Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(c) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 10-GM-282 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned designated Agency Clerk, and that true and correct copies have been furnished to the persons listed below in the manner described, on this ; dp 2-day of December, 2010. Paula Ford Agency Clerk U.S. Mail: The Honorable J. L. Johnston Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 John Foster Attorney for Leffler 200 S. Orange Ave., Suite 2300 PO Box 112 Orlando, Florida 32802-0112 Jamie Seaman Attorney for Volusia County 123 W. Indiana Avenue Deland, Florida 32720-4615 Hand Delivery Matthew Davis, Esq. Assistant General Counsel Department of Community Affairs
The Issue The issue on appeal is whether, pursuant to Clearwater Code of Ordinances Section 4-505, to sustain or reverse, with or without conditions, the decision of the Community Development Board on June 20, 2003, denying Cepcot Corporation's application to build a convenience store with two islands for pumping gas.
Findings Of Fact Petitioner The Cepcot Corporation (Cepcot) owns real property located at 657 Court Street in the downtown zoning district of the City of Clearwater (Property). On December 17, 2002, Cepcot filed a Flexible Development Application for a comprehensive infill redevelopment project (Application) on the Property. At the time of the proposal, the Property, which comprises 0.95 acres, was developed with a restaurant in a building that was the former Clearwater train station, a thrift store, and a park. The Application proposes the demolition of these improvements and their replacement with a 3200 square-foot convenience store and two gas pump islands. The Property fronts Chestnut Street to the south, East Avenue to the east, and Court Street to the north. The surrounding area is developed with office uses to the west and south, a privately owned utility plant to the north, and warehouse uses to the east. Upon the completion of the Memorial Causeway bridge, which is presently under construction, traffic to the beach will use Court Street and traffic from the beach will use Chestnut Street. In response to questions and suggestions from Respondent's staff, Cepcot revised the proposed site plan several times. The Application is presently complete. Respondent's Planning Department prepared a Staff Report, which finds that the proposed project does not meet certain requirements and recommends denial of the Application on several grounds. On June 17, 2003, Respondent's Community Development Board (CDB) considered the Application. CDB denied the Application and issued a development order explaining the reasons for denial as follows: The proposal is inconsistent with the adopted Community Development Code, the Comprehensive Plan, 1995 Clearwater Downtown Redevelopment Plan, and the Downtown Design Guidelines. The proposed automobile service station is not a permitted use within the downtown district. Approval of the proposed use may encourage other like uses and may be detrimental to downtown redevelopment. The proposal does not comply with the Flexible Development criteria as a comprehensive infill redevelopment project per Section 2-803. The proposal is not in compliance with the other standards in the Code including the general applicability criteria for Section 3-913. Most of the reasons cited for denial involve Respondent's Community Development Code (CDC), which is the land development regulations. The Property is in the Downtown District. CDC Section 2-901 states: "The intent and purpose of the Downtown District is to establish a mixed use downtown where citizens can work, live, and shop in a place which is the economic, governmental, entertainment and cultural focal point of a liveable city." CDC Section 2-902 sets forth the permitted uses within the Downtown District, and CDC Chart 2-100 lists permitted uses by zoning district. The proposed uses are not among the permitted uses for the Downtown District (or the Tourist District, to which portions of the record refer). CDC Section 2-903.C sets forth the following ten criteria to be applied in determining if the proposed use qualifies as a Comprehensive Infill Redevelopment Project (CIRP) that may qualify an otherwise non-permitted use: The development or redevelopment of the parcel proposed for development is otherwise impractical without deviations from the use, intensity and development standards; The development of the parcel proposed for development as a Comprehensive Infill Redevelopment Project will not reduce the fair market value of abutting properties; The uses within the comprehensive infill redevelopment project are otherwise permitted in the City of Clearwater; The uses or mix of uses within the comprehensive infill redevelopment project are compatible with adjacent land uses; Suitable sites for development or redevelopment of the uses or mix of uses within the comprehensive infill redevelopment project are not otherwise available in the City of Clearwater; The development of the parcel proposed for development as an comprehensive infill redevelopment project will upgrade the immediate vicinity of the parcel proposed for development; The design of the proposed comprehensive infill redevelopment project creates a form and function which enhances the community character of the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole; Flexibility in regard to lot width, required setbacks, height and off-street parking are justified by the benefits to community character and the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole; Adequate off-street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development; The design of all buildings complies with the Downtown District design guidelines in Division 5 of Article 3. CDC Section 3-913.A sets forth the General Applicability criteria. CDC Section 3-913.A.1 states: "The proposed development of the land will be in harmony with the scale, bulk, coverage, density, and character of adjacent properties in which it is located." CDC Section 3-913.A.5 states: The proposed development is consistent with the community character of the immediate vicinity of the parcel proposed for development."
The Issue The issue in this proceeding is whether the petition to establish the Sampson Creek Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Petitioner is seeking the adoption of a rule by the Commission to establish the Sampson Creek Community Development District. The proposed District consists of approximately 1,015 acres located within unincorporated St. Johns County, Florida. There are two out-parcels, totaling 3.7 acres, within the areas to be included in the District. No adverse impact on these out parcels is expected from the establishment of the district. The estimated cost of the infrastructure facilities and services which are presently expected to be provided to the lands within the District was included in the Petition. Petitioner's Composite Exhibit 1 was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Witnesses Maier, Walters, Boring, and Fishkind each stated that he had reviewed portions of the contents of the petition and its attachments and affirmed the petitions findings. Witness Maier testified that the Petitioner has written consent to establish the District from the owners of one hundred percent of the real property located within the lands to be included in the District. Witness Maier also presented deeds for parcels of land within the boundaries of the proposed District which have been acquired by the Petitioner or its subsidiaries, as well as consent forms from the Petitioner's subsidiaries. The Petition and its attached exhibits are true and correct, with the addition of the deeds showing land ownership and owners' consent as specified above. Witnesses Walters and Fishkind reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Witness Walters also reviewed the proposed District in light of the requirements of the St. Johns County Comprehensive Plan. From a planning and economic perspective, four subjects, subject 16, 18, 21, and 26, of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, titled Land Use, of the State Comprehensive Plan recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed District will: have the fiscal capability to provide a wide range of services and facilities to the population in the designated growth area; help provide infrastructure to development the County, thereby helping limit unintended, unplanned sprawl; facilitate the delivery of infrastructure and services to assist in fulfilling the community plan. Subject 18, titled Public Facilities of the State Comprehensive Plan provides that the state shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly and efficient manner. The proposed District will be consistent with this element because the District will: plan and finance the infrastructure systems and facilities needed for the development of lands within the District in a timely, orderly, and efficient manner; provide the infrastructure systems and facilities within the District with the landowners and residents benefiting from the new public facilities bearing the costs associated with construction, operation, and maintenance of the facilities; act in a type of 'infrastructure partnership' with St. Johns County; have financial self-sufficiency through the use of special assessments, as well as user charges or fees, to provide public facilities; provide a consistent, innovative and fiscally sound alternative for financing public facilities by bringing the cost of managing and financing public facilities down to a level of government closest to its beneficiaries and connecting those who pay for facilities with those who directly benefit from those facilities and services; and be structured to assure secure revenue sources capable of meeting District responsibilities. Subject 21, titled Governmental Efficiency of the State Comprehensive Plan provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District will be consistent with this element because the proposed District will: cooperate with other levels of Florida government, such as through entering into interlocal agreement to address maintenance issues for certain roads; be established under uniform general law standards as specified in Chapter 190, Florida Statutes; be professionally managed, financed, and governed by those whose property directly receives the benefits; not burden the general taxpayer with costs for services or facilities inside the District; and plan and implement cost efficient solutions for the required public infrastructure and assure delivery of selected services to residents. Subject 26, titled Plan Implementation of the State Comprehensive Plan, provides that systematic planning shall be integrated into all levels of government, with emphasis on intergovernmental coordination and citizen involvement. The proposed District is consistent with this element of the State Comprehensive Plan because: the proposed District will systematically plan for the construction, operation and maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations; the District meetings are publicly advertised and are open to the public so that all District property owners and residents can be involved in planning for improvements; Section 189.415, Florida Statutes, requires the District to file and update public facilities reports with the County, which it may rely upon in any revisions to the local comprehensive plan. Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. Witness Walters testified that since St. Johns County has already found the development within the proposed District to be not inconsistent with the St. Johns County local comprehensive plan, the establishment of a community development district would not cause any inconsistency and would be in furtherance of four of the plan's policies, goals and objectives: Policy H.1.3.4 of the St. Johns County Comprehensive Plan states that 'DRI's planned unit subdivisions, and other large developments shall provide for the dedication of parks and open space to be generated by the development according to the level of service standards.' The proposed District will finance the construction of, and ultimately own and maintain, a community recreational facility. Goal J.1 of the St. Johns County Comprehensive Plan states that St. Johns County is to ensure the orderly and efficient provision of infrastructure facilities and services such as roads, utilities, recreation, and drainage. The proposed District will serve as an alternative provider of these infrastructure systems and services to meet the needs of the lands within its boundaries; Objective J.1.7 of the St. Johns County Comprehensive Plan states that the County shall manage fiscal resources to ensure the provision of needed infrastructure. The proposed District will provide the infrastructure facilities and services needed for its lands without burdening the fiscal resources of the County or impacting the bonding limits contained in Policy J.1.7.; Objective K.1.6 of the St. Johns County Comprehensive Plan calls for St. Johns County to work cooperatively with other units of government to address issues and concerns. The proposed District may be expected to enter into interlocal agreements with the County to provide certain enhanced maintenance. Additionally, over the long term, the establishment of the proposed District will provide another unit of local government in place and able to cooperate with the County on future issues and concerns. The State of Florida Department of Community Affairs also reviewed the petition to establish the proposed District and concluded that the petition was consistent with the local comprehensive plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the local comprehensive plan, and will in fact further the goals provided. Most of the land in the proposed District is part of a planned community included in a Planned Unit Development (PUD) approval issued by St. Johns County. The PUD was approved on February 10, 1998. The PUD is found in St. Johns County Ordinance No. 98-7. Section 6 of the PUD Application, which is incorporated into Ordinance 98-7 by reference, explicitly states that a community development district will be established and requires the establishment of the District prior to the sale of the first lot within the development. Petitioner is developing all of the lands within the District as a single master-planned community. Witness Walters testified that functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function requires a management capability, funding source and an understanding of the size of the community's needs, so as to handle the growth and development of the community. Each function must be designed to contribute to the development or the maintenance of the community. The size of the District as proposed is approximately 1,105 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. Compactness relates to the location in distance between the lands and land uses within a community. The community is sufficiently compact to be developed as a functionally inter-related community. The compact configuration of the lands will allow the District to provide for the installation and maintenance of its infrastructure facilities in a long-term cost efficient manner. The property is sufficiently contiguous when all parts of a project are either in actual contact or are close enough to allow the efficient design and use of infrastructure. The proposed District is sufficiently contiguous for planning purposes and for the purpose of district governance. The size of the proposed community within the District provides a sufficient economic base to absorb the debt costs and annual operating costs for the proposed District. There will be no economic disincentives to the provision of the infrastructure facilities contemplated. From planning, economics, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. It is presently intended that the District will participate in the construction or provision of certain infrastructure improvements as outlined in the petition. Installation and maintenance of infrastructure systems and services by the District is expected to be financed by bonds and repaid through the imposition of special assessments on benefited property within the District. Use of such assessments will ensure that the real property benefiting from District services is the same property which pays for them. Two types of alternatives to the use of the proposed District were identified. First, the County might provide facilities and services from its general fund or through a MSTU. Second, facilities and services might be provided by some private means, without public bidding, with maintenance delegated to a homeowners association (HOA). The District exceeds the available alternatives at focusing attention to when and where and how the next system of infrastructure will be required. This results in a full utilization of existing facilities before new facilities are constructed and reduces the delivered cost to the citizens being served. Only a community development district allows for the independent financing, administration, operations, and maintenance of the land within such a district. Only a community development district allows district residents to completely control the district. All of the other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities because it is a long-term stable, perpetual entity capable of maintaining the facilities over their expected life. From planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the are that will be served by the District. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services within the proposed boundaries will not duplicate any existing regional services or facilities which are provided to the lands within the District by another entity. None of the proposed services or facilities are presently being provided by another entity for the lands to be included within the District. Therefore, the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. As cited previously, from planning, economics, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The lands to be included within the proposed District have a need for the basic infrastructure being provided. From an engineering perspective, the area within the proposed District is also large enough to support a staff necessary to operate and maintain the proposed infrastructure systems and facilities. Based upon these characteristics, the proposed District is expected to be financially viable. From planning, engineering, economic, and management perspectives, the area that will be served by the intended District is amenable to separate special-district government. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the petition and other information to be submitted to the Commission. Section 190.005(1)(a), Florida Statutes, requires the petition to contain a metes and bounds description of the external boundaries of the District. Petitioner's Composite Exhibit 1 contains such a description. Section 190.005(1)(a)1, Florida Statutes, also requires a description of any real property within the external boundaries which is to be excluded from the District and the last known address of the owners of such properties. Petitioner's Composite Exhibit 1 contains the required information. Section 190.005(1)(a), Florida Statutes, requires that the petition contain the proposed timetable for the construction of any district services and the estimated construction costs for those services as well as the designation of the future general distribution, location, and extent of public and private land uses proposed for the area by the future land use element of the adopted local government comprehensive plan. Petitioner's Composite Exhibit 1 contains this information. Section 190.005(1)(a), Florida Statutes, requires the petition to contain written consent to establishment of the District by the owners of one-hundred percent of the real property to be included within the proposed District. Petitioner's Composite Exhibit 1 contains this information which was supplemented by Petitioner at hearing, as it or its subsidiaries acquired title to the lands proposed to be included within the District. Sections 190.005 and 190.006, Florida Statutes, require that each member of a board of supervisors be a resident of Florida and a citizen of the United States. The proposed board members meet these criteria. Section 109.005(1)(a), Florida Statutes, requires the petition to include a Statement of Estimated Regulatory Costs (SERC), which meets the requirements of Section 120.541, Florida Statutes. The petition contains a SERC. It meets all requirements of Section 120.541, Florida Statutes. The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, the country and its citizens, Petitioner, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which is difficult to quantify but is nonetheless substantial. Administrative costs incurred by the County related to rule adoption should be minimal. Benefits to the County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed District except for those it chooses to accept. Consumers will pay non-ad valorem or special assessments for certain facilities. Location within the District is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers in the area within the community development district will include a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Petitioner has complied with the provisions of Section 190.005(1)(b), Florida Statutes, in that St. Johns County was paid the requisite filing fees. Section 190.005(1)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in St. Johns County for four consecutive weeks prior to the hearing. The notice was published in a newspaper of general paid circulation in St. Johns County (the St. Augustine Record) for four consecutive weeks on March 13, 2000, March 20, 2000, March 27, 2000, and April 3, 2000. All publications were prior to the hearing. Mr. Stephenson, on behalf of the County's community development district processing group formed in accordance with Section 5.06.00 of the St. Johns County Land Development Code, presented the following proposed findings regarding the approval of the development within the proposed District: On October 28, 1999, the St. Johns County Board of County Commissioners entered into an Impact Fee Agreement with St. Joe Residential Acquisitions, Inc., and A & S Land Development Company to widen a portion of CR 210 in order to meet concurrency requirements for two projects. St. Joe Residential Acquisitions, Inc. is the developer of the property contained within the Sampson Creek CDD Petition. The project is approved with a Planned Unit Development (PUD) zoning and contains 799 single family residential dwelling units and associated roadways, retention areas, common areas, sales and recreation complex, and an 18-hole golf course. St. Johns County Board of County Commissioners approved the PUB on February 10, 1998. The PUD provides that a CDD will be established and will be in place prior to the sale of the first lot so that purchasers will be aware of their participation and membership in the CDD and of their obligation to pay any taxes that may be levied by the CDD. The PUD and Impact Fee Agreement are separate County approved documents and the creation and operation of a CDD does not in any way affect these documents or their approval without further review by the St. Johns County Board of Commissioners. Impact fee credits shall be awarded in accordance with approved Impact Fee Agreement which ensures that the credits are awarded to the appropriate entity. The CDD processing group finds no inconsistencies with the six factors as described in Section 190.005(6), Florida Statutes. With these findings, Mr. Stephenson testified that St. Johns County has no objection to the establishment of the proposed District.
Conclusions On Monday April 10, 2000, at 10:00 a.m., the local public hearing for the Petition to Establish the Sampson Creek Community Development District was held before Administrative Law Judge Diane Cleavinger, at the St. Johns County Public Library, 950 Davis Pond Boulevard, in St. Johns County, Florida. The hearing was conducted pursuant to Section 190.005, Florida Statutes, for the purpose of taking testimony, public comment, and receiving exhibits on the petition of the St. Joe/Arvida Company, L.P. (Petitioner) to establish the Sampson Creek Community Development District (District) in northern St. Johns County, Florida. This report is prepared and submitted to the Florida Land and Water Adjudicatory Commission (Commission) pursuant to Section 190.005, Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120, and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Sampson Creek Community Development District as requested by Petitioner by formal adoption of the proposed rule, after inclusion of the legal description, in substantially the form attached to this Report of Findings and Conclusions as Attachment 3. DONE AND ENTERED this 16th day of May, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2000. COPIES FURNISHED: Jonathan T. Johnson, Esquire Carolyn S. Raepple, Esquire Hopping, Green, Sams & Smith, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Daniel Woodring, Esquire Florida Land and Water Adjudicatory Commission The Capitol, Suite 2105 Tallahassee, Florida 32399 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission The Capitol, Suite 1601 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Carol Licko, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue The issues are whether David Boston should be issued an environmental resource permit and sovereign submerged lands authorization allowing him to construct 96 linear feet of rip rap revetment; construct a private dock of less than 1,000 square feet; and place 3,500 square feet of fill in non-jurisdictional areas; and whether he qualifies for a general permit to place a fill pad in isolated wetlands adjacent to the St. Johns River, a Class III waterbody.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this permitting dispute between neighbors, Petitioner, Vincent R. D'Antoni, Jr., contends generally that Respondent, David Boston (Boston), will cause flooding to Petitioner's property by reason of placing too much fill on an isolated wetland, which lies in the center of Boston's property. The filling is in conjunction with Boston's efforts to construct a single-family residence and private dock on his property, purchased in June 1998, which lies adjacent to the St. Johns River, a Class III waterbody, in Duval County, Florida. In preliminary decisions made on November 5, 1998, and January 21, 1999, Respondent, Department of Environmental Protection (DEP), "acknowledge[d] receipt" of Boston's intent to use a noticed general permit "to fill less than 4,000 square feet of an isolated wetland to facilitate construction of a single family home" on his lot (Case No. 99-2861), and gave notice of its intent to issue Boston an environmental resource permit and sovereign submerged lands authorization allowing him to construct a rip rap revetment and a dock and to place 3,500 square feet of fill in mainly non-jurisdictional areas (Case No. 99-1916). Although a number of objections were raised by Petitioner in his original filings, as clarified at the final hearing, Petitioner now contends that Boston placed excessive fill on his lot, including an isolated wetland, and that the fill has resulted in flooding, saturated soil, or standing water on Petitioner's property. He also contends that the location of Boston's proposed dock will affect the ability to use his own dock. Because no evidence was presented on the docking issue, and through admissions Petitioner acknowledged that there will be no adverse environmental impacts, no consideration will be given to those objections. Finally, Petitioner does not object to the placement of the rip rap revetment on the shoreline. Accordingly, the request for an environmental resource permit and consent to use sovereign submerged lands in Case No. 99-1916 should be approved. The property in issue lies just south of the Jacksonville University Country Club and a few blocks west of University Boulevard North on Wayland Street, which fronts the eastern side of the St. Johns River in a tract of land known as University Park. Except for the Boston lot, all other waterfront lots are now developed. When facing the river from Wayland Street, Petitioner's lot lies to the right of Boston's lot, while another lot owned by Robert Henderson (Henderson) lies to the left of Boston's lot. The lots are up to 500 feet deep; Boston's lot is around 96 feet wide, while Petitioner's lot has a similar width but narrows to only 20 feet or so near the river. At the river end of the D'Antoni, Boston, and Henderson lots is an area of contiguous wetlands. Until 1995, DEP regulated those wetland areas and this prevented D'Antoni and Henderson from placing any fill in those areas. Under DEP's current wetland delineation rule, however, such areas are non- jurisdictional, and any placement of fill at the river end is outside the purview of DEP's jurisdiction. Before Boston's lot was cleared and filled, it was about a foot lower in elevation than the D'Antoni lot; this was true even though Petitioner has never changed the natural grade of his property since it was purchased and developed. Therefore, water tended to flow naturally from an upland area north or east of the D'Antoni lot, through the D'Antoni lot to Boston's lot, and then through the lower part of the Henderson lot populated by "very mature cypress trees," and eventually into the St. Johns River. According to a 1977 aerial photograph, the Boston lot contained what appears to be a tidal connection from an uplands area through the wetlands on his property to the river. However, construction on property adjacent to the Henderson lot sometime after 1977 severed this connection, and a tidal connection (direct hydrologic connection) to the river no longer exists. Under Rule 62-341.475(1)(f), Florida Administrative Code, "a single family residence" is exempt from the Environmental Resource Program permitting and a general permit will be granted "as long as it is not part of a larger plan of common development," and "the total area of dredging or filling in isolated wetlands for the residence and associated residential improvement shall not exceed 4000 square feet." Since there is no longer a direct hydrologic connection between the wetlands on Boston's property and the St. Johns River, the wetlands are isolated within the meaning of this rule. Availing himself of the foregoing provision, on October 19, 1998, Boston gave notice to DEP "of [his] intent to use a noticed general permit to fill less than 4,000 square feet of an isolated wetland" on his property. He also provided certain drawings and other information (prepared by his surveyor) to show that he qualified for the permit. DEP does not "issue" a noticed general permit; rather, it only determines whether the applicant qualifies for a permit and then "acknowledges" this fact. Accordingly, on November 5, 1998, DEP "acknowledge[d] receipt" of Boston's notice. Although DEP encourages the user of such a permit to notify affected or adjoining property owners, there was no legal requirement that Boston do so, and he proceeded to clear the lot and then fill a part of the wetland area with two or three feet of dirt without giving notice to Petitioner or Henderson, his two neighbors. The filling raised the elevation of the Boston property at least two feet above the D'Antoni and Henderson lots and impeded the prior natural flow of water. At the same time, Boston constructed a three to four-foot timber wall (consisting of railroad ties) on the Henderson property line to retain the fill and a similar two-foot wall on Petitioner's line. These changes had the effect of impounding the water which had previously flowed naturally in a north-south direction through the wetlands from the D'Antoni lot to the Boston lot to the Henderson lot. It also generated runoff from the Boston lot to the D'Antoni lot, which had not previously occurred. When Petitioner observed the adjacent lot being cleared and filled, and the resulting erosion of fill onto his property, pooling of water, and damage to his chain link fence after a heavy rain in January 1999, he filed a complaint with DEP. An inspection was made by DEP, and Boston was told to stop work until corrective changes were made to ensure that such flooding would not occur. After a series of changes were made which satisfied DEP's concerns, the stop work order was lifted. Boston also signed a consent order and paid a $100.00 fine. However, pending the outcome of these cases, no further construction work has occurred. Petitioner has contended that Boston has placed more than 7,200 square feet of fill on his property in violation of the rule, which limits the amount of fill to less than 4,000 square feet. While this amount of filling has in fact occurred, approximately 3,500 square feet of fill was placed in non- jurisdictional areas between the shoreline and the isolated wetlands, and the rule only requires that Boston limit his fill to less than 4,000 square feet on the isolated wetland. Thus, contrary to a suggestion by Petitioner's engineer, the jurisdictional and non-jurisdictional filling are not totaled together to determine whether the threshold within the rule has been exceeded. Through photographs received in evidence and testimony by Petitioner and his wife, it was established that flooding or standing water has occurred on Petitioner's property during heavy rainfalls since the filling occurred, even as recently as January 2000. The evidence further shows that Petitioner's chain link fence has been damaged through the weight of the fill pressing against the fence. In addition, Petitioner has suffered the loss of "a couple of trees" because of "mucky" and "oversaturated" soil caused by excessive water. Also, a dog house on a raised platform in the back yard which was previously dry now "stays in water." These affected areas lie immediately adjacent to the filled area of the isolated wetland on Boston's property. Finally, there is an erosion problem beyond the isolated wetland consisting of sand and silt flowing from Boston's lot onto Petitioner's lot during heavy rainfalls. Despite these problems, Petitioner does not object to the development of the lot; he only asks that Boston do so in a manner which prevents these conditions from recurring in the future. Petitioner's engineering expert, Ronnie D. Perron (Perron), a professional engineer who visited the site in August 1999, ran a computer model (Interconnected Channel and Pond Routing, Version 2.11) showing runoff both before and after the fill was placed on Boston's lot. He concluded that "there was over one and a half feet of flooding in that wetlands due to filling Mr. Boston's lot" during a "mean annual storm event," which assumes five inches of rain during a 24-hour period. Even when he used more conservative estimates, Perron still arrived at water accumulations ranging from 0.6 feet to 1.5 feet. This excessive runoff is caused by the retaining wall and fill, which "blocks off" the water and causes it to "spread out in [Petitioner's] whole back yard." In response to Perron's model, a DEP professional engineer, David P. Apple (Apple), ran another computer model (PONDS, Version 2.25) received in evidence as Respondent's Exhibit No. 14. That model shows that during a three-year, one- hour storm event, the small depressed area on Boston's property (including the isolated wetland) had sufficient storage capacity to absorb up to six inches of runoff from off-site areas and not overflow back onto Petitioner's property. This size of storm event (which produces two and one-half inches of rain in an hour) is typically used by the Department in calculations for single- family residential property when the impervious area site is less than fifty percent. In this case, Apple didn't "feel that the impervious area out there was greater than [fifty] percent." Therefore, Apple concluded that the storm event used by Perron was too large, and that the smaller event used in his model was more appropriate. He also concluded that the Boston property could retain all water in a normal storm event without discharging any stormwater onto the D'Antoni lot. He did not, however, address the issue of the fill and retaining wall on the Boston lot impounding the water on his neighbor's lot. In developing the input perameters for his model, Apple assumed that water falling at the front (Wayward Street) side of the D'Antoni property drained to the front roadway; in fact, much of that water drains to the rear of the lot into the wetland area. A similar incorrect assumption was made regarding runoff on the Boston lot. If modifications were made to account for the proper drainage patterns, the Apple model would show larger amounts of water staging on the Boston property during rainfall events, which would increase the possibility of runoff onto the D'Antoni lot. Apple questioned the accuracy of the Perron model given the fact that Perron had used a larger storm event than he (Apple) believed was appropriate. However, even if Perron had used a three-year, one-hour storm event on his computer model, as advocated by Apple, he established that it would have resulted in flood staging on Petitioner's property between 0.97 and 1.64 feet during a smaller storm event. DEP proposed no solutions to the water problems on the D'Antoni lot, presumably because it concluded that the rule was satisfied; that by filling the Boston lot, it was no longer the "stormwater pond for the neighborhood runoff"; and that DEP had no other regulatory authority to solve this peculiar situation. The record shows clearly, however, that if no changes are made, water will continue to back up on Petitioner's property by virtue of the higher elevation on the Boston lot, and the possibility of runoff from Boston's lot exists during certain storm events. Neither condition existed before the fill was added. To correct the foregoing conditions, Perron proposes two corrective measures. First, Boston should install a yard drain (underground culvert) beginning in the wetlands area of his property and outfalling to the cypress trees on the adjacent Henderson lot. Besides providing an outfall for the excess water, this would also help recharge the mature cypress trees on the Henderson lot. Second, D'Antoni should install a series of "yard drains" using high-density polyethylene pipes to convey the standing water on his lot directly into the St. Johns River. The expert opined that neither activity would require a permit from DEP. These modifications are reasonable and appropriate and should be used by the factioning parties. Accordingly, the installation of a yard drain should be a condition for Boston to use his noticed general permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application for a permit and consent in Case No. 99-1916 and confirming that David Boston qualifies for use of a noticed general permit in Case No. 99-2861 provided, however, that such use be conditioned on Boston constructing an underground culvert with a yard drain from the wetland area on his lot to the St. Johns River. DONE AND ENTERED this 22nd day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Vincent R. D'Antoni, Jr. 3824 Wayland Street Jacksonville, Florida 32277 David Boston 2262 Orchard Street Jacksonville, Florida 32209 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Petitioners filed separate, although virtually identical, applications with the Department in February, 1983 to construct separate catwalks from their properties, with platforms at the end of each catwalk. The dimensions of each catwalk were to be three feet by 350 feet, and the platform dimensions were to be six feet by twelve feet. This construction was to take place through a marsh and mangrove wetland and tidal creek known as Andrews Creek. Petitioner's properties adjoin and are in the interior of the creek. Intervenor's property is located at the mouth of Andrews Creek where it intersects a canal, and borders that area of the creek through which Petitioners proposed to construct their catwalks and platforms. On March 9, 1983 the Department notified Petitioners that a permit would be required for their project pursuant to Chapters 253 and 403, F.S., that their applications were incomplete, and that approval from the Department of Natural Resources in the form of a "consent of use of state-owned land" might be required. Petitioners provided additional information in support of their application, but were again notified on April 5, 1983 that Department of Natural Resources consent or approval was necessary in order to complete their application file. The Department prepared a permit application appraisal report on June 13, 1983 without the benefit of an on-site inspection for these applications. The appraisal was based upon written materials submitted by Petitioners in their applications. The appraisal recommended approval, noting that a single joint access facility would be preferable to the dual catwalk and platform configuration proposed by Petitioners As a result of this appraisal, the Department notified the Department of Natural Resources on July 1, 1983 that it intended to issue permits to the Petitioners but that it needed a response from the Department of Natural Resources concerning consent of use or approval pursuant to Section 253.77, F.S. Final action on Petitioners' applications could not take place until the Department received a reply from the Department of Natural Resources. Petitioners received a copy of this notice which was sent from the Department to the Department of Natural Resources. Petitioner was again notified on August 29, 1983 that consent or approval from the Department of Natural Resources was required before the Department's approval could be given. The August 29 letter also stated that Petitioners would have to obtain a letter of authorization and affidavit of ownership from any property owner, other than Petitioners themselves, whose property would be crossed by their construction. In response, Petitioners submitted to the Department an approval they received from the local homeowner's association, but this approval was not issued in compliance with the association's by-laws, and was therefore not a valid authorization and consent to the use of whatever interest the association has in Andrews Creek. On December 5, 1933 Petitioners notified the Department that they were amending their applications to eliminate the platforms at the end of their respective catwalks. On or about January 3, 1984 the Department of Natural Resources suggested to the Department that public notice of this project be given due to the type and location of the project. The Department notified Petitioners on January 26, 1984 that since numerous property owners might be affected by their project, a public notice would have to be published. In response to such publication, the Department received letters from other property owners on Andrews Creek which both opposed and supported Petitioners' project. At about the same time, the Department learned that Petitioners had already constructed their catwalks, with one large platform joining the ends of both catwalks. This construction took place despite the lack of either a permit from the Department or consent/approval from the Department of Natural Resources. Petitioners' applications indicate the use of six inch pilings and a portable jet pump with a one inch jet nozzle in the construction of their project. The Department performed a field inspection of the site and issued a permit application appraisal report dated May 3, 1984 which recommended denial of the permit applications while also confirming that the project had already been constructed. Denial was recommended since the dimensions of the actual construction exceeded the project dimensions described in the applications, considerable clearing of mangroves had taken place although the applications stated no such clearing would be required, and the adverse impact on water quality, marine productivity and other environmental factors the two catwalks were found to terminate with a large platform thirty-eight feet long by ten feet wide, with Zembillas' catwalk being 417.5 feet in length and Starzak's being 398 feet long. The combined project has a total square footage of approximately 3700 square feet, with each catwalk exceeding the permit exemption dimensions of 1000 square feet. Andrews Creek has been designated a conservation area and therefore the clearing and resulting damage to the mangrove community resulting from this project is particularly significant. As part of a permitting action in 1972 the State of Florida, through he Board of Trustees of the Internal Improvement Trust Fund, negotiated with Lindrick Corporation, the developer of the residential area surrounding Andrews Creek, to preserve certain areas from development. The Board of Trustees issued a permit to Lindrick Corporation "to perform certain works in the navigable waters of the State of Florida" which allowed half of Andrews Creek to be filled and which preserved the other half that remains today as a conservation area. The conservation area was to be protected from development. Thereafter, the Lindrick Corporation entered into an agreement with the homeowner's association whereby association approval would be required for development in the conservation area. Petitioners' project, as constructed, shades a larger area than it would have if built in accordance with their applications. Shading of wetlands can reduce dissolved oxygen levels of a wetland and thereby reduce the area's productivity. Although Petitioners offered a laboratory report showing exceedingly high dissolved oxygen levels in Andrews Creek, it appears that the sampling technique used resulted in the aeration of the sample which therefore did not reflect the true level of dissolved oxygen. Intervenor testified that he purchased his property because of the designation of Andrews Creek as a conservation area, and the resulting privacy of such a natural habitat. Petitioners' construction has obstructed Intervenor's view of the water and wetlands area of Andrews Creek, and infringes on this privacy due to the close proximity of Petitioners' platform to Intervenor's property. The catwalk is twelve to fourteen feet from the boundary of Intervenor's property. The portion of Andrews Creek crossed by Petitioners' project is navigable according to testimony presented, and as recognized in 1972 when a dredging permit was issued to the developer, Lindrick Corporation. The portion in question includes the original tidal creek, which is a tributary of the Gulf of Mexico via an excavated channel. Navigability of the creek has been adversely affected by this project. There would be a significant, adverse, cumulative effect on Andrews Creek if other surrounding property owners decided to construct docks similar to Petitioners' since this would involve additional clearing of mangroves, a reduction of dissolved oxygen in the water due to extensive shading, and the further elimination of the creek's navigability. There are eighteen (18) property owners on Andrews Creek, including Petitioners and the Intervenor, and there is a reasonable likelihood that other homeowners will apply for permits to construct similar docks.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is recommended that: Petitioners permit applications be DENIED. Petitioners shall have forty-five (45) days from rendition of the Final Order in this case to remove their dock, consisting of catwalks, a connecting platform and support pilings. DONE and ENTERED this 1st day of April, 1985 at Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1987. COPIES FURNISHED: Charles G. Stephens, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Nicholas M. Zembillas 2001 Dewey Drive New Port Richey, Florida 33552 Martha Harrell Hall Esquire Post Office Drawer 190 Tallahassee, Florida 32301 W. L. Starzak 2003 Dewey Drive New Port Richey, Florida 33552 Victoria J. Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The question in this case is whether GDC should be authorized to go forward with development of some 2,000 acres, a portion of the Myakka Estates project it has planned for North Port in south Sarasota County, and, if so, on what terms. In the prehearing order dated February 8, 1980, the legal issue was stated broadly as "whether the proposed development [Phase I] comports with the standards of Chapter 380, Florida Statues (1979), as set forth in Section 380.06(8) and (11), Florida Statutes (1979) [now 380.06(11) and (13), Florida Statues (Supp. 1980)]." An important question is what legal effect the Master Development Order should be given in the present case. In the same prehearing order, factual issues were stated to include whether the "location . . . [and] approval of the proposed land sales development is consistent with the report and recommendation of the SWFRPC in light of the State, County, and North Port comprehensive plans"; whether "the proposed development will, individually and in combination with approved development, overburden the public school system . . . . overburden the public roads . . . [or] create a negative economic impact upon county and municipal governments"; and whether "GDC has provided for sufficient potable water."
Findings Of Fact GDC proposes to develop 8,135 acres in North Port in Sarasota County, just north of the Charlotte County line, as a new community, to be called Myakka Estates. Phase I, the group of three units slated for development next after the "vested portion" of the project, is designed to occupy a 2,016.56-acre tract within the larger parcel, west of and well upland from the Myakka River, and approximately four miles inland from the Gulf of Mexico. PRESENT CONDITION OF LAND The highest elevation on Phase I is 13 feet above mean sea level. About three quarters of Phase I is covered with slash pine, southern pine, and saw palmetto. Pasture lands, about seven percent of the Phase I tract, are covered with grasses, sedges, other herbaceous plants, and only occasional trees. Freshwater marsh ponds and other marshy areas are distributed more or less evenly over the property in a karstic gestalt, except that an uninterrupted stretch of marsh along the western boundary marks the eastern edge of the northern reaches of Ainger Creek, which further downstream flows across the southwest tip of the property. in the wet areas, limnophilous vegetation, including sportios bakeri, cyperus spp., cladium mariscoides, rhychospora ap., hypericum aspalathoides, xyris iridefolia, eriocaulon decangulare, eleocharis equistoides, pontederia cordota, bacopa caroliniana, and hydrocotyle umbellata, predominates. Opossums, eastern moles, raccoons, otters, and bobcats have been spotted on the Phase I property. Among other mammals whose range includes the Phase I property are shrews, bats, black bear, longtail weasel, mink, Florida panther (Burt and Grossenheider) skunks, gray fox, mountain lion, squirrels, southeastern pocket gophers, rats, mice, rabbits, whitetail deer, and armadillo. People have seen eastern rattlesnakes, pygmy rattlesnakes, water moccasins, eastern garter snakes, yellow rat snakes, anolis carolinensis (a lizard), snapping turtles, common musk turtles, box turtles, gopher tortoises, spiny softshell turtles, bull frogs, leopard frogs, cricket frogs, green tree frogs, and American toads on the Phase I property. There is reason to believe that numerous other snakes, frogs and lizards inhabit the property. On high ground in the Phase I property, people have seen turkey vultures, black vultures, red-tailed hawks, red-shouldered hawks, kestrels, bobwhites, turkeys, mourning doves, ground doves, flickers, red-billed woodpeckers, eastern kingbirds, blue jays, Carolina wrens, mockingbirds, catbirds, robins, loggerhead shrikes, meadowlarks, red-wings, boat-tailed grackles, cardinals, Florida sandhill cranes, and bank swallows. On westland portions of Phase I, people have seen pied-billed grebes, anhingas, great blue herons, American egrets, ivory egrets, Louisiana herons, little blue herons, green herons, least bitterns, wood storks, white ibis, red-winged blackbirds, purple grackles, killdeer, southern bald eagles, and limpkins. Limpkins, wood storkes, southern bald eagles, and Florida sandhill cranes are endangered species. Various fishes live in waters on the Phase I property, including lake chumbuckers, golden shiners, yellow bullheads, flagfish, golden topminnows, four different killifishes, mosquito fish, sailfin mollies, warmouths, bluegills, and three kinds of sunfish. The common prawn the Florida crayfish, and the neritina reclivata also inhabit one or more water bodies on the Phase I tract. Insect populations are relatively low because of the abundance of piscine insectivores. Before GDC acquired the property, men dug ditches which connect several ponds and cause stormwater to drain through them into Ainger Creek which empties into Lemon Bay. Drainage into the ponds and connecting ditches is by sheet flow. Cow dung in the pastures is concentrated around certain ponds, where cattle drink; and may account for some of the nonhuman fecal coliform bacteria that are to be found in Lemon Bay. Part of the Phase I property drains by sheet flow into the Myakka River. The topsoil is sandy on the Phase I tract. In the vicinity of Ainger Creek, Pompano find sand and Keri find sand predominate. These sands, Delray fine sand and Plummer fine sand, are found in most of the low-lying areas on the property. Leon fine sand covers most of the high ground. There is a strip of Immokalee fine sand along the northern border of the Phase I tract other than as pasture or for tree farming would be energy intensive. One expert proposed hydroponic cultivation. ANNEXATION GDC acquired the Myakka Estates property from a rancher in 1970 or 1971, then took steps to cause the parcel to be annexed by the City of North Port, within the municipal boundaries of which other substantial GDC development was already located. The annexation took place notwithstanding the absence of any bridge or road connecting the Myakka Estates parcel to the rest of North Port. These two parts of the City of North Port touch at a corner but are not otherwise contiguous. Some 100,000 lots have been platted in North Port east of the Myakka river; over 90,000 were still vacant at the time of the hearing. At 68 square miles, North Port, with a population of five to eight thousand, is second in land area only to the consolidated City of Jacksonville, the municipality with the largest land area in the state. LAND USE RESTRICTIONS By ordinance of the City of North Port, the entire Myakka Estate parcel is zoned agricultural and has been at all pertinent times. On September 9, 1974, however, North Port entered the Master Development Order authorizing development of all "non-vested" portions of Myakka Estates. In consideration of the Division of State Planning's forbearance from taking an appeal of the Master Development Order to the Land and Water Adjudicatory Commission, GDC agreed to submit "supplemental Applications for Development Approval as a condition to development of specific increments of the master residential plan," GDC Exhibit No. 12, a requirement also imposed by the Master Order itself. North Port has a subdivision ordinance with which, according to the uncontroverted evidence, the proposed Phase I development is in compliance. In June of 1979, North Port adopted a Comprehensive Development and Growth Management Plan, GDC Exhibit Nos. 23 and 91, in accordance with Section 163.3184, Florida Statutes (1979). Because of the pendency of the present proceedings, the SWFRPC and the DCA objected to inclusion of Phase I in the North Port plan. As a result of the objections, the plan makes little reference to Phase I although it notes that planning for Phase I "was conducted in conformance with present standards and was recently approved by the [North Port] Planning Commission and City Commission [apparently by adoption of the Development Order challenged in these proceedings]." GDC Exhibit No. 91, at 28. Stated as an objective of North Port's Comprehensive Development and Growth Management Plan, at p. 22, is To encourage growth that is relatively contiguous to the existing developed area and encompasses within the 25-year period the area bounded on the north by McCarthy Boulevard and Snover Waterway, on the east by Blue Ridge Waterway, and on the south and west by the city limits. GDC Exhibit No. 91. Other stated objectives are to "encourage consistency with and between Florida's Growth Management and Land Development Elements" and Sarasota County's Land Use Plan. It was uncontroverted that plans by General Development Utilities to furnish water and sewer service to Phase I are in conformity with provisions of the North Port plan on those subjects. Sarasota County has never adopted a comprehensive plan in accordance with Section 163.3184, Florida Statutes (1979), but the county does have the Land Use Plan, GDC Exhibit No. 93, referred to in the North Port plan. The Sarasota County Land Use Plan map designates the unincorporated area adjacent to Myakka Estates as appropriate for agriculture. The county has zoned the area along South River Road (formerly State Road 777), immediately adjacent to Myakka Estates, "QUE-1", Open Use, Estate, one dwelling unit per five acres, and the area further west "OUR", Open Use, Rural, one dwelling unit per ten acres. According to a map that is part of the Sarasota County Land Use Plan, Myakka Estates falls in the "low density residential" category, 1.1 to 4.5 units per acre. By its terms, however, this plan applies only to unincorporated areas of Sarasota County. The portion of the Phase I property lying in the easterly half of Section 33, Township 40 South, Range 20 East is within the jurisdiction of the Englewood Water District, which was created by Chapter 59-931, Laws of Florida. At the time of the final hearing, the whole area of EWD was on septic tanks and EWD's water lines did not reach Section 33. Some 166 lots are planned for the portion of Phase I over which EWD has jurisdiction. EWD has a policy of not permitting other water systems within the area served by the district. Its current regulations containing specifications for water and sewer mains and the like were adopted on June 19, 1980. The Florida State Comprehensive Plan, GDS Exhibit No. 92, is an internally inconsistent compilation of "goals", "objectives", and "policies". It was adopted by executive order and approved by the Florida Legislature in 1978. In their proposed recommended orders, the parties identified the following items as being in controversy: Ensure that the expansion of public facilities for economic development is in accordance with local government comprehensive plans and the State Comprehensive Plan. Consider the projected availability of energy when making economic development decisions. Physical, natural, economic, and human resources should be managed and developed in ways that avoid unnecessary long-term energy- intensive investments. Incorporate energy as a major consideration into the planning and decision-making processes of state, regional, and local governments. Encourage land use patterns that by design, size, and location minimize long-term energy commitments to construction, operation, maintenance, and replacement. Encourage a careful, ongoing evaluation of governmental expenditures and revenues in light of future uncertainties about energy supplies and related economic implications. To ensure the orderly long-range social, economic, and physical growth of the state. Identify the costs and benefits of growth to local and state governments and explore methods for allocating these costs to the citizens equitably. Housing should be produced in a mix of types, sizes, and prices that is based on local and regional need and that is consistent with the state's growth policy. Land use and development should proceed in an orderly manner that produces an economically efficient and personally satisfying residential environment with with minimal waste of our land resources. The provision of public facilities, utilities, open space, transportation, and other services that are required to support present and projected housing and community development needs should be ensured. Develop environmentally responsive land planning methods that reduce the stress that new develop- ments place on their communities' energy needs, water needs, sewage treatment facilities, transportation, flood control systems, and social, and educational services, and thus reduce the overall taxes and cost of the services needed to satisfy these demands. Consider energy implications in the review of applications for developments having regional impact (DRI). Land development should be managed in a manner consistent with the values and needs of the citizens of the state and with the concept of private property rights. Agricultural lands, especially those most seriously threatened, should be maintained and preserved for the production of food and fiber products. Influence the timing, distribution, type, density, scale, and design of development by coordinating land development proposals in state and local comprehensive plans and public investment programs in order to ensure the availability of adequate public facilities, services, and other resources. Allocate an equitable share of the cost of expanding public facilities to the newly served residents. Base land development decisions on quantita- tive knowledge of the short- and long-term capabilities of the hydrologic units to provide adequate supplies of water. Coordinate land use planning and water management to ensure the long-range maintenance and enhancement of water quantity and quality. Accommodate new development by using water from the local hydrologic basins rather than through surface water transfer between hydrologic basins. Protect groundwater supplies from saltwater intrusion by the regulation of withdrawals, maintenance of adequate recharge of groundwater, and prevention of saltwater movements inland through coastal canals. Maintain groundwater levels to insure that water levels are not drawn to such a degree that sustained yield is adversely affected or that natural resource degradation takes place. Protect groundwater supplies from saltwater intrusion by the maintenance of a sufficient amount of groundwater in coastal aquifers to prevent intrusion through regulation of withdrawals, maintenance of adequate recharge, and sufficient controls on coastal canals. Protect and maintain groundwater supplies and aquifer recharge areas through water- and land- management practices and, where necessary, through regulation of development activities. Allow alteration of groundwater movements within or between aquifers only where it can be shown that such alterations are not harmful to surface and groundwater resources. Develop minimum service standards for utility systems. Encourage the provision and maintenance of adequate utility systems in already developed areas. In areas where utility systems are over- burdened, manage growth while remedial measures are expedited to restore utility systems to a condition of adequacy. Encourage the effective use of utility systems, energy, land, and finite resources by evaluating and revising, if necessary, laws and regulations that may bar innovative development patterns, designs, and materials. Although authorized to do so by statute, Section 380.06(2)(a), Florida Statutes (Supp. 1980), the Administration Commission has not adopted guidelines and standards for developments of regional impact by administrative rule. PROPOSED DEVELOPMENT After development, water would cover 59.41 acres of Phase I and mostly low lying "open space/green belts" would account for another 504.69 acres. An additional 143.32 acres are planned for recreational uses. Roads and utility easements would account for 398.54 acres. GDC has agreed to construct a municipal services building in the vested portion of Myakka Estates, on a parcel across the street from Phase I. In Phase I, GDC plans to set aside 20.06 acres for an elementary school and 6.97 acres for neighborhood retail outlets. GDC has announced its intention to donate the school site to the Sarasota County School Board. Other school sites have been set aside within Myakka Estates. A large commercial area on a major arterial road is planned for the vested portion and a golf course and other recreational facilities, as well as an industrial site, are planned for later phases of development. Over a 33-year period, GDC plans to build 1,056 multifamily units on 92.61 acres and expects 2,859 single family detached houses to be built, by GDC and other contractors, on lots averaging approximately a quarter of an acre and aggregating 790.06 acres. The average envisioned for Phase I is 1.94 dwelling units per acre as compared to 2.33 dwelling units per acre for Myakka Estates as a whole. In the vested portion of Myakka estates and in the contiguous area to the south GDC is developing "multiple cores". Similarly, two distinct neighborhoods are contemplated in Phase I. GDC plans to build multifamily housing complexes in the neighborhood "cores" to be surrounded by single family detached houses, with vacant lots in between these neighborhood centers. GDC hopes to sell 1,927 unimproved lots in Phase I on an installment basis. Typically the purchaser would undertake to make installment payments over a ten-year period and GDC would agree to construct central water and sewer distribution systems and to pave access roads by the end of the period. A purchaser would be permitted to make prepayment but GDC would only be obligated to convey the lot at the end of the agreed term. GDC plans it so that installment payments will provide GDC enough money to install water and sewer systems and pave roads before GDC is obligated to convey the improved lots. All expenses of hocking up to the water or sewer system, including extending mains, where necessary, are to be borne by the purchaser. the purchaser must secure a building permit before GDC becomes obligated to furnish water. In the event GDC is unable to perform, however, the contract requires the purchaser to choose between accepting a refund of the purchase price and exchanging the lot for another lot. Under certain circumstances the lot owner is allowed a credit against purchase of a home from GDC in addition to the equity in the lot. In 1979, three quarters of the houses GDC sold were sold to lot owners who exercised their option to exchange the equity in houses in a core area, and 99 percent of the houses GDC sold in North Port were located in "core areas". At the time of the hearing, there were already hundreds of thousands of unimproved lots in Lee, Charlotte, and south Sarasota Counties and hundreds of miles of little used roads providing access to the lots. AIR POLLUTION The uncontroverted evidence was that air pollution anticipated as a result of the proposed development, chiefly from automobile exhaust, would not violate state or federal air quality standards. STORMWATER The planned stormwater drainage system has been designed to retain one inch of runoff before discharge from the Phase I property and to prevent flooding of the portions of the property slated for development during storms of up to 25 years return frequency and 24-hour duration. Stormwater in the Ainger Creek watershed will drain from roads and lawns into front- and sideyard swales, to broader, shallow, grassy collector swales, through a series of shallow ponds (with a maximum depth of six feet) equipped with control structures and into Ainger Creek in which GDC has already constructed a weir with a flap gate. Some stormwater will percolate through the sandy soils into the groundwater and, except under the most extreme conditions, groundwater will reach Ainger Creek only after most pollutants have been precipitated or filtered out biologically. Water in the Myakka River watershed will reach the river by sheet flow which, depending on conditions, will also be diminished by percolation and purified by precipitation and biological filtration. Under extremely wet conditions, water entering the Myakka River and Lemon Bay from Ainger Creek will contain pollutants normally associated with residential development, mostly high concentrations of nutrients and small concentrations of heavy metals. GDC's employee's testimony that water entering Lemon Bay will be of a higher quality after development than at present, although uncontroverted, is rejected as incredible, although it could conceivably hold true under mild meteorological conditions. Ainger Creek's flood plain extends east from the thalweg some distance into the Phase I property. See GDC Exhibit Nos. 69, 70, 71, and 72. On preliminary flood insurance rate maps, the United States Department of Housing and Urban Development (HUD) has identified special flood hazard zones along the creek which include 169 acres in proposed Unit 5 in which a minimum elevation of ten feet has been recommended for any habitable space (A-9) and 263 acres in Sections 26, 33, and 34 in which a minimum elevation of 11 feet has been recommended for any habitable space (A-10). The lowest street elevation proposed for the A-10 zone is seven feet. GDC normally adds two to two-and-a- half feet of fill to existing grade before erecting houses, but can add more. The weir across Ainger Creek and the proposed control structures where water outfalls into swales allow the retention upstream of water which otherwise might have flowed into Lemon Bay. Water retained on the Phase I property and elsewhere upstream can percolate through the topsoil and replenish the groundwaters. The weir on Ainger Creek acts as a barrier against the movement of salt water upstream. For both of these reasons, the proposed drainage system should decrease any danger of saltwater intrusion into freshwater aquifers in the area. In the event substantial amounts of salt water (or some pollutant) are introduced into Ainger Creek upstream of the weir, the weir is designed to permit the Creek to be flushed. ECONOMIC IMPACT ON PRIVATE SECTOR Except in the core areas, where GDC plans to market improved real estate, contractors other than GDC would have an opportunity to bid on construction contracts for new houses, a decade or so after installment land sales proposed for Phase I begin. Even before construction of housing, roads would have to be paved, water and sewer pipes would have to be laid, and other utilities would have to be installed. Thousands of people living on the new unpopulated Phase I property would mean additional jobs in the private and public sectors. Since there are already more than 641,000 vacant subdivision lots in the Charlotte Harbor area, however, the region is presumably in little danger of losing out on additional population for want of land developments. FISCAL IMPACT ON LOCAL GOVERNMENT Using census and other population data and reviewing GDC's sales records in other land developments, J. Thomas Campbell, a GDC employee, has projected a 47-year development or build-out schedule for Myakka Estates, forecasting, among other things, how rapidly housing units will be built in Phase I. Taking the build-out schedule as a given, Paul G. Van Buskirk, a GDC consultant, assumed an average household size increasing linearly through time and projected population growth in Phase I year by year for 33 years. Mr. Van Buskirk made assumptions about average household size, the proportion of population over age 65, and the proportion of population of school age, only after examining data of this kind from ten other communities housing mainly retired persons, which he thought would be comparable. He distributed school children among elementary, middle, and high schools on the hypothesis that the proportion would be the same as obtained in the Tampa-St. Petersburg area. In 1975, Mr. Van Buskirk projected streams of revenue and expenditure for local governments attributable to Phase I, forecasting a surplus for North port, Sarasota County, and the Sarasota County School District (School District). He assumed the value of an average house to be $40,000 in 1975 dollars, that market value would be the same as assessed value, and that then current mileages would remain constant. He also projected, in 1975, a tax base in North Port of $119,000,000 in 1979, in 1979 dollars. In fact, North Port's 1979 tax base was $122,000,000. In 1975, he projected a surplus for North Port in 1979 of $905,000 in 1979 dollars ($662,000 in 1975 dollars). In 1979, the surplus was, in fact, slightly more than $700,000. The difference between the projected surplus and the actual surplus is attributable to North Port's decision to retain the same level of services it had in 1975 while lowering the ad valorem tax rate. In his 1975 calculations, Mr. Van Buskirk made no attempt to reduce later years' dollar figures to then present values. In response to criticism by Dr. Fishkind, Sarasota County's economist, Mr. Van Buskirk reduced revenues and expenditures he had projected to present values, by assuming a discount rate of 7.5 percent. This discount rate was chosen to represent the cost of money obtainable by selling tax exempt bonds. At the same time, he posited a ten percent return compounded annually on projected surpluses. After this revision, as before, he forecast a favorable fiscal impact on North Port, Sarasota County, and the School District. CITY OF NORTH PORT The weight of the evidence showed that the fiscal impact of development of Phase I on the City of North Port would probably be favorable. Mr. Van Buskirk's model predicted fiscal developments in North Port with impressive accuracy. The large surpluses projected for the early years of development could not be counted on, however, because they would add to the already existing surplus ($8,000,000 in June of 1980) and to political pressures to lower taxes in such circumstances. North Port's recent reduction in millage, in the face of a growing surplus, evidences a predictably recurring tendency. Even though Phase I is ten miles from the center of North Port, the municipal services building GDC has agreed to build should make this distance a relatively insignificant factor in delivering some municipal services, according to Dr. Fishkind. Volume X, pp. 113-114. SARASOTA COUNTY In projecting what expenditures Sarasota County would make, if Phase I is developed according to schedule, Dr. Fishkind subtracted water and sewer costs but no others from per capita base-year figures to arrive at a per capita figure of $137.02 in 1975 dollars, to which he added special costs projected by Sheriff Hardcastle for law enforcement and Mr. Longworth for roads. Because all three of these figures are significant overstatements, Dr. Fishkind overstated expenditures significantly when he calculated Phase I's negative fiscal impact on Sarasota County over the course of the development as $8,100,000 in 1979 dollars. Dr. Fishkind also failed to include surpluses that would be furnished to county government early on in the development. Mr. Van Buskirk's base year per capital figure is a closer approximation of per capita costs that would be fairly attributable to residents of Phase I, but road and law enforcement costs are probably understated. No increase in real sots is projected and the combined effect of using a 100 percent assessment ratio and ignoring costs of sales is to overstate tax revenues. When Mr. Van Buskirk assumed a 79 percent assessment ratio and an average house value of $35,000 in 1975 dollars, he still projected a $449,000 positive fiscal impact on Sarasota County from development of Phase I. That calculation also included the ten percent interest compounded annually imputed to surpluses, however, without any showing that surpluses from Phase I would be invested rather than expended for some other county purpose, making simple discounting appropriate. Although the evidence is far from clear, it suggests, on balance, that the fiscal impact of Phase I on Sarasota County would be negative. CHARLOTTE COUNTY Charlotte County's public roads, recreation facilities, and schools would be used by the residents of Phase I, if all goes as planned, and Charlotte County would not have the offsetting benefit of ad valorem taxes from Phase I, although it would receive certain offsetting benefits on account of additional students under the current intergovernmental agreements. Phase I's development would have a negative fiscal impact on Charlotte County and the Charlotte County School District. SCHOOL DISTRICT Phase I is some five miles from Englewood Elementary School, ten miles from Venice Gardens Elementary and five to seven miles from Lemon Bay Junior- Senior High School in Charlotte County which accepts students from Sarasota County under the terms of an intergovernmental agreement. These schools are presently operating at or above capacity. Under current conditions, a major development anywhere in Sarasota County would be a burden to the school system. A survey of the school district's capital requirements for the next five years suggests some $67,445,817 will be needed for new construction. Of this, Sarasota County expects to receive $15,797,414 from State sources. Phase I is not expected to house any school children in the next five years, however. In the tenth year of development, the projection is that 489 elementary students, 245 junior high students, and 244 senior high students would live in Phase I, necessitating the construction of at least the first "phase" of an elementary school. Exclusive of site acquisition costs, an elementary school costs about $4,000,000; a junior high school costs about $19,000,000; and a senior high school costs about $18,000,000. If development of Phase I occurs at or above the rate projected by GDC, the net fiscal impact on the School District would probably be negative, but if development lags significantly behind predictions, as Dr. Fishkind testified was likely, the additional years of tax revenues before Phase I places major demands on the school system could well result in a positive fiscal impact on the School District from development of Phase I. POTABLE WATER General Development Utilities (GDU), a subsidiary of GDC, has a franchise from North Port to furnish water within the city limits, including Myakka Estates, except in the portion of Section 33 where EWD has jurisdiction. GDU is a private, not a public, utility, but its use of ground and surface waters renders the water used unavailable to another utility. At an existing water treatment facility on Myakkahatchee Creek, in North Port, about ten miles from Phase I, GDU treats 4.2 million gallons of water a day (mgd), but could treat 8 mgd. GUD also operates a water treatment complex in Fort Ogden on the Peace River, six or seven miles downstream from Arcadia. At the time of the hearing, GDU had the ability to pump 1.5 mgd from the Peace River complex to North Port and Myakka Estates. The Peace River facility includes a raw-water intake structure, a reservoir, and a treatment plant. It has a capacity of 6 mgd although some of its components have larger capacities. The intake structure and 36-inch transmission lines can handle 30 mgd and the filter units have a capacity of 15 mgd. The reservoir covers some 90 acres and has a capacity of 800,000,000 gallons. In all, GDU has reserved 1,000 acres for use as a reservoir, although the need for such a large reservoir is not anticipated even by the year 2050. GUD does not plan to expand the existing reservoir for another ten years. Southwest Florida Water Management District (SWFWMD) has permitted GDU to withdraw up to an average of 5 mgd from the Peach River not to exceed five percent of the day's flow. At Arcadia, the Peace River's daily flow varies seasonally from 32 mgd to ten billion gallons per day. Except for 36 days a year (on the average), 5 mgd is less than 5.7 percent of the low flow of the Peace River. GDU can fill its reservoir by diverting water from the Peace River at times of high flow, so as to get the best water quality, and cause the least proportional diminution of the river's flow. GDU plans to withdraw an average of 13 mgd from the Peace River when capacity of the facility at Fort Ogden reaches 30 mgd. This is approximately 1.5 percent of the Peace River's approximately 800 mgd average flow at Arcadia. Some of the diverted water will never reach Charlotte Harbor because of evaporation at various points. Other water transported to Myakka Estates from the Peace River, whether treated at Fort Ogden or at North Port, would be used for irrigation, and some of this water would drain into Lemon Bay by Ainger Creek and never reach Charlotte Harbor. Most of the water diverted into the Peace River reservoir will eventually make its way through homes in GDC developments into wastewater plants, from there into the groundwater, and ultimately into Charlotte Harbor. Even when water from the Peace River reaches Charlotte Harbor by this route, however, there will ordinarily have been an interbasin transfer. The quality of water in the Peace River is good. If it were necessary to augment river water at the Peace River plant, well water from aquifers in the vicinity would be available. Because this well water is brackish, however, it would be blended with the river water to produce a mixture low enough in chlorides to be potable. Surface water from Myakkahatchee Creek and Snover Waterway could also be transported to the Peace River reservoir, at a rate of 13.5 mgd. Myakkahatchee Creek discharges 20 billion gallons of water into Charlotte Harbor annually. Treating water at the Peace River facility requires about two kilowatts per 1,000 gallons of water. Brackish water is available from well fields in the vicinity of Myakka Estates property, but treating brackish water by reverse osmosis requires about 11 kilowatts per hour. Phase I would, of course, add to future demand for potable water. SEWERAGE By ordinance, North Port requires that new homes be equipped with 3.5- gallon flush toilets instead of the standard 5-gallon models. Since 40 percent of the water used in the average household goes through the toilet, this is an important water conservation measure. GDU plans to provide a sewer system for the whole of Myakka Estates including initially an activated sludge sewer plant with a rated capacity of 250,000 gallons a day to be located on a 40-acre parcel reserved for that purpose. Effluent from the plant would be discharged into a polishing pond then sprayed over soil planted with vegetation to take up nitrogen and phosphorus, through which it would percolate into the groundwater. Once the Myakka Estates plant reached capacity, sewerage would be transported to Gulf Cove in Port Charlotte, six miles from the Phase I property, where an existing plant with a capacity of 333,000 gallons a day now processes 100,000 gallons a day. At the Gulf Cove plant site, GDU has 163 acres available for plant expansion. SOLID WASTE Solid waste from Phase I would be taken to the existing North Port landfill some nine miles distant, as long as that could be used. A second layer of solid waste was being laid down there at the time of the hearing. Monitoring wells had been dug to detect leachates leaving the landfill. A 90-acre site for a new landfill to serve all of North Port has been chosen within the 100-year flood plan of the Myakka River. GDC has agreed to construct the new landfill and lease it to North Port for operation by the city. The use of solid waste for energy production is not feasible, unless quantities on the order of 200 tons a day are available. Part or all of Charlotte County produces about 100 tons a day of solid waste. Per capita, people produce about 5.5 pounds per day of solid waste. LAW ENFORCEMENT Because of the location proposed for Myakka Estates, traffic from Phase I to the already developed center of North port will travel outside the city limits for part of the trip. Travelers from Phase I bound for the commercial district in North Port will pass through unincorporated Sarasota County, except those taking the longer route through Charlotte County. Travel from Phase I to any other municipality in Sarasota County would require passing through unincorporated Sarasota County. At the time of the hearing, the nearest substation of the Sarasota County Sheriff's Office was approximately 30 miles from the Phase I property. At some point, as Myakka Estates becomes populated, depending upon traffic patterns, the Sheriff would create a new Sheriff's patrol zone at a cost of $180,000 (1980 dollars), if present policy on these matters holds. Not all of this amount could fairly be attributed to development of Phase I, although the costs of the proposed development (including Phase I) to the Sarasota County Sheriff's Office would be significantly greater than the costs would be if the same population moved into the area contiguous to the existing center of North Port. North Port plans to furnish primary police protection within its city limits, staffing and equipping the 2,400 square feet municipal services center GDC has agreed to build in the vested portion of Myakka Estates. City prisoners are housed in the county jail, however, and the sheriff's office serves civil process in North Port. In residential land developments in the Charlotte Harbor area, where the roads have typically been laid out rectilinearly, a problem in the interval between road building and construction of housing has been the use of roads as airstrips by smugglers and as drag strips by racing enthusiasts. TRANSPORTATION Within Phase I, streets are to be laid out curvilinearly. Minor collectors are to feed major collectors which are to feed minor arterials which are to feed major arterials, with limited access to larger roads. Three and one-half miles of bicycle paths are planned. No mass transit system is contemplated for Phase I nor would Phase I be able to accommodate a right-of-way for a mass transit facility. There is no mass transit system in Port Charlotte or North Port. The viability of Phase I depends on continued mass ownership and operation of automobiles. U.S. Highway 41, a four-lane divided arterial, runs east and west north of the Myakka Estates property, then through the southwestern corner of the main part of North Port. When I-75 is finished, development may be skewed in its direction, drastically affecting traffic patterns; I-75 is slated to pass north of the property in two or three years. intersecting U.S. Highway 41, running south then southwest to the west of the Myakka Estates property, is South River Road (State Road 777), a two-lane arterial that ends in Englewood and currently handles about 2,000 trips daily. It will require four-laning when the number of daily trips reaches 10,000. South of the property in Charlotte County, another two-lane arterial, State Road 776 runs east-west, dead ending into State Road 771 which crosses the Myakka River at El Jobean and proceeds northeast to Murdock, where it intersects U.S. Highway 41, south of the main area of North Port. GDC has agreed to pave a two-lane road from the vested portion of the Myakka Estates property through Phase I to South River Road (State Road 777). by this route, a trip from the middle of Phase I to the commercial area in North Port would involve a trip of about ten miles. The distance from the middle of Phase I to the nearest post office, which is in Englewood, is approximately 6.5 miles; to Gulf Cove, approximately six miles; to Murdock, approximately 11.5 miles; to a shopping district in Venice, approximately 14.5 miles; and to the nearest hospital, in Venice, approximately 16.5 miles. Sarasota is about 30 miles north and Ft. Myers is some 40 miles distant in the other direction. It is to Sarasota and Ft. Myers that new inhabitants of Myakka Estates would be obliged to travel for concerts, plays, art galleries, and the like. Thee are commercial airports in Ft. Myers and Sarasota. GDC's expert assumed most of the traffic leaving Myakka Estates would travel south to points in Charlotte County because of anticipated development there. Sarasota County's expert assumed most of the traffic leaving Myakka Estates would travel to points in Sarasota County based on ratios of already developed commercial acreage and on an apparently inadvertent chronological mismatching of projected retail and total employment figures: for Venice in Sarasota County year 2000 projections were used while 1990 projections were used for competing areas to the east of Myakka Estates. Development of Phase I would have a substantial and costly impact on public roads in the vicinity. Both new construction and improvement of existing roads would be required, although mainly in rural areas. At least by the time Myakka Estates is fully populated, South River Road, State Road 776, and State Road 771, including the bridge across the Myakka River would have to be four- laned. While the direction of future traffic is disputed, the prospect of thousands of automobiles operating in the area as a result of a fully populated Phase I is very clear. It is impossible to say with certainty which road would have to be widened in which year or what share of the cost should be attributed to Phase I as distinguished from the rest of Myakka Estates and other development in the area, but the eventual impact of Phase I would require expenditures of millions of dollars for public roads. Sarasota County has identified road improvements it needs to make before the year 2000, without taking Myakka Estates into account, and puts their cost at $387,000,000, which is $110,000,000 more than is projected to be available. EMPLOYMENT ACCESSIBILITY Most of the people expected to live in the Phase I development are retired persons who would not be regularly travelling to and from a place of employment. Very few employment opportunities in retail sales and professional offices are forecast for Phase I. The vested portion of Myakka Estates is projected to have significantly more opportunities of this kind. In the beginning, most persons seeking employment would have to travel at least as far as Englewood. At build-out, a later phase of Myakka Estates may afford industrial employment opportunities. SWFRPC REPORT The Master ADA was filed with the Tampa Bay Regional Planning Council, rather than with SWFRPC, because Sarasota County was part of the Tampa Bay Region at the time. The Tampa Bay Regional Planning Council recommended granting the Master ADA on conditions which were subsequently incorporated into the Master Development Order. The Phase I ADA was filed with the SWFRPC. In May of 1975, the SWFRPC issued its report recommending against approval of the Phase I ADA on various grounds, including the physical separation of the proposed development from presently developed areas and necessary services; the existing abundance of vacant platted lots and miles of deserved paved streets in the Charlotte Harbor area; creation of a need for an urban water supply, schools, police, and emergency medical facilities and services far from the areas where the affected local governments have planned to provide such facilities and services; and the adverse fiscal impact of the proposed development on local governments. The report was received in evidence to show what North Port reviewed before entering its development order but it was not offered as proof of the SWFRPC assertions in it.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Florida Land and Water Adjudicatory Commission enter a development order granting GDC's Phase I ADA on such conditions as the Commission shall deem appropriate, including all the conditions contained in the Development Order entered by North Port and the following additional conditions: That GDC sell no lots in the special flood hazard zones as indicated on HUD's preliminary flood insurance rate maps, GDC Exhibit Nos. 69, 70, 71 and 72. That GDC sell no lots within EWD's jurisdiction until and unless EWD shall agree to such a sale in writing. That GDC unconditionally deed to the Sarasota County School District the elementary school site planned for Phase I together with the 50 lots nearest to the site. DONE AND ENTERED this 6th day of January, 1981, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1981. COPIES FURNISHED: Parker D. Thomson, Esquire Kenneth W. Lipman, Esquire and Douglas M. Halsey, Esquire 1300 Southeast First National Bank Building Miami, Florida 33131 C. Laurence Keesey Department of Community Affairs Room 204, Carlton Building Tallahassee, Florida 32301 David E. Bruner, Esquire 581 Springline Drive Naples, Florida 33940 Richard E. Nelson, Esquire and Richard L. Smith, Esquire 2070 Ringling Boulevard Sarasota, Florida 33577 Robert A. Dickinson, Esquire 70 South Indiana Avenue Englewood, Florida 33533 John W. Field Englewood Community Organizations 227 Bahia Vista Drive Englewood, Florida 33533 Wayne Allen, Esquire General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131 Mayor Margaret Gentle City of North Port North Port, Florida 33595 Allen J. Levin 209 Conway Boulevard Northeast Port Charlotte, Florida 33952 Office of Planning and Budget Executive Office of the Governor 311 Carlton Building Tallahassee, Florida 32301 The Honorable Robert Graham Governor, State of Florida The Capitol Tallahassee, Florida 32301 The Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 The Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 The Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301 The Honorable Gerald Lewis State of Florida Comptroller The Capitol Tallahassee, Florida 32301 Gerald Chambers 6970 Manasota Key Road Englewood, Florida 33533
The Issue Whether Centervillage Limited Partnership has demonstrated, by a preponderance of evidence, that development rights in certain real property it owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan.
Findings Of Fact Procedure. On or about August 6, 1990, Centervillage filed an Application for Vested Rights Determination with the Tallahassee-Leon County Planning Department. (Application VR0027T) The following information concerning the development of the Centervillage property was contained on the Application: "Gerald E. Songy" is listed as the "owner/agent." Question 3 lists the name of the project as "Centervillage Limited Partnership." "Progress . . . Toward Completion" is described as:(1) planning, (2) site preparation, (3) Leon County environmental permits, (4) DER Dredge and Fill Permit, (5) DOT Drainage Connection Permit. Original P.U.D., Rezoning, Minor subdivision Approval and a stormwater agreement with Leon County, are included in Centervillage's application as forms of government approvals and as the actions of government relied on prior to committing funds toward completion of the proposed development. On September 10 and 17, 1990, hearings were held to consider the Application before the Staff Committee comprised of the City Attorney, the Director of Planning for the Tallahassee-Leon County Planning Commission and the Director of Growth Management for the City. By letter dated September 17, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Centervillage that the Application had been denied. By letter dated September 28, 1990, to Mr. Gumula, Centervillage appealed the decision to deny the Application. By letter dated October 10, 1990, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on November 26, 1990. The Property. Centervillage currently owns approximately 27.20 acres of property (the Property) located at the Northeast corner of Capital Circle, Northeast, and Centerville Road, Tallahassee, Florida (Application). Centervillage began assembling the Property, through various transactions, in the early 1980's. By October, 1984, Centervillage had acquired the bulk of the Property. (T-3 p. 23) Prior to Centervillage's initial acquisition of the Property, the prior owners of portions of the Property began development of the site as an industrial, mini-warehouse development. This prior development activity involved a series of violations of state and local environmental laws and regulations. (T-3 pp. 50-51, 59) As a result of improper development activities by the prior owners of the Property, fines were imposed and, at the time Centervillage made the initial purchase, the Property was subject to a Florida Department of Environmental Regulation (DER) consent order. (T-3 p. 26) Development Activity. The project that Centervillage proposes to develop is a shopping center containing 200,000 square feet of gross leasable space on approximately 18 of the total 27.20 acres. (T-3 p. 96) The balance of the property is dedicated to stormwater facilities. (T-3 pp. 96-99) During the process of acquiring the 27.20 acres it currently owns, Centervillage began preparing the Property for future development by clearing and demolishing existing structures such as mobile homes, concrete driveways, and wells. (T-1 pp. 27-28) Permits were obtained early in the process to demolish these structures and in December 1984, the front corner of the Property was selectively cleared. (T-1 p. 28) In April, 1986, Leon County (the County) began construction of a ditch on a portion of the perimeter of the Property. The purpose of this ditch was to allow stormwater discharge from a Centerville Road construction project that the County was involved in. The County had been unable to locate an alternative site to provide any catchment and holding facility to handle the stormwater run off and, as a result, had encountered problems with the Florida Department of Environmental Regulation (DER). (T-3, pp. 70-71) At the same time, Centervillage was involved in attempting to resolve problems associated with improper development activity on the Property by its previous owners. These factors led to cooperative efforts on the part of both Centervillage and the County in dealing with the DER and to conceptual agreements between the Centervillage and the County regarding aspects of future development of the Property. Centervillage granted the County a temporary easement for the purpose of constructing the drainage ditch. (T-1 p. 28, T-3 p. 52) The drainage ditch constructed on the site turned out to be a "long, skinny holding pond." (T-1 p. 29) The County constructed over 80 percent of the overall onsite perimeter ditch in mid to late 1986. (T-1 p. 29) The property subject to the temporary easement will be conveyed to the County pursuant to a formalized conceptual agreement between Centervillage and the County. (App. Ex. G, G-8) This agreement will be the subject of expanded discussion later in this Final Order. Construction of the majority of the current improvements on the Property began in June of 1989. The work consisted of: construction of a holding pond sized for commercial development; construction of some two and a half acres of wetlands; and construction of the perimeter ditch from the north end of the project to Centerville Road, then west along Centerville Road under Capital Circle. (T-1 pp. 30-31) The work also included vegetation of the perimeter ditch to create wetlands. (T-1 p. 31) This development activity also involved the placing of 50,000 to 60,000 cubic yards of fill material on the site. (T-1 p. 30) In May and June of 1989, Centervillage acquired over six acres of adjoining property in order to construct a stormwater facility which it had agreed to provide as part of its conceptual agreements with the County and in partial mitigation against prior improper development on the Property. (App. Ex. H, H-2; T-1 p. 11; T-3 pp. 125-126; T-3 pp. 26-27) The two and a half acres of new wetlands Centervillage constructed on the property was also in mitigation for prior improper development activity engaged in by previous owners of the Property. (T-1 p. 30) Further development has been permitted but not constructed. This work is to involve the construction of culverts, crossings, and onsite, upland filtration facilities. (T-1 pp. 31-32) As a result of the 1989 development activity, the northern 7.57 acres of the property has been excavated for the stormwater facility and some 18 acres of the Property have been filled from depths of two to six feet. (T-3 p. 97) Government Approvals. In July, 1984, the City approved Centervillage's request for a Planned Unit Development (P.U.D.) to allow the Property to be developed as a shopping center to be constructed in three phases. Each phase of construction was to involve 50,000 square feet of retail space. (App. Ex. G, G-1) In December, 1984, the City approved an amendment to the previously approved P.U.D., to add additional property and to expand the size of the development by the addition of approximately 20,000 square feet of retail space. (App. Ex. G, G-2) In January, 1988, Centervillage received rezoning approval from the P.U.D. to Commercial Parkway, limited use site plan (CP zoning). (App. Ex. G, G-3; T-3 pp. 25-26) The limited use site plan outlines, among other things, the limited access to the Property and the reestablishment of the canopy road on portions of Centerville Road which abut the property. (App. Ex. G, G-3) In May, 1988, the City approved Centervillage's application for minor subdivision approval. This minor subdivision approval established one parcel as the previously developed mini-warehouse site to the east of the Property and the other parcel as the Property as it currently exists except for 2.79 acres on Capital Circle which had not been acquired at that time. (App. Ex. G, G-4) In October, 1988, the City granted a separate minor subdivision approval which addressed the additional 2.79 acres. (Minor subdivision approval, dated October 26, 1988, signed by Donny Brown, Development Coordinator for the City.) The parcel containing the mini-warehouse facility was sold in 1986, and is no longer part of the Property. (T-1 pp. 37-38) On July 22, 1988, the DER issued an environmental permit to Centervillage. (App. Ex. E, E-9) This permit was a result of extensive negotiations between DER and Centervillage and also involved the County because of the County's own permitting problems with the road improvement Project. (T-1 pp. 63-65) This DER permit specifies that the "permit does not convey any vested rights." (App. Ex. E, E-9, paragraph 3) On August 17, 1988, the County issued Environmental Management Permit #88-0299 to Centervillage. This permit was for "earth work only" and specified that "stormwater runoff [would] be required upon final development plans." (App. Ex. E, E-1) On October 25, 1988, the County accepted Centervillage's hydrological analysis on the Property. (App. Ex. E, E-3) On December 5, 1988, Centervillage received notification from the County that the project site was exempt from site plan review. (App. Ex. E, E- 9) Currently, there is not a city-approved site plan for the Centervillage project. (T-3 p. 115) On May 3, 1989, the County issued Environmental Permit #89-0230. This permit reflects approval of an additional of 630,000 square feet of impervious surface to the site. Centervillage's application for this permit also lists the proposed use of the Property as "M-1 mini-warehouses and CP shopping center." (App. Ex. E, E-5) Centervillage began its construction of the majority of current site improvements in June of 1989. (T-1 p. 30) In meetings between Centervillage and the City it was never confirmed that the approval of an additional 630,000 square feet of impervious surface on the site was a valid assumption. (T-3 p. 138) The County issued two additional environmental permits in 1989, one for tree removal (App. Ex. E, E-6) and one for stormwater permit amendments. (App. Ex. E, E-7) In March, 1990, the County issued an additional environmental permit for tree removal. (App. Ex. E, E-8) In January and in June, 1990, the Florida Department of Transportation (DOT) issued two separate drainage connection permits to Centervillage. (App. Ex. E, E-10, E-11) Until October, 1990, the County performed the environmental regulatory services for both the County and the City. (T-3 p. 56) At the time the County issued the environmental permits described in this Final Order, there was no City of Tallahassee Environmental Ordinance. (T- 3 pp. 73-74) At the time the County issued the environmental permits described in this Final Order, the County Chief of Environmental Management regularly appeared before the Tallahassee City Commission as part of his duties in issuing environmental permits for property within the City. (T-3 p. 56) At the time the County environmental permits described in this Final Order were issued to Centervillage, the City would look to a County environmental permit before issuing a building permit. (T-3 p. 74) At the November 26, 1990, hearing in this case, the Chief of Environmental Management for the County testified that he knew of no specific resolution or ordinance that granted environmental permitting authority within city limits to the County. (T-3 pp. 74-75) However, the testimony at the November 26, 1990, hearing in this case establishes that the City relied on the County's environmental permitting in making its own permitting decisions. (T-3 pp. 56, 73-75) In practice and effect, the County was acting on behalf of the City in granting local environmental permits. (T-3 pp. 73-80) The County has never been delegated the authority to make land use decisions, such as subdivision approvals, for property within the City. (T-3 pp. 74-76) The rezoning of the Property from P.U.D. to CP Zoning, approved by the City in January, 1988, provided no specific approval of densities and intensities for development of the Centervillage project. (T-3 pp. 130-132) When Centervillage requested rezoning of the Property from P.U.D. in January, 1988, its managing general partner assumed that as part of the approved zoning change it received approval for the same density and intensity of development that existed under the P.U.D. (T-3 p. 125) The Conceptual Agreement. In early 1986, the County was in the process of attempting to widen and improve Centerville Road. (T-1 p. 28) During this construction by the County, the DER asserted jurisdiction over the road project and the construction was stalled because the County did not have adequate property on which to construct facilities for the storage and treatment of stormwater runoff generated by the road construction project. (T-3 pp. 70-71, 82-84) During the initial rezoning and permitting process, Centervillage was required to address the effects of prior improper development activity engaged in on a portion of the Property by previous owners. As a result of the prior improper development on the Property, Centervillage was required to mitigate against flooding problems and to facilitate revegetation of a denuded canopy road segment along Centerville Road. (T-3 p. 52) On April 11, 1986, James G. Parrish, Administrator for the County, presented Centervillage with a conceptual agreement whereby, among other things, Centervillage agreed to grant necessary easements to the County for the construction of a drainage ditch on the Property to accept and store stormwater runoff from the County's Centerville Road improvement project. (App. Ex. G, G- 6) During 1986, the County and Centervillage cooperated through a series of permitting contacts specific to the development of a shopping center, to establish a major regional water management facility, to provide water management for the Centerville Road project, and to engage in cooperative efforts to reforest the canopy road. (T-3 pp. 52-53) These cooperative permitting contacts included contacts with the DER. (T-3 p. 53) The conceptual agreement was finally formalized and adopted by the Leon County Commission on July 18, 1989. (App. Ex. G, G-8) In this agreement, Centervillage obligated itself to acquire additional property, construct a stormwater management facility and to convey the completed facility to the County. (App. Ex. G, G-8) In the formalized conceptual agreement, the County agreed to fully cooperate in the efforts of Centervillage to obtain all permits necessary to complete all improvements in accordance with the DER permit issued to Centervillage in July, 1988. (App. Ex. G, G-8) The formalized conceptual agreement further provides that the County will not require any additional stormwater retention or detention above that required by the County environmental permit issued to Centervillage previously. (App. Ex. G, G-8) The agreement also provides that the County will allow Centervillage to develop the southwest portion of the Property, fronting Capital Circle Northeast and Centerville Road," to its fullest commercial potential, subject only to existing zoning ordinances, terms and conditions of the limited use site plan, approval of subsequent short-term applications for environmental management permits, and Leon County Environmental Permit number 88-0299." This portion of the agreement also provides that the property will no longer be "protected from development." (App. Ex. G, G-8, paragraph 8) Centervillage is obligated, pursuant to the agreement, to convey in excess of 7 acres of property and the drainage ditch area for no additional consideration. (T-3 pp. 85-86) Absent the agreement of Centervillage to provide stormwater drainage and retention on the Property and to convey that portion of the Property to the County, the County could not have completed the Centerville Road improvement project. (T-3 pp. 70-71) Centervillage's agreement to donate land to the County was tied to the DER permits issued to both Centervillage and the County. (T-1 p. 41) Centervillage's agreement to provide the 7.57 acre stormwater facility to the County was a required condition in connection with the issuance of the environmental management permit issued by the County. (T-3 p. 88) The City was privy to the conceptual agreement between Centervillage and the County from the development stages through to its final, formal approval by the County Commission in July 1989. The plans for the stormwater facility were discussed with and reviewed by the City, with the understanding that the city would accept and maintain the facilities. (T-3 pp. 86-87) During these discussion with City personnel, there was no indication given that the agreement included land use decisions. (T-3 pp. 90-91) The 7.57 acre stormwater facility serves more than the development area. The facility is a major component of the total drainage system for the City of Tallahassee. (T-3 p. 88) The size of the 7.57 acre stormwater facility is not directly related to the Centervillage development proposal. (T-3 p. 90) Development Expenses. The cost of purchasing the original tract was $1,812,012.00. Centervillage has since sold a portion of the original tract for $738,282.00. Centervillage's net land costs for the Property are $1,073,730.00. (App. Ex. C, C-1) Centervillage incurred costs of $175,000.00 in purchasing land pursuant to the conceptual agreement with the County. (T-3 pp. 123-126) Other than the $175,000.00 expended pursuant to the conceptual agreement, the balance of costs of purchase of land were not incurred in reliance on any act or omission of the City. Interest and property taxes paid by Centervillage were $1,279,753.30. (App. Ex. C, C-1) No significant portion of the costs attributed to interest and property taxes were incurred in reliance on any act or omission of the City. Centervillage incurred $543,624.50 in costs associated with site work, clearing, and landscaping on the Property. Significant portions of these costs were incurred beginning in June, 1989. (T-1 pp. 30-31) These costs were substantially incurred after Centervillage had engaged in extensive negotiations with state and local government entities and after permits were issued by the state DER and DOT as well as environmental permits issued by the County. At the time the County issued these permits it was, in practice and effect, acting on behalf of the City. These negotiations, agreements, permits and approvals are outlined in the Government Approvals portion of this Final Order. Centervillage has established that it expended well in excess of $400,000.00 on testing, inspection, soil investigation, engineer and survey fees, architectural fees, legal and title fees and general development expenses associated with the development of the Property. (App. Ex. C, C-1) Centervillage has proved that a significant portion of these "soft costs" were expanded during the period it engaged in extensive negotiations with and after Centervillage obtained permits and approvals from the various state and local government entities as outlined in the Government Approvals portion of this Final Order. Centervillage would not have made the large expenditure of funds, or made the commitment to convey significant portions of the property to the County pursuant to the Conceptual Agreement if it had not obtained the zoning approvals and environmental permits that were necessary to construct a community size shopping center of approximately 200,000 square feet. (T-1 pp. 68-70; T-3 pp. 127-128) The evidence in this case establishes that Centervillage reasonably relied on the approvals and environmental permits it obtained from state and local governments, as well as on the conceptual agreement between Centervillage and the County in changing its position and in incurring substantial costs associated with the development of the Property. Current Status of the Development. Centervillage took a site that was a drainage way, added properties to it, accomplished an enormous amount of permitting and fill work to come up with a fairly level buildable site suitable for building anything allowed within the zoning and the Comprehensive Plan. (T-1 p. 18) The shopping center project has been pursued by Centervillage for the past several years. Centervillage has never proposed any alternative plans to the City or other governmental authorities in the history of its project. (T-3 pp. 57-60, 82; T-1 pp. 17-18) Environmental Management Permit #89-0230, issued on May 3, 1989, by the County, contemplated approval of the addition of 630,000 square feet of impervious surface to the Property. (App. Ex. E) Centervillage relied on this approval and incurred substantial costs in proceeding with the further development of the Property. At the hearing on November 26, 1990, Centervillage presented the testimony of Richard Moore, a licensed professional engineer. (T-3 p. 94) Mr. Moore has been involved with the Centervillage project for seven years. (T-3 p. 95) Mr. Moore testified that he prepared a layout based on several planning concepts on engineering design and determined that 630,000 square feet of impervious surface allowed 200,000 square feet of gross leasable space and allowed the development of adequate parking with good internal circulation and sufficient green areas to allow for aesthetic landscaping. (T-3 pp. 106-107) Mr. Moore further testified that this square footage ratio is on average with design standards accepted in the engineering community. (T-3 p. 107) According to Mr. Moore's testimony, if Centervillage is required to meet consistency and concurrency requirements of the 2010 Comprehensive Plan, the shopping center development could be limited or delayed because the Property is located on a constrained roadway. (T-3 pp. 103-106) The DOT and the City have scheduled widening of Capital Circle, on which the Centervillage Property fronts, for 1991. (T-3 pp. 109-110) However, based upon Mr. Moore's testimony, Centervillage has established that constrained roadway limitations could limit or delay the project under the 2010 Comprehensive Plan despite the current improvement schedule. According to Mr. Moore's testimony, under the 2010 Comprehensive Plan, the proximity of the Property to Centerville Road, a canopy road, could limit the development of a shopping center to 100,000 square feet of leasable space. (T-3 pp. 103-104) As of July 16, 1990, the date of adoption of the City of Tallahassee Vesting Ordinance, the stormwater facilities on the Property were not complete. Additional water treatment facilities must still be constructed for runoff from the site. (T-3 pp. 19-21) No roadways, water and sewer services or electrical services have been constructed on site. (T-3 p. 108)
The Issue The issues to be addressed are whether the Petition to establish the District meets the criteria set forth in Section 190.005, Florida Statutes, and whether the hearing process has been conducted in accordance with the requirements of Section 190.005, Florida Statutes, and Florida Administrative Code Rule Chapter 42-1. For the Petitioner:
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent owns real property located in Township 2 North, Range 7 East, Section 32, in Madison County, Florida, that has surface water flowing through it and is encompassed within what is defined as "wetlands." Respondent is in control and possession of the property in question and all work on the property that is material to this proceeding is under the control or direction of the Respondent. There were access roads on the property as early as 1973 as reflected by Respondent's exhibit 2, a 1973 aerial photograph, but the width of the roads or the existence of ditches or culverts cannot be determined from the photograph. Petitioner's exhibit 2, a 1981 aerial photograph, shows the roads still in existence in 1981 but the width of the roads or existence of ditches or culverts cannot be determined from the photograph. Sometime before the Respondent purchased the property and began construction to expand the roads, ditches and culverts were in place; however, there was no evidence as to when the ditches and culverts came to be in place. A 1976 survey of the property reflects 60 foot roads which were to provide access to platted but unrecorded lots. These roads had not been constructed when Respondent purchased the property or began construction to expand the roads. The newly constructed portions of the road indicates an attempt to build the roads in accordance with the 1976 survey. The previously existing roads attempted to follow the natural contour of the land and as a result were not always straight, and only had a negligible effect on the flow or storage of surface water in regard to the property. Sometime around October 1987, Respondent began to rebuild and construct roads on the property by straightening existing curves, removing fill material from adjacent wetlands to widen and heighten the existing roadbed or construct a new roadbed, and to increase the depth and width of existing ditches or dig new ditches. The initial portion of the existing road providing access to the property from the county graded road has been substantially rebuilt with portion of the roadbed being 40 to 43 feet wide. Ditches along this portion of the roadbed have had their width increased up to 14 feet and their depth increased up to 6 and 8 feet. Other portions of the road has been expanded beyond the previously existing roadbed by increasing the width and height of the roadbed. The increased size of the ditches and the expanded roadbed has increased the interception of surface water above that already being intercepted by the previous roadbed and ditches and, as a result, there is an increased amount of surface water impounded or obstructed. The effect is that surface water is removed from Respondent's property at a faster rate than before road construction began and, as a result, sheet flow of surface water is decreased which diminishes the storage of surface water on the property. Although new culverts were installed during road construction, there was insufficient evidence to show that these new culverts were in addition to the culverts already in place or if they replaced old culverts. There was insufficient evidence to show that the new culverts allowed water to flow in a different direction or be removed from the property at a faster rate than before or if they impounded or obstructed surface water more so than before. The previously existing roads had sufficiently served an earlier timber harvest on the property and, by Respondent's own testimony, were sufficient for his ongoing hog and goat operation. The extensive rebuilding and constructing of roads in this case was neither necessary nor a customary practice for construction of farm access roads in this area. Respondent is engaged in the occupation of agriculture in that he has a bona fide hog and goat operation. However, Respondent's silviculture occupation is somewhat limited in that he is presently harvesting the timber but shows no indication of replanting or continuing the forestry operation upon completing the present harvesting operation. The extensive rebuilding and constructing of roads in this case goes beyond what is necessary or is the customary practice in the area for a hog or goat operation or forestry operation such as Respondent's and is inconsistent with this type of agriculture or silviculture occupation. Respondent has never applied for nor received a surface water management permit from the Petitioner even though the Petitioner has informed Respondent that a permit was required for the work being done on his property. The present alteration of the topography of the land by Respondent has obstructed and impounded surface water in such a fashion that the interruption of the sheet flow of surface water has been increased, causing the storage of surface water on the property to be diminished. At the present time, Respondent has been enjoined by the Circuit Court of Madison County, Florida, from any further activity on this project. However, should Respondent be allowed to complete this project, it is evident that the sole and predominant purpose would be to impound and obstruct the sheet flow of surface water and diminish the storage of surface water on the property in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, Suwannee River Management District, enter a Final Order requiring Respondent, Norman Leonard, to: (a) remove all unauthorized fill material placed within jurisdictional wetlands and return those areas to predevelopment grades and revegetate with naturally occurring local wetlands species to prevent erosion; (b) back fill excavated swale ditches, return road beds and excavated ditches to predevelopment condition and grades and seed disturbed non-wetland areas with a 50:50 mix of bahia and rye grass and; (c) refrain from any other development until and unless a required permit is obtained for such development. Respectfully submitted and entered this 13th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1445 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact 2. 4.-7. Are unnecessary findings for this Recommended Order. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Subordinate to the facts actually found in this Recommended Order. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Rejected as conclusions of law. Adopted in Findings of Fact 3 and 4. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Findings of Fact 15 and 17. 26.-29. Adopted in Finding of Fact 12. 30. Adopted in Finding of Fact 13. 31.-32. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 12. Adopted in Finding of Fact 16. 35.-38. Subordinate to facts actually found in this Recommended Order. 39.-42. Rejected as not being relevant or material. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1. The first paragraph adopted in Finding of Fact 16. The balance is rejected as a conclusion of law. 2.-3. Rejected as not being relevant or material. Not a finding of fact but a statement of testimony. However, it is subordinate to facts actually found in this Recommended Order. Rejected as not supported by substantial competent evidence in the record. The more credible evidence is contrary to this finding. COPIES FURNISHED: Janice F. Baker, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 Norman Leonard, Pro Se Route 2, Box 172-D Live Oak, Florida 32060 Donald O. Morgan Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, Florida Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact On or about July 9, 1987 an application for conditional use approval to allow off-premises sale of beer and wine (2APS) was filed on behalf of Petitioner for property located at 2030 Gulf to Bay Boulevard in Clearwater, Florida. The property is zoned general commercial (CG). A public hearing before the Planning and Zoning Board was held on August 4, 1987. At that hearing, the Petitioner's representative was not allowed to give rebuttal testimony, although the Board's by-laws do allow the applicant to rebut testimony in opposition to the application, and rebuttal is, in fact, usually allowed. The Petitioner's representative did not specifically request an opportunity to rebut the opponent's testimony, but assumed he would be given an opportunity to speak before the Board voted. The Planning and Zoning Board voted 3-2 to deny conditional use approval for this application. A timely appeal was taken by Petitioner on August 18, 1987. With this application, Petitioner seeks approval to sell beer and wine at a 7-11 convenience store. By subsequent application and approval of the Planning and Zoning Board on September 1, 1987 Petitioner has been granted a conditional use for 1APS, package sale of beer only. However, this 1APS application and approval is not at issue in this case. The parties stipulated that the property in question is within five hundred feet of a church and several residences.
