that would increase allowable residential density on sites within the CHHA. Competing Policies Manatee County and Robinson Farms argue that there are other policies in the Manatee Plan, such as those that discourage urban sprawl and encourage infill in the Urban Core Area, which the County must weigh along with the policies discussed above. The County contends that it weighed these conflicting policies and reached a fairly debatable determination that the 2013 Amendments are consistent with the Manatee Plan. Contradicting this argument are FLUE Policy 2.2.2.4.4(a) and FLUE Policy 2.2.2.5.4(a), which state that the CEA and CHHA policies shall override any conflicting goals, objectives, and policies in the Manatee Plan. Urban sprawl, infill, and other policies of the Manatee Plan cannot be invoked to avoid the specific prohibitions in FLUE Policies 2.2.2.4.5(a) and 2.2.2.5.5(a) against any amendment to the Future Land Use Map that would result in an increase in allowable residential density on sites within the CEA and CHHA. Density Offsets Manatee County and Robinson Farms argue that the County’s reduction in dwelling units in other parts of the CHHA over the past several years is a valid consideration in determining whether an increase in residential density on the Robinson Farms property is permissible despite the prohibition in FLUE Policy 2.2.2.5.5(a). In support of their argument, they cite Department of Community Affairs v. Leeward Yacht Club, LLC, DOAH Case No. 06-0049GM, 2006 WL 2497934 (Nov. 16, 2006). However, the Leeward Yacht Club case involved the comprehensive plan of Lee County, which did not prohibit increases in residential density in the CHHA. In contrast, the Manatee Plan quite plainly prohibits “any amendment” to the Future Land Use Map that would increase residential density in the CHHA. Previous Proceedings These same parties were involved in a dispute regarding an earlier proposed amendment to the Manatee Plan to reclassify property owned by Robinson Farms from RES-1 to RES-3. The 2010 Amendment was different in that it affected 28 acres (which encompasses the 20 acres in the 2013 Amendments). The 2010 Amendment would have increased the residential density on the 28 acres from 28 dwelling units to 105 dwelling units, all in the CEA. It would have added 56 dwelling units to the CHHA. Petitioners challenged the amendment and an evidentiary hearing was held before Administrative Law Judge D.R. Alexander (DOAH Case No. 11-0009GM). On April 13, 2011, Judge Alexander entered a Recommended Order which recommended that the 2010 Amendment be determined not in compliance because: The amendment was not based on relevant and appropriate data because the most current SLOSH model results were not used; The amendment was inconsistent with FLUE Policy 2.2.2.4.5(a) which prohibits any increase in residential density in the CEA. The amendment was inconsistent with Coastal Element Objective 4.3.1 and Policy 4.3.1.1 which require that population and development be directed to areas outside the CHHA. The Recommended Order went to the Administration Commission, which ultimately dismissed the case when Manatee County rescinded Ordinance No. 10-02 and the 2010 Amendment. In Manatee County Ordinance No. 11-035, which was the ordinance used to rescind the 2010 Amendment, the Board of County Commissioners determined that the 2010 Amendment was internally inconsistent with FLUE Policy 2.2.2.4.5(a), Coastal Element Objective 4.3.1, and Coastal Element Policy 4.3.1.1 because the amendment increased residential density in the CEA and CHHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission issue a final order determining that the 2013 Amendments adopted by Manatee County Ordinance No. 13-10 are not in compliance. DONE AND ENTERED this 8th day of July, 2014, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2014. COPIES FURNISHED: James A. Minix, Esquire Manatee County Attorney's Office Post Office Box 1000 Bradenton, Florida 34206 Edward Vogler, II, Esquire Vogler Ashton, PLLC 2411-A Manatee Avenue West Bradenton, Florida 34205-4948 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Peter Antonacci, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128
The Issue The issue in this case is whether the Respondent, the Department of Insurance, should grant the application of the Petitioner, Nationwide Mutual Fire Insurance Company (Nationwide), for residential property and casualty insurance premium rate increases.
Findings Of Fact The Petitioner, Nationwide Mutual Fire Insurance Company (Nationwide), is a foreign insurance company that has a certificate of authority issued by the Respondent, the Department of Insurance (the Department), to sell insurance in Florida. The 1996 Rate Filing On April 2, 1996, Nationwide filed a residential property and casualty insurance premium rate increase request with filing memorandum and supporting exhibits. Nationwide opted to "use and file" the rate increase and made the effective date of the increase May 31, 1996. To the extent not approved, the rate increase would have to be refunded. Nationwide's 1996 rate filing requested increases for Nationwide's three single-family dwelling homeowner policies (Extended, Elite II, and Golden Blanket), as well as for its mobile home, condominium, and tenant policies. The rate filing alleged and sought to document indications that increases averaging approximately 61% were justified. Despite the alleged indications, Nationwide only requested rate increases averaging 27%. Nationwide's rationale for seeking rate increases averaging 27% instead of 61% was that it intended to file a subsequent rate increase request averaging 27% so that, together, the two rate increase requests would result in an increase from present rates averaging 61%. There was no actuarial basis for seeking the increase in two phases; this decision was made at least in part for business reasons to make the increase more acceptable to customers. On August 15, September 6, and November 20, 1996, Nationwide responded to Department requests for additional information and documentation in support of Nationwide's rate filing. As a result of the additional information, the rate indications alleged by Nationwide were reduced to increases averaging approximately 58%. The 1995 Rate Filing In 1995, Nationwide requested rate increases averaging 25%, based on indications that increases averaging 77% were justified. The increases requested in the 1995 rate filing were granted. The evidence was not clear as to the bases for either the 77% indications, the 25% request, or the Department's decision to grant the request. Without such evidence, it cannot be inferred, as the Department argues, that the pending 27% rate increase request based on indications of either 61% or 58% is too high simply because only a 25% increase was requested when rate indications were 77%. The Hurricane Loss Component Nationwide's rate filing is separated into non-hurricane and hurricane components. A significant portion of Nationwide's rate increase request is attributable to the hurricane component. Since hurricanes are catastrophic events that occur relatively infrequently, insurance companies do not have the peril experience for hurricane losses that they do for most other kinds of perils covered by residential property and casualty insurance. For this reason, it is necessary to use a different methodology for the hurricane component of residential property and casualty insurance than is used for the non-hurricane component. For the hurricane component of its 1996 rate filing, Nationwide essentially projected a dollar amount of hurricane losses for each $1,000 of insurance coverage written, times a loss projection factor (to account for changes over the years in average losses attributable to changes in average coverage value, deductibles, and changes in mix of business by rating territory), times an allocated loss adjustment expense (ALAE) ratio of 2.2%, to develop estimated hurricane losses and ALAE per policy. To arrive at the hurricane portion of the indicated premium requirement, Nationwide then divided estimated hurricane losses and ALAE per policy by 87.4% to account for agent commissions, state premium tax, profit and contingencies attributable to hurricane losses. The ISO Excess Wind Procedure Prior to Hurricane Andrew in 1992, hurricane losses were projected for rate purposes using a methodology developed by the Insurance Services Organization (ISO) known as the Excess Wind Procedure. Essentially, the ISO Excess Wind Procedure attempted to calculate the percentage of historical insurance losses attributable to "excess wind" from hurricanes and increased indicated non-hurricane losses by the same proportion. The ISO Excess Wind Procedure had inherent weaknesses. The ISO Excess Wind Procedure was based on insurance loss data relating to historical hurricanes since 1960; yet, it is known that hurricanes occurred more frequently on an annual basis during the years 1900 through 1960 than during the years 1960 through 1990. In addition, the ISO Excess Wind Procedure used regional data, while it is known that Florida hurricane landfalls have been more frequent than regional hurricane landfalls. Beyond the storm frequency issue, since it was based solely on historical data since 1960, the ISO Excess Wind Procedure did not account for the possibility of future losses in areas not hit by a hurricane since 1960. Meanwhile, the historical losses accounted for in the ISO Excess Wind Procedure occurred at times when fewer people lived in coastal areas and when property values in coastal areas were not as high, compared to inland properties, as they are now. There also have been significant changes in policy provisions (for example, provisions for payment of replacement costs rather than cash value) that would increase insurance losses as a percentage of total losses. At the same time, safety features such as smoke detectors have been developed over the years, resulting in reductions in the non-hurricane component of total insurance losses. The ISO Excess Wind Procedure did not adjust for these changes. Hurricane Andrew exposed the significance of the weaknesses in the ISO Excess Wind Procedure. Premium levels generally were not high enough to fund the payment of insurance losses due to Andrew. Several insurance companies were unable to pay all claims made as a result of the storm. Since Andrew, the ISO Excess Wind Procedure has been generally discredited as inadequate due to its inherent weaknesses. Increasingly, the insurance industry and regulators have turned instead to computer models to project hurricane losses. The AIR Model For the hurricane component of its 1996 rate filing, Nationwide used a computer simulation model developed by Applied Insurance Research, Inc. (AIR) to project hurricane losses. AIR specializes in catastrophic risk assessment and primarily provides products and services for the insurance industry. It was formed in 1987 and has grown to approximately 60 employees, 50 of whom are technical professionals in fields such as meteorology, geophysics, seismology, structural engineering, and geotechnical engineering, statistics, mathematics, and computer software programming. AIR has about 250 clients at present, about 100 of whom are primary insurers, and about 90 of whom are reinsurers. AIR models hurricanes, windstorms such as tornadoes, earthquakes, and fires following earthquakes. The fundamental purpose of the AIR model is to provide AIR's clients with good information on probabilities of losses from these events. Only a small percentage of AIR's current client base utilizes the AIR model for rate making purposes. Initially, the AIR model was used primarily by financial rating organizations to assess the solvency of insurance companies with exposure to hurricane risk. Later, it began to be used by reinsurers to determine premiums to be charged to insurance companies for hurricane risk. Since Andrew, the AIR model and similar computer models developed by other firms have begun to be used for primary insurance premium rate setting. There are four primary components to the AIR model: event generation; estimated windfield; application of the windfield to actual properties to estimate damage; and application of the estimated damages to insurance coverage. The event generation component of the model draws on historical information to assign probability distributions to important variables, such as frequency, intensity, landfall, and storm track. Using these probability distributions, the model then generates a probabilistic event set (or stochastic event set) consisting of a number of years of simulated storms. In the case of Nationwide's 1996 rate filing, the AIR model simulated 10,000 years of hurricanes. When the AIR model assigns probability distributions to variables in the event generation component, statistical "smoothing" is used to "fill the gaps" in the historical data. This allows the model to generate events in accordance with their probability of occurrence in the future instead of just their historical occurrence over the past hundred years or so. Although the details of the statistical "smoothing" were not presented, it was clear that these statistical methods are standard and generally accepted. In the second component of the model, windfields are estimated from the characteristics of each simulated storm. In this component, the model actually moves the simulated hurricane over land and develops a time profile of wind speeds and directions as the storm moves. The windfield generator component accounts for things such as modeled changes in central pressure, as well as dissipation from surface roughness, as the simulated storms proceeds over its track. In the third component of the model, damage from the windfields of each simulated storm is estimated by overlaying the storm's windfields on the actual properties known to exist. In this component, the AIR model uses damage functions (also called damageability relationships). These functions relate wind speed to damage to buildings and contents, depending on construction type, as well as resulting additional living expenses as applicable. The last component essentially compares the damage estimates to insurance policy coverages and conditions. The result is in an insurance loss estimate for each simulated storm. To project average annual hurricane insurance losses, the estimated insurance losses from the simulated storms are annualized. Some aspects of the AIR model, including the damage functions (or damageability relationships), are considered proprietary and were not presented in Nationwide's case-in-chief. However, it is clear that actuaries can rely on a computer model without knowing all of the proprietary information relating to the model. There are other ways to judge whether a model is worthy of reliance. Peer Reviews of the AIR Model One way to validate a computer model is through internal peer review. The details of Nationwide's internal peer review were not presented. However, AIR's president, Karen Clark, testified extensively, and it is clear from the evidence that AIR has validated its model to its own satisfaction. AIR's internal peer review is ongoing, and AIR continuously enhances its model as suggested by the ongoing internal review. Another means of validating the AIR model is through external peer reviews. The AIR model has undergone several of these. As with the internal peer reviews, the external peer reviews have resulted in enhancements to the AIR model. One external peer review was commissioned by AIR in the mid-1980s. It addressed both AIR's hurricane model and its tornado model. While the details of the commissioned peer review were not presented, the conclusion was: "[A] scientifically defensible and realistically complete approximation of these major storm systems has been achieved. . . . On the whole, it is felt that the proposed models are scientifically well based and reflect an understanding of the current state-of-the-art of atmospheric sciences." The North Carolina Rate Bureau also has been evaluating the AIR model since 1992. North Carolina hired various experts to review the AIR model, including an outside meteorologist and an outside statistician. Despite the length of this review, no major conclusions have been drawn yet. One rating agency not identified by the evidence reviewed the AIR model and found a 20% variability based on all validation results. Evidence as to this external peer review was not presented. Florida Hurricane Commission Review In 1996, the Florida Commission on Hurricane Loss Projection Methodology (the Commission) adopted some 38 standards which computer models projecting hurricane losses should meet. It is not clear from the evidence exactly when in 1996 the standards were adopted. The AIR model used by Nationwide in its 1996 rate filing met most but not all of the Commission's standards. The Commission's 1996 standards required that models include and consider damage from weaker (Category 1) hurricanes storms and "bypass" hurricanes (i.e., hurricanes that do not make landfall in Florida but are close enough that winds greater than 74 miles per hour affect Florida), as well as from stronger hurricanes making landfall in Florida. The AIR model used by Nationwide in its 1996 rate filing only included and considered damage from stronger hurricanes making landfall in Florida. The Commission's standards also required that models continue to simulate damage until modeled winds decreased to 35 miles per hour. The AIR model used by Nationwide in its 1996 rate filing only continued to simulate damage until modeled winds decreased to 50 miles per hour. AIR revised its model to meet the Commission's 1996 standards and submitted the revised model for findings and determinations as to its "accuracy and reliability" under the Commission's 1996 standards. In May 1997, the Commission voted on certain findings and determinations regarding the revised AIR model based on the 1996 standards. While it appears that the Commission's findings and determinations were favorable to the revised AIR model (i.e., that the model was consistent with the standards), the evidence is not clear as to exactly what the Commission found or determined. AIR never received anything in writing to document the Commission's findings and determinations, and neither any such writing nor a verbatim transcript nor the minutes of the Commission meeting were put in evidence. If Nationwide had used the revised AIR model for its 1996 rate filing, hurricane loss projections would have been about 5% higher. On May 29, 1997, the Commission revised its standards for computer models projecting hurricane losses. AIR again submitted its revised model under the Commission's revised standards. On October 24, 1997, the Commission determined the AIR model "to be acceptable for projecting hurricane loss costs for personal residential rate filings submitted to the Department of Insurance in Florida" and determined that the AIR model "complies with the standards adopted by the Commission on May 29, 1997." Notwithstanding the Commission's October 24, 1997, determinations, it is not clear from the evidence whether the revised AIR model actually met each and every one of the some 38 Commission standards. The Department's actuary, Ken Ritzenthaler, who was a member of the Commission, testified that the Commission's professional team was unable to verify compliance with six or seven of the standards. Ritzenthaler also testified that he disagreed with the Commission's determination that the AIR model met a standard requiring a model's simulation of insurance losses from Florida's 57 historical hurricanes to be "consistent" with actual insurance losses. The AIR model simulated $1.2 billion in losses, while the "actual" losses used for the comparison were only $880,000 million. Other Relevant Uses of the AIR Model For a number of years, reinsurance companies have used the AIR model to determine the premiums to charge insurance companies for reinsuring their hurricane loss exposure. While only a small percentage of AIR's current client base of approximately 250 clients, not only Nationwide but also U.S.A.A., Allstate, and State Farm use the AIR model to project their hurricane losses for primary residential property and casualty insurance rate-making. The Florida Hurricane Catastrophe Fund (the Cat Fund) was created by the Legislature after Hurricane Andrew to serve as a kind of mandatory reinsurance against catastrophic hurricane losses. For a mandatory premium payment, primary insurers of property and casualty risks in Florida are assured that the Cat Fund will pay a portion of catastrophic hurricane losses. With one minor difference, the AIR model used by Nationwide in its 1996 rate filing is the same model used by the Cat Fund to set its premiums. The only difference is that the Cat Fund inputs and output ranges are by zip code whereas Nationwide's inputs and output ranges for the 1996 rate filing were by Nationwide's territories, and some territories encompassed more than one zip code. Although the Cat Fund's rationale for using the AIR model was not presented, the evidence was that the Cat Fund continues to use the AIR model. Recently, some primary insurance companies, notably U.S.A.A., have turned directly to capital markets to fund a portion of its hurricane losses through the use of catastrophe bonds. To assign a rating to these bonds, it is necessary to determine the chances that the bonds would default. This required a projection of hurricane losses. In the case of U.S.A.A., hurricane losses were projected using the AIR model. Standard and Poor's, Moody's, and Fitch, Duff and Phelps conducted "due diligence" investigations of the U.S.A.A. catastrophe bonds that included validation reviews of the AIR model that lasted approximately a year before ratings were assigned for the bonds. The Florida Residential Property and Casualty Joint Underwriting Association (FRPCJUA) uses the AIR model to project hurricane losses. The Department has required companies taking policies out of the FRPCJUA to use the AIR model to project hurricane losses in order to demonstrate the company's ability to pay on the policies. Comparison of Projected to "Actual" Losses Reviews of computer hurricane loss projection models usually include a comparison of losses simulated by a model for storms to actual losses from actual, historical storms. Strictly speaking, the purpose of such models is not to simulate losses from actual storms but rather to generate a complete probability distribution. Exact comparisons between simulated and actual losses for specific historic storms are difficult, and perfect matches would not be expected. One reason such comparisons are difficult is that a hurricane's actual overland wind speeds and other characteristics are never completely known. Surprisingly, usually relatively few overland wind speed recordings are available, and they only are accurate to within plus or minus 15%. In addition, actual losses are not always easy to ascertain. Generally, industry-wide loss figures are less accurate than company loss figures. Real-time or other preliminary loss estimates may not be accurate. Sometimes, especially for smaller storms, more accurate after-the-fact loss figures are not available. (Now, state insurance departments get involved in surveying insurance losses from larger storms like Andrew and Hugo for years after-the-fact; for smaller storms, this is not normally done.) Also, when comparing simulated losses to actual losses from an earlier storm, it may be difficult to reconstruct the exposures, damageabilities, and policy coverages for purposes of the comparison, especially if the reconstruction is dated. Despite these difficulties, comparisons of simulated and actual losses from specific storms are of some use in the validation of computer models. Unexplained, large divergences between simulated losses and actual losses would be cause for concern, as would a model's clear bias to either overstate or understate losses. (Real-time simulations of losses from actual storms also can be useful to many of AIR's clients to project claims to be expected from a storm that is occurring or has just occurred.) An industry-wide comparison of actual to simulated losses from 13 actual hurricanes since 1983 revealed that actual losses were 20% higher than the losses simulated by the AIR model. Of these 13 comparisons, seven (from 1989 through 1996) used real-time loss and exposure figures. These included Andrew in 1992, where actual losses were $16 billion compared to simulated losses of $13 billion. Significantly, actual losses were both above and below the simulated losses; the comparisons did not indicate a bias in either direction. (These 13 storms also included Hurricane Fran in 1996, when actual losses were 2.56 times simulated losses. Ten inches of rain fell prior to Fran, especially in the area of Raleigh, North Carolina, and an unusually large number of trees toppled during the hurricane due to the pre-saturated condition of the soils.) Losses simulated by the AIR model for certain companies also were compared to actual losses on an aggregated company basis. In this comparison, simulated losses were very close to actual losses for Hurricanes Erin, Opal, and Bertha. AIR also compared simulated losses from the 10-year, 20-year, 50-year, and 100-year hurricanes generated by the AIR model to the losses from the 10-year, 20-year, 50-year, and 100- year hurricanes in the "historical catalog" of Florida storms. The results were that losses from the storms in the AIR-simulated catalog approximated losses from the storms in the historical catalog. The Department pointed out that, in six of seven examples in a previous submission by Nationwide, the AIR model simulated residential losses from particular storms that were higher than actual losses on a company basis. (The companies were not identified in the submission.) However, simulated losses often were not much higher than actual losses. For all seven examples combined, simulated losses were 17% higher than actual losses. The previous submission by Nationwide also compared the AIR model's simulated residential losses from several storms with actual losses on an industry-wide basis. The Department pointed out that, in three of four examples, simulated losses were higher than actual losses. However, in those three examples, simulated losses were not much higher than actual losses. In addition, while the storms used in the comparison occurred in 1983 and 1985, the simulation used 1987 exposures; for that reason, simulated losses would be expected to be somewhat higher than actual losses. Meanwhile, in the example in which actual losses exceeded simulated losses, they were 19.5% higher. For all four examples combined, simulated losses were only 7% higher than actual losses on an industry-wide basis for those storms. The previous submission by Nationwide included Florida residential losses simulated by the AIR model for Hurricane Kate that were 34% higher than actual losses for the one (unidentified) company shown in the submission. (The Department proposed an erroneous finding that simulated losses were approximately 100% higher than actual losses for the shown in the submission.) On an industry-wide basis, simulated Florida losses for Kate were more than 100% higher than actual losses. For all states shown in the example, simulated losses were 55% more than actual losses. As pointed out by the Department, the previous submission showed that the AIR model underestimated industry-wide Florida residential losses from Hurricane Elena by more than 300%. This anomaly was not explained. (The submission indicated that, for all states, the AIR model underestimated industry-wide residential losses from Hurricane Elena by just over 5%.) For Nationwide's 1995 rate filing, AIR compared its model's simulated losses to Nationwide's actual losses from Hurricane Andrew. Simulated losses were approximately 50% greater than actual losses. However, this comparison was done several years after Andrew. While Nationwide's actual losses were quite accurate, AIR had to try to reconstruct Nationwide's exposures, damageabilities, and policy coverages. As mentioned, this can be difficult to do accurately. During public hearings on its 1996 rate filing, Nationwide presented the results of a comparison between the losses simulated by the AIR model for Nationwide from Hurricanes Hugo, Andrew, Erin and Opal and Nationwide's actual losses from those storms. The simulated losses were 13.6% higher for Hugo, 50% higher for Andrew, 1.8% higher for Erin and Opal combined, and 19.1% higher for all four storms combined. Excluding Hugo, the only one of the four that did not hit Florida, simulated losses from the other three storms were 28% higher than actual losses. In information Nationwide provided to the Department on August 15, 1996, it was indicated that simulated losses were 12% higher for Hugo, 58% higher for Andrew, 12.5% lower for Erin, 12.7% higher for Opal, and 19.5% higher for all four storms combined. It was indicated that, excluding Hugo, simulated losses from the three storms that hit Florida were 32% higher than actual losses. On November 20, 1996, Nationwide provided information to the Department on seven storms--Hugo, Andrew, Erin, Opal, Bob, Bertha, and Fran. This time, the simulated losses given for Hugo were $9 million lower so that simulated losses for Hugo were only 4.5% higher than actual losses, and the simulated losses given for Andrew were $11 million lower so that simulated losses for Andrew were only 30.6% higher than actual losses. Nationwide explained that the adjustment for these storms were made to correct for errors in Nationwide's coverages. The simulated losses for Bob were 9.3% higher than actual losses, and the simulated losses for Bertha were 8.2% higher than actual losses. For Fran, simulated losses were 48% less than actual losses; Nationwide explained that unusually wet conditions immediately preceding Fran skewed the comparison. For all seven storms, including Fran, simulated losses were 13.5% less than actual losses. For just the Florida storms, simulated losses were 16.2% higher than actual losses. The Department-Sponsored Procedure Based primarily on the comparisons of simulated losses to "actual" losses from actual historical storms, the Department contends that Nationwide did not prove the AIR model to be completely reliable. Instead, the Department suggested the use of an alternative methodology described by the Department's witness, Ken Ritzenthaler. The Department proposed basing the hurricane component of Nationwide's rate filing on a procedure that utilized Nationwide's Cat Fund premium for a portion of Nationwide's rate and a modified ISO Excess Wind Procedure for the remainder of the rate. Basing a portion of Nationwide's rate on the Cat Fund premium makes general sense. As it now stands, 48.5% of Nationwide's catastrophic hurricane losses will be paid by the Cat Fund. The Cat Fund premium is based on the AIR model. The $117.74 premium Nationwide pays to the Cat Fund accounts for those hurricane losses. For the remainder of projected hurricane losses, the Department suggested using the ISO Excess Wind Procedure with some modifications intended to address some of the procedure's inherent weaknesses. It suggested removing the regional component of the excess wind procedure and limiting it to Florida experience, which increased the excess wind factor somewhat. It also increased the hurricane frequency in an attempt to address the higher frequency of hurricanes from 1900 to 1960 versus from 1960 to 1990. But it was not clear from the evidence how effective the Department's modifications were, and other weaknesses in the ISO Excess Wind Procedure were not addressed at all by those modifications. It does not appear that the Department's modifications to the ISO Excess Wind Procedure were very effective in addressing the totality of the inherent weaknesses of the excess wind procedure. Even using the Cat Fund premium as the rate for almost half of projected hurricane losses, the Department developed indications that a rate increase averaging just 7.5% to 8% (assuming a 5% contingency factor) would be required, versus approximately 58% developed using the AIR model. Since the ISO Excess Wind Procedure has been discredited, it makes no sense to combine it with a Cat Fund proxy for the AIR model. Since it has not been shown that the Department's modifications were effective in addressing the weaknesses in the ISO Excess Wind Procedure, use of the Department's combined Cat Fund/modified ISO Excess Wind Procedure is not supported by the evidence. Creditability of AIR Model The evidence was clear that no model is perfect, and neither AIR nor Nationwide claim that the AIR model is an exception. While the Department's combined Cat Fund/modified ISO Excess Wind Procedure should not be credited, there are other models that may deserve credit. In addition to the AIR model, the Florida Commission has "accepted" two other computer simulation models--the RMS model, and the Equicat model. Each of these three models produce different loss cost results. On a statewide basis, the AIR model and the RMS model are fairly close for homeowner insurance; the Equicat model develops higher hurricane loss-costs for homeowner's insurance. On the other hand, the Equicat model develops lower hurricane loss-costs for mobile homeowner's insurance, and the AIR model develops the highest hurricane loss-costs for mobile homeowner's insurance. Although Ritzenthaler testified that, in some cases, the differences in projected loss-costs among the three models "accepted" by the Commission are significant, he did not attempt to quantify the differences. Ritzenthaler proposed developing a procedure that would somehow combine the results of all of three models "accepted" by the Commission. But he did not propose how this should be done, and there is no evidence in the record from which it could be determined how to best do this. He also suggested giving some credence to the status quo, but he acknowledged that current rates are too low. "Unknown" Construction Category Over objection, the Department was permitted to introduce evidence that, in providing data for AIR to input into its model for purposes of projected Nationwide's hurricane loss- costs, Nationwide categorized the "construction type" of approximately 25% of Nationwide's insured properties as "unknown." It was later established that "unknown" represented frame/masonry veneer construction. Nationwide called this construction type "unknown" because the AIR model only had two categories--masonry and wood frame. When given data that a percentage of properties covered by a company is of an unknown construction type, AIR would proportionately distribute those properties among the known construction types, either on an industry-wide or company-wide basis. (For Nationwide, at least, the applicable known construction types were "masonry" and "wood frame.") It was not clear from the evidence which option AIR used in the case of Nationwide's 1996 rate filing; nor were the proportions of known construction types (either masonry to wood frame, in the case of Nationwide, or whatever the known construction types are on an industry-wide basis). Damage functions for wood frame construction are about 12% higher than for masonry construction. If AIR categorized all of the "unknown" construction types as wood frame, the AIR model could have overestimated damage by at most 4%. Profit and Contingency As indicated in Finding 9, supra, to arrive at the indicated premium requirement for the hurricane component of its rate filing, Nationwide divided estimated hurricane losses developed by use of the AIR model and ALAE per policy by 87.4% to account for agent commissions, state premium tax, profit and contingencies attributable to hurricane losses. In developing this percentage, Nationwide included in its financial needs model nothing for profit and 5% for contingency. Nationwide used zero for profit factor because it was enjoying a reasonable rate of return of approximately 8.5% with just investment income on surplus and premiums collected. When confronted with this issue, Nationwide put on evidence suggesting that it actually needs a higher rate of return because its homeowner's book of business is leveraged at the rate of 2 to 1 (premium dollars to surplus dollars). But it is found that using zero for profit was reasonable for this filing and, in any event, is all Nationwide asked for. The contingency factor is designed to account for under-projection of costs due to factors beyond a company's control. Historically, Nationwide has used a 5% contingency factor in its rate filings but still has sustained underwriting losses of approximately 6% over the last 12 years. However, Nationwide concedes that some of this underwriting loss may have resulted from factors within Nationwide's control, such as not requesting the full indicated premium requirement in previous rate filings. The Department contended that 5% was too high a factor for profit and contingency because the contingency factor did not address the factors under Nationwide's control. The Department concedes that a profit and contingency factor of 3.6% would have been acceptable. Using the profit and contingency factor recommended by the Department, Nationwide's rate indications would be reduced by approximately 2.5%.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order approving Nationwide's request for residential property and casualty insurance premium rate increases averaging approximately 27%. DONE AND ENTERED this 25th day of June, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1998. COPIES FURNISHED: W. Donald Cox, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. 501 East Kennedy Boulevard, Suite 1700 Tampa, Florida 33602 Steve Parton, Esquire Jeffrey W. Joseph, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Bill Nelson, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
The Issue Whether Highgate Park Homeowners' Association (HOA) discriminated against Javier Arrillaga (Petitioner) based on his disability when it denied his application to install permanent accordion hurricane shutters; and if so, what is the appropriate remedy.
Findings Of Fact Petitioner owns a house in Polk County at 629 Kensington Drive, Davenport, Florida (Property). He resides at the Property with his wife, nephew, and mother. Respondent is a non-profit association operating for the benefit of the Highgate Park community and its members. There are 243 homes in the community (including the Property) and all the homeowners are members of the HOA. The HOA is managed by Richard Drake, a community association manager employed by Century Management. It is governed by a board of directors made up of three people: Scott Cooper, Kerri Hill, and Wesley Shaffer. The board members also serve as members of the HOA's Architectural Control Committee (ACC). Each homeowner in Highgate Park is provided a copy of the HOA's Amended and Restated Declaration of Covenants, Conditions and Restrictions (Covenants). The Covenants are also available on the HOA 's website. 5 The Property is part of the HOA and subject to the HOA's rules and regulations regarding the appearance of the Property. The ACC is responsible for enforcing some of the Covenants involving modifications or changes to the outside of homes in the community. This includes regulations relating to placement of garbage cans and trampolines, changes in landscaping, and the building of play structures such as basketball hoops and tree houses. The Covenants specifically address the topic of storm and hurricane shutters: (11) Unless installed by the Developer, no awning, canopies or shutters (including hurricane or storm shutters), or other decorative trim, shall be attached or affixed to the exterior of a building without the prior written approval of the ACC. No foil, window tinting materials or shielding materials or devices shall be placed upon any windows or sliding glass doors that are part of a Home, without the prior written approval of the ACC. According to the HOA's board president, "[n]one of the houses have shutters." REQUEST - JULY 12, 2020 On July 12, 2020, Petitioner submitted an "ACC General Application" form (Application) which stated, "Installation of accordion hurricane shutters in all window and doors of my house. Attached are pictures of how the accordion hurricane shutters look like." In the July 12 Application, Petitioner did not mention a disability or that the permanent accordion hurricane shutters (accordion shutters) were required as an accommodation. The accordion shutters Petitioner sought to install were estimated to cost $5,620.00. At the time of the July 12 Application, the HOA did not know that the request to install the accordion shutters was an accommodation for his disability. In response to the July 12 Application, on July 14, 2020, Mr. Drake emailed Petitioner denying his request: The attached ACC Application for Hurricane shutters is not acceptable because the ACC will only accept either: 1.) Removable hurricane panels that can only be installed during a tropical storm/hurricane watch/warning & removed & stored after the tropical storm/hurricane. 2.) Installation of permanent hurricane window and door glass. The email further asks that Petitioner resubmit another Application for one of the two options above so it can be reviewed at the next ACC meeting on July 16, 2020. Although Petitioner claimed he would not be able to hire someone to place and remove hurricane panels during an approaching storm, he offered no evidence that he researched this possibility or obtained estimates for the price of assistance for this service. He also offered no evidence regarding the costs of the removable hurricane panels. Petitioner did not resubmit an Application. Instead, on July 15, 2020, Petitioner emailed the HOA stating the reason he requested the accordion shutters was due to a disability, and that he could not put up and take down the removable panels on his home if there was a storm. He did not address the possibility of installing hurricane proof glass windows and doors. Later, Mr. Drake told Petitioner that installing the hurricane proof windows and door glass would be the best option that the ACC would approve. Petitioner responded, "So now you are breaking disability laws by denying reasonable accommodation. I will be contacting the ADA about this and taking action against the HOA if [I] need to." No further action was taken by the HOA on Petitioner's July 12 Application. Petitioner filed his Charge of Discrimination with FCHR on August 5, 2020. REQUEST - FEBRUARY 2, 2021 On February 2, 2021, Petitioner filed another Application. This Application was for permission to replace the windows on Petitioner's home. In its letter approving the February 2 Application for the installation of new windows on Petitioner's home, the HOA reminded Petitioner: [T]he installation of the permanent accordion style shutters will not be approved by Highgate Park even after you replace the windows and doors with non-hurricane impact glass for the reasons previously stated and that the option for you to install permanent hurricane windows and door glass remains a viable alternative as it both complies with the HOA Restrictions and accommodates your disability claim. Petitioner did not purchase the hurricane proof windows and doors, but opted to install the non-impact resistant windows and doors. The installation of the new windows and doors cost $8,635.1 1 Petitioner claimed and argued in his PRO that the windows were financed through his mother. The undersigned finds it is irrelevant who paid for the windows. Hurricane proof windows would have cost him $7,150 more, or a total of $15,785. In comparison, it would cost Petitioner a total of $14,255 had he installed the accordion shutters ($5,620) with the non-hurricane impact windows and doors ($8,635) that he had installed. The cost difference between the option of installing the accordion shutters compared to installing the hurricane proof glass and doors was $1,530. There was no evidence at the hearing on how much the removable hurricane panels would have cost. REQUEST - March 26, 2021 After receiving the "No Cause" Determination, but before filing his Petition for Relief, on March 26, 2021, Petitioner filed another Application with the ACC, again requesting permission to install the accordion shutters: Per [FCHR], resubmitting ACC for hurricane accordion style shutters. Disability information is attached for reasonable accommodation request. On April 23, 2021, the ACC denied Petitioner's March 26 Application. Specifically, it found that the accordion shutters did not comply with community-wide standards and would violate the Covenants. The HOA again suggested that the option of installing hurricane proof glass and doors was a reasonable viable alternative to the accordion shutters. Although Petitioner argued in his PRO that the accordion shutters were the only option that would not cause him a financial hardship, he provided no evidence as to his income or why the alternatives suggested by the HOA were cost prohibitive. PETITIONER'S DISABILITY Petitioner testified as to his medical condition and physical limitations. These limitations were consistent with the medical documents attached to the March 26 Application: (1) a letter from the U.S. Social Security Administration, Office of Disability Adjudication and Review, dated October 22, 2007, indicating Petitioner was deemed "disabled" due to hip dysplasia and degenerative arthritis, and was entitled to benefits; (2) a medical note dated January 29, 2020, listing a number of medical conditions which limit Petitioner's mobility and cause him pain; (3) an FCHR form executed by Petitioner's treating medical provider dated September 23, 2020, indicating Petitioner suffered from physical impairments that limit his ability to breath, hear, perform manual tasks, see, and walk; and (4) an examination report dated December 23, 2019, recommending Petitioner would benefit from a scooter for ease of movement outside the home. In the FCHR form, the medical provider specifically states Petitioner "has limited mobility of his [lower extremities] and decreased upper body strength. He would be unable to repeatedly put up and take down hurricane shutters." Based on this documentation and Petitioner's undisputed testimony regarding his physical condition, the undersigned finds Petitioner suffers from a physical impairment that affects major life activities, including walking and standing. Petitioner offered no evidence (medical or otherwise) that hurricane shutters (permanent or removable) were necessary to alleviate some aspect of his medical conditions or that accordion shutters were necessary for the full enjoyment of the Property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed by Javier Arrillaga. DONE AND ENTERED this 13th day of August, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2021. COPIES FURNISHED: Robert Aranda, Esquire Campbell, Trohn, Tamayo, & Aranda 1701 South Florida Avenue Lakeland, Florida 33803 Javier Arrillaga 629 Kensington Drive Davenport, Florida 33897 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
Findings Of Fact Background Petitioner is incorporated in the State of Florida as a not-for-profit corporation. The corporate purpose of Petitioner includes the improvement of environmental health. Petitioner's activities in this regard are especially focused upon Manatee and Sarasota Counties, including the City of Bradenton (Bradenton). Petitioner has about 2500 members. Members of Petitioner reside in Bradenton. These persons use the water and roads adjacent to Perico Island. Insubstantial evidence suggests that Petitioner, through its members, submitted oral objections to Bradenton at anytime during the planning process. Petitioner mailed a letter dated March 7, 1989, to the Department of Community Affairs (DCA) with a copy sent to Bradenton. The letter clearly constitutes written objections to the proposed plan. Bradenton initially received the March 7 letter on March 9. It is difficult to determine whether Bradenton received a copy of the March 7 letter after the issuance of the Objections, Recommendations, and Comments (ORC) by DCA. Even if Bradenton received a copy of the March 7 letter prior to the issuance of the ORC, it is impossible to determine if Bradenton received another copy of the letter with the ORC, which may contain numerous attachments consisting of the comments of other parties. The ORC was not introduced into evidence. The only indication in the record, including pleadings, of the date of the ORC is in Exhibit 2 attached to the Deposition of Robert Pennock, which itself is City Exhibit 6. Exhibit 2, which is a letter from DCA to Bradenton, mentions the ORC dated March 17, 1989. This date would be at the outside of the range for DCA to submit an ORC in response to a proposed plan transmitted, as in the present case, on November 23, 1988. 9/ By Request for Admission served November 21, 1990, Petitioner requested Bradenton to admit: "that [Petitioner] submitted written objections to [Bradenton's plan] which [Bradenton] received after it received DCA's ORC report." Bradenton's response to the request, in its entirety, states: The City has received a copy of the correspondence relating to possible "objections" to the City's Plan that were mailed directly to [DCA]. The date of that correspondence was March 7, 1989 and addressed to Robert G. Nave, Chief, Bureau of Local Planning, and was written by Attorney Thomas W. Reese. By date stamp on the copy of the correspondence in the possession of the City, it is believed that the document was received on March 9, 1989. The City does not admit that the correspondence of March 7, 1989 from Mr. Reese to Mr. Nave meets the intent of the statute for establishing standing and to the contrary, does not comply and does not establish such standing. The response ignores the portion of the request directed toward the factual question of the order in which Bradenton received the March 7 letter and the ORC. The significance of the chronology, as opposed merely to the acknowledgement of receipt of the March 7 letter, may have been lost upon Petitioner's counsel, who inexplicably asserted in opening statement that the ORC was issued on December 19, 1988. Transcript, page 57. Given the probable chronology of events recited in the preceding footnote, one of the few certainties concerning this matter is that the ORC was not issued on December 19, 1988. Intervenor is a Delaware corporation that owns property in Bradenton. Intervenor owns the western peninsula of Perico Island, which is described in detail below. Intervenor submitted oral or written objections to Bradenton not later than the transmittal hearing on November 23, 1988. Prior to transmitting the proposed plan to DCA, Bradenton removed the coastal high hazard designation from much of the western peninsula of Perico Island and changed the designation of the affected land to ten units per acre. Bradenton is a municipality located in western Manatee County. The city, which straddles the mouth of the Braden River to the east, generally lies along the southern bank of the Manatee River less than three miles upstream from where it empties into lower Tampa Bay. Wares Creek runs from south to north through the center of Bradenton and empties into the Manatee River. Palma Sola Bay divides the majority of the city from Perico Island. The southern half of Perico Island, which consists of eastern and western peninsulas, is within the city limits. Perico Island, which is generally bounded on the west by Anna Maria Sound and Sarasota Pass, is located between Tampa Bay to the north and Sarasota Bay to the south. Barrier islands to the west, most notably Anna Maria Island, tend to protect Bradenton from direct Gulf waves. On August 1, 1989, Bradenton adopted its comprehensive plan (Plan). As Bradenton noted accurately in its cover letter to DCA, no DCA representative attended the final adoption hearing on July 26, 1989, although Bradenton had requested that DCA send a representative to the hearing. 10/ On September 16, 1991, DCA issued a notice of intent to find the Plan in compliance. Designation of Coastal High Hazard Area Data and Analysis The Data and Analysis 11/ contains a Coastal Area Map, which is on page 150 of the Plan. The map depicts those areas below two feet elevation as the Coastal High Hazard Area. The map shows that the Coastal High Hazard Area includes about one-half of the western peninsula of Perico Island and relatively thin strips along the south and east borders of the eastern peninsula of Perico Island. The only other portions of Bradenton designated as Coastal High Hazard Area are parts of islands in the Braden River and two small parcels on the west bank of the Braden River. The Data and Analysis does not further address the Coastal High Hazard Area. In particular, the Data and Analysis fails to explain why the two-foot elevation was selected to define the Coastal High Hazard Area. The Data and Analysis does not mention the location of the Federal Emergency Management Agency velocity zone (V-zone) or the Department of Natural Resources Coastal Construction Control Line. The portion of Perico Island within the city is bounded on the north by State Road 64. Immediately north of State Road 64, the remainder of Perico Island is in unincorporated Manatee County. The Manatee County comprehensive plan designates the entire island north of the road as coastal high hazard area. However, the county plan notes extends the coastal high hazard area to the five- foot contour. The county plan also divides the coastal high hazard area into two areas: the more critical area, which corresponds to the V-zone, that is subject to wave action and the less critical area that is subject to storm- induced damage. Some testimony suggests that the Manatee County plan has more stringent land use constraints for land uses within the V-zone than for land uses elsewhere within the county's coastal high hazard area. Nothing in the record indicates the extent of the V-zone over any part of Perico Island. Early in the consideration by the City Council of the proposed plan, the coastal high hazard area included all land seaward of four feet elevation. The four-foot contour had been selected because of data suggesting that the "spring high tide" runs to an elevation of 3.62 feet, which was rounded up because Bradenton had only one-foot contour maps. By letter dated November 16, 1988, a representative of Intervenor complained that the four-foot contour was "scientifically unjustified and legally unsupportable." The letter states: Only a portion of the westerly peninsula is in the [V-zone] and even that portion of the property could be partially used with proper construction safeguards. The staff position of four feet seems to be based upon the fact that spring high tide occurs at elevation 3.56 feet but no one knows where that elevation occurs on this property nor does anyone know where the elevation 4.0 feet occurs on this property. The relationship between spring high tide and coastal high hazard is likewise unestablished. Bradenton's Chief of Planning and Zoning, Margaret Swanson, testified that the two-foot contour line "definitely" includes the entire V-zone. Deposition of Margaret Swanson, page 48. Jerry West, Bradenton Planning and Development Director and Ms. Swanson's supervisor, testified likewise at the hearing. Transcript, page 90. Petitioner produced no contrary evidence as to the location of the V- zone or the Coastal Construction Control Line. Likewise, there is no evidence that either peninsula has historically experienced destruction or severe damage from storm surge, waves, erosion, or other manifestations of rapidly moving or storm driven water. The spring high tide appears to be an unusual event, perhaps even occurring less often than annually. The evidence fails to link the spring high tide with destruction or severe damage from rapidly moving or storm driven water anywhere in Bradenton. Plan Provisions Coastal Management/Conservation Element (Coastal) Goal 5 states: Use of coastal areas in a way which preserves natural systems, provides for public access, and minimizes storm and flood hazards to population and property, including public facilities. Objective 1: Severely limit development in low lying coastal areas. Policy 1: A coastal high-hazard area shall be established through the Land Use and Development Regulations to include all coastal lands along the Braden and Manatee Rivers and Palma Sola Bay which are below 2 feet in elevation. Policy 2: Establish a conservation zone including all conservation lands as shown on the Future Land Use Map and all undeveloped areas below the Coastal High Hazard Line (2-foot contour line) and prohibit construction of building, roadways and parking areas in that zone except to provide shoreline access points as determined necessary or of overriding public interest by City Council. . . . Policy 3: Prohibit the filling of coastal areas below the 2-foot contour line except in cases where such lands are completely separated from the shoreline by land of higher elevation or where determined necessary or of overriding public interest by City Council. Policy 4: The City shall not locate infrastructure in the Coastal High Hazard Area (below the 2-foot contour line) except as determined necessary or of overriding public interest by City Council. * * * Objective 5: Keep population and investment low in areas vulnerable to coastal flooding. Policy 1: Designate undeveloped coastal acreage with areas below the 8-foot elevation contour line as PDP (planned development project) and limit residential development to low density below the 8-foot contour. Limit non-residential development below the 8-foot contour line to water dependent uses. Policy 2: Locate all public facilities outside of the coastal high hazard area. * * * Policy 4: Discourage the location of high density residential projects, public housing, housing for the elderly, mobile homes and group homes in high priority hurricane evacuation zones through the Land Use and Development Regulations. The Future Land Use Map (FLUM) designates as Conservation all of the land on Perico Island below the two-foot contour. According to Policy 1 under Objective 1 of the Future Land Use Element (FLUE), the "Recreational/Conservation" designation is for "[p]arks, designated open areas and conservation." No residential uses are permitted in the Recreation/Conservation category. The only FLUE goal is: A land use pattern which promotes the well being of the community in regard to compatibility of adjacent uses, building types and residential densities, efficiency of utilities and roadways, harmony with the natural environment and protection from natural hazards. Objective 1: Location of new development and redevelopment in a manner conducive to compatibility of land uses, sensitive to natural resources and natural hazards and consistent with the availability of public facilities. * * * Housing Element (Housing) Policy 1 under Objective 1 is: Designate vacant tracts of land for residential use on the future land use map except where unsuitable for that use because of incompatible adjacent existing uses, inappropriate elevation or drainage conditions or other safety hazard. State Plan Provisions There are no relevant provisions of the State Plan with which the Coastal High Hazard Area is arguably inconsistent. Designation of Ten Units Per Acre on Western Peninsula of Perico Island Data and Analysis The Data and Analysis identifies Perico Island and the islands of the Braden River as the two areas of major environmental concern in Bradenton. The Data and Analysis states: The value of these lands is that they are coastal lands with abundant sea life and habitat. In an urbanized area where much of the natural shoreline has been destroyed, these remaining lands should be protected because of their intrinsic value as well as because of their dwindling supply. Plan, page 157. The Data and Analysis notes that Perico Island is entirely within the 100-year flood zone and is less than five feet above sea level with "large areas" below the mean high water line. The western peninsula of Perico Island is lower than the eastern peninsula. The highest elevation on the western peninsula is five feet, which is within 100 feet of State Road 64. The elevation of most of the upland beyond 100 feet of the road is less than three feet. The elevation of much of the interior of the eastern peninsula is 3-4 feet. Although Perico Island contains Australian Pine and Brazilian Pepper, which are nuisance exotics, the Data and Analysis explains that valuable natural habitat remains: A great diversity of animal and plant life is found on the island[, including roseate spoonbills, brown pelicans, osprey, and an occasional bald eagle]. The mangrove swamps, mud flats, and marine grass flats fringing Perico Island support a variety of marine life including commercial and game fishing species such as mullet, trout, redfish, and snook, as well as shellfish. Plan, page 158. The habitat of the endangered West Indian Manatee includes the coastal areas in question. In addition to the above-noted animal species that are listed as endangered, threatened, or of special concern, the threatened butterfly orchid is also found on Perico Island. The Data and Analysis reports that Palma Sola Bay is a Class II waterbody, which means that it is suitable for shellfishing. Although it has not been approved for such purpose, its waters regularly satisfy Class II standards with only an occasional violation of the Class II bacteriological standards. According to the Data and Analysis, Palma Sola Bay has been designated as part of the Sarasota Bay Estuary of National Significance. Plan, page 98. Both Anna Maria Sound and Palma Sola Bay are part of the Sarasota Bay estuarine system and, as such, are Outstanding Florida Waters. 12/ Concluding its discussion of the two areas of major environmental concern to Bradenton, the Data and Analysis states: As with Perico Island, the Braden River and its wetlands are an invaluable natural resource. Such tidal wetlands not only reduce water pollution by filtering pollutant-laden runoff, but also influence water quantity by retaining water during dry periods and absorbing it during flooding. Wetlands also stabilize the shoreline and act as a hurricane buffer. They provide essential breeding, nesting, resting areas for myriad fish and bird species and support a diverse food web extending to terrestrial animals as well. ... Plan, page 159. The Coastal Vegetation map shows that the portion of the western peninsula corresponding roughly with the Coastal High Hazard Area is vegetated by coastal wetlands with considerable mangrove growth. Plan, page 151. Perico Island is one of "three areas where future development will impact the coastal area." Plan, page 160a. The Data and Analysis notes that an historic shell mound on the western peninsula must be "protect[ed from r]esidential development." However, the designation of the western peninsula at ten units per acre, as necessarily conceded by Mr. West, is not a low density. The Data and Analysis surmises that the impact of future development on at least the eastern peninsula of Perico Island is largely unavoidable: Because of a Development Order issued on a 1975 Development of Regional Impact application, the conditions of development are established and little can be done to modify them to meet the policies of this plan. Id. The Data and Analysis describes the 1975 development order as: authoriz[ing] 1512 dwelling units and a neighborhood commercial center and call[ing] for the preservation of lands below the 1.5 foot elevation and in an historic shell mound on the western peninsula of the site. Development of the western peninsula was prohibited by the approval stipulations. Plan, page 158. At the time of the application for what is known as the Spoonhill Bay DRI, Intervenor or an affiliate of Intervenor owned both peninsulas. After obtaining the development order, Intervenor sold all or part of the eastern peninsula to developers, but retained the western peninsula. The application for development approval was for a total of 1776 units on 102.6 acres. The entire land area was about 546 acres with 171 acres of mangroves conservation, 200 acres of marine conservation, 10 acres of historic preservation, almost 2 acres of neighborhood commercial, 26 acres of lakes, and 35 acres of other open space and recreation. The map accompanying the application shows two sites for historic conservation, both evidently above the two-foot contour line. According to the DRI application, both peninsulas of Perico Island contain about 184 acres above the 1.5-foot contour. The western peninsula encompasses 114 acres with about 10-16 acres higher than 1.5 to 2 feet in elevation. According to the application, the dwelling units per gross acre would be 3.2 and the dwelling units per net acre would be 9.7. The gross acreage density is based on total acres, including mangroves, lakes, and marine conservation. The net acreage density is impossible to calculate from the information provided. 13/ The development order, which was approved May 28, 1975, by the Bradenton City Council, approves the development subject to the following conditions: The developer shall initiate a positive program for the long run protection of the ecologically important undeveloped areas of the site. . . . * * * 3. The applicant shall work in consultation with the State Division of Archives, History and Records Management to insure the protection and preservation of the two sites of historical and archaeological significance found on the project site. Protection of the Indian Mound area shall be by deed, dedication, or other appropriate legal instrument to insure that such sites are preserved in perpetuity. * * * 5. With respect to responsibility for roadway improvements outlined in the transportation section of the DRI report: * * * (d) To further reduce traffic impact of the project, no residential development as originally proposed by the developer will be carried out on the westerly peninsula of the developer's property. ... Total number of residential units as proposed shall be reduced by 15% from 1,778 units to 1,512 units, all to be located on the easterly peninsula. * * * 7. Developer shall furnish at no cost to City not less than one acre site to accommodate governmental services that will be generated by the development, e.g., fire, police, etc. Site location shall be subject to approval of both parties. The Data and Analysis includes among "acreage not presently slated for development . . . 10 acres, western peninsula, Perico Island[,] includes Mangrove areas, low-lying areas and an Indian shell mound." Plan, page 12. However, the Data and Analysis determines that this area is "suitable for development," which means that the land is "above mean high water line and is served by public facilities." Plan, page 14. The soils map shows that the entire western peninsula, as well as the western half of the eastern peninsula, is characterized by nearly level, very poorly drained sandy and organic soils in tidal mangrove swamps. Plan, page 13. The soils of the western peninsula and western half of the eastern peninsula of Perico Island, as well as the soils of the Braden River islands, are the only soils in Bradenton that are generally "very poorly drained" and account for very little of the land area of the city. Both peninsulas of Perico Island are identified as Neighborhood 12.04 in the Plan. In the discussion of Neighborhood 12.04, the Data and Analysis states that a condition of the development order "was that the smaller of the two peninsulas is not to be developed because of environmentally sensitive and historically significant areas as well as traffic impacts." Plan, page 97. The Data and Analysis notes that the two shell middens, which date from "prehistoric times," have been damaged by erosion and amateur excavation. But the Data and Analysis recommends that the Indian mounds be professionally excavated or protected "because of their potential value in adding to the small amount of information available about prehistoric settlements in this area." Plan, page 97. The Data and Analysis notes that approved development has provided 600 units through 1986 at a density of 6.3 units per acre. As of that time, 116 acres were in residential use, one acre in commercial use, and 70 acres were vacant. The Data and Analysis projects that 800 units will have been constructed by 1990. In discussing Neighborhood 12.04, the Data and Analysis reports that no public recreation areas are proposed for the development, which will be served exclusively by private recreation areas. In addition, State Road 64 is the hurricane evacuation route for Perico Island as well as Anna Maria Island, which is also served by another escape route. The discussion of Neighborhood 12.04 concludes with several recommendations. Among them are the following: Require the preservation of and protection of the historic shell middens on the western peninsula if the peninsula is ever developed. Strictly enforce the flood protection ordinance for development of the island. Require mangrove and water quality protection as part of development approvals. Hurricane evacuation and traffic impacts on State Road 64 shall be considered as an important issue in review of applications for development approval. Any applications by property owners to increase the density of development in the neighborhood shall be denied. Participate in the studies of Sarasota and Palma Sola Bays under the National Estuary Program and utilize the recommendations coming forth from that program to the extent possible. Nothing in this Plan shall limit or modify the rights of any person to complete any development that has been authorized as a development of regional impact pursuant to Chapter 380 or who has been issued a final local development order, and development has commenced and is continuing in good faith. Any amendments to the development order for the Development of Regional Impact shall comply with or require compliance with all of the policies of this plan particularly those concerning protection of environmentally and historically sensitive lands, the coastal high hazard area and hurricane vulnerability zone. Plan, pages 98-99. The Evacuation Map shows that all of Perico Island is in Evacuation Zone A. Plan, page 153. This is the highest priority evacuation zone in Bradenton. This zone also encompasses bands of land along the Manatee River and both shorelines of the Braden River. Additional data and analysis are included in the Surface Water Improvement and Management Program for Tampa Bay published on August 30, 1988 (SWIM Plan). The SWIM Plan notes that the Tampa Bay estuary, of which Anna Maria Sound, Palma Sola Bay, and the Manatee and Braden Rivers are a part, suffers from interconnected problems, including habitat destruction (e.g., dredging, filling, hardened shorelines); water quality inclusive of eutrophication (e.g., point and non-point stormwater runoff, municipal and industrial effluents, septage); [and] altered freshwater inputs (e.g., dams, withdrawals). SWIM Plan, page 1. Addressing the functions of area wetlands, the SWIM Plan states: In addition to their contributions to the biology of the marine ecosystems, coastal and estuarine wetlands play an important role in modifying the geologic and hydrographic characteristics of the area. Acting as baffles, roots and leaves reduce the velocity of water over the bottom causing suspended particles to settle out and become trapped at the base of the plants. In this way mangroves, marshes, and seagrasses reduce turbidity, increase sedimentation rates, stabilize sediments, and attenuate wave action on adjacent shorelines. The binding and stabilization characteristics of these habitats are documented by reports of some coastal marshes and seagrass meadows surviving the destructive scouring forces of coastal storms and hurricanes in the Gulf states. SWIM Plan, page 23. However, these wetland systems "face increasing pressure from development of all types," notwithstanding the Warren S. Henderson Wetlands Protection Act of 1984. SWIM Plan, page 27. The water quality is directly threatened by the nutrients introduced into the water by, among other things, untreated stormwater runoff and the "extensive transformation of rural uplands to urban uses." SWIM Plan, pages 26-27. Plan Provisions The FLUM contains only two residential categories. All of Perico Island above the Coastal High Hazard Area is designated "Residential--maximum 10 units per acre." The other category permits up to 15 units per acre. FLUE Policy 1 under Objective 1 describes the Residential categories as follows: Residential with densities limited to 15 units per acre in the high density area and 10 units per acre in the moderate density area and limited by recommendations by neighborhood in this plan. . . . Neighborhood commercial uses permitted as part of the residential development plan. .. . FLUE Policy 2 under Objective 1 is: The recommendations for each neighborhood contained in this plan are hereby adopted as part of this plan and are to be adhered to in all land use decisions to be made by the City. FLUE Policy 3 under Objective 1 states: The future land use map, neighborhood recommendations and all other relevant policies under this plan are to be used as a basis for the revision of the land use and development regulations, including the zoning atlas. FLUE Objective 3 provides: Management of future development through adoption and enforcement of regulations which promote the use of land in a manner sensitive to public health and safety and to soils and topography. FLUE Objective 4 and relevant policies are: Objective 4: Limitation of population in first priority hurricane evacuation zones identified in the local and regional hurricane evacuation plan. Policy 1: Deny requests for increases in density on property approved for development if the property is located in the first priority regional hurricane evacuation zone. Policy 2: On the Braden River islands, designate as conservation area all lands below the 2 ft. contour line, and allow only recreational/open space or residential use at a gross density maximum of 3 units per acre on the uplands. Coastal Goal 2 is "[i]mprovement of surface water quality." Objective 1 is: "Preservation of water quality cleansing and erosion control capabilities of natural, vegetated shorelines." Policy 4 is to "[r]equire by ordinance by December 1, 1989 best management practices for erosion control during and after land alteration projects." Coastal Objective 2 under Goal 2 is: "Reduction of pollutant loads reaching waterways from urban stormwater." Policy 2 defers to land development regulations the job of establishing standards for new developments to "provide on-site detention and filtration of stormwater runoff to remove oils, silt, sediment, nutrients, and heavy metals, and [to] require erosion control during construction." Coastal Goal 4 provides: "Protection and enhancement of wildlife habitat and vegetation." Objective 1 deals with the Braden River estuary and islands and includes policies restricting development to uplands, generally prohibiting the removal of wetlands vegetation, and requiring that development proceed as a planned development project "to ensure site-sensitive planning and review." No similar provisions apply to Perico Island. Coastal Objective 2 under Goal 4 is: "Preservation of wetlands, including coastal wetlands vegetation, living marine resources and wildlife habitat." Policy 1 states: "[b]y December 1, 1989 adopt regulations to prohibit the removal of wetland vegetation except for limited access points." Policy 2 is, "[b]y December 1, 1989 require that development approvals for land with wetland area stipulate wetland protection measures to ensure that upland construction and land use do no affect the wetlands." Policy 3 states: "[b]y December 1, 1989 adopt regulations to require the identification of wildlife habitats as part of planned development project applications and . . . provide mechanisms to require protection of valuable habitat." Policy 5 provides: "[b]y December 1, 1989 adopt regulations to limit disturbance of seagrass beds by prohibiting development and land uses in seagrass areas and where they will result in an increase in boating in seagrass areas except where necessary to maintain existing facilities." Policy 7 is to develop with Manatee County a management plan for the Braden River estuary, Manatee River, and Palma Sola Bay. Policy 8 is to adopt by ordinance, within six months of their issuance, the recommendations of the Sarasota Bay National Estuary Program. Coastal Goal 6 is: "Fast evacuation prior to natural disasters such as hurricanes." Objective 1 is a "workable evacuation plan, geared toward maintaining present evacuation times." Goal 4 of the Public Facilities Element (PFE) provides: "Prevention of flood damage and improvement of surface water quality." PFE Objective 1 under Goal 4 sets forth the following provisions concerning drainage level of service standards. Policy 1a. The peak discharge rate from new development shall be equal to or less than the peak discharge rate that existed prior to development based on a 25-year frequency, 24-hour duration storm event. * * * Policy 1c. Internal or on-site drainage facilities of developments shall be designed to accommodate the stormwater resulting from a design storm of 10-year frequency, critical duration, based on the project site's time of concentration. Policy 2: The applicability of the level of service standards to various types and sizes of private development shall be set forth in the land use and development regulations adopted by December 1, 1989. PFE Objective 4 under Goal 4 is: "Nondegradation of capacity of natural drainage features." Policy 1 states: All new developments shall be required by land use regulations adopted by December 1, 1989 to provide stormwater retention and drainage facilities to curb increased runoff to natural drainage features. PFE Objective 5 under Goal 4 is: "Upgrading of existing drainage facilities to meet future needs." Policy 1 states: Stormwater facility improvements as proposed in the Comprehensive Stormwater Management Study, 1981 and subsequent updates shall be scheduled into the Capital Improvements program. 14/ State Plan Provisions The relevant provisions of the State Plan are set forth in Findings of Fact Paragraphs 74 et seq. Stormwater Provisions Plan Provisions Already cited above, PFE Goal 4; PFE Objectives 1, 4, and 5, as well as various policies under these objectives; Coastal Goal 2, Objective 2 under Goal 2, Policy 2 under Objective 2; and Housing Policy 1 under Objective 1 address stormwater and drainage. PFE Goal 1 is: Provision of public facilities in a manner which protects investments in existing facilities, promotes orderly, compact urban growth, and promotes the quality of natural resources, particularly surface waters. PFE Objective 1 and Policy 1 under Goal 1 are to maintain the applicable level of service standards for public facilities and not to issue development orders if the issuance would result in a violation of a level of service standard. PFE Objective 2 under Goal 4 is: "Correction of existing stormwater facility deficiencies by the year 2010." Policy 1 is: Stormwater facility improvements as proposed in the Comprehensive Stormwater Management Study 1981 hereby adopted as an appendix to this plan and subsequent updates shall be scheduled into the Capital Improvements program. PFE Objective 3 under Goal 4 is: "Water conservation through use of stormwater runoff for irrigation." SWIM Plan Provisions The SWIM Plan provides as follows with respect to water quality: Initiative 1. Reduce point and non-point source pollutant loadings to attain water quality necessary to restore and maintain healthy and productive natural systems, protect human health, and . . . attain the highest possible water use classification. * * * 1.c. Urban Stormwater Management Strategies: --Reduce the levels of nutrients and other contaminants in urban stormwater runoff by requiring, if feasible, that the quality of stormwater discharges be no worse than the State water quality criteria or the existing quality of the receiving water body, whichever is better. The feasibility of implementing this objective will be examined through a review of federal, state, District, and local rules pertaining to stormwater management. * * * --For all new upland development or redevelopment within the Tampa Bay watershed, runoff rates should not exceed those of natural, undisturbed conditions. The feasibility of implementing this objective will be examined through a review of federal, state, District, and local rules pertaining to stormwater management. Perico Island, Anna Maria Sound, and Palma Sola Bay, as well as the Manatee and Braden Rivers, are within the jurisdiction of the Southwest Florida Water Management District's SWIM program for Tampa Bay. State Plan Provisions Section 187.201(8) addresses water resources. The goal is to "maintain the functions of natural systems and the overall present level of surface and ground water quality." Policy 8 is to "[e]ncourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands and other natural floodplain features." Policy 12 is to "[e]liminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state." Section 187.201(9) addresses coastal and marine resources. The goal includes ensuring that development does not "endanger . . . important natural resources." Policy 4 is to "[p]rotect coastal resources [and] marine resources from the adverse effects of development." Policy 6 is to "[e]ncourage land and water uses which are compatible with the protection of sensitive coastal resources." Policy 7 is to "[p]rotect and restore long-term productivity of marine fisheries habitat and other aquatic resources." Section 187.201(16) addresses land use. The goal is to direct development to those areas that have, among other things, the "land and water resources . . . to accommodate growth in an environmentally sensitive manner." Policy 6 is to "[c]onsider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding." Section 187.201(22) addresses the economy. The goal is to "promote an economic climate which provides economic stability, maximizes job opportunities, and increase per capita income for its residents." Policy 3 is to "[m]aintain, as one of the state's primary economic assets, the environment, including clean air and water, beaches, forests, historic landmarks, and agricultural and natural resources." Historic Provisions Data and Analysis The Data and Analysis discloses that 85 structures in Bradenton were added to the Florida Master Site File following an historic survey in 1980. As a result of the survey, two historic districts were established: Downtown Bradenton and Old Manatee. The Data and Analysis reports that the Braden Castle ruins and Braden Castle Tourist Camp are included on the National Register of Historic Places. Plan Provisions The sole goal of the Historic Preservation Element (Historic) is: "To preserve Bradenton's architectural heritage as part of the effort to redevelop the old portions of the City." Historic Objective 1 is: "Disseminate information on the historic-architectural resources of the community and of the incentives for preservation and restoration of these resources." Historic Objective 2 is: "Restoration of historic structures and sites." Historic Objective 3 is: "Encourage other governmental agencies to consider historic and architectural value when taking actions affecting such properties in Bradenton and to modify their actions as to enhance rather than detract from these resources." Historic Policies include the dissemination of information pertinent to historic preservation, allowance of exemptions from the building code for certain historic rehabilitation, and cooperation with other governmental agencies in historic preservation efforts. Miscellaneous Provisions Plan Provisions Regarding Level of Service Standard for Recreational Facilities Recreation Element (Recreation) Objective 3 is: Provision of neighborhood parks located within walking distance of population served and having adequate acreage and facilities to serve the size and type of population served. Recreation Policies under Objective 3 include: Policy 1: One acre of neighborhood park per 500 people shall be the level of service standard for recreation. Policy 2: A neighborhood park shall be defined as a parcel of land of a half-acre or more located within a half-mile of the population served and having the following minimum improvements: benches, trees, open or grassy areas and play or exercise equipment facilities geared to the type of population served. Policy 3: Land use and development regulations adopted pursuant to this plan will require new residential development to provide recreation areas which meet the needs of that development based upon the adopted level of service standard for neighborhood parks. Such recreations shall serve in lieu of public neighborhood parks for new development. Plan Provisions Regarding Scheduling of Capital Improvements Necessary to Attain Level of Service D for Roads There are no roads identified in the Traffic Circulation Element (Traffic) for which Bradenton has jurisdiction that are projected not to achieve a level of service of D or better. The Data and Analysis states that seven road segments in Bradenton will attain a level of service standard worse than D during the planning timeframe. Plan, pages 125-27. However, the Data and Analysis indicates that the federal, state, or county has jurisdiction over each of these segments. Plan, page 114. Ultimate Findings of Fact Designation of Coastal High Hazard Area Petitioner has failed to prove to the exclusion of fair debate that the designation of the Coastal High Hazard Area is inconsistent with the criterion of supporting data and analysis. The Data and Analysis fails to indicate whether the Coastal High Hazard Area encompasses at least the V-zone or the land seaward of the Coastal Construction Control Line. However, Petitioner has failed to prove that the Coastal High Hazard Area excludes any part of the V-zone or the land seaward of the Coastal Construction Control Line. Testimony suggests that the Coastal High Hazard Area includes at least the V-zone. Petitioner has failed to prove to the exclusion of fair debate that the designation of the Coastal High Hazard Area is inconsistent with the criterion of the use of available appropriate data concerning historic damage and scientifically predicted damage of moving or storm driven water. The record contains no substantial evidence as to qualifying damage or destruction to areas outside the V-zone or landward of the Coastal Construction Control Line. Petitioner has failed to prove that the designation of the Coastal High Hazard Area is inconsistent with Plan provisions to protect coastal resources, protect the public from natural disasters, and maintain and hurricane evacuation times. Likewise, Petitioner has failed to prove that the designation of the Coastal High Hazard Area is inconsistent with provisions of the State Plan concerning housing, public safety, water resources, natural systems and recreational lands, land use, and governmental efficiency. As noted above, Petitioner failed to prove that the designation of the Coastal High Hazard Area is unsupported by data and analysis. Without proof that the designation of the Coastal High Hazard Area is incorrect, Petitioner is unable to prove the inconsistencies identified in the preceding Paragraph. Designation of Ten Units Per Acre on Western Peninsula of Perico Island Petitioner has proved to the exclusion of fair debate that the designation of up 10 units per acre is inconsistent with the criterion of supporting data and analysis, including a land use suitability analysis. The density of ten units per acre is, to the exclusion of fair debate, excessive under the circumstances. The soils are very poorly drained. The land above the Coastal High Hazard Area is very low. Except for 100 feet of frontage along the road, the entire upland will be flooded with the spring tide, which occurs with some regularity if not annually, as well as by flooding associated with hurricanes and tropical storms, even if the water is not storm driven. In the absence of an entirely elevated community, the spring tide and other coastal flooding will render inaccessible any interior residences, as well as inundate interior public facilities, unless natural drainage features and the mangrove fringes of the western island are significantly altered. The low elevation and very poorly drained soils increase the difficulty of effective stormwater management. At the same time, stormwater management is more critical on the island, which is surrounded by Outstanding Florida Waters and, in the case of Palma Sola Bay, Class II waters. The Spoonbill Bay DRI Development Order, which also serves as data and analysis, does not support the designation of ten units per acre for the western peninsula of Perico Island. The Development Order does not expressly transfer development rights from the western to the eastern peninsula. However, the Development Order rejects a request to develop the western peninsula at a density approximately equal to that accorded the western peninsula by the Plan. The Development Order expressly bases the denial upon transportation considerations. In light of other evidence, including quoted portions of the Data and Analysis, the cited transportation considerations probably included concerns as to the impact of transportation, including attendant stormwater runoff, upon the island's natural resources. In any event, Bradenton chose merely to designate up to ten units per acre on the western peninsula without addressing the bases for its denial, 15 years earlier, of approval to develop any portion of the western peninsula. Petitioner has proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with Coastal Goal 5, Objective 1 under Goal 5, Objective 5 under Goal 5, and Policies 1 and 4 under Objective 5. Goal 5 is to use coastal areas so as to preserve natural systems and minimize storm and flood hazards, among other things. Objective 1 is to limit development severely in low lying coastal areas. Objective 5 under Goal 5 is to keep population and investment low in areas vulnerable to coastal flooding. Policy 1 under Objective 5 is to limit residential development to low density below the eight-foot contour. Policy 4 is to discourage the location of high density residential projects in high priority hurricane evacuation zones, of which Perico Island is one. The Plan provisions set forth in the preceding paragraph preclude the designation of ten units per acre on the western peninsula. It is irrelevant whether the Plan's density designation is gross, so as to include some combination of Coastal High Hazard Area, mangrove fringe, wetlands, lakes, and Indian mounds, or net, so as to exclude all of such nonbuildable features of the land and waterscape characterizing the western peninsula. Even ten units per net acre is inconsistent with and repugnant to each of the provisions described above. 15/ Petitioner has proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with FLUE Objective 1; FLUE Objective 4; and Housing Policy 1 under Objective 1. Petitioner has not proved to the exclusion of fair debate that the designation of ten units per acre is inconsistent with FLUE Objective 3 or FLUE Policy 6 under Objective 1, which incorporates into the operative provisions of the plan Recommendation 6 for Neighborhood 12.04. FLUE Objective 1 is to locate new development in a manner sensitive to natural resources and natural hazards. FLUE Objective 4 is to limit population in the first priority hurricane evacuation zones. Housing Policy 1 under Objective 1 is to designate residential tracts except where unsuitable due to inappropriate elevation or drainage or other safety hazard. The designation of ten units per acre, even on a net acreage basis, is inconsistent with FLUE Objective 1 because the new development is not located in a manner sensitive to natural hazards and natural resources. The density designation is also inconsistent with FLUE Objective 4 to limit population in the first priority hurricane evacuation zones. There is no difference whatsoever between the density accorded the western peninsula, which is in Hurricane Evacuation Zone A, and the density accorded large areas of Bradenton, especially just east of Palma Sola Bay, although the latter areas are excluded on the Evacuation Map from any priority evacuation zone. The density designation is also inconsistent with Housing Policy 1 under Objective 1 due to the low elevation and poor drainage associated with the western peninsula. Policy 6 under FLUE Objective 1 incorporates the Recommendations for Neighborhood 12.04, which covers Perico Island. Recommendation 6 is to deny applications to increase the density of development in the neighborhood. FLUE Objective 3 is to manage future development through the adoption and enforcement of regulations to promote the use of land in a manner sensitive to the public health and safety and to soils and topography. Based on the Spoonbill Bay DRI Development Order, the density for the western peninsula may be viewed as zero. No evidence suggests what density the western peninsula may have arguably been accorded by a former comprehensive plan or zoning. However, it is possible to read Recommendation 6 as intending to incorporate the density given the western peninsula by the Plan, so Petitioner has not proved to the exclusion of fair debate that the density designation is inconsistent with Recommendation 6. Petitioner has failed to prove that the density designation is inconsistent with FLUE Objective 3 because of the latter's ineffectiveness. FLUE Objective 3 defers meaningful action to land development regulations and provides no upon real objective upon which an inconsistency determination could be based. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to coordinate coastal densities with the local hurricane evacuation plan. FLUE Objective 4 and Policy 1 under Objective 4 address this criterion. Petitioner has proved to the exclusion of fair debate that the Plan does not coordinate with the Spoonbill Bay DRI Development Order. As noted above, the density designation is consistent with Recommendation 6 of Neighborhood 12.04 only because it is assumed that the increased densities prohibited by Recommendation 6 are measured from the point of view of a former plan or former zoning, rather than the zero density accorded the western peninsula by the Development Order. In such a case, Recommendation 6 fails to coordinate with the Development Order. As noted above, the Data and Analysis fails to discuss why the Plan designates ten units per acre for the western peninsula when the Development Order prohibited any development. In effect, the Plan ignores the Development Order, and the resulting inconsistency is material in light of the impact of such a high density upon the natural resources of the peninsula and the public safety of future residents. However, the preceding two paragraphs are relevant only to consideration of the issue whether the density designation is supported by data and analysis. For reasons set forth in Conclusions of Law Paragraph 55, Rule 9J-5.006(3)(b)6., on which Petitioner relies, does not require an objective to coordinate with an DRI. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criteria of a policy to protect environmentally sensitive land and an objective to protect, conserve, or enhance remaining coastal wetlands, living marine resources, coastal barriers, and wildlife habitat. These criteria are addressed by Coastal Goals 2, 4, and 5 and their objectives, as well as PFE Goal 4, which is to "[p]revent. . . flood damage and improve. . . surface water quality." Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to direct population concentrations away from accurately defined coastal high hazard areas. For the reasons noted above, Petitioner has failed to prove that the Plan inaccurately defines the Coastal High Hazard Area for Bradenton, In the absence of such evidence, the Recreational/Conservation designation effectively addresses this criterion. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criteria of an objective to encourage land uses that are consistent with the community's character and future land use and a policy to provide for the compatibility of adjacent land uses. The FLUE Goal, FLUE Objective 1, and Housing Policy 1 under Objective 1 address these criteria. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of an objective to maintain or reduce hurricane evacuation times between the barrier island and mainland. Coastal Goal 6 and Objective 1 address this criterion, as do FLUE Objective 4 and Coastal Goals 1 and 6, although less directly. Petitioner has proved to the exclusion of fair debate that the Plan is inconsistent with the provisions of the State Plan, construed as a whole. The density designation given the western peninsula of Perico Island conflicts with various provisions of the State Plan designed to protect water, coastal and marine resources, and to promote efficient land uses compatible with land and water resources. Stormwater Provisions Petitioner has proved to the exclusion of fair debate that the stormwater provisions of the Plan are internally inconsistent with Plan provisions concerning water quality protection and improvement. Coastal Goals 2 and 5 protect water quality. Goal 2 is to improve surface water quality. Objective 2 under Goal 2 is to reduce pollutant loads reaching waterways from urban stormwater. Goal 5 is to use coastal areas so as to preserve natural systems. The stormwater provisions are inconsistent with the above-cited provisions protecting water quality because the level of service standard contains a serious loophole. PFE Goal 4, Objective 1, Policy 2 completely undermines the drainage level of service standard by providing that its applicability to "various types and sizes of private development" shall be as set forth in land development regulations adopted by December 1, 1989. For the reasons set forth in Footnote 15 above, relegating to land development regulations substantial provisions required by law to included in a plan is ineffective for reasons involving public participation and notice, compliance review, and enforceability. In effect, the applicability of the drainage level of service standard is subject to land development regulations. The evidence is insufficient to prove to the exclusion of fair debate the inefficacy of the stormwater provisions based on stormwater projects included in the Capital Improvements Schedule. The Data and Analysis discloses that Wares Creek has suffered most extensively from untreated stormwater runoff. However, Table 4 in the Capital Improvements Element discloses that most, if not all, of the scheduled stormwater projects will affect the Wares Creek drainage basin, as defined in the map of Storm Drainage Areas on page 208 of the Plan. 16/ For the reasons set forth in the preceding paragraph, Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of including in the Capital Improvements Schedule projects necessary to achieve treatment of stormwater sufficient to meet relevant water quality standards. Petitioner has proved to the exclusion of fair debate that the Plan is inconsistent with the criterion of a policy demonstrating how the local government will coordinate with the SWIM Plan, especially as to the latter's requirement that all stormwater discharge comply with relevant water quality standards. The Plan's drainage level of service standard, which is seriously undermined in the manner set forth above, is further hampered by the failure of the standard to include post- development water quality standards. As noted in the SWIM Plan data and analysis, the water quality of stormwater runoff is a key factor in preserving the health of the Outstanding Florida Waters that surround Perico Island and in restoring the health of other nearby waters. Due to the failure of the Plan submitted into evidence to contain as an appendix the Comprehensive Stormwater Management Study, 1981, Petitioner has failed to prove to the exclusion of fair debate that the scheduled capital improvements concerning stormwater projects fail to implement the SWIM Plan. In addition, the SWIM Plan does not generally impose project deadlines for various capital improvements. Petitioner has proved to the exclusion of fair debate that the stormwater provisions of the Plan are inconsistent with the provisions of the State Plan, construed as a whole. The failure to incorporate into the Plan an effective level of service standard for post-development runoff rate for all developments and the failure to incorporate any level of service standard for post-development runoff water quality are inconsistent with the above-cited provisions of the State Plan. Historic Provisions Petitioner has failed to prove to the exclusion of fair debate that the Historic Element is inconsistent with the criterion of supporting data and analysis; the Historic goal is internally inconsistent with the Historic objectives and policies; or the Historic provisions are inconsistent with the criteria that objectives be measurable and policies describe how programs and activities will achieve the goals. None of the Historic provisions contradicts any of the Data and Analysis concerning historic resources. The Historic objectives and policies are in no way inconsistent with the Historic goal of preservation. The Historic objectives are measurable, and the policies describe how programs and activities will achieve the goals. Miscellaneous Provisions Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of establishing a level of service standard for recreational facilities. Recreation Objective 3 and Policy 1 establish a level of service standard for recreation by acreage. Policy 2 addresses the facilities that must be constructed for each park used to satisfy the recreational level of service standard. Petitioner has failed to prove to the exclusion of fair debate that the Plan is inconsistent with the criterion of including in the Schedule of Capital Improvements projects necessary to achieve a level of service D for roads. No roads for which Bradenton is fiscally responsible are predicted to attain a level of service standard more congested than D during the planning timeframe.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs submit the Recommended Order to the Administration Commission for entry of a final order determining that Bradenton's plan is not in compliance for the reasons set forth above. ENTERED this 13th day of February, 1992, in Tallahassee, Florida. ROBERT E. MEALE 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 13th day of February, 1992.
The Issue Whether Petitioner, Palafox, LLC (“Palafox”), is entitled to its reasonable attorney’s fees and costs incurred in its defense of the challenge to its Environmental Resource Permit (“Permit”) as raised in the Amended Petition in the underlying administrative matter, filed by Respondent, Carmen Diaz or her attorney, Jefferson M. Braswell, or both, pursuant to section 120.569(2)(e), Florida Statutes.
Findings Of Fact Palafox is a Florida limited liability company and was the applicant for the Permit in Case No. 19-5831. Palafox owns Lot 1, Block B, of the Palafox Preserve Subdivision, the six-acre property on which the Project will be developed. Ms. Diaz is the owner of Lot 18, Block A, of the Palafox Preserve Subdivision. Petitioner is a member of the Palafox Preserve Homeowners Association, Inc. (the “HOA”). The HOA is not a party to this litigation. The HOA has previously agreed not to challenge any permits sought by Palafox for the development of the project. Mr. Braswell is not a party to this matter. He represented Ms. Diaz through the Final Order issued by the District in Case No. 19-5831. Palafox’s Renewed Motion for Fees sought attorney’s fees and/or sanctions against Mr. Braswell for his role in that case, as allowed under section 120.569(2)(e). Ms. Diaz’s Challenge to the Project The Project consists of a 36-unit multi-family residential development proposed to be built on Lot 1, Block B, of the Palafox Preserve Subdivision. The Project encompasses approximately 2.68 acres of Lot 1, Block B. The Project lies adjacent to, and immediately west of, Martin Hurst Road and adjacent to, and immediately south of, Palafox Lane. The remainder of 2 Mr. Braswell also filed a Proposed Final Order and Amended Proposed Final Order, which were not authorized and have not been considered by the undersigned in preparing this Final Order. Mr. Braswell is not a party to this proceeding and did not become a party thereto by merely appearing at the final hearing to make some argument on his own behalf. He did not move to intervene in this proceeding, or otherwise obtain party status, not even by ore tenus motion at the Final Hearing. Mr. Braswell did not file a notice of appearance and did not attend the Final Hearing as counsel for Ms. Diaz. Furthermore, Mr. Braswell did not request permission to submit a Proposed Final Order. Palafox’s property runs to the west of the Project and south of Palafox Lane, and is located within a perpetual conservation easement. Ms. Diaz’s property is a residential lot located west of, and not adjacent to, Palafox’s property. An approximate nine-acre conservation easement owned by the HOA lies between Ms. Diaz’s property and Palafox’s property. A portion of Petitioner’s back yard is located within the conservation easement. Approximately seven acres within the conservation easement are wetlands. The conservation easement, including the wetlands, straddles the boundary between Block A and Block B, with about two-thirds in Block A, for the most part owned by the HOA, and one-third in Block B, wholly owned by Palafox. Palafox sought an environmental resource permit from the District to construct storm water management facilities (SWMFs) to serve the Project. The SWMFs to be authorized by that Permit are on Palafox’s property. Palafox’s property, the conservation easement and wetlands, and Ms. Diaz’s property, are all located within the same closed basin. This means that storm water within the basin will generally not flow out of the basin in all storm events up to, and including, a 100-year, 24-hour storm. On October 30, 2019, following the District’s notice of intent to issue the Permit, Ms. Diaz filed an Amended Petition for Formal Proceedings Before a Hearing Officer (“Amended Petition”). In the Amended Petition, Ms. Diaz challenged the District’s issuance of the Permit alleging that the Project will (1) have adverse water quantity impacts to adjacent lands; (2) cause adverse flooding to on-site or off-site properties; (3) cause adverse impacts to existing surface water storage and conveyance capabilities; and (4) adversely impact the value and function of wetlands and other surface waters. She also alleged that the wetland had not been properly delineated previously, and that an older delineation was no longer valid. Specifically, Ms. Diaz alleged that the “proposed [storm water] system results in a massive change in the amount of storm water being discharged from the applicant’s site directly onto Petitioner’s property which leads to adverse impacts on her property.” On November 19, 2019, the Final Hearing was scheduled for February 19 and 20, 2020. Ms. Diaz was deposed on January 17, 2020, almost three months after filing her Petition, and two months after the Final Hearing date was set. The deposition revealed that Ms. Diaz was not the least bit informed of the Project. Ms. Diaz had not reviewed the Permit, and believed that the Permit authorized Palafox to build the Project, rather than the storm water treatment system. Ms. Diaz had not seen the site plans, had no understanding of what the Project would look like, and admitted she had done nothing to learn about the Project. In fact, Ms. Diaz testified repeatedly at her deposition that she simply does not want the Project built, regardless of whether it would actually impact her property or the wetlands, and regardless of what kind of development it is. She does not want Palafox’s property developed, in any capacity, and wants it to stay “the way it is now.” Ms. Diaz conducted no written discovery nor any depositions, and did not hire an expert until approximately one month before the final hearing. That expert, Mr. Carswell, had never visited the site. Although Mr. Carswell conducted a storm water analysis, Mr. Carswell conceded that Mr. Braswell prepared and sent him a ten-page report and asked him to consider it as Mr. Carswell’s opinion report. In reviewing and adopting that report, Mr. Carswell admitted that he did not do the type of analysis that he would have if he wanted to determine the incremental addition of storm water to a closed basin. Instead, he did a simple water balance equation. Mr. Carswell testified that he had never before used this type of analysis to support permitting for a storm water pond and that if he was going to try to predict the incremental contribution of storm water discharge from a project into a closed basin, he would utilize a model similar to the one submitted by Palafox in support of this Project. The undersigned found Mr. Carswell’s analysis was not a professionally-acceptable method for determining whether the Project met the standards for the Permit. In addition to Mr. Carswell, Petitioner offered the testimony of four other witnesses at the final hearing. None were able to offer any evidence that Palafox failed to provide reasonable assurance that the project: Will not cause adverse water quantity impacts to receiving waters and adjacent lands; Will not cause adverse flooding to on-site or off- site property; Will not cause adverse impacts to existing surface water storage and conveyance capabilities; and Will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. The testimony of two of those witnesses, Mr. Songer and Mr. Stinson, was in transcript form and was actually given in DOAH case No. 18-2734. In that case, neither witness’ testimony was accepted to defeat Palafox’s site plan approved under the more stringent permitting requirements of Leon County. See Braswell v. Palafox, LLC, Case No. 18-2734 (Fla. DOAH Aug. 31, 2018; Leon Cty. Bd. of Cty. Comm’s (Sept. 24, 2018)). The remainder of Ms. Diaz’s witnesses’ testimony was equally ineffective. Mark Cooper, the Project engineer, testified that the Project would raise the water level in the wetland by .04 feet in a 100 year, 24-hour storm event, which he classified as a negligible impact. Mr. Cooper’s testimony confirmed that of Palafox’s expert engineer, Mark Thomasson, who classified that increase as “de minimus.” Cheryl Poole, Ms. Diaz’s other witness and an engineer who worked on a prior project on the property, merely testified to conditions that existed a decade prior that are not relevant to the Project. In short, Ms. Diaz presented no credible evidence at all that the Project would negatively impact either the wetlands or her property. After the final hearing, the undersigned administrative law judge issued a Recommended Order, adopted in toto by the District, concluding that Ms. Diaz did not carry her burden to prove that Palafox failed to provide reasonable assurances that the Project will not (a) cause adverse water quantity impacts to receiving waters and adjacent lands; (b) cause adverse flooding to on-site or off-site property; (c) cause adverse impacts to existing surface water storage and conveyance capabilities; and (d) adversely impact the value and functions provided to fish and wildlife and listed species by wetlands and other surface waters. Mr. Braswell’s Prior Challenges to the Project Mr. Braswell has been involved in challenges to the Project for over five years. In those challenges, he has represented his parents, the HOA, Ms. Diaz, or some combination of those parties. In 2015, Mr. Braswell filed an administrative challenge on behalf of his parents—Wynona and Robert Braswell (the “Braswells”), who live in the Palafox subdivision and are members of the HOA. See Braswell v. Palafox, LLC (Fla. DOAH Case No. 15-1190). In that administrative challenge, the Braswells challenged Leon County’s approval of the Project site plan.3 The Braswells raised many of the same factual issues regarding the wetlands and storm water impacts that Mr. Braswell later raised again in Ms. Diaz’s challenge to the Permit. The Braswells also raised the issues that 3 Mr. Braswell admitted that when he filed that case, he “didn't know very much about the [P]roject,” “didn't know the rules” for Leon County’s site plan approval, and that he and his parents “didn't realize kind of what [they] were getting [them]selves into.” the Project violated a private covenant in the subdivision’s governing documents, which was beyond the Division’s jurisdiction. Accordingly, Palafox filed a civil suit for declaratory judgement to resolve that claim. In the interim, jurisdiction of Case No. 15-1190 was relinquished to the County without prejudice to refer it again to the Division should the civil suit not dispose of the issues raised in the administrative case. See Braswell v. Palafox, LLC, Case No. 15-1190 (Ord. Rel. Jsd. May 14, 2015). After an initial grant of summary judgment for the Braswells and a reversal by the First District Court of Appeal, the trial court entered a final judgment for Palafox. (Final Judgment, Evergreen Communities, Inc. v. Braswell, No. 2015-CA-000765 (Fla. 2d Cir. Ct. 2017)). After the civil suit was resolved, Mr. Braswell renewed his parents’ challenge to the site plan. See Braswell v. Palafox, LLC, Case No. 18-2734 (Fla. DOAH Aug. 31, 2018; Leon Cty. Bd. of Cty. Comm’s Sept. 25, 2018). As in the underlying Permit challenge, Mr. Braswell argued that the wetlands were not correctly delineated, and that the project would cause the wetland area to overflow and burden the “downstream” storm water facilities owned by the residential homeowners. While the County did not issue a storm water permit for the Project, approval of the site plan required a determination that the Project meets the County’s environmental code requirements. The County’s standard for volume control requires the runoff volume in excess of the pre-development runoff volume to be retained for all storm events up to a 100-year, 24-hour duration storm. That standard is more stringent than the District’s requirement to provide “reasonable assurances” that the Project will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities; and will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. In the site plan challenge, the administrative law judge found that the Project was consistent with the Code requirements and specifically found as follows: the Project’s proposed storm water system will not significantly impact the conservation easement wetlands and will not cause flooding or other adverse impacts to downstream areas. no statute, ordinance, rule or regulation requires a wetland to be re-delineated after it has been identified and placed in perpetual preservation under a conservation easement and that the argument to the contrary “would lead to the absurd result of re-surveying and re- recording allegedly ‘perpetual’ conservation easements every time a lot was developed” within a plat. Id. at R.O. ¶¶ 37 & 51. In yet another case arising from this dispute, in 2016, Mr. Braswell’s father filed a formal complaint against the Project engineer with the Florida Board of Professional Engineers. Mr. Braswell submitted additional information in support of that proceeding. See In re Mark Cooper, P.E., Case No. 2016052464 (Fla. Bd. of Prof’l. Eng’rs Mar. 14, 2017). The Closing Order in that case found no probable cause of a violation by Palafox’s professional engineer related to the storm water system after the independent reviewer concluded that, based on the materials submitted by Petitioner’s counsel, “there should be no adverse surface water impacts to adjacent property” from the Project. Id. at ¶ 1. After the resolution of the civil suit and prior administrative challenges, Palafox, the HOA, and the Braswells entered into a settlement agreement. Under that agreement, the HOA and the Braswells agreed they would not challenge the Project any further, as long as it complied with the site plan that the County had approved. Mr. Braswell signed that agreement on behalf of his parents as attorney in fact. Palafox, believing that Ms. Diaz was bound by that settlement agreement as a member of the HOA, and that she had breached the agreement by filing the Amended Petition in the Permit challenge, filed a civil suit in Leon County Circuit Court. See Palafox, LLC v. Diaz, Case No. 2019-CA-002758 (Fla. 2d Cir. Ct.). Mr. Braswell, representing Ms. Diaz in that suit as well, filed a counterclaim, subsequently voluntarily dismissed, in which he again raised the issues of the wetlands delineation and downstream flooding. (Def’s Ans. and Aff. Def. and Countersuit for Dec. Jdmt. at pp. 6-9). At no point between the resolution of the prior litigation regarding this Project and filing the Permit challenge did Mr. Braswell obtain new evidence or expert opinion to suggest that the Project would not meet the District’s more lenient standards for granting an environmental resource permit. Nor did he adduce evidence at hearing that would lead an administrative law judge to reach a different conclusion from Judge Ffolkes—that the project would not cause adverse impacts to downstream owners, that the Project would not adversely impact the wetlands, and that no new wetland delineation was required.
Findings Of Fact Based upon the record evidence and the stipulations of the parties, the following Findings of Fact are made: City of Miami Beach The City of Miami Beach is an incorporated municipality located within the jurisdictional boundaries of Dade County, Florida. It is governed by a seven member City Commission. The City consists of a main island and a number of smaller natural and man-made islands Approximately 100,000 permanent residents live on the City's seven square miles of land area. In addition, the City has a sizable seasonal population. The City is separated from the Dade County mainland, which lies to its west, by Biscayne Bay. There are four east-west causeways connecting the City with the mainland: MacArthur Causeway; Venetian Causeway; the Julia Tuttle Causeway; and 79th Street (North Bay) Causeway. All four of these causeways serve as hurricane evacuation routes for the City's population. Venetian Causeway The Venetian Causeway, which was completed in 1926, is the oldest of these causeways. It is approximately two and one half miles in length and consists of twelve lowrise bridges. These bridges feature low guardrails of a pierced geometric design which allow a virtually unobstructed view of the bay from anywhere on the roadway. Among its twelve bridges are two drawbridges, which are in relatively poor operating condition and are unable to bear exceptionally heavy loads. Inasmuch as the causeway is classified as a county minor arterial roadway, Dade County is responsible for its maintenance and repair. The causeway has one westbound lane of traffic and one eastbound lane of traffic. Its two lanes of traffic are not divided. As a two-lane, two-way undivided arterial, the causeway has a peak hour capacity of 1570 vehicles. Based upon 1987 statistics compiled by the Dade County Department of Public Works, the causeway's actual peak hour volume is 641 vehicles. Its volume to capacity ratio is therefore .41 and, as a result, its peak hour level of service (LOS) is "A," which is characterized by free flowing, optimum traffic conditions. There are five other service levels used by traffic planners to describe a roadway's traffic operations: LOS "B" (stable); LOS "C" (uncongested); LOS "D" (congested); LOS "E" (very congested); and LOS "F" (extremely congested). While traffic is free flowing most of the time on the causeway, there are occasions when there is congestion. Motorists may encounter such congestion when there is an accident, when there is flooding due to a heavy rain event, 1/ when traffic must stop to allow a truck with a heavy load to cross one of the causeway's drawbridges and when one of the drawbridges is stuck in the up position. Furthermore, when the drawbridge on the MacArthur Causeway is stuck in the up position, which happens not infrequently, a number of motorists who ordinarily travel on the MacArthur will use the Venetian as an alternative route, resulting in heavier than usual traffic on the Venetian. Motorists using the Venetian Causeway must stop at a toll booth located at the western terminus of the causeway to either pay a 50_ toll or show the attendant a plate reflecting that the toll has been prepaid. Rumble strips have been placed on the pavement to warn motorists to slow down before they reach the toll booth. As it traverses the bay from the mainland to the City's main island, the causeway crosses six islands, collectively known as the Venetian Islands, that are marked by residential development. From west to east, these islands are: Biscayne Island; San Marco Island; San Marino Island; Di Lido Island; Rivo Alto Island; and Belle Isle. Biscayne and San Marco Islands are within the jurisdictional boundaries of the City of Miami. San Marino, Di Lido, and Rivo Alto Islands and Belle Isle are within the jurisdictional boundaries of the City of Miami Beach. The Venetian Causeway is the only roadway linking the six Venetian Islands to the mainland. In addition to an eastbound lane and a westbound lane, the causeway has a turn lane on each of the Venetian Islands. At its July 19, 1988, meeting, the Dade County Commission passed the following resolution concerning the Venetian Causeway: WHEREAS, the Venetian Causeway, completed in 1926, was an integral part of the master plan for the residential Venetian Islands in Dade County; and WHEREAS, the Venetian Causeway is the oldest causeway remaining in its original form, linking the mainland of Miami to the island of Miami Beach; and WHEREAS, it is believed that preservation of the unique and historic Venetian Causeway as a historic site will be highly beneficial to the residents of the Venetian Islands, the citizens of Miami, Miami Beach, Dade County and the United States of America; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, FLORIDA, that the County Manager is directed to work with appropriate Local, State and Federal officials to secure funding for its replacement and the Causeway's designation as a State Scenic Highway and its listing as a historic place in the National Register while preserving its character and appearance. On July 27, 1988, the Miami Beach City Commission passed a similar resolution, which provided as follows: WHEREAS, the Venetian Causeway has historic significance in the development of the City of Miami Beach; and, WHEREAS, the Venetian Causeway has unique character by virtue of its scale, bridge profiles, and railing design; and, WHEREAS, the existing Venetian Causeway positively contributes to the appearance and character of the Venetian Islands and the City of Miami Beach. NOW, THEREFORE, BE IT DULY RESOLVED THAT THE CITY COMMISSION OF THE CITY OF MIAMI BEACH FLORIDA, supports the nomination of the Venetian Causeway to the National Register of Historic Places and the designation of the Venetian Causeway as a State of Florida Scenic Highway. On April 5, 1989, the Miami Beach City Commission adopted Ordinance No. 89-2637, which designated "[t]he public right-of-way of that portion of the Venetian Causeway within the corporate limits of the City of Miami Beach" as a historic preservation site, effective April 15, 1989. The Venetian Causeway was officially placed on the National Register of Historic Places effective July 13, 1989. Widening the causeway and adding lanes will change its unique character and appearance and adversely impact its value as a historic resource. Belle Isle Belle Isle is the Venetian Island closest to the City's main island and furthest from the mainland. Both of the Venetian Causeway's drawbridges lie to its west. To the south of the causeway on Belle Isle is a three acre City park and a crescent shaped, fifteen-acre area that is developed with highrise condominium apartment buildings. There are six such buildings. They range in height from ten to twenty- two stories and contain a total of approximately 1050 units. There is also a large vacant lot on the south end of the island. There are 9.17 acres of land to the north of the causeway on Belle Isle. The land is divided into six parcels. From west to east, these parcels are: the Cellazet parcel; Century Lane parcel; Lido Spa parcel; Farrey Lane parcel; Edelstein parcel; and Stortford parcel. The largest of these parcels is the Stortford parcel, which is 3.50 acres. The smallest of these parcels is the Edelstein parcel, which is .60 of an acre. The remaining parcels range in size from .69 of an acre (Century Lane) to 2.21 acres (Lido Spa). Of these six parcels on the north end of Belle Isle, only one, the Cellazet parcel, is vacant. Lowrise, older buildings, none exceeding five stories in height, are found on the other parcels. These buildings contain approximately 270 residential units. There has not been any recent development on the north end of Belle Isle. The units that are furthest south on Belle Isle are only 300 feet from the southernmost point of the 9.17 acres of land that lie to the north of the causeway on the island. Stortford Parcel Intervenor Stortford N.V. purchased the Stortford parcel in 1980 for approximately five million dollars with the intention of replacing the 120 lowrise rental apartment units on the site with highrise condominium apartment units. Shortly after it purchased the property, the market for highrise condominium apartment units in the area weakened and, as a result, Stortford N.V. delayed its plans to redevelop the property. By 1981, market conditions had improved. The improvement rekindled Stortford N.V.'s interest in pursuing its original redevelopment plans. It consulted an architect and investigated the economic feasibility of such a project. It determined after such an investigation that it would be imprudent to go forward with the project under the circumstances as they then existed. Accordingly, it again put its redevelopment plans on hold, but not before it had spent $50,000.00 on the project. Stortford N.V. next took action in furtherance of the project in the late 1980's. It had a building designed for the site and hired a general contractor, L. Milton Construction Company (Milton), to oversee the building's construction. The building was to be 27 stories tall and contain almost 300 apartment units ranging in area from 900 square feet (one-bedroom unit) to 1400 square feet (three-bedroom unit). Four of the building's 27 stories were to used as a multi-tiered parking garage with 494 spaces. On February 22, 1989, Milton applied to the City's Building Department for a building permit to construct the building. The permit for the Stortford project was approved on January 31, 1990, subject to the following conditions: This permit is issued subject to Biscayne Bay Shore Line Development Review Committee Approval. If Biscayne Bay Shore Line Development Review Committee approval is not granted, this permit is null and void and all fees will be refunded (except up front fee). [The applicant] shall incur no costs and construction shall not begin until Biscayne Bay Shore Line Development Review Committee Approval is granted. The permit had an expiration date of July 30, 1990. No other building permit has been issued in recent years for construction anywhere on the north end of Belle Isle. In fact, only one other such permit - for construction on the Callazet parcel - has been sought. On May 17, 1990, the Biscayne Bay Shore Line Development Review Committee (Committee) met to consider the Stortford project. The Committee rejected the project because it was not set back a sufficient distance from the shoreline. The building permit issued for the Stortford project on January 31, 1990, is now void. No actual construction work has yet been done in connection with the project. Stortford N.V. has spent approximately $365,000.00 on the project since the project's revival in the late 1980's. Prior Zoning/Land Use Designations of Belle Isle Property From 1930 until 1951, the south end of Belle Isle was zoned for single family estates (RC) 2/ and the north end of Belle Isle was zoned for multifamily apartments and hotel units (RE). In 1951, the zoning classification of the south end of Belle Isle was changed to RE. No change was made to the zoning classification of the north end of Belle Isle. In 1961, height restrictions were placed on the buildings on both the south and north ends of Belle Isle. Under these restrictions no building could exceed 14 stories or 160 feet. Both the south and north ends of Belle Isle retained their RE zoning classifications until 1971, when the City passed a new zoning ordinance, Ordinance No. 1891, which contained different classifications. Under the new ordinance, both the south and north ends of Belle Isle were classified RM-100, a classification which permitted a maximum of 100 dwellings units per acre and carried no height restrictions. The south and north ends of the island remained so classified until October 1, 1989, when the City's Year 2000 Comprehensive Plan became effective. Petitioners Petitioners Benson, Durchslag, Kreitman, Shiff, Cushing and Kohn are now, and have been at all times material hereto, residents of the City of Miami Beach. Petitioners Durchslag, Kreitman, Shiff and Kohn live in highrise condominium apartment buildings on the south end of Belle Isle. They each own the apartments in which they live. Petitioner Benson resides in a single-family house that she owns on Di Lido Island. Petitioner Cushing lives in a single-family dwelling that he owns on Rivo Alto Island. The Venetian Islands Improvement Association, Inc. is an organization of owners of single-family residences located on the Venetian Islands. It was founded in 1938 and now has approximately 435 members. Its primary purpose is to advance and protect the collective interests of its homeowner members. Adoption of the City's Comprehensive Plan The City Commission considered the matter of the adoption of the City's Year 2000 Comprehensive Plan at public hearings held on September 7, 1989, and September 21, 1989. All notices of these adoption proceedings were published in the "Beaches Neighbors" section of the Miami Herald. 3/ The "Beaches Neighbors" section of the Miami Herald is circulated twice a week along with the main portion of the Herald in the following towns and municipalities in Dade County: Miami Beach; Bal Harbour; Surfside; Bay Harbor Islands; Golden Beach; North Bay Village; Sunny Isles; and Indian Creek Village. The "Beaches Neighbors" section of the Miami Herald is: (a) published at least on a weekly basis; (b) printed in the language most commonly spoken in the area within which it circulates; (c) not a newspaper intended primarily for members of a particular professional or occupational group; (d) not a newspaper whose primary function is to carry legal notices; and (e) not given away primarily to distribute advertising. At the close of the public hearing held on September 21, 1989, the City Commission, over the objections of Petitioners, unanimously passed Ordinance No. 89-2664 adopting the City's Year 2000 Comprehensive Plan. The objections submitted by Petitioners during the adoption proceedings were directed to the land use designation of the north end of Belle Isle. Although they had the opportunity to do so, they did not contend at any time during the adoption proceedings that the City had given inadequate notice to the public of these proceedings. While Petitioners may not have known at the time of the adoption proceedings that notice of these proceedings had been published only in the "Beaches Neighbors" section of the Miami Herald, they could have obtained such information in advance of the proceedings by reviewing the files maintained by the City Clerk. They did not conduct such a review, however. Contents of the Plan and Supporting Data and Analysis The City's Year 2000 Comprehensive Plan contains a future land use element. An integral part of this element is the future land use map (FLUM). It shows the proposed distribution, extent and location of land uses for the entire land area of the City. The FLUM was based upon surveys, studies and data regarding the City as a whole, including, among other things: the City's projected population; the land needed to accommodate the projected population; the character of the remaining vacant land in the City; 4/ the availability of public facilities and services; and the need for redevelopment, including the renewal of blighted areas and the elimination of inconsistent and incompatible land uses. Neighborhood studies were also used to develop the FLUM. Census data and existing land uses were examined on a neighborhood-by-neighborhood basis to obtain a detailed inventory of existing conditions in the City. Belle Isle is part of the West Avenue Neighborhood Study Area. 5/ The plan's supporting documents contain the following narrative statement concerning this area: West Avenue is predominantly developed as a high density/high intensity bayfront multifamily residential area. (It includes Belle Isle). Several large vacant parcels and a few existing enclaves of single family homes and older, lower density apartment buildings offer future development opportunities for townhouse construction. Both the south and north ends of Belle Isle are designated RM-2 on the FLUM. RM-2 is a medium intensity, multifamily residential land use designation. The plan regulates the intensity of residential uses by utilizing the concept of floor area ratio (FAR). Floor area ratio is the floor area of a building or buildings on a lot divided by the area of a lot. Under the plan, land designated RM-2 is assigned a maximum FAR range of 1.25 to 3.0. 6/ Where within this range a particular development falls depends upon the features of the development. The more desirable features and amenities a development has, the higher its maximum FAR will be pursuant to the performance bonus provisions of the plan. The RM-2 designation is similar, but not identical, to the RM-100 classification that had existed under Ordinance No. 1891 inasmuch as it does not necessarily bar residential development in excess of 100 dwelling units as did the RM-100 classification. Initially, the City's Planning and Zoning Department staff members had recommended that the north end of Belle Isle be designated on the FLUM for townhouse use. They subsequently changed their recommendation to RM-2. The change was prompted by concerns that a townhouse designation might unlawfully deprive north end property owners, who had invested in their property in reliance upon prior land use regulations that permitted more intensive use of their land, a fair return on their investment. An alternative designation was therefore sought. RM-2 was selected because of its similarity to the RM-100 classification that had been in effect on the north end of Belle Isle since 1971 and because of its compatibility with the existing development on the south end of the island. 7/ Reliance upon these factors in selecting a land use designation was in accordance with sound land use planning techniques. While the north end of Belle Isle, in terms of its character, is suitable for townhouse development, it is also suitable for highrise residential development of the type permitted by its RM-2 designation. The comprehensive plan adopted by the City contains other maps, in addition to the FLUM, that depict future conditions. Among these other maps are those that relate to traffic circulation in the City. These maps reflect that the Venetian Causeway is anticipated to remain a two-lane roadway classified as a County minor arterial. In the City's adopted comprehensive plan, all minor arterials in the City, including the Venetian Causeway, are assigned a peak hour level of service standard of "D." This is the same peak hour level of service standard that the causeway is assigned in Dade County's and the City of Miami's respective comprehensive plans. The City of Miami Beach's Year 2000 Comprehensive Plan provides that no development order or permit may be issued which would "result in a reduction of the level of services for the affected public facilities below the level of service standards adopted in this Comprehensive Plan." Accordingly, any development or redevelopment on the north end of Belle Isle that will lower the Venetian Causeway's peak hour level of service below "D" is prohibited by the plan. The additional traffic that would be generated by the development and redevelopment of the various properties on the north end of Belle Isle at the maximum intensity of use permitted by their RM-2 designation, however, is not expected, in and of itself, to cause the Venetian Causeway's peak hour level of service to deteriorate to such a point that the standard set for it in the City's plan would not be met. 8/ Among the other elements of the City's Year 2000 Comprehensive Plan is a historic preservation element. It contains the following goal: Secure for future generations the opportunity to share in the unique heritage of Miami Beach and promote sound economic development through the purposeful retention, protection, and continued use of buildings, structures, and districts which are associated with important events in the City's history or exhibit significant architectural qualities. As Policy 2.1 of this element makes clear, the City intends to take "a realistic and balanced approach to economic development and historic preservation." The City's plan also has a conservation/coastal zone management element. It contains the following objectives and policies dealing with hurricane evacuation and hazard mitigation: OBJECTIVE 4 The existing time period required to complete the evacuation of people from Miami Beach prior to the arrival of sustained gale force winds shall be maintained or lowered by 1995. 9/ Policy 4.1 All future improvements to evacuation routes shall include remedies for flooding problems and the anticipated increase in the level of the water of Biscayne Bay. Policy 4.2 The Miami Beach Hurricane Handbook will be distributed to the general public with detailed emergency operation instructions and hurricane evacuation pick-up sites. Policy 4.3 The City will work with the Metro-Dade Public Works Department to rate all local bridges for structural and operational sufficiency. Local bridges with unsatisfactory sufficiency ratings shall be programmed for improvements or replacement. Policy 4.4 All trees susceptible to damage by gale force winds shall be removed from the right-of-way evacuation routes and replaced with suitable species. Policy 4.5 The City will coordinate 10/ with Metro-Dade Transportation Administration to ensure adequate buses are available to safely evacuate neighborhoods with large concentrations of households within Miami Beach without private transportation. Policy 4.6 The City of Miami Beach Fire Department shall maintain and annually update the list of people who may need assistance due to physical or medical limitations in the event of an evacuation to ensure their safe mobilization. Policy 4.7 The City of Miami Beach Fire Department shall maintain and annually update the Miami Beach Hurricane Evacuation Plan 11/ and maintain and enhance the resources and capabilities of the plan to provide effective implementation of evacuation procedures to ensure that evacuation times are maintained or reduced. Policy 4.8 Procedures for boat owners during hurricane operations shall be added to the Miami Beach Hurricane Handbook with instructions for safe harbor operations. Policy 4.9 Between 1989 and 1993, coastal area population densities shall be coordinated with the Metropolitan Dade County Hurricane Procedure, which is the local hurricane evacuation plan for Miami Beach, and the lower Southeast Florida Hurricane Evacuation Plan, the regional hurricane evacuation plan. Policy 4.10 Coastal area population densities in Dade County, including the City of Miami Beach, shall be updated in the lower Southeast Florida Hurricane Evacuation Study currently being revised by the US Army Corps of Engineers and the National Hurricane Center. Policy 4.11 By 1993, changes in coastal area population densities identified in the amended lower Southeast Florida Hurricane Evacuation Study shall be used by the Metropolitan Dade County Office of Emergency Management, the overall coordinating authority for local hurricane planning, to update the Dade County Hurricane Procedure. OBJECTIVE 5 Reduce the exposure of life and property in Miami Beach to hurricanes through the implementation of hazard mitigation measures, by adopting the following policies: Policy 5.1 Public expenditures that subsidize additional development in the Coastal High Hazard Zone, (the Federal Flood Insurance Rate Map 'V' Zone), shall be prohibited. Public facilities shall not be built except for public beach or shoreline access and resource restoration. (See Coastal Zone Management.) Policy 5.2 The City will coordinate with Metro-Dade County and the South Florida Planning Council to develop a comprehensive marine hurricane contingency plan. Policy 5.3 New private use facilities along the Coastal High Hazard Zone shall conform to strict setback, open space and accessory use requirements. Policy 5.4 Structures which suffer repeated damage to pilings, foundations or load bearing walls and/or incur damage exceeding 50% of their assessed value shall rebuild to the requirements of all current development regulations, and shall not be located east of the coastal construction control line. No redevelopment shall be permitted in areas of repeated damage unless it is determined by the City of Miami Beach Officials to be in the public interest. Policy 5.5. During post-disaster redevelopment the Building Department will distinguish between those actions needed to protect public health and safety with immediate repair/cleanup and long term repair activities and redevelopment areas. Removal or relocation of damaged infrastructure and unsafe structures shall be by the Miami Beach Public Services Department in accordance with local procedures and those agencies and practices specified in the Metro-Dade County Hurricane Procedure. Policy 5.6 During post-disaster recovery periods, after damaged areas and infrastructure requiring rehabilitation or redevelopment have been identified, appropriate City departments will coordinate to: prepare a redevelopment plan which reduces or eliminates the future exposure of life and property to hurricanes; incorporate recommendations of intragency hazard mitigation reports; analyze and recommend to the City Commission hazard mitigation options for damaged public facilities; and recommend amendments, if required, to the City's Comprehensive Plan. Policy 5.7 Unsafe conditions and inappropriate uses identified in the post-disaster recovery phase will be eliminated as opportunities arise. Even if the City's population increases as projected 12/ and the Venetian Causeway remains a two-lane roadway as contemplated by the plan, it will be possible for the City to accomplish the end, identified in Objective 4 of the conservation/coastal zone management element, of reducing or maintaining the time it takes to complete an evacuation of the City prior to the arrival of sustained gale force winds. The City will be able to do so through the implementation of the strategies described in Policies 4.1 through 4.11 of this element. Likewise, an increase in the City's population will not necessarily prevent the City from attaining the end specified in Objective 5 of the conservation/coastal zone management element. The City will be able to realize this end, notwithstanding such growth, by taking those measures described in Policies 5.1 through 5.7 of this element. Accordingly, to the extent that the RM-2 designation of the north end of Belle Isle will have the effect of increasing the population of the City, it is not in irreconcilable conflict with Objective 4 and Objective 5 of the conservation/coastal zone management element inasmuch as these objectives can be met despite any population increase attributable to such a designation. 13/ Furthermore, because they can be met, despite such an increase in population, without the necessity of widening the Venetian Causeway 14/ and thereby threatening its value as a historic resource, neither is there any irreconcilable conflict with the above-described goal statement found in the historic preservation element of the City's plan. As noted above, the future traffic circulation maps adopted as part of the City's Year 2000 Comprehensive Plan reflect that the Venetian Causeway will remain a two-lane, minor county arterial. No other part or provision of the plan, including the FLUM's RM-2 designation of the north end of Belle Isle, suggests or requires otherwise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Community Affairs issue a final order in the instant case declining to find the City of Miami Beach's Year 2000 Comprehensive Plan not "in compliance" on the grounds urged by Petitioners. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of September, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1990.
The Issue Whether City of Marathon (“Marathon”) Comprehensive Plan Amendment 2018-01, adopted on October 23, 2018 (the “Marathon Plan Amendment”); City of Key West (“Key West”) Comprehensive Plan Amendment 19-06, adopted on April 4, 2019 (the “Key West Plan Amendment”); and Islamorada, Village of Islands (“Islamorada”) Comprehensive Plan Amendment 19-03, adopted on March 5, 2019 (the “Islamorada Plan Amendment”) (collectively, the “Plan Amendments”), are “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2019).1
Findings Of Fact The Parties and Standing Ms. Mattino resides in Marathon with her daughter and her fiancé. She submitted written objections to Marathon regarding the Marathon Plan Amendment prior to the October 23, 2018 public hearing at which Marathon adopted the Plan Amendment. 3 John H. Paul, Viral Tracer Studies Indicate Contamination of Marine Waters by Sewage Disposal Practices in Key Largo, Florida, Applied and Envtl. Microbiology, 2230-34 (June 1995). Ms. Mattino’s daughter is severely disabled, requires specialized equipment (including a specialized wheelchair), and requires full-time care, for which Ms. Mattino relies upon a variety of caretakers. Her daughter has to be transported in a specially-equipped vehicle to accommodate the wheelchair and other equipment. In the event Ms. Mattino is required to evacuate for a hurricane, she will need to bring an additional vehicle to transport her daughter’s medical equipment, which requires additional personnel. Prolonged car rides are dangerous for Ms. Mattino’s daughter because she has a seizure disorder that worsens when she is aggravated or stressed. Prolonged car rides are also stressful for Ms. Mattino, who has high blood pressure and has had several heart attacks. Ms. Mattino evacuated for Hurricane Irma and testified that she encountered heavy traffic, which was made more stressful by the need to stop approximately every two hours to attend to her daughter’s medical needs. Ms. Mattino claims that if the Plan Amendments increase the amount of time it takes her to evacuate the Florida Keys before a hurricane, it would cause additional stress and would put her and her daughter’s health at risk. Ms. Mattino maintains these concerns are unique to her and her family and that emergency evacuation is more difficult and dangerous for her and her family than it is for the general public. Ms. Bosworth resides in Islamorada with her daughter, son-in-law, and their two children. She submitted written objections to the Islamorada Plan Amendment prior to the April 4, 2019 public hearing at which Islamorada adopted the Plan Amendment. Ms. Bosworth previously evacuated for Hurricanes Andrew and Irma, which required preparation time to gather her pets, pack pet supplies, and secure her boat, as well as secure her outdoor belongings and put up her hurricane shutters. Securing her boat and putting up her shutters requires the assistance of her son-in-law. Ms. Bosworth believes her circumstances are unique because her son-in-law is a fire fighter and paramedic in Parkland, Florida, and is not always available to help her prepare her property for a hurricane. Ms. Bosworth claims that if traffic congestion increases or worsens as a result of the Plan Amendments, it would affect her and her family because she would be concerned that she would get stuck on the highway while trying to evacuate for a hurricane. Further, Ms. Bosworth testified that she and her family enjoy going out on the boat and snorkeling and that if Islamorada’s nearshore water quality became degraded or impaired it would affect her quality of life. Ms. Girard is a resident of Key West. She submitted oral or written objections to the Key West Plan Amendment prior to the March 5, 2019 public hearing at which Key West adopted the Plan Amendment. Ms. Girard testified that, due to her and husband’s marine-based business and residential tenants, she and her husband would wait until the very last minute to evacuate regardless of when an evacuation advisory was issued by the Monroe County Emergency Management Office. Ms. Girard did not evacuate for Hurricane Irma or any other hurricane since moving to a site-built home in Key West in 2007.4 Marathon, Islamorada, and Key West, are all municipalities with the duty and authority to adopt a comprehensive plan, pursuant to section 163.3167, Florida Statutes (2019). Background In 1972, the Florida Legislature enacted the Environmental Land and Water Management Act, which provided the basis for state designation of Areas of Critical State Concern (“ACSC”).5 The statute provides criteria for 4 Ms. Girard previously lived on vessels in the Key West area. 5 The Environmental Land and Water Management Act was enacted prior to the 1985 Growth Management Act, chapter 163, part II, when most local governments did not have programs and personnel to guide development in a manner that would ensure protection of natural resources. designating an ACSC, which is generally “[a]n area containing … environmental or natural resources of regional or statewide importance,” such as wildlife refuges, aquatic preserves, and state environmentally endangered lands. § 380.05(2), Fla. Stat. (2019).6 In 1974, the Florida Keys (Monroe County and its municipalities) were designated an ACSC due to the area’s environmental sensitivity and mounting development pressures. The designation was effectuated by the adoption in 1979 of section 380.0552, Florida Statutes, the “Florida Keys Area Protection Act.” The Act establishes the legislative intent to establish a land use management system that, among other things, “protects the natural environment,” “conserves and promotes the community character,” “promotes orderly and balanced growth in accordance with the capacity of available and planned public facilities and services,” and “promotes and supports a diverse and sound economic base” in the Keys. § 380.0552(2), Fla. Stat. (2019). The ACSC designation transferred all local Keys planning and development review and approval rights to the state land-planning agency, the Florida Department of Community Affairs (“DCA”).7 While the Keys local governments can adopt and amend their plan and land development regulations, those provisions do not take effect until approved by administrative rule. See § 380.0552(9), Fla. Stat. 6 The statute contains additional specific criteria for designation, including the economic and ecological value of the area; presence of critical habitat of any state or federally designated threatened or endangered plant or animal species; inherent susceptibility to substantial development due to its geographical location or natural aesthetics; and the anticipated effect of development on the environmental or natural resources of regional or statewide importance. § 380.05(2), Fla. Stat. (2019). 7 The 2011 Legislature transferred the DCA Division of Community Planning, via Type II transfer, to the Department of Economic Opportunity. See ch. 2011-142, § 3, Laws of Fla. In 1986, Monroe County updated its comprehensive plan to be consistent with the 1985 Growth Management Act.8 Several administrative challenges followed, initiated by both DCA and private entities and individuals. Monroe County revised its comprehensive plan in 1993 to resolve many of the issues raised in the litigation, but those amendments were again challenged in administrative proceedings. The second challenge culminated in a final order of the Administration Commission in 1995 finding the 1993 Monroe County Plan not “in compliance,” with the Act and the Principles for Guiding Development in the Keys ACSC (“the Principles”), which are adopted by rule of the Administration Commission. The Final Order found that “the environment of the … Keys is the very essence of Monroe County’s economic base. The uniqueness of the environment … and the current condition of the environment must be addressed in any growth management decision[].” DCA v. Monroe Cty., 1995 Fla. ENV LEXIS 129 (Fla. ACC 1995). The litigation highlighted aspects of the Florida Keys ecosystem as having limited capacity to sustain additional impacts from development. Of particular concern was the declining water quality of the nearshore environment due to lack of central sewer facilities, the loss of habitat for state and federally-listed species, public safety in the event of hurricanes, and a deficit of affordable housing. Relevant to Petitioner’s challenge, the Final Order found that the ability of the nearshore waters of the Keys to withstand additional degradation from sewage and stormwater discharges “has already been reached or even exceeded,” and that development of the Keys “is degrading the nearshore waters at or over carrying capacity.” 8 The Growth Management Act was significantly amended and renamed the “Community Planning Act,” by chapter 2011-142, Laws of Florida. The 1995 Final Order required Monroe County to undertake certain “remedial actions” in order to bring the Plan into compliance with both the Act and the Principles, which are adopted in section 380.0552. Among the remedial actions was the requirement that Monroe County establish a Permit Allocation System (“PAS”) for new residential development. The Administration Commission explained, as follows: The [PAS] shall limit the number of permits issued for new residential development … provided that the hurricane evacuation clearance time does not exceed 24 hours …. The County shall adjust the allocation based upon environmental and hurricane evacuation constraints and … to account for permits and vested units in … the Keys. Monroe County amended its plan in 1996 to implement the PAS and other remedial actions, and adopted a “carrying capacity approach” to planning in the ACSC. The amended comprehensive plan was approved by rule of the Administration Commission—Florida Administrative Code Rule 28-20, which also established a comprehensive work program designed to improve the Keys’ water quality and protect the habitat of threatened and endangered species. The rule was subject to another administrative challenge, and the Division issued a final order upholding the rule in 1997. See Abbott v. Admin. Comm’n, Case No. 96-2027RP (Fla. DOAH May 21, 1997). The Carrying Capacity Study The work program adopted by the rule included the requirement to conduct a “carrying capacity analysis” for the Florida Keys. Florida Administrative Code Rule 28-20.100 provided, “The carrying capacity analysis shall be designed to determine the ability of the Florida Keys ecosystem, and the various segments thereof, to withstand impacts of additional land development activities.” The rule established that the analysis should be based on the findings adopted by the Administration Commission on December 12, 1995, “or more recent data that may become available in the course of the study,” and upon the benchmarks of, and all adverse impacts to, the Keys natural land and water systems, in addition to the impacts of nutrients on marine resources. The study was undertaken beginning in 1996 and was sponsored jointly by DCA and the Army Corps of Engineers (“the Corps”) and involved 38 separate state and federal agencies. The study modeled a series of future development scenarios, as well as redevelopment and restoration scenarios. The Final Report9 of the Florida Keys Carrying Capacity Study (“FKCCS”) was issued in September 2002. The major findings include the following: Development suitability in the Florida Keys is extremely restricted, due to the following characteristics: Existing development has displaced nearly 50 percent of all upland habitats, and remaining uplands are distributed in patches of 10 or fewer acres; almost every native area is potential habitat for one or more endangered species; over 50 percent of all private lands are wetland parcels, and development suitability of remaining lands is low or marginal due to open space requirements, lack of infrastructure, and other factors. Future growth is limited in the next 20 years— less than 10 percent growth in the number of dwelling units and population—due to infrastructure limitations. Permitted capacity of potable water withdrawals was exceeded in 1999 and 2000; improvement of hurricane evacuation clearance times is dependent on structural improvements to U.S. Highway 1, which will increase government costs, nutrient loading, and indirect impacts to wildlife and 9 The document introduced in evidence is titled “Draft Final Report.” According to the testimony of Rebecca Jetton, no other final report was issued by the study sponsors. habitats; and residential capacity is limited to 6,000 units in order to maintain the state- mandated level of service for roadways. All six future scenarios would result in disproportionate increase in government expenditures with respect to increased population, which will require increased taxation on both local residents and tourists. The existing data “are insufficient to establish quantitative, predictive relationships between land use or development and the marine environment.” The study documented human impacts to the marine ecosystem and species. The study underscores the benefits of wastewater treatment, “but other impacts are more related to resource management than to land development.” The study provides the following four major guidelines for future development in the Florida Keys: Prevent encroachment into native habitat. A wealth of evidence shows that terrestrial habitats and species have been severely affected by development and further impacts would only exacerbate an already untenable condition. Continue and intensify existing programs. Many initiatives to improve environmental conditions and quality of life exist in the Florida Keys. They include land acquisition programs, the wastewater and stormwater master plans, ongoing research and management activities in the Florida Keys National Marine Sanctuary, and restoration efforts throughout the Keys. If further development is to occur, focus on redevelopment and infill. Opportunities for additional growth with small, potentially acceptable, additional environmental impacts may occur in areas ripe for redevelopment or already disturbed. Increase efforts to manage the resources. Habitat management efforts in the Keys could increase to effectively preserve and improve the ecological values of remaining terrestrial ecosystems. Rule 28-20.001 required the findings of the FKCCS to be implemented by “adoption of all necessary [comprehensive plan] amendments to establish a rate of growth and a set of development standards [to] ensure that any and all new development does not exceed the capacity of the county’s environment and marine system to accommodate additional impacts.” The study would provide the state and the Keys local governments with an analytical tool to support future comprehensive plan amendments and revisions of land development regulations. Hour Hurricane Evacuation In 2006, following the publication of the FKCCS, the Legislature amended section 380.0552 to require the local governments to adopt provisions in their comprehensive plans to “protect the public safety and welfare in the event of a natural disaster by maintaining a hurricane evacuation clearance time for permanent residents of no more than 24 hours.” § 380.0552(4)(e)2., Fla. Stat. (2007). The requirement remains in effect and is enforced by the state through review of local government plan amendments. See § 380.0552(9)(a)2., Fla. Stat. ROGO and BPAS Principle among the Monroe County amendments to implement the remedial actions ordered by the Administration Commission was the PAS, implemented in the County by a Rate of Growth Ordinance (“ROGO”). The current version of the administrative rule approving the County’s comprehensive plan is rule 28-20.140, which also governs and approves ROGO. The rule provides the maximum number of permits for residential development that may be issued annually, with a split between affordable and market rate units. The current cap is 197 units per year, with a minimum of 71 units allocated for affordable housing and a maximum of 126 market rate units. Any unused affordable housing units “roll over” for affordable housing units the following year. Other unused allocations may be rolled over and used for affordable housing units or “administrative relief.”10 Islamorada and Marathon were not yet incorporated when the comprehensive plan litigation began and subsequent remedial measures were issued. Since their incorporation, each of the cities has been brought under the umbrella of the ACSC designation. The cities’ respective comprehensive plans and land development regulations are subject to the same review and approval authority of the Administration Commission, and are subject to similar work plans to implement the remedial measures required by the commission. The applicable administrative rules are chapter 28-19 for Islamorada and chapter 28-18 for Marathon. Marathon and Islamorada have permit allocation requirements similar to Monroe County, known as the Building Permit Allocation System (“BPAS”). Their respective administrative rules provide the annual maximum number of permits and the split between affordable and market rate units, as well as the rules governing rollover of unused allocations.11 BPAS is a competitive system. Permit applications are awarded points based on their alignment with specific development criteria, such as presence or absence of wetlands or protected habitat, and availability of public services. Those applications with the highest points are awarded available permits for the BPAS year. 10 Unused allocations may be provided to applicants who have been denied a permit, despite having met all the requirements of the land development regulations, if they have been in the allocation system for a significant number of years. 11 Marathon’s annual cap is 30 units and Islamorada’s is 28 (22 market rate and 6 affordable housing). Work Program Each of the municipalities’ governing rules includes a work program, broken down into the following categories: (1) carrying capacity implementation; (2) wastewater implementation; and (3) wastewater project implementation. Marathon’s work program includes a fourth category— stormwater treatment facilities. The specific activities of each work program differ somewhat. For example, with respect to environmentally-sensitive lands, Islamorada was required to apply for land acquisition funds, while Marathon was required to apply and adopt land development regulations limiting permit allocations in high quality habitats. Monroe County was required to adopt conservation planning mapping into its comprehensive plan. The wastewater implementation and wastewater project implementation sections of the work programs are of high importance. The litigation highlighted the declining water quality of the nearshore environment due to a lack of central sewer facilities. The Keys’ wastewater treatment “system” consisted of a hodgepodge of some 23,000 septic tanks, 2,800 cesspits, and at least 249 small package treatment plants. The work program represents a monumental, long-term, and expensive12 infrastructure project to build a central sewer system in the Keys, followed by a program to require existing developments to connect to the system, and land development regulations to direct new growth to areas served by central wastewater treatment facilities. Each local government work program includes specific target dates to obtain funding for, and construction of, each component of the sewer system, as well as specific target 12 In both 2012 and 2016, the Florida Legislature authorized expenditure of Everglades restoration bond funds for Florida Keys wastewater and stormwater management projects; and, in 2016, appropriated $5 million in Florida Forever funds for said projects for the 2016/2017 year. More than $13 million was included in the general appropriations act for said projects in the 2017/2018 year. dates for initiating and completing connections of existing development to the newly-constructed system. Monroe County’s work program also includes directives for funding stormwater improvement projects and deadlines for completing said projects. ACSC Annual Reports The local governments and the Department of Economic Opportunity (“DEO”) are required to report to the Administration Commission annually documenting “the degree to which work program objectives for the work program year[13] have been achieved.” Achievement of work program objectives is directly tied to the BPAS and ROGO—if the Administration Commission finds that work program objectives have not been achieved, it can reduce the unit cap for residential development by 20 percent for the following year.14 Additionally, through the BPAS and ROGO, the local governments are required to direct new growth to areas served by central sewer. Each application for building permit is awarded an additional four points15 if the parcel is served by central sewer meeting statewide treatment standards. In the 2017 ACSC annual report, the most recent report for which the parties requested official recognition, Islamorada reported it had connected 85 percent of potential customers (with another five percent in the application process), Marathon had connected 97 percent, and Monroe County had an overall connection rate of 86 percent (with higher percentages for specific individual treatment facilities). 13 The work program year runs from July of one year to June of the following year. 14 The Islamorada rule does not contain this provision; however, it does provide that, if the Administration Commission determines progress has been made for the work program year, then the Commission “shall restore the unit cap” of 28 allocations for the following year. It is unclear whether Islamorada was already under penalty when the new rule was adopted or whether this is an oversight in the rule. 15 In Islamorada, the award is two additional points. City of Key West Key West challenged its inclusion in the original ACSC designation, and, in 1984, was designated as a separate area of critical state concern (“the Key West ACSC”), effectuated by the adoption of Florida Administrative Code Chapter 28-36. The Key West ACSC is subject to the same land planning and development regulation oversight as the Florida Keys ACSC, and the Key West comprehensive plan and land development regulations are approved by the state through Florida Administrative Code Chapters 28-37 and 9B-30. Key West is subject to separate principles for guiding development than the Florida Keys ACSC, which are found in rule 28-36.003. Key West is served by central sewer and does not have work program tasks. Hurricane Evacuation Clearance Time The work program requires the local governments within the Florida Keys ACSC to enter into a Memorandum of Understanding (“MOU”) with the DEO, the Division of Emergency Management, and each of the other Keys local governments, to stipulate to the input variables and assumptions for utilizing the Florida Keys Hurricane Model, or other models acceptable to DEO, to accurately depict hurricane evacuation clearance times for the population in the Keys. The work program required, by July 1, 2012, the local governments to run the model with the agreed upon variables from the MOU “to complete an analysis of the maximum build-out capacity for the ACSC, consistent with the requirement to maintain a 24-hour evacuation clearance time and the [FKCCS] constraints.” DEO appointed a Hurricane Evacuation Clearance Time Work Group (the “Work Group”) including members of each of the six local governments and representatives from the tourism industry, chambers of commerce, and community organizations, as well as from state and federal agencies. The Work Group held a series of public workshops to consider hurricane model inputs—census data, behavioral studies, hurricane forecasting, military evacuation procedures, traffic flow rates, and number and location of vacant platted lots. The Work Group selected the Division of Emergency Management’s Transportation Interface for Modeling Evacuations (“TIME”) as the model to accurately depict evacuation clearance times for the population of the Keys ACSC and the Key West ACSC (“the Florida Keys ACSCs”). The Work Group agreed on 10 modeling assumptions, including the number of tourist units, and of those, the number occupied; the number of mobile home units and evacuation participation rates; and the number of site-built units, the occupancy rate, and participation rate of residents in those units, among other important variables. The inputs and assumptions were tested by modeling over 100 evacuation scenarios. The Work Group presented its findings on June 8, 2012, and selected evacuation scenario M5, which provided for continuation of then-existing annual building permit allocations that were adopted by rule or comprehensive plan amendment (with the exception of Key Colony Beach and Key West). Scenario M5 produced an evacuation clearance time of 24 hours with a future allocation of 3,550 new residential building permits. Notably, scenario M5 assumed that military, mobile home residents, and tourists would evacuate during Phase I of what DEO described as a two- phase evacuation plan. Further, M5 assumed that 15 percent of existing mobile homes would convert to site-built homes. In the two-phase evacuation plan, tourists are ordered to evacuate 48 hours in advance of predicted tropical storm force winds, and residents of mobile homes are ordered to evacuate 36 hours in advance. The model predicted an evacuation clearance time of 16 hours and 30 minutes for Phase I using tourist occupancy rates for July, and 17 hours and 30 minutes using tourist occupancy rates for the Labor Day weekend. Under Scenario M5, residents of site-built units are ordered to evacuate 30 hours in advance, giving those residents six hours of lead time to secure property and make other preparations. Under scenario M5, all site- built residences were evacuated within 24 hours of predicted tropical storm force winds, including an additional 3,550 units. As such, the work group determined 3,550 units to be the maximum buildout of the Keys through 2023 to maintain the 24-hour hurricane evacuation mandate in section 380.0552. The Work Program directed DEO to “apply the derived clearance time to assess and determine the remaining allocations for the [ACSC]” and recommend revisions to the allocation rates and distribution of allocations to the six local governments, as well as any recommended changes to the local government comprehensive plans. DEO completed that task, and determined that a maximum of 3,550 additional units could be distributed over the next ten years, beginning in July 2013. On November 5, 2012, Monroe County, Marathon, Islamorada, Key Colony Beach, Key West, the City of Layton, the Division of Emergency Management, and DEO, entered into an MOU agreeing on the use of the TIME model, as well as the data, input variables, and assumptions to be utilized in model runs. The following “whereas” clause succinctly provides the results of the M5 scenario: WHEREAS, from among the scenarios provided by DEO at the June 8, 2012, Work Group meeting, Scenario M5 included the 2010 Census site-built units (43,760 units); the maximum number of residential building permits for new construction for all Local Governments per year for 10 years (annually, County 197, Marathon 30, Islamorada 28, Key West 90, Key Colony Beach 6, and Layton 3); 1,248 mobile home units projected to convert to site-built units; the exclusion of 870 dwelling units on the Naval Air Station; as well as two (2) functional evacuation lanes from MM 108-126. Further the work group recommended Scenario M5 with the provision that the City of Key West would transfer annually (by July 13th) any remaining or unused (90 allocations) allocations to the other Local Governments based upon the Local Governments’ ratio of vacant land. Technical corrections made after the June 8, 2012 meeting, the census- based number of site-built units was revised to 43,718 and the Key West allocation was revised to 91. The MOU also memorializes the following staged evacuation procedure: Approximately 48 hours in advance of tropical storm winds, mandatory evacuation of non-residents, visitors, RVs, travel trailers, live-aboard vessels (transient and non-transient), and military personnel. Approximately 36 hours in advance, mandatory evacuation of mobile- home residents, special needs residents, and hospital and nursing home patients. Approximately 30 hours in advance, mandatory phased evacuation of permanent residents by evacuation zone.[16] The phased evacuation procedure is also adopted in each of the local government comprehensive plans, except Key West, which adopted the procedure by resolution. Affordable Housing The need for additional affordable housing in the Keys is well documented, and the parties stipulated, generally, to the need. Numerous factors contribute to the need for affordable housing, including, but not limited to, the high cost of living, higher construction costs, the high cost of land, as well as the limited supply and high demand for real estate and housing throughout the Florida Keys. The need for affordable housing was exacerbated by Hurricane Irma, which made landfall in the Florida Keys in September of 2017 and destroyed approximately 400 mobile 16 There are five hurricane evacuation zones in the Keys designated by mile marker numbers along US 1. homes, “permanent RV’s,” and ground-level single-family homes that served as affordable housing, many for members of the Keys workforce. Most of the site-built homes destroyed were not built to current building code standards, but were “grandfathered” from code compliance. Those structures must be rebuilt to code, which will likely take them out of financial reach of members of the Keys workforce. Provision of affordable housing is an important aspect of the regulatory framework for planning in the Keys. The litigation over the Monroe County comprehensive plan highlighted a deficit of affordable housing in the Keys. Among the Principles is the requirement to “[make] available adequate affordable housing for all sectors of the population” of the Keys. § 380.0552(7)(l), Fla. Stat. When designating the ACSC, the Legislature expressed the intent to “[p]rovide affordable housing in close proximity to places of employment” in the Keys. § 380.0552(2)(d), Fla. Stat. The Keys Workforce Housing Initiative Shortly after Hurricane Irma, Marathon began discussions with DEO about the possibility of obtaining additional building permit allocations for workforce-affordable housing. In November 2017, Marathon passed Resolution 2017-99 requesting the allocation of 300 affordable housing allocations from DEO with approval of the Administration Commission. DEO determined there were not enough building permits available under the current regulatory structure to address the need for affordable housing in the Florida Keys. As a result, DEO developed the Keys Workforce Affordable Housing Initiative (the “Housing Initiative”) to allow up to 1,300 new building permit allocations for workforce housing throughout the Florida Keys, with an initial allocation not to exceed 300 per local government. Under the Housing Initiative, the additional units are to be deed- restricted for workforce affordable housing and required to evacuate in Phase I, along with tourists, visitors, mobile home residents, and military personnel. The Administration Commission approved the Housing Initiative at the June 13, 2018 meeting. In support of the Housing Initiative, DEO staff made a presentation asserting that the Phase I evacuation (under the existing staged evacuation plan) can be accomplished in 17.5 hours, leaving additional capacity of 6.5 hours in Phase I. DEO concluded that the Housing Initiative “will not interfere with the 24-hour evacuation model and satisfies the statutory mandate to provide affordable housing.” Following approval by the Administration Commission, DEO worked with Marathon and other local governments to amend their comprehensive plans to implement the Housing Initiative. The Plan Amendments The Marathon Plan Amendment creates a new Future Land Use (“FLU”) goal stating the intent to participate in the Housing Initiative approved by the Administration Commission. It further creates a new FLU Objective establishing a “new limited category” of building permit allocations known as “Affordable – Early Evacuation Pool” providing 300 workforce affordable building permit allocations in addition to the allocations identified in chapter 28-18. The Marathon Plan Amendment creates five new FLU policies. The first allows for distribution of the allocations “at any time” provided applicable Marathon public notice and hearing procedures are followed and the distribution is based on the BPAS ranking procedures in effect. The second policy provides the following “Specific Standards and Requirements for Workforce Affordable Housing”: Affordable-Early Evacuation residential units under this program shall: be multifamily structures; be rental units; require, at a minimum, adherence to the latest edition of the Florida Building Code[]; not be placed in the V-Zone or within the Coastal Barrier Resource Systems; require on-site property management; comply with applicable habitat and other locational criteria and densities for multifamily affordable housing units; shall not be placed in any habitat defined as mangroves, saltmarsh & buttonwood, hardwood hammock, or fresh water wetlands (disturbed categories excepted); incorporate sustainable and resilient design principles into the overall site design; ensure accessibility to employment centers and amenities; and require deed-restrictions ensuring: the property remains workforce-affordable housing in perpetuity; tenants evacuate during the period in which transient units are required to evacuate; rental agreements contain a separate disclosure requiring renters to acknowledge that failure to adhere to the evacuation requirement could result in severe penalties, including eviction, to the resident; and on-site property managers are formally trained in evacuation procedures. The third policy exempts from the early evacuation requirement all first responders, correctional officers, health care professionals, or other first- response workers required to remain during an emergency. The fourth policy requires the workforce-affordable developments to comply with federal accessibility standards. The last policy requires Marathon to provide DEO with an annual report on the implementation of the Housing Initiative, including documenting the number of workforce-affordable housing units built, occupancy rates, and compliance with the early evacuation requirement. The report is to be included in the DEO annual work program report to the Administration Commission. Islamorada’s plan amendment provides 300 workforce-affordable building permit allocations in addition to the allocations identified in chapter 28-19. In all other respects the amendment is identical to the Marathon Plan Amendment. The Key West Plan Amendment approves the receipt of 300 workforce- affordable building permit allocations “as well as any additional allocations which may be authorized by the Florida Administration Commission or transferred to Key West that are not accepted by other Florida Keys municipalities or Monroe County.” Rather than authorizing distribution of the allocation “at any time,” Key West authorizes distribution “on a first- come first-served basis and at any time” following public notice and hearing procedures. Allocation of the Key West permits is not required to follow BPAS ranking unless the number of applications received exceeds the authorized allocation. There are also two minor differences in the “Standards and Requirement for Workforce-Affordable Housing” in the Key West Plan Amendment: it does not contain the paragraph prohibiting placement of units in buttonwood and hardwood hammock; and it does not require that property managers be trained in evacuation procedures. Otherwise, the Key West Plan Amendment is virtually identical to that adopted by Marathon and Islamorada. Petitioners’ Challenges Petitioners challenge the Plan Amendments, generally, as inconsistent with the FKCCS and the carrying capacity approach to planning in the Keys. The two main contentions are hurricane evacuation and environmental concerns. Hurricane Evacuation Petitioners posit that the Plan Amendments violate the Principles and the MOU17, and render the local government comprehensive plans internally inconsistent, by exceeding the requirement to evacuate the Keys permanent population in no more than 24 hours. Petitioners also argue the plan amendments are not supported by adequate data, and a professionally- acceptable analysis thereof, on hurricane evacuation clearance times. At first blush, Petitioners’ argument has merit: the Plan Amendments allow up to 1,300 units to be built in the Keys beyond the previously- established maximum buildout of 3,550 units through the year 2023. That buildout number was derived directly from the Work Group after agreement on all assumptions and inputs for, and multiple runs of, the agreed-upon TIME model, and identification of the M5 scenario as the best model for evacuation of permanent population within 24 hours. It is undisputed that the new residential units to be allocated under the Housing Initiative will house permanent residents. That fact alone is not in direct conflict with the 24-hour evacuation requirement because, as implemented, the evacuation plan requires some permanent residents— residents of mobile homes, “permanent RVs,” live-aboard vessels, and military personnel—to evacuate in advance of the start of the 24-hour clock. 17 As explained in the Conclusions of Law, Petitioners’ contention that the Plan Amendments are inconsistent with the MOU is rejected. Inconsistency with the MOU is not a statutory compliance issue. That requirement is incorporated into the local government comprehensive plans which have previously been found to be “in compliance”—meaning both internally consistent and consistent with the Principles. Petitioners introduced the testimony of Richard Ogburn, a planning expert who has extensive experience with hurricane evacuation modeling in South Florida, including the Keys. Mr. Ogburn was directly involved in the Work Group hurricane evacuation modeling that culminated in the 2012 report and adoption of the MOUs. As Mr. Ogburn explained, Monroe County was the first local government in the state to update its hurricane evacuation modeling based on the 2010 census data. It was to be a pilot for updating the statewide regional evacuation plan utilizing the new census data. Specifically, Mr. Ogburn, who was at the time employed by the South Florida Regional Planning Council, extracted demographic data from the 2010 census and created the demographic data base for use with the TIME model. Mr. Ogburn subsequently completed “validation runs” of the TIME model results generated by DEO staff during the Work Group process.18 In 2013, while Mr. Ogburn was working on the update to the statewide regional evacuation model, Mr. Ogburn discovered some blank cells within the census block group data sets in the original spreadsheet he had created for DEO. The missing information was the number of vehicles identified within those specific census block groups. With respect to Monroe County, eight of the 76 block groups were missing vehicle data. Mr. Ogburn found an alternative data source from which to derive the number of vehicles in the associated census block groups and reran the model for purposes of updating the statewide regional model. In 2014, Mr. Ogburn reported the census data errors to DEO, which requested he rerun scenario M5 after including the missing vehicles. The result was an increase of two- 18 The validation process involved input of the data parameters into the model and repeating the same model run scenarios to ensure that the results from the initial runs were replicated. and-a-half hours for evacuation of Phase II—a total clearance time of 26.5 hours. Mr. Ogburn testified that, based on the best-available data on hurricane evacuation clearance times, the evacuation of site-built dwellings in the Keys already exceeds the 24-hour evacuation standard mandate by statute (and incorporated into Respondents’ comprehensive plans). In his opinion, adding units authorized by the Housing Initiative would further exacerbate the problem. Petitioners introduced other evidence aimed at tearing down the conclusion of the Work Group that the Keys could be safely evacuated in under 24 hours, based on the 2012 TIME model runs. For example, Mr. Ogburn questioned the vacancy rates utilized by the Work Group, which he described as “most likely” too high. Mr. Ogburn cast doubt on the 100% participation rate assumption, and the assumed 12-hour response curve, which he testified was unrealistic given that people will not leave at the same rate if the evacuation is ordered at midnight as they would if the order was given at 7:00 a.m. Petitioners likewise introduced evidence casting doubt on the ability of meteorologists to predict storms with accuracy 48 hours in advance of landfall. The Keys local government comprehensive plans, as adopted with use of the TIME model, and all underlying assumptions and inputs, have previously been determined to be “in compliance.” The question of whether those assumptions and model inputs are supported by data and analysis is not properly before the undersigned in this proceeding. The evidence was, for the most part, irrelevant.19 The Housing Initiative is grounded on the availability of evacuation time in Phase I of the agreed evacuation procedure, which is adopted in each of the local government comprehensive plans. Mr. Ogburn agreed on cross- 19 Moreover, the evidence served to undercut Petitioners’ argument that the best available data and analysis supports the 24-hour evacuation clearance time cap. examination, that the TIME model was run separately for Phase I and Phase II, that the results from Phase I were not taken into consideration in the data for Phase II, and that if the units are presumed to evacuate in Phase I, it would have no effect on the analysis for Phase II. Notably, when Mr. Ogburn was asked directly whether the additional 1,300 units added to permanent population would cause the Keys evacuation time to exceed 24 hours, Mr. Ogburn testified: If the evacuation takes place ahead of time, it’s a different question and I don’t have a clear answer for that because I have not had the opportunity to run the model to determine whether or not that would cause the clearance times in the original phase to increase significantly.[20] The 2012 run of the TIME model demonstrated a clearance time in Phase I of 16 hours and 30 minutes, or 17 hours and 30 minutes, depending on the transient occupancy rate utilized. Respondents introduced the testimony of Joaquin Vargas, a traffic engineering consultant who was accepted as an expert in transportation planning, including roadway capacity issues related to hurricane evacuation. Mr. Vargas participated in hurricane evacuation modeling in the Keys in the 1990s to determine potential roadway improvements that could reduce Keys evacuation clearance time. Mr. Vargas was the principal author of the “Miller Model,” which was utilized in these studies. Mr. Vargas’ modeling was not based on a two-phased evacuation. Instead, the Miller Model assumed evacuation of all permanent population simultaneously in order to identify where roadway improvements would reduce the evacuation clearance time. Mr. Vargas introduced the results of a model run of simultaneous evacuation of the Keys without units authorized under the Housing Initiative, and a second adding 300 units each for Marathon, Islamorada, and 20 T2:79;1-6. Key West. The model run without the 900 combined units yielded an evacuation clearance time of 21 hours and 34 minutes. With the additional 900 units, the model yielded a clearance time of 21 hours and 42 minutes. This evidence had little relevance because the models are not comparable, and because Mr. Vargas utilized inputs and assumptions that differed greatly from the TIME model runs underlying the carrying capacity analysis utilized by the Work Group. The Miller Model assumes the evacuation of all permanent residents (including mobile home residents) simultaneously, so it is useless as a comparator to the Phase II run of the TIME model. Additionally, Mr. Vargas utilized 2000 census data, rather than the more recent 2010 data, which Mr. Vargas admitted “w[ould] provide more accurate information,” and included inaccurate data, such as non-existent lane segments which inflated capacity on some roadway segments. While Mr. Vargas expressed the opinion that the Miller Model is superior because it was designed expressly for the Keys, the fact remains that the existing “in compliance” comprehensive plans are based on use of the TIME model to determine maximum buildout in the Keys. Mr. Ogburn completed a run of the TIME model in 2014 which included the previously-missing vehicles from the census block groups in Phase I. That rerun produced a clearance time of 19 hours. The best available data and analysis (the 2014 rerun) supports a finding that the clearance time for Phase I, without the additional units from the Housing Initiative, is 19 hours. Thus, the evidence does not support a finding that the evacuation of Phase I with the additional 1,300 units cannot be completed within the first 24 hours of a 48-hour evacuation scenario. The preponderance of the evidence does not support a finding that the inclusion of the 1,300 units in Phase I will violate the requirement to evacuate Keys permanent residents in 24 hours or less. On the theory that the addition of up to 1,300 residential units in the Keys will cause the hurricane evacuation clearance time to exceed 24 hours, Petitioners alleged the Plan Amendments are inconsistent with the following provisions of Respondents’ comprehensive plans: Marathon: FLU Objective 1-2.1, which requires Marathon to “ensure the availability of adequate public facilities and services[.]” FLU Objective 1-2.2, requiring Marathon to “meet the required 24- hour hurricane evacuation time or other applicable state standard for hurricane evacuation.” FLU Objective 1-3.5, requiring Marathon to “manage the rate of new development to ... support safe and timely evacuation prior to a hurricane.” Conservation and Coastal Element Policy 4-1.21.2, requiring Marathon to coordinate with Monroe County in updating policy formulations regarding land use and emergency preparedness and to plan for future land use densities that will not adversely impact the efficiency of hurricane evacuations or increase evacuation times. Intergovernmental Coordination Element (“ICE”) Objective 5-1.1, requiring Marathon to maintain coordination mechanisms with the comprehensive plans of Monroe County and adjacent municipalities. ICE Policy 5-1.1.2, requiring Marathon to coordinate with adjacent jurisdictions “for the development of joint strategies to address development, zoning, and land-use decisions that transcend jurisdictional boundaries.” ICE Policy 5-1.1.10, requiring Marathon to establish a program to provide and review proposed plan amendments of adjacent local governments to ensure consistency. Policy 5-1.2.1(j), requiring Marathon to enter into interlocal agreements or develop joint resolutions in areas of mutual concern, including the coordination of hurricane evacuation plans. Islamorada: FLU Goal 1-1, which provides that the comprehensive plan shall “[e]ncourage[] sustainability by limiting growth in order to establish and maintain acceptable levels of service for hurricane evacuation[.]” Transportation Element (“TE”) Policy 2-1.2.8, which requires Islamorada to “address long-term strategies to reduce clearance time and coordinate permit allocations” by implementing specifically-listed programs with FDOT, FDCA, and other local governments in the Keys. TE Policy 2-1.2.9, which provides for the staged/phased evacuation procedure to maintain a 24-hour hurricane evacuation clearance time. TE Policy 2-1.2.10, which requires Islamorada to “support state funding for the update of the hurricane evacuation model that considers the impact of Miami-Dade County on evacuees[.]” TE Policy 2-1.6.3, by which Islamorada “adopts 24 hours as the maximum allowable hurricane evacuation clearance time standard,” and provides that “[t]he Village shall reduce and maintain hurricane evacuation clearance time at or below 24 hours by … limiting the annual allocation of permits … as determined by interlocal agreement with the affected local governments in the Keys and the [DEO].” Coastal Management Element (“CME”) Objective 5-1.9, requiring Islamorada to “avoid population concentrations in the coastal high hazard area.” CME Policy 5-1.10.2, requiring Islamorada to “coordinate with Monroe County in emergency preparedness.” CME Objective 5-1.15, requiring Islamorada to “ensure intergovernmental coordination within the coastal area.” ICE Objective 8-1.1, requiring Islamorada to “ensure intergovernmental coordination.” ICE Policy 8-1.2.1, titled “Coordinate Development and Growth Management Issues.” ICE Policy 8-1.2.8, titled “Implement Intergovernmental Coordination.” Key West: FLU Objective 1-1.16, requiring Key West to “regulate the rate of population growth commensurate with planned increases in evacuation capacity in order to maintain and improve hurricane evacuation clearance times[,]” and “in concert with Monroe County, its municipalities, and the State of Florida, [Key West] shall manage the rate of growth in order to maintain an evacuation clearance time of 24 hours for permanent residents.” CME Goal 5-1, “Protect human life and limit public expenditures in areas subject to destruction by natural disasters[.]” CME Objective 5-1.6, requiring Key West to “coordinate with the State, the South Florida Regional Planning Council, [Monroe] County, and other local governments in order to regulate population growth and stage evacuations in a manner that maintains hurricane evacuation clearance times in accordance with the executed [MOU][.]” ICE Policy 8-1.1.3, which reads, in pertinent part, as follows: Considering the growth and development limitations in Monroe County as a whole resulting from hurricane evacuation requirements … and considering the impact that growth and development in the City of Key West will have on the rest of Monroe County, [Key West] shall coordinate with Monroe County and the Cities … regarding the allocation of additional development. * * * The City shall pursue resolution of development and growth management issues with impacts transcending the [Key West’s] political jurisdiction. Issues of regional and state significance shall be coordinated with the [SFRPC], the [SFWMD], and/or State agencies having jurisdictional authority. Issues to be pursued include but are not limited to the following: [Key West] shall implement the hurricane and transportation conclusions and policies relative to residential units’ allocation which are adopted by Monroe County and all municipalities as described in the [MOU] dated July 14, 2012. Petitioners did not prove that the Marathon Plan Amendment is internally inconsistent with Objectives 1-2.1, 1-2.2, 1-3.5, and 5-1.1; and Policies 4-1.21.2, 5-1.1.(2), 5-1.1.10, and 5-1.2.1.j. Petitioners did not prove the Islamorada Plan Amendment is inconsistent with Islamorada Comprehensive Plan Goal 1-1; Policies 2-1.2.8, 2-1.2.9, 2-1.2.10, and 2-1.6.3; Objective 5-1.9 and Policy 5-1.10.2; Objective 5- 1.15; and Objective 8-1.1 and Policies 8-1.2.1 and 8-1.2.8. Petitioners did not prove the Key West Plan Amendment is internally inconsistent with Key West Comprehensive Plan Objectives 1-1.16, 5-1.6, Goal 5-1, and Policy 8-1.1.3. Based on the foregoing Findings of Fact, Petitioners did not prove that the Marathon and Islamorada Plan Amendments are inconsistent with section 380.0552(9)(a)2., which requires the local governments in the ACSC to adopt goals, objectives, and policies to “maintain a hurricane evacuation clearance time for permanent residents of no more than 24 hours.” Environmental Concerns Petitioners next contend the Plan Amendments are not supported by data and analysis demonstrating that the environmental carrying capacity of the Keys can support development of an additional 1,300 residential units. Petitioners’ concerns fall into two categories which were the focus of the FKCCS: nearshore water quality and ecological impacts. Nearshore Water Quality of the Florida Keys Petitioners claim that the nearshore water quality of the Keys was determined over 25 years ago to have exceeded its capacity to assimilate additional nutrients, that it remains nutrient-impaired today, and that the additional development authorized under the Plan Amendments will further increase nutrient pollution from additional wastewater and stormwater associated with development. In 1990, Congress created the Florida Keys National Marine Sanctuary (“FKNMS”), and required development of a Water Quality Protection Program (“WQPP”), establishing comprehensive, long-term monitoring of water quality in the FKNMS. Under the Water Quality Monitoring Project (“WQMP”), water quality has been monitored quarterly at approximately 150 sampling stations since 1995. In 1997, the Governor and Cabinet approved the FKNMS Management Plan for implementation in state waters, and required annual reports from the FKNMS. The 2011 FKNMS annual report stated that, “in general, water quality is good Sanctuary-wide but documentation of elevated nitrate in the inshore waters of the Keys has been evident since” sampling began in 1995. The report notes, “Observance of this type … implies an inshore source which is diluted by low nutrient ocean waters,” and that “[a]nalysis of monitoring data from 1995 through 2008 indicates a statistically significant improvement in some parameters, such as dissolved inorganic nitrogen …” The report concludes that “this trend will be watched closely in the future, particularly with regard to any potential effect attributable to … water treatment infrastructure improvements.” The report further cited “[e]xcessive nutrients from inadequately treated wastewater” as the “primary contributor to water quality degradation in near shore waters.” In 2008, the Environmental Protection Agency (“EPA”) developed Strategic Targets for the WQMP, setting limits for DIN (dissolved inorganic nitrogen) at < 0.010 parts per million (“ppm”), and TP (total phosphorous) at < 0.0077 ppm, among other nutrients, which are considered the values “essential to promote coral growth and overall health.” Future sampling was compared to the “baseline” from the 1995-2005 timeframe (e.g., the baseline for DIN was 76.3 percent—the average percentage the samples complied with the target of < 0.010 ppm). In 2011, FKNMS added 10 sampling stations, located within 500 meters of the shore in the Keys, referred to in the reports as the SHORE stations. In 2015, FKNMS reported that an average of all stations (excluding SHORE stations) met or exceeded the target value for DIN in 2008 through 2011, but fell short of the target in 2012 through 2015. The stations reported meeting or exceeding the target for TP in 2011 through 2015, while falling short in 2008 and 2010. The 2017 annual report showed the stations meeting or exceeding the DIN target in 2017, but not 2016; and meeting or exceeding the TP target in both 2016 and 2017. The 2017 study reported that “the FKNMS exhibited very good water quality with median concentrations of” TP at .0058, well below the target of .008. In 2018, FKNMS reported the stations meeting or exceeding the target for both nutrients. Again, in 2018, FKNMS reported “very good water quality with median concentrations of” TP at .0051, lower than the 2017 level, and again well below the EPA target. In summary, the reports demonstrate the stations fell below the target for TP in 2008 and 2010, but met or exceeded the target every year since 2010. The samples fell below the target for DIN in 2012 through 2016, but met or exceeded the target value in subsequent years. Petitioners emphasize that the EPA’s Strategic Targets for nutrients in the FKNMS are not consistently being met. But the reports do show a trend of improvement, at least with respect to DIN and TP. The 2014 report documented elevated nutrient concentrations of DIN and TP in waters close to shore along the Keys, attributable to “human impact.” The 2015, 2017, and 2018 reports exclude the data from the SHORE stations for purposes of demonstrating compliance with target values because they “introduce a bias to the dataset which results in a reporting problem[.]”21 The 2017 report does include an analysis of the geographic differences between testing stations. The report indicates a significant difference between the median levels of nutrients sampled in SHORE stations when compared with the “alongshore,” “channel,” and “reef” stations. However, the median levels of many of the nutrients are still at or below the EPA targets, even measured at SHORE stations. For example, the median level of TP, which the report recognizes as one of the most important determinants of local ecosystem health, at the SHORE stations was just below .007, compared to the EPA target of .008. More importantly, Petitioners focus on the SHORE station data was inconsistent with their challenge that the nearshore water quality remains impaired. Petitioners’ planning expert, Ms. Jetton, defined nearshore as approximately 12,000 meters from shore, not merely within 500 meters of 21 Petitioners sought to introduce raw sample data from SHORE stations and an analysis of said data by Kathleen McKee. That evidence was admitted as hearsay only, and was not corroborated by any non-hearsay evidence. shore. The 2017 report breaks out the “alongshore” stations as well as the SHORE stations. That data shows the median value of TP at the alongshore stations is approximately .0055, well below the target of .008. Notably, 75 percent of the alongshore stations sampled TP below the target .008. With respect to DIN, the median of alongshore station samples is below the target of .01; and 75 percent fall below .015. In 2018, FKNMS reported a trend of increased DO (dissolved oxygen) in both surface and bottom waters throughout the Keys, and declining turbidity in the surface waters, for the 24-year period from 1995 through 2018. Increased DO is beneficial for animal life. Declining turbidity means the water is becoming clearer. The 2014 report showed no significant trends in TP, but the 2018 report noted small, but significant, declining trends in TP values in most surface waters.22 In 1995, the EPA and the Department of Environmental Protection (“DEP”) listed the Keys waters as “impaired,” pursuant to the Clean Water Act.23 DEP is required to establish Total Maximum Daily Loads (“TMDLs”) for impaired water bodies, which define the maximum pollutant loading that can be discharged to those water bodies while still achieving water quality targets. An alternative mechanism, a Reasonable Assurance Document (“RAD”) can be developed in lieu of TMDLs when, as in the Keys, local management activities are planned to achieve water quality targets. The Florida Keys RADs (“FKRADs”) were developed in 2008, and each of the affected local governments became a signatory to a Stakeholder’s Agreement to implement the FKRADs. The FKRADs established two sets of nutrient targets: (1) an insignificant increase in concentration above natural background within the HALO zone, which is 500 meters of shore, not including canals; and (2) the average of values measured at the nearshore 22 The 2018 report does not contain the same detailed comparison of SHORE station samples with the other stations, as did the 2017 report. 23 33 U.S.C. § 1251 et seq. (500 meters to 12,100 meters from the shoreline). The FKRADs identify 23 impaired estuarine water body identifications (“WBIDs”). The WBIDs are Class III water bodies, defined by the Clean Water Act as “used for recreation, propagation, and maintenance of a healthy, well-balanced population of fish and wildlife.” The FKRAD identifies specific restoration projects to be completed by 2020 to improve each WBID, designates the government stakeholder responsible for each project, and sets water quality targets to be achieved by each project. The FKRAD focuses on TN (total nitrogen) and TP, and establishes different water quality target values than the FKNMS. For the HALO Zone the target is an “as insignificant increase above natural background for each nutrient.” “Insignificant” is defined as less than ten micrograms per liter (<10 µg/l) of TN, and < 2µg/l for TP. Petitioner’s planning expert, Ms. Jetton, testified that the 2018 Update to the FKRAD “tells me that the surface water still isn’t able to assimilate all the nutrients that are going into it because … we’re not meeting the strategic targets[.]” Ms. Jetton concluded, based on the 2018 Update to the FKRAD, that “there should be no more development added to [the Keys] until the [WBIDs] can consistently meet their strategic targets.” She further testified that the RAD documents identify the Keys’ waters as not meeting the DEP necessary levels of nutrients for healthy waters and that the RADs reflect “current water quality as it’s been affected by the wastewater facilities that have been upgraded in the Keys to date.” That testimony is unreliable. The purpose of the 2018 Update is plainly set forth in the document itself: to document actions taken by stakeholders since 2011 and to address the DO impairment identified by DEP is some water segments; to include a revised approach to monitoring and reporting results; and to identify a schedule to meet water quality targets and restoration goals. The 2018 Update to the FKRAD contains neither data on samples of TN and TP in the HALO zone waters, nor any analysis of whether the target—insignificant increases above natural background—has been achieved. The 2018 Update provides that “water quality data will be compared to the FKRAD water quality targets … to evaluate achievement of targets,” and that “[m]onitoring for success will include, among other data sets, “decrease in nearshore nutrient concentrations in comparison to water quality targets and OFW background concentrations.” Injection Wells and Nearshore Water Quality Absent concrete evidence to support Petitioners’ claim that the nearshore waters have not recovered from their 1995 impaired designation such that they can assimilate pollutants from additional development, Petitioners argue that the existing “improved” wastewater and stormwater treatment infrastructure in the Keys does not adequately protect marine and coastal resources of the Keys, and that the addition of new development will exacerbate the problem. Specifically, Petitioners posit that shallow wastewater injection wells degrade nearshore water quality. Marathon injects treated wastewater effluent into shallow injection wells, which are drilled to a depth of at least 90 feet and cased to a minimum depth of 60 feet. Marathon’s five injection wells are permitted to, and currently operate at, a permitted capacity of .200 million gallons per day (“MGD”), .400 MGD, .200 MGD, .500 MGD, and .450 MGD, respectively. Marathon’s injection wells are designed and permitted to exceed full build out. Key West injects its treated wastewater effluent into deep injection wells, which are 3,000 feet deep and are cased to a minimum depth of 2,000 feet.24 24 Petitioners concede that deep injection wells have no quantified impact on the water quality of the nearshore waters of Key West or the Florida Keys. Key West’s injection wells are permitted at a capacity of 10 MGD, and Key West currently uses approximately 50 percent or less of the total permitted capacity for its injection wells. Islamorada does not have its own municipal wastewater effluent injection wells or wastewater treatment plant. Islamorada’s wastewater is transmitted to the Key Largo Regional Wastewater Treatment Facility (“Key Largo Wastewater Treatment Facility”), which treats and injects effluent into a deep injection well that is cased to a minimum depth of 2,000 feet. The Key Largo Wastewater Treatment Facility is permitted by DEP and operates at a permitted capacity of 2 MGD. The injection wells at the Key Largo Wastewater Treatment facility are designed and permitted to exceed full build out. Ms. Jetton testified that, based on reports she has reviewed, when you inject effluent into shallow injection wells, that water will reach the surface water “within a few hours or a few days.” She referenced numerous scientific reports which were admitted in evidence as sources on which she based her opinions. She further referred to findings in the Administration Commission’s 1995 Final Order that deep water injection wells are a better form of treatment than shallow injections wells. Finally, Ms. Jetton pointed to the 2014 and 2017 FKNMS reports as evidence that shallow well injections may contribute to nutrients in nearshore waters. The excerpt of the 2014 report introduced in evidence contains no reference to a relationship between shallow injection wells and the water quality of nearshore waters. The 2017 report mentions there may be a connection. Respondents introduced the testimony of Michael C. Alfieri, who is a licensed professional geologist, certified by the National Groundwater Association as a ground water professional, and certified by the American Institute of Hydrology as a professional registered hydrogeologist. Mr. Alfieri’s main practice in Florida is in karst hydrogeology, and he is one of the authors of the definitive text in Florida on karstology. Mr. Alfieri testified that the subsurface conditions in Marathon, as shown in the core samples and boring logs he personally reviewed, indicate the presence of aquitards25 and semi-confining materials, including calcite calcrete with clay silt, which would significantly inhibit vertical migration of injectate into surface water adjacent to Marathon’s shallow injection wells.26 Based on his knowledge and experience, Mr. Alfieri testified that treated wastewater or stormwater injected down a shallow injection well does not rise to the surface in the nearshore waters surrounding the Keys. He further explained that once treated effluent is injected into either a deep or shallow well, it undergoes geochemical reactions as it interacts with, and is absorbed by, the surrounding rock, which reduces nutrient concentration. Mr. Alfieri testified that based on the advanced wastewater treatment facilities and injection wells used by Respondents, the depths of the injection wells and their current level of usage, as well as the surrounding geological features, including the confining layers, which are horizontally transmissive, the additional residential units authorized by the Plan Amendments would have no impact on nearshore waters of the Florida Keys. The undersigned finds Mr. Alfieri’s testimony more persuasive and reliable than Ms. Jetton’s recounting of studies undertaken by other professionals. On the theory that injected treated effluent contaminates the nearshore waters of the Keys, Petitioners allege the Plan Amendments 25 Aquitards are materials that have a low potential to transmit water. Clay is the best material to serve as an aquitard given that it has high porosity and low permeability which makes it difficult for water to move through. 26 The parties stipulated that deep injection wells “do not have a quantified impact on the water quality of the nearshore waters of Key West or the Florida Keys.” render Respondents’ comprehensive plans internally inconsistent with the following policies, respectively: Marathon Infrastructure Element (“IE”) Goal 3-1: “[E]nsure availability of needed public facilities associated with wastewater disposal … in a manner that is environmentally sound and protects marine environments, including sea grass beds and nearshore waters[.]” IE Goal 3-2: “[Marathon] shall provide for environmentally … sound treatment and disposal of sewage, which meets the needs of … residents, while ensuring the protection of public health and the maintenance and protection of ground, nearshore and offshore, water quality[.]” IE Objective 3-2.2: “[Marathon] shall regulate land use and development to … protect the functions of natural drainage features and groundwater from the impacts of wastewater systems.” Islamorada FLU Goal 1-1, which provides in pertinent part, as follows: The comprehensive Plan shall provide a growth management framework that … encourages sustainability by limiting growth in order to establish and maintain acceptable levels of service for … wastewater services … and … reclaim and preserve the quality of [Islamorada’s] natural resources … [r]elies on ecological constraints to establish limits for growth … to ensure that human induced activities do not diminish assets of our unique coastal environment; and provides a sound basis for developing land use controls that … protect coastal resources, including nearshore waters, wetlands, grassbed flats, mangroves… and establish a basis for managing … water quality[.] CE Goal 6-1: “Islamorada … shall conserve, manage, use and protect the natural and environmental resources … based on their carrying capacity limitations to ensure continued resource availability and environmental quality.” CE Objective 6-1.9: “Islamorada … shall provide requirements designed to protect fisheries, wildlife and wildlife habitat from the adverse impacts of development by regulating the location, density and intensity of those activities that cause the adverse impact.” Key West FLU Goal 1-1: “Minimize Threats To Health, Safety, And Welfare Which May Be Caused By Incompatible Land Uses, Environmental Degradation[.]”27 CME Goal 5-1: “Coastal Management. Restrict development activities that would damage or destroy coastal resources. Protect human life and limit public expenditures in areas subject to destruction by natural disasters[.]” CME Objective 5-1.1: “Protect Coastal Resources, Wetlands, Estuarine Salt Pond Environmental Quality, Living Marine Resources, And Wildlife Habitats. … (1) Preventing potentially adverse impacts of development and redevelopment on wetlands, estuaries, water resources, living marine resources, and other natural resources; (2) Maintaining or improving coastal environmental quality by improving stormwater management[.]” 27 Petitioners inaccurately cite the monitoring measure attributable to Objective 1-1.16 as if it relates to Goal 1-1. The Monitoring Measure attributable to Objective 1-1.16 is “Number of building permits allocated annually in accordance with the implementing policies.” CME Policy 5-1.1.4: “Protect Living Marine Resources, Coastal Marsh, and Seagrass Beds … [Key West] shall seek to enhance seagrass beds and coastal nontidal wetland habitats[.]” CME Policy 5-1.2.2: “[Key West] shall continue to limit the specific and cumulative impacts of development and redevelopment upon water quality and quantity, wildlife habitat, and living marine resources by enforcing performance standards cited herein. Wastewater system improvements shall also be carried out to reduce potential adverse impacts on the coral reef. In amending its land development regulations, the City shall consider the establishment of additional protective policies for coral.” CME Policy 5-1.4.1: “Public Investments in Coastal High-Hazard Area. Publicly funded facilities shall not be built in the Coastal High-Hazard Area, unless the facility is for the protection of the public health and safety.” CE Objective 6-1.2: “Detrimental water quality impacts, including adverse impacts to the coral reef system shall continue to be combated by public facility improvements identified in the Public Facilities Element …. Monitoring Measure: Achievement of water quality … standards.” Respondents’ wastewater treatment plants are in compliance with their DEP wastewater treatment plant and injection well permits. Furthermore, there have been no violations of the permits for Respondents’ wastewater treatment facilities that could potentially impair nearshore water quality. As a condition precedent to issuing permits for Respondents’ injection wells, DEP required Respondents to provide reasonable assurance that the operation of the wells will not cause or contribute to a violation of surface water quality standards and will not harm environmental resources. Petitioners did not prove that the Marathon Plan Amendment is internally inconsistent with the Marathon Comprehensive Plan Goal 3-1, Goal 3-2, and Objective 3.2.2. Petitioners did not prove the Islamorada Plan Amendment is internally inconsistent with Islamorada Comprehensive Plan Goal 1-1, Goal 6-1, and Objective 6-1.9. Petitioners did not prove the Key West Plan Amendment is internally inconsistent with Key West Comprehensive Plan Goals 1-1 and 5-1; Objective 5-1.1 and Policies 5-1.1.4, 5-1.2.2, and 5-1.4.1; and Objective 6-1.2. Ecological Impacts Petitioners maintain the Plan Amendments are not supported by the best available data on the ecological carrying capacity of the Keys with regard to habitat protection. The FKCCS recommended four guidelines for future development in the Keys: (1) prevent encroachment into native habitat; (2) continue and intensify existing programs (e.g., land acquisition, wastewater treatment); focus future growth on redevelopment and infill; and (4) increase efforts to manage the resources. Since the FKCCS was published in 2002, the local governments in the ACSC have completed numerous work programs designed to implement the recommendations, including updating habitat mapping, maximizing grant funding for land acquisition, and acquiring environmentally-sensitive lands to remove them from potential development. Furthermore, the BPAS system integrates environmental concerns when scoring applications for the units allocated. In Marathon, Policy 1-3.5.4 affords the greatest weight to applications for development of scarified and infill lots with existing paved roads, water, and electric service. The Plan affords the least weight to applications on lots containing sensitive areas as identified on the vegetation and species maps. Further, the Marathon plan provides that, “in no case shall more than one (1) BPAS allocation per year be issued for properties which in part or whole designated as Hardwood Hammock, Palm Hammock, Cactus Hammock, or Beach/Berm.” The Key West comprehensive plan mandates that new development preserve, at a minimum, “all wetlands and ninety (90) percent of hardwood hammocks.” The Key West plan does not allow development in any wetlands “except where State and/or federal agencies having jurisdiction provide for development rights.” The Islamorada comprehensive plan mandates that new development preserve “all undisturbed wetlands” and 90 percent of high quality tropical hardwood hammocks on the parcel being developed. The Islamorada comprehensive plan also discourages development of lots containing both disturbed and undisturbed habitats by applying the most stringent open space requirements to development sites containing the highest quality habitats. For example, the minimum open space requirement for high quality hammock is .90; while for undisturbed saltmarsh and buttonwood wetlands, as well as undisturbed mangrove and freshwater wetlands, the ratio is 1.0. The plan requires an open space ratio of .90 for disturbed saltmarsh and buttonwood wetlands, as well as disturbed mangrove and freshwater wetlands. Nevertheless, Petitioners argue that the Plan Amendments allow new units to be built in disturbed hammock, which constitutes additional encroachment into hammock, contrary to the FKCCS. Petitioners point to the provision of the Plan Amendments which provides that the workforce affordable units “shall not be placed in any habitat defined as mangroves, saltmarsh & buttonwood, hardwood hammock,[28] or fresh water wetlands (disturbed categories excepted)[.]” 28 The Islamorada Plan Amendment refers to “tropical” hardwood hammock. The provisions of the Plan Amendments must be read together with existing comprehensive plan provisions. When read together, the Marathon comprehensive plan may not allow any of the affordable-early evacuation units to be built on any hammock habitat because it only allows one BPAS permit per year be allocated to any parcel containing designated hardwood hammock. Since the Plan Amendment requires the units be built as multifamily, thereby utilizing multiple allocations for one application, it is impossible to permit the new affordable units on any lot designated hardwood hammock. Further, the Marathon BPAS weighting system will apply to the new allocations,29 which will continue to direct development to scarified lots, and those lots with maximum disturbed areas. The Islamorada plan open space requirements will apply to disincentivize development of parcels with high quality hammock, buttonwood wetlands, and freshwater wetlands, by requiring the most stringent open space ratios. Petitioners did not prove the Plan Amendments are not based on data and analysis of the ecological carrying capacity of the Keys. Petitioners allege that the Plan Amendments are internally inconsistent with the following provisions of the Marathon and Islamorada plans relating to ecological concerns: Islamorada: GOAL 1-1: IMPLEMENT FUTURE LAND USE VISION, which reads, in pertinent part, as follows: [Islamorada was] incorporated to create a Comprehensive Plan to reclaim the Keys by conserving, preserving, and retaining our remarkable assets—our waters and natural environment—and our quality of life; Encourages sustainability by limiting growth in order to … reclaim and preserve the quality of our natural 29 Only the Key West Plan Amendment exempts the allocation of the affordable-early evacuation units from the BPAS. resources; Relies on ecological constraints to establish limits for growth and create standards and criteria to ensure that human induced activities do not diminish assets of our unique coastal environment[.] Policy 2-1.9.3: Participate in the Florida Keys Carrying Capacity Study. … “[Islamorada] shall continue to support the technical undertakings of this study, and the establishment of carrying capacity limitations for the Florida Keys.” Goal 6-1: “Islamorada … shall conserve, manage, use and protect the natural and environmental resources … based on their carrying capacity limitations to ensure continued resource availability and environmental quality.” Policy 6-1.4.4: “Islamorada … shall use the best available technical criteria and information to formulate regulations and ordinances which shall ensure that future development is compatible with the functioning and carrying capacity of existing natural systems and resources conservation.” Marathon Objective 1-2.1: which calls for adequate public facilities and services for future growth “to … protect valuable natural resources….” Petitioners did not prove the Marathon Plan Amendment is internally inconsistent with Objective 1-2.1. Petitioners did not prove the Islamorada Plan Amendment is internally inconsistent with Goal 1-1, Policy 2-1.9.3, Goal 6-1, and Policy 6-1.4.4. Other Contentions Petitioners alleged the Plan Amendments violate section 163.3177(6)(a)2., which reads, in pertinent part, as follows: [P]lan amendments shall be based upon surveys, studies, and data regarding the area, as applicable, including: The amount of land required to accommodate anticipated growth. The projected permanent population of the area. The character of undeveloped land. The availability of water supplies, public facilities, and services. The need for redevelopment, including renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community. The compatibility of uses on lands adjacent to or closely proximate to military installations. The compatibility of uses on lands adjacent to an airport[.] The discouragement of urban sprawl. The need for job creation, capital investment, and economic development that will strengthen and diversify the community’s economy. The need to modify land uses and development patterns with antiquated subdivisions. (emphasis added). Many of the listed criteria are not applicable to the Plan Amendments because the Plan Amendments do not propose a specific type of development at a specific location, do not implicate antiquated subdivisions, and do not specifically implicate redevelopment of blighted areas. Respondents considered the availability of water supplies and other public services, such as the capacity of wastewater treatment facilities, during plan review and adoption. Respondents also considered the need of the service sector of the economy—including retail and restaurant services, as well as public school and first-responder services—during plan review and adoption. Petitioners did not prove the Plan Amendments are not based upon applicable surveys, studies, and data as required by section 163.3177(6)(a)2.
Conclusions For Petitioners: Richard J. Grosso, Esquire Richard Grosso, P.A. 6511 Nova Drive, Mail Box 300 Davie, Florida 33317 Sarah Hayter, Esquire Shai Ozery, Esquire Robert Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, FL 33060 For Respondents City of Marathon; and Islamorada, Village of Islands, Florida : Nicole Pappas, Esquire Barton Smith, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 For Respondent, City of Key West: George Wallace, Esquire City of Key West, City Attorney’s Office 1300 White Street Post Office Box 1409 Key West, Florida 33040
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 the City of Marathon Comprehensive Plan Amendment 2018-01, adopted on October 23, 2018; City of Key West Comprehensive Plan Amendment 19-06, adopted on April 4, 2019; and Islamorada, Village of Islands, Comprehensive Plan Amendment 19-03, adopted on March 5, 2019; are “in compliance,” as that term is defined in section 163.3184(1)(b). DONE AND ENTERED this 24th day of April, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2020. COPIES FURNISHED: Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. Suite C 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. Suite C 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) Shai Ozery, Esquire Robert N. Hartsell P.A. Suite C 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) Barton William Smith, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) Christopher B. Deem, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) Nicola J. Pappas, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) Richard J. Grosso, Esquire Richard Grosso P.A. Mail Box 300 6511 Nova Drive Davie, Florida 33317 (eServed) Shawn D. Smith, City Attorney City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 Key West, Florida 33040 (eServed) George B. Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 Key West, Florida 33040 (eServed) Roget V. Bryan, Esquire Islamorada, Village of Islands 86800 Overseas Highway Islamorada, Florida 33036 (eServed) Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) William Chorba, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
