01-000781GM 1000 Friends Of Florida, Inc., And Audubon Society Of The Everglades, Inc. vs. Department Of Community Affairs And The Village Of Wellington Status: Closed Recommended Order on Tuesday, October 2, 2001.

Summary: Associations failed to prove Future Land Use Map change was not supported by data and analysis, was internally inconsistent, failed to protect wetlands and natural resources, or was inconsistent with regional and state policy plans.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1000 FRIENDS OF FLORIDA, INC. )

and AUDUBON SOCIETY OF THE )

EVERGLADES, INC., )

)

Petitioners, )

)

vs. ) Case No. 01-0781GM

)

DEPARTMENT OF COMMUNITY AFFAIRS )

and THE VILLAGE OF WELLINGTON, )

)

Respondents, )

)

and )

)

PALM BEACH POLO HOLDINGS, INC., )

)

Intervenor. )

__________________________________)

RECOMMENDED ORDER

On June 12-15, 2001, an administrative hearing was held

in this case in Wellington, Florida, before J. Lawrence

Johnston, Administrative Law Judge (ALJ), Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: Terrell Arline, Esquire

1000 Friends of Florida

808 Greenbriar Drive

Lake Park, Florida 33403

For Respondent : Shaw P. Stiller, Esquire

( DCA) Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Respondent : Thomas G. Pelham, Esquire

(Village) Thomas G. Pelham Law Offices

909 East Park Avenue

Tallahassee, Florida 32301-2646

For Intervenor: Michael P. Donaldson, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether the Future Land Use Map

(FLUM) Amendment, LUPA1-2000/04, adopted by the Village of

Wellington (Village) on December 12, 2000, by ordinance

numbers 2000-27, 2000-30, 2000-31, is "in compliance" as

defined in and required by the "Local Government Comprehensive

Planning and Land Development Regulation Act," Chapter 163,

Part II, Florida Statutes (the Act).

PRELIMINARY STATEMENT

After review by the Department of Community Affairs

(DCA), the Village's FLUM Amendment was determined to be "in

compliance." DCA published a Notice of Intent to find the

amendment in compliance on February 7, 2001.

On February 12, 2001, 1000 Friends of Florida (Friends)

and Audubon Society of the Everglades, Inc. (Audubon) filed a

Petition for Formal Administrative Hearing (Petition) under

Section 163.3184(9). (All citations to sections are to the

2000 codification of the Florida Statutes; all rule citations

are to the current Florida Administrative Code.) DCA referred

the Petition to DOAH under Section 120.57(1). At DOAH, it was

given Case No. 01-0781GM and assigned to the undersigned ALJ;

an Initial Order was entered on February 27, 2001.

On March 5, 2001, the Village filed a Motion to Dismiss

Petition for Formal Administrative Proceedings for Lack of

Standing (Motion to Dismiss). The Village and DCA also

responded to the Initial Order, and Petitioners filed a Demand

for Expeditious Resolution under Section 163.3189(3).

With the consent of all parties, a hearing was scheduled

on the Motion to Dismiss for March 13, 2001. On March 13,

2001, Petitioners also filed a Motion for Protective Order

(not to be required to disclose the identity of their

members), and the parties consented to consideration of

Petitioners' Motion for Protective Order at the hearing.

After oral argument, the parties requested and were given

the opportunity to file additional authorities and argument,

which were filed by DCA and the Village. After consideration

of all written and oral argument, the Motion to Dismiss was

granted with leave to amend. It was ruled: (1) the Petition

did not allege that either Friends or Audubon, as individual

entities, met the definition of "affected person" in Section

163.3184(1)(a); and (2) if an association itself does not meet

the definition of "affected person" in Section 163.3184(1)(a),

it must prove that a substantial number of its members do, as

suggested by Florida Home Builders Ass'n v. Dept. of Labor and

Employment Security , 412 So. 2d 351 (Fla. 1982), in o rder to

prove "associational standing." Petitioners' Motion for

Protective Order was granted under National Rifle Association

of America, Inc. v. City of South Miami , 774 So. 2d 815 (Fla.

3d DCA 2000), with National Rifle 's caveat that Petitioners

might not be able to prove "associational" standing if they

refused to disclose at least enough information both to prove

essential standing allegations and to allow their adversaries

to test the truthfulness of those allegations.

Scheduling of final hearing also was discussed at the

hearing on March 13, 2001. Petitioners withdrew their Demand

for Expeditious Resolution, and the parties agreed to final

hearing in Wellington, Florida, on May 8-11, 2001. Separate

Notice of Hearing and Order of Pre-hearing Instructions were

issued on March 20, 2001.

On April 5, 2001, Palm Beach Polo Holdings, Inc. (Polo)

filed a Petition for Leave to Intervene, which was granted.

On April 12, 2001, the Village filed an Unopposed Motion

for Continuance, and Petitioners filed their First Amended

Petition on April 16, 2001. Final hearing was rescheduled for

June 12-14, 2001.

On May 24, 2001, the Village filed a Motion to Dismiss or

Motion for Summary Final Order Based on Lack of Standing, and

DCA filed a response in support. The Motion to Dismiss or

Motion for Summary Final Order for Lack of Standing argued

that Petitioners' claims to "associational" standing should be

dismissed because they still refused to disclose the identity

of their members and that Petitioners' claims to individual

standing should be dismissed because Petitioners could not

establish ownership or operation of a business within the

Village (or the other requirements under Section

163.3184(1)(a) of "owning property" or "residing" in the

Village). Petitioners filed a response in opposition.

The Village, DCA, and Polo also filed a Joint Motion in

Limine on May 31, 2001. The Joint Motion in Limine requested

exclusion of evidence or testimony relating to consistency or

compliance with the environmental permitting standards and

criteria of the South Florida Water Management District

(SFWMD). Petitioners filed a response in opposition, citing

Section 163.3177(6)(d) (stating that the land uses identified

on the land use map or map series contained in the future land

use element "shall be consistent with applicable state law and

rules.")

The Motion to Dismiss or Motion for Summary Final Order

for Lack of Standing was heard on June 1, 2001, and taken

under advisement. The Village then scheduled a hearing on the

Joint Motion in Limine and a pre-hearing conference for

June 7, 2001. In addition, the Village and Polo filed a

Motion in Limine Regarding Petitioners' Associational Standing

or Alternative Motion for Continuance, Motion to Compel

Discovery and/or Motion to Dismiss as to Associational

Standing on June 6, 2001, and requested that it also be heard

on June 7, 2001. Petitioners filed a response in opposition

to this last motion at the hearing and pre-hearing conference

on June 7, 2001; in part, the response o ffered as a compromise

to provide redacted lists showing mailing addresses with zip

codes corresponding to the Village but not disclosing street

numbers or otherwise identifying the addresses.

At the hearing and pre-hearing conference on June 7,

2001, ruling on the Motion to Dismiss or Motion for Summary

Final Order for Lack of Standing was announced. The motion

was granted as to "associational" standing for two reasons:

(1) the undisputed evidence was that no member of either

Friends or Audubon "submitted oral or written comments,

recommendations, or objections" so as to be "affected persons"

under Section 163.3184(1)(a); and (2) notwithstanding their

offer to provide redacted mailing lists, Petitioners still

refused to identify their members. (Petitioners were given

the opportunity to proffer their redacted lists as exhibits at

final hearing.) As a result of this ruling, the Motion in

Limine Regarding Petitioners' Associational Standing or

Alternative Motion for Continuance, Motion to Compel Discovery

and/or Motion to Dismiss as to Associational Standing became

moot. The motion was denied as to individual standing because

summary disposition was not appropriate as to that issue.

After argument at the hearing on June 7, 2001, the Joint

Motion in Limine was denied but it was ruled that Section

163.3177(6)(d) did not require consistency of the FLUM

Amendment with SFWMD standards, criteria, and permits. (It

also was ruled that Section 163.3177(6)(d) might have

application if, for example, a state law or rule prohibited a

residential land use designation for land containing wetlands

or if a comprehensive plan amendment defined wetlands or a

wetland value contrary to state law or rule; but no such

issues were raised in this case.)

At the pre-hearing conference on June 7, 2001, it was

indicated that an additional day of hearing may be necessary,

and June 15, 2001, was added to the final hearing calendar.

The parties' Pre-hearing Stipulation was filed later on

June 7, 2001.

At final hearing, the rulings announced on June 7, 2001,

were confirmed and clarified. After opening statements, Joint

Exhibits 1-3 were admitted in evidence, and Petitioners

presented the testimony of: Terri Bates, who testified as an

expert in environmental resource permitting, surface water

management permitting, dredge and fill permitting, and

wetlands ecology; Helge Swanson, who testified as an expert in

comprehensive planning, environmental planning and permitting,

and environmental permitting; Charles Pattison, AICP,

Executive Director of Friends, who testified as an expert in

comprehensive planning and testified about the standing of

Friends; and Rosa Durando, who testified as a lay person about

the history of the subject of the FLUM Amendment and about

Audubon’s standing. Petitioners also had the following

Petitioners' Exhibits admitted in evidence: 7-12; 14; 17-18;

20-26; 28-32; 34-45; 47-49; 52; 54-58; 64-65; 69; 74(A-B)-75;

86B; and 94(A-B)-95. (Objections to Petitioners' Exhibits 53,

76, 85, 86A, and 87-89 were sustained; ruling was reserved on

objections to Petitioners' Exhibits 79-84 pending post-hearing

written argument.) The Village called : Russell Scott, who

testified as an expert in land use planning and regulation;

Jay Foy, P.E., who testified as an expert in civil

engineering; Jim Hudgens, who testified as an expert in

environmental assessment, natural resource documentation and

analysis, and environmental resource permitting; Robert

Higgins, P.E., who testified as an expert in water resources

engineering, hydrology, and hydraulic water quality; and

James R. Kuzdas, the Village's Planning, Zoning, and Building

Director from July 1997 to February 2001. The Village also

had Village Exhibits 5, 15, 17-23, and 31-33 admitted in

evidence. DCA called Roger Wilburn, who testified as an

expert in comprehensive planning and compliance review under

the Act.

After presentation of evidence, the parties ordered a

transcript of final hearing and requested 30 days from the

filing of the transcript to file proposed recommended orders

(PROs). The Transcript was filed on July 25, 2001, making

PROs due August 24, 2001, but DCA moved without objection for

an extension until August 31, 2001, which was granted. All

parties filed PROs, and all PROs have been considered.

In addition, consideration has been given to the post-

hearing written arguments on the objections to admissibility

of Petitioners' Exhibits 79-84, and it is now ruled that those

objections are sustained.

Finally, the Village and Polo made an ore tenus motion at

final hearing to strike certain testimony by Rosa Durando as

not having been disclosed in Audubon's answers to

interrogatories and in her deposition. Some of the testimony

is stricken and will not result in findings; but, as reflected

in the Findings of Fact, the motion to strike is denied as to

other testimony falling within the general categories

"monitoring planning and development activities within the

Village" and "monitoring environmental permitting before

[SFWMD] that involve development in Wellington," and not

narrowed during Durando's deposition.

FINDINGS OF FACT

The Parties

1. DCA is the agency of the State of Florida charged

with responsibility to review local government comprehensive

plans and amendments under Part II, Chapter 163, Florida

Statutes.

2. The Village is a municipal corporation located within

Palm Beach County. It was not incorporated on December 31,

1995. However, its Village Council sits as the governing

board of the ACME Improvement (Drainage) District, which has

essentially the same geographic boundaries as the Village and

has been in existence since the mid-1970's. It adopted the

FLUM Amendment that is the subject of these proceedings. The

Village is bordered on the south by the Arthur R. Marshall

Loxahatchee National Wildlife Refuge (Refuge), which is part

of the Florida Everglades.

3. Polo has a deed to the property subject to the FLUM

Amendment.

4. Friends is a Florida not-for-profit corporation. The

corporate purpose of Friends includes monitoring and ensuring

the proper implementation of the State's growth management

laws. In Palm Beach County in particular, that would include

protection of the Refuge and the Everglades.

5. Audubon is a Florida not-for-profit corporation. It

is legally distinct from but affiliated with the statewide

Audubon of Florida and the National Audubon Society. The

corporate purpose of Audubon is to promote the understanding

of and interest in wildlife and the environment that supports

it and to further the cause of conservation of all natural

resources. In particular, like Friends, that also would

include protection of the Refuge and the Everglades.

Friends' Standing--"Business" in the Village

6. In 1995, Friends established the Loxahatchee

Greenways Initiative, which was a planning effort to show how

greenways and habitat protection were compatible with growth.

The Initiative produced a publication called the Loxahatchee

Greenway Project. While the Village of Wellington was

incorporated after the date of the publication, the study area

for the Greenways Project included lands adjacent to and

within the current Village boundaries. While land now within

the Village was not a "major component" of the Project, the

Project contained a recommendation to link conservation lands

located to the north of the Village with the Refuge, which is

located on its southern border.

7. In 1999, Friends opened an office in West Palm Beach

and hired a community planner, Joanne Davis, to further

another planning initiative called the Palm Beach County Green

Initiative. The primary focus of this Initiative was to look

at the impacts of development on the Everglades and to promote

education and advocacy on these issues in Palm Beach County,

including the Village.

8. To further the purposes of the Green Initiative,

Friends prepared and distributed several publications

throughout Palm Beach County, including the Village. These

publications included a pamphlet called "The Citizens Guide to

Smarter Growth in Palm Beach County." This document was

intended to educate people throughout Palm Beach County,

including the Village, on the values of better planning for

growth to protect the environment. It listed the Village as

one of the cities in Palm Beach County and was made available

throughout the County's library system.

9. Another educational publication of the Initiative was

a newspaper insert in the Sunday edition of the Palm Beach

Post entitled "Smart Growth Building Better Communities and

Protecting the Environment in Palm Beach County," which was

distributed throughout the County, including in the Village.

Both of these publications were intended to educate people in

Palm Beach County, including in the Village, about development

and its impacts on the Everglades and to promote appropriate

planning, which issues are central to the issues in this

proceeding.

10. Friends' Palm Beach County Green Initiative and

local office are funded in part by private foundation grants.

The purpose of these grants includes education and advocacy on

issues related to development in Palm Beach County and the

Everglades. The goal of these grants is to encourage better

development in the area, which includes the Village, so as to

better protect the Everglades. Friends must report to these

foundations on the progress toward achieving the goals of the

grants. Friends could lose financial support if it fails to

meet the goals of these grants. However, there was no

evidence of any fund-raising activities with the Village. (No

more than 7 of Friends' 3,631 members have mailing addresses

in the Village.)

11. Friends' employees have participated to a limited

extent in planning and development activities other than the

FLUM Amendment at issue in this case. The evidence was that

employees of Friends monitored and participated in at least

one meeting and one site visit relating to Big Blue Trace,

another tract of land designated Conservation on the Village's

FLUM. Friend's participation was in response to concerns

about a change to the FLUM designation of Big Blue Trace.

Friends ascertained from its participation that no change was

being considered by the Village. Friends also participated to

a limited extent in monitoring efforts by various governments

in collaboration to purchase Section 34, which is within the

Village, as part of a plan to resolve the Village's drainage

problem--a problem involved in FLUM Amendment in this case.

It is not clear from the evidence whether employees of Friends

attended the public auction on Section 34 held in the Village.

12. Friends' local community planner, Joanne Davis, also

monitors and attends meetings regarding the Comprehensive

Everglades Restoration Plan (CERP), which is a joint state and

federal process to restore the Everglades. While these

meetings are not held in the Village, CERP specifically

addresses, among other things, the activities of the Village's

drainage district, ACME, and calls for the use of Section 34

as an attenuation area for a storm water treatment area (STA)

for storm water leaving the Village before it gets into the

Refuge.

13. Friends was very involved in the FLUM Amendment at

issue in this case. Besides submitting oral and written

comments to the Village during the time between the

transmittal hearing and the adoption hearing, three employees

of Friends met with the Village's City Manager before the

amendment was adopted. Friends' Executive Director, Charles

Pattison, wrote two letters to the Village regarding the

Amendment before it was adopted, one to the City Manager and

the other to the Mayor. Both of these persons responded in

writing to Pattison before the Amendment was adopted.

14. C ounsel for the Village elicited testimony from

Pattison that Friends did not feel constrained, inhibited, or

prevented from conducting its business by the Village's

comprehensive plan. But it potentially could be. For

example, the comprehensive plan potentially could be written

to limit public participation, which is essential to conduct

of Friends' business. It also potentially could be written so

as to plan poorly and damage the environment, which could have

an adverse effect on Friends' membership and financial

support.

Audubon's Standing--"Business" in the Village

15. Audubon was incorporated in 1966. As its name

suggests, its focus is the Everglades; in particular, it

focuses on the nearby Refuge. National Audubon has designated

the local chapter as official "Refuge Keeper" of the Refuge.

The group's mascot is the Everglades Kite, an endangered

species known to use the Refuge and, for at least a time in

the 1980's, the land subject to the FLUM Amendment.

16. Audubon does not have an office or mailing address

in the Village. It receives mail at a post office box in West

Palm Beach.

17. Due to the focus of its concern, the group has

always been concerned about drainage of wetlands west of State

Road (SR) 7 into the Refuge and the discharge of water east to

tide, which is a loss of both estuarine and wetland habitat.

The Village is located in this area of concern.

18. In her capacity as Chairman of the Conservation

Committee since 1980, Rosa Durando has attended hundreds of

meetings on permitting activities at the South Florida Water

Management District (SFWMD) and on land use issues before

local governments over the years to promote concern for

wetlands and the Everglades. Some of these involved

activities in the area now within the boundaries of the

Village.

19. In her capacity as Chairman of Audubon's

Conservation Committee, Durando was involved in the original

adoption of the Palm Beach County comprehensive plan, which

governed the lands within the Village until its incorporation.

She questioned the extension of Forest Hill Boulevard west of

SR 7. (After the extension took effect, SR 7 became the main

road access into the Village from the east. After development

in what is now the Village, Durando was on a panel that

discussed whether the Village should incorporate.

20. Durando also reviewed and commented on Palm Beach

County’s plans to widen SR 7, which is a major north-south

road through the east side of the Village. In the SR 7

Corridor Study which has been conducted in the last two or

three years, Durando represented Audubon and made

presentations to the Village and other agencies.

21. Other land use issues Durando monitored for Audubon

included the Northlake Corridor study, which was proposed to

relieve traffic on SR 7. She opposed the creation of a

Constrained Roadway At Lower Level of Service (CRALLS)

designation--a type of traffic concurrency exemption--for

Forest Hill Boulevard.

22. When the Village adopted its initial comprehensive

plan in 2000, Durando testified on behalf of Audubon in

support of the Village's placing a conservation designation

the land subject to the FLUM Amendment in this case. She also

reviewed and commented on proposals to adopt best management

practices for treating storm water in the Village.

23. On behalf of Audubon, Durando reviewed and made

comments on the Western C-51 basin study by SFWMD related to

wetlands and drainage issues. The C-51 is a major canal that

borders the Village to the north. The canal runs from Lake

Okeechobee to the Lake Worth Lagoon. The northern part of the

Village, called Basin A, drains into the C-51. While the

Village did not exist at time, its drainage district, ACME,

existed and was involved in this study.

24. Durando also attended meetings and made

presentations to SFWMD on the Lower East Coast Water Supply

Authority and proposals for the Water Preserve Areas designed

to buffer the Refuge and the Everglades. Durando's

presentations raised concerns over the Village's drainage

problems in Basin B, which drains the southern half of the

Village into the Refuge.

25. In 1979, Audubon challenged a permit issued by SFWMD

to ACME to drain 900 acres of land in what is now Basin B of

the Village for a development called the Wellington Country

Place PUD. SFWMD, ACME, and Audubon settled the

administrative challenge by agreeing to enlarge the proposed

storm water detention area of the proposed water management

system from 49 to 79 acres to increase protection of the

Refuge from storm water runoff leaving the PUD. These 79

acres constitute virtually all of the very land that is

subject to the FLUM Amendment in this case.

26. In the early 1980's, Dr. and Mrs. Peacock, who were

members of Audubon and residents of what is now the Village,

discovered endangered Everglades (a/k/a Snail) Kites using the

Wellington Country Place detention area. Subsequently,

Audubon organized field trips to Peacock Pond during the 1980s

to do bird watching. The detention area came to be known

locally and among Audubon members as Peacock Pond. Durando

personally visited Peacock Pond for bird-watching on several

occasions in those years. She was there when environmental

specialists for the US Fish and Wildlife Service and SFWMD

visited the site and noted its importance as habitat for the

Snail Kite. (As will be seen, events since approximately 1989

have led to dewatering of the area and degradation of its

usefulness as habitat for Snail Kite and other wildlife, and

bird-watching no longer takes place there. See Findings of

Fact 49 and 66-67, infra . Nonetheless, the land still is

often referred to as Peacock Pond.)

27. About two years ago, Audubon was asked to make a

presentation to the Boys and Girls Club, which is located in

the Village adjacent to Peacock Pond. Durando responded and

specifically discussed Peacock Pond. She also showed

photographs of the area and discussed the value of wetlands.

28. Audubon is supported with donations, grants, and

membership dues to further the organization's work on behalf

of the Everglades and on land development issues in the

Village. Some of this money comes from people in the Village.

There is a financial connection between the organization and

the land use decisions of the Village. While there was no

direct evidence of fund-raising activities with the Village,

there was evidence that Audubon could lose financial support

if it fails to meet its goals to protect the Refuge.

29. Durando attended the Village's transmittal and

adoption hearings on the FLUM Amendment on behalf of Audubon

and spoke against the Amendment. At those hearings, she told

the Village about the SFWMD permitting history of Peacock Pond

and discussed its use and importance to Snail Kites.

30. C ounsel for the Village also elicited testimony from

Durando that Audubon did not feel constrained, inhibited or

prevented from conducting its business by the Village's

comprehensive plan. But, as with Friends' business, it

potentially could be-- e.g. , by limiting public participation,

damaging the environment, or otherwise planning poorly. See

Finding of Fact 14, supra .

The Planning and Zoning History

31. The FLUM Amendment applies to 80 acres, essentially

Peacock Pond, which is centrally located in the 960-acre

Wellington Country Place PUD. The PUD was created in 1976

when Palm Beach County rezoned the PUD to RE-Residential

Estate District. This zoning classification has remained in

effect on the entire PUD through final hearing in this case.

32. In 1977, Palm Beach County approved the Wellington

Country Place PUD Master Plan. The approved Master Plan

includes 440 dwelling units with a gross density of 0.44 units

per acre, plus equestrian recreation, civic, and commercial

uses. It also designated Peacock Pond as a "Natural Reserve,"

which was included in the "open space" calculations for the

PUD.

33. Now, almost 25 years later, the PUD is about half

built-out, with about 200 units left to be built. Within the

PUD, Mallot Hill subdivision, a residential estate

development, is located north of Peacock Pond. To the north

and northeast of the Pond is a park, the Boys and Girls Club,

and a fire station. Equestrian Club Estates is located to the

west of the Pond. Undeveloped portions of the PUD are located

to the east and south of Peacock Pond.

34. Under the 1980 Palm Beach County Comprehensive Plan,

the entire Wellington Country Place PUD was designated very

low to low residential. In 1989, the County adopted a revised

Comprehensive Plan, as required by the Act. The 1989 County

Comprehensive Plan applied a future land use classification of

Low Residential-1 (a maximum 1 unit per acre) to the entire

PUD site.

35. In 1999, the Village adopted its Comprehensive Plan,

as required by the Act. The Village Plan designated the

Peacock Pond site as Conservation and the remainder of the

Country Place PUD as Residential. Under the Conservation

future land use classification, parks and ball fields are

permitted uses, and building coverage of 5 percent is allowed.

The Peacock Pond property was not required to be operated as a

storm water facility. The entire PUD, including the Peacock

Pond property, is within the urban service area designated in

the Village's Comprehensive Plan.

36. Data and analysis in the Land Use Element of the

Village's 1999 plan referred to Peacock Pond as one of the

"two primary sites designated conservation in the Village."

Data and analysis also referenced the phosphorus reduction

goals of the Everglades Forever Act and discussed the need for

"a plan for handling water quality and water quantity concerns

in Basin B."

37. Data and analysis in the Recreation and Open Space

Element of the 1999 plan stated that Peacock Pond "continues

to boast habitat for listed species and . . . could be a great

resource if restored."

38. Data and analysis in the Conservation Element of the

Village's 1999 comprehensive plan recognized Peacock Pond's

importance for wildlife and storm water treatment. Data and

analysis referred to Peacock Pond as a "Significant Wellington

Wetland and Preserve Area". Data and analysis at page CON 6

noted that Peacock Pond was established primarily for water

quality treatment, and concluded by stating: "The Village is

concerned with finding a long term solution to the problems at

Peacock Pond so that it may be restored as a viable wetland

reserve and become an integral part of Wellington’s natural

areas."

39. On the Conservation Map and Natural Resource Map in

the Conservation Element, the site was labeled "Peacock Pond

Natural Reserve." However, the map legend identified site as

"Wetlands/Possible Wetlands" on the Conservation Map and as

"Emergent Wetlands" on the Natural Resource Map. In addition,

neither the data and analysis nor the Goals, Objectives, and

Policies (GOP's) define "natural reserve."

40. On the Future Equestrian Circulation Map in the

Equestrian Preservation Element of the Village's 1999 plan,

Peacock Pond is labeled "Natural Preserve," and the map legend

identifies it as "Parks natural preserves." Neither the data

and analysis nor the GOP's define either of these terms.

41. On December 12, 2000, the Village adopted Ordinance

No. 2000-27 which amended the Future Land Use Map of the

Village Comprehensive Plan to designate the Peacock Pond site

as "Residential B," which allows a maximum density of 1 unit

per acre. Surface water management facilities are allowed in

the residential future land use classifications of the

Village's Comprehensive Plan and would be allowed on the

Peacock Pond site if the Amendment becomes effective. In

addition, under the Village's zoning regulations, storm water

management facilities are allowed and even required in

residential zoning districts.

42. The 2000 FLUM Amendment also deleted the data and

analysis referred to in Findings of Fact 36-38, supra , and

replaced them with updated data and analysis. The FLUM

Amendment did not, however, amend the maps identified in

Findings of Fact 39-40, supra .

Permitting and Operation of Peacock Pond Facility

43. The evidence was that, at one time, Peacock Pond was

part of one of the many headwaters of the Everglades. Having

been both topographically and hydrologically connected to the

Everglades, its soils are hydric--largely Okeelanta muck

(approximately 75%), Tequesta muck, and Sanibel muck soils.

Aerial photography suggests that, at some point, horticulture

may have been attempted at Peacock Pond, as it was elsewhere

in the vicinity. There are possible faint signs past

perimeter and ditching on the site. However, if horticulture

was attempted at the site, it was discontinued and abandoned

well before 1965, quite possibly failing due to the muck

soils.

44. There was more persistent horticultural use north,

east, and south of Peacock Pond, with attendant perimeter and

infield ditching; in addition, ACME dug a drainage canal along

the western boundary of the site by 1965. The Peacock Pond

site was altered from natural conditions by these activities.

45. Notwithstanding the agricultural history in the

vicinity, the evidence indicates that Peacock Pond continued

to function as a wet prairie through 1979, and a erial

photography suggests that the site may have been used for open

pasture during that timeframe. I n 1979, the site was the

major part of a large area of contiguous wet prairie within

the PUD that was relatively undisturbed by agricultural

activity.

46. After approval of the Wellington Country Place PUD,

ACME applied to the SFWMD for a surface water management

permit for the PUD. The application proposed a 49-acre

detention facility in part of Peacock Pond. Following review

of the application, SFWMD's staff recommended approval of the

application with a 49-acre detention facility. But, as

mentioned previously, Audubon (and Florida Audubon) challenged

SFWMD's intent to grant the application, and the challenge was

settled by ACME's agreement to increase the size of the

detention facility to 79 acres. In 1979, by Order No. 79-3,

SFWMD issued the agreed permit for the system, which also

included a 12-acre lake, canals, and collector swales.

47. SFWMD's 1979 permit contemplated use of the Peacock

Pond site as a "detention-type" surface water management

facility. Generally, such a facility detains the water,

allows the pollutants to settle, then pumps the water out.

Characteristic of the time period, there was no vegetative

requirement for the system and no mention of the detention

area being a "filter marsh," as Petitioners contend, although

that is essentially how it functioned. The permit simply

required that an above-ground impoundment be constructed by

placing a berm or dike around the detention area, which was

larger than normal for a PUD the size of Wellington Country

Place ; no excavation was required. Pumps were required to be

installed at the northwest corner of Peacock Pond to pump

water into the site from the ACME canal to the west. The berm

was to detain water on the site until it reached a certain

level and then return it to the ACME canal through an outfall

structure at the southwest corner of the site. From there,

the water reentered ACME's system of Basin B canals. SFWMD

calculated that Peacock Pond treated approximately 200,000,000

gallons of water a year in this way.

48. After issuance of the 1979 permit, an above-ground

impoundment was constructed, and the pumps were installed.

The detention area was operated under the permit for

approximately ten years--until approximately 1989. During

that time, the pumps at the northwest corner of the property

kept Peacock Pond hydrated, even in dry conditions. As a

result, there was standing water in Peacock Pond virtually

continuously, particularly in areas of isolated depressions,

and Peacock Pond remained wetter, longer compared to

surrounding areas. As a result, apple snails thrived there,

and Everglades Kites began using Peacock Pond as habitat,

especially in dry conditions when other habitat dried out.

That is what resulted in siting of unusually large numbers of

Everglades Kites in Peacock Pond in the mid- 1980's. See

Finding of Fact 26, supra .

49. It appears that ACME stopped operating the water

quality detention facility in accordance with the 1979 permit

in about 1989. For reasons not explained by the evidence, no

action was taken to enforce the permit conditions for the next

five to six years. In about 1995, a local Audubon member

reported the condition of Peacock Pond (including apparent

illegal excavation and bull-dozing of cypress trees) to Rosa

Durando, who complained to SFWMD. SFWMD inspected Peacock

Pond in 1995, confirmed that ACME was not operating the

facility in accordance with the 1979 permit, and found several

violations. It was not established by the evidence in this

case whether SFWMD performed an ecological assessment of the

property at the time. Subsequently, on April 2, 1996, SFWMD

issued notices of violation against ACME--by this time, a

dependent district of the Village--and the Village. Polo also

was cited for illegal unpermitted excavation in wetlands.

50. During SFWMD enforcement proceedings, it was

estimated that it would cost approximately $2.5 million to

restore the drainage facility for operation in accordance with

the 1979 SFWMD permit. However, SFWMD's 1979 permit

unfortunately did not require ACME to acquire legal control

over Peacock Pond, as applicants are now required to do. As a

result, ACME and the Village were unable to take over and

operate the surface water management facility because neither

had ownership interest in the Peacock Pond property or the

pumps and outfall structures, and neither had or could not get

an access easement to the property from Polo.

51. To settle SFWMD's enforcement action against ACME,

the parties entered into a Consent Agreement on December 11,

1997. The Consent Agreement required ACME and the Village to

undertake various actions, including obtaining from the

landowner immediate temporary access to the property; filing

an eminent domain or other actions to effectuate perpetual

access to the property; and either filing an application to

modify the permit, so as to eliminate the necessity of

utilizing Peacock Pond for water quality treatment, or

restoring the Peacock Pond facility.

52. Pursuant to the Consent Agreement, the Village first

instituted a court proceeding to obtain an easement over the

Peacock Pond property so that it could be operated in

accordance with the 1979 SFWMD permit. For reasons unclear

from the evidence, this court action was unsuccessful. Next,

the Village instituted an eminent domain action against Polo

to obtain title to Peacock Pond property so that it could

access and operate the storm water management facility. This

eminent domain action resulted in a jury verdict of $5.2

million against the Village. (In addition, the Village had to

pay attorney's fees in the amount of $1.5 million.)

53. On November 8, 1999, following the eminent domain

proceedings, Polo filed a claim against the Village under the

Bert J. Harris Act, Section 70.001, Florida Statutes. The

basis of the claim was that the Conservation designation

applied to the Peacock Pond property by the Village

inordinately burdened the property within the meaning of the

Harris Act. The property owner claimed that the value of the

property with the residential designation was $5.2 million,

while the value of the property with the Conservation

designation was only $200,000. On April 27, 2000, the Village

offered to settle the claim by changing the future land use

designation of the property from Conservation to "Residential

B."

54. At the final hearing in this case, SFWMD,

Petitioners, and the Village agreed that $5.2 million was not

a reasonable price to pay for the opportunity to spend another

$2.5 million or more to restore Peacock Pond's ability to

improve water equality, particularly given the larger Basin B

drainage problems.

55. The purpose of ACME was to drain and reclaim for

development the acreage under its jurisdiction, including what

later became the Village of Wellington. ACME, through manmade

alterations, divided the land into two drainage basins: Basin

A and Basin B. In relation to the Village's current

boundaries, Basin A is to the north and discharges into the C-

51 canal which ultimately takes water to the east. Basin B is

to the south. In total, Basin B drains an area of

approximately 9,000 acres, which are more rural in nature .

Drainage from Basin B is discharged through a set of pumps

into the Loxahatchee Wildlife Preserve, an Outstanding Florida

Water which basically forms the edge of the Everglades in this

region, at an annual volume of about 40,000 acre feet per

year.

56. Section 373.4592, the Everglades Forever Act,

regulates all discharge that flows into what is called the

Everglades Protection Area, which includes the Refuge. SFWMD

has studied sources of urban storm water entering the

Everglades, and the Village is the highest source of

phosphorus pollution of all areas in the Everglades Storm

Water Program and the main source of pollution in Basin B.

The Village contributes an average total phosphorus load to

the Refuge of 164 ppb.

57. The Everglades Forever Act requires the Village to

meet established water quality standards by 2006. The default

standard for phosphorus is an average total phosphorus load of

10 ppb. It is anticipated that the phosphorus standard to be

adopted will be higher, but it cannot be ascertained at this

time.

58. The size of the jury verdict in the eminent domain

case caused the Village great concern because one proposed

solution to the greater Basin B drainage problems would

require purchase of approximately 800 acres for use as a

modern storm water treatment area (STA). Consequently, the

Village hired a consulting team to evaluate the Peacock Pond

facility and develop alternatives for addressing Basin B

problems. (The consulting team included James Hudgens, Jay

Foy, and Robert Higgins, all of whom testified for the Village

as experts at the final hearing.)

59. Following the eminent domain verdict, SFWMD also

concluded that there were other solutions to the Basin B

drainage problems which would be more cost effective than

requiring the Village to purchase the Property for $5.2

million. Accordingly, on May 23, 2000, the Village and SFWMD

entered into a Joint Cooperation Agreement which outlined a

strategy for addressing Peacock Pond and for implementing a

water quality improvement plan for drainage of Basin B. Among

other things, this Agreement required the Village to submit an

application to the SFWMD to modify the Peacock Pond permit and

a Consent Agreement to either eliminate or substantially

reduce the size of Peacock Pond. In addition, the Agreement

required the Village's proposed modification to provide

reasonable assurances and demonstrate that the water quality

treatment, water quantity, and environmental benefits

associated with the Peacock Pond permit are maintained through

the facility or by other equivalent measures. Further, the

Agreement provided that until the application to modify the

Peacock Pond permit was approved by SFWMD, the conditions of

the existing SFWMD permit would remain in full force and

effect, but that SFWMD would stay any enforcement action

concerning Peacock Pond until December 31, 2001, so long as

the parties to the Agreement were carrying out the other

provisions of the Agreement.

60. The Village has since identified several other

alternative possible solutions to Basin B drainage problems.

One alternative is to acquire land outside the Village,

construct an STA, and divert Basin B drainage to the STA. A

second plan is to divert Basin B water away from the

Loxahatchee preserve and the Everglades. A third alternative

would be for the Village to utilize Aquifer Storage and

Recovery (ASR) Wells. Finally, the Village has considered the

utilization of a rock pit north of the Village in conjunction

with an STA; the pit would hold the water, and the STA would

treat the water.

61. Additionally, other techniques could be used to

reduce phosphorus discharge, such as: best management

practices, which can be and to some extent have been

instituted in the Village: chemical treatment of water to

remove phosphorus; and controlling fertilizer. The FLUM

Amendment does not prevent the Village from pursuing any of

these alternatives.

62. The Joint Cooperation Agreement is the last and most

recent action taken by SFWMD regarding the property. At the

time of the final hearing, the Village was in compliance with

the Joint Cooperation Agreement and had filed an application

to modify the permit for Peacock Pond. The modification would

double the water treatment ability, not the size, of the Pond.

By the time of final hearing, SFWMD had not yet acted on the

application.

63. Meanwhile, the existing surface water management

facility on the Peacock Pond property cannot be changed or

eliminated without a permit from SFWMD. Even if the FLUM

Amendment takes effect, a SFWMD permit would be required

before any development could take place on the property.

Also, in order to develop the property, an amendment to the

PUD Master Plan would have to go through the Village's

development review process and be approved by the Village.

64. The Amendment does not repeal, revise, or exempt

Peacock Pond from the Village's Comprehensive Plan. The

Village Comprehensive Plan has a drainage element which

requires the Village to provide adequate drainage facilities

which are subject to concurrency and level of service

standards. Development of the Peacock Pond property would

have to comply with these drainage facilities. Because the

property is in the Village's urban service area, it is

reasonable to assume that the Village or the developer will

provide any necessary drainage facilities.

Environmental and Natural Resource Characteristics

65. When Peacock Pond was operated as required by the

1979 SFWMD permit, it was a high-quality wetland. Based on

environmental assessments of the property performed by SFWMD

in the 1986-1988 time period, it is clear that Peacock Pond

had wetland characteristics in the 1980s. In 1986, SFWMD

employees noted that Peacock Pond "supports diverse areas of

wetland vegetation, including saw grass, cypress, carolina

willow, pickerel weed, water lettuce, primrose willow and cat

tails [sic]." In 1989, SFWMD staff wrote that Peacock Pond

was "the only functional marsh habitat left in the Wellington

area" and was "heavily used by both breeding and migrant birds

and supports a large population of apples snails, used by the

threatened limpkins and the endangered Everglades kite."

Peacock Pond had substantial wetland vegetation, and wildlife

associated with wetlands. As found previously, substantial

numbers of the Everglades Kite were observed on the Property

at times in the mid-1980's.

66. When Peacock Pond failed to be operated in

accordance with the 1979 SFWMD permit, its wetlands features

and functions declined. With no water on the property, exotic

plant species invaded. In addition, there was illegal

unpermitted excavation, and cypress trees were bulldozed.

Over time, improper operation of the facility had resulted in

severe degradation of the wetlands on the property and the

invasion of undesirable exotic vegetation, such as maleleuca

and Brazilian Pepper.

67. Unfortunately, the evidence establishes that Peacock

Pond currently has no or very low natural resource and

environmental values in terms of wetlands or wildlife. The

site is devoid of any significant wetland functions or

wildlife values. It is mostly dry and covered by exotic

species, at least in part because it and the surrounding area

have been drained. There are no Everglades Kites on the site;

apparently, there have not been any for about 10 years. Any

remaining wetlands on the site were variously described as

"remnant," "isolated," and of "poor quality."

68. It would not be impossible to restore Peacock Pond

to some semblance of its condition in the mid- 1980's.

Restoration would require operation of the drainage facility

in accordance with the 1979 SFWMD permit and eradication of

exotic vegetation. If restored, wetland wildlife such as the

apple snail and Everglades Kite probably would return.

Indeed, in 1996, the Village submitted an application to the

Florida Communities Trust to buy Peacock Pond. The FCT grant

application mentioned the potential of Peacock Pond "to

provide important habitat for listed and threatened species"

and for "improving water quality." But the FCT has not

purchased the property, and it now appears that it would cost

the Village over $5 million to purchase the property, another

$2.5 million to comply with the conditions of the 1979 SFWMD

permit, plus the cost of eradicating exotic plants.

Soil Suitability

69. The testimony regarding soils and septic tank use in

this area was not in substantial dispute. It was undisputed

that Peacock Pond consists of "hydric" soils, mostly Okeelanta

muck, Tequesta muck, and Sanibel muck. Hydric and muck soils

are relatively unsuited for residential development.

Nonetheless, residential development of land characterized by

hydric or muck soils is common throughout Florida, including

Palm Beach County, and the coastal plane of the United States.

It was undisputed that approximately 89 percent of the soils

in the Village are "hydric" soils. In these areas, it is

standard residential construction practice to remove muck

soils and replace them with other soils on which construction

can take place. Substantial portions of the Village having

hydric soils have been developed for residential uses in this

manner. Also, the extensive dewatering through ditching and

canal systems in the area has made the land more available and

suitable for development. For these reasons, it cannot be

said that Peacock Pond's soils are absolutely unsuitable for

residential development.

70. While there was evidence that Okeelanta soils in

their natural state are not suitable for septic tanks, it is

undisputed that the Okeelanta soils in the Wellington Country

Place PUD are not in their natural state. Moreover, septic

tanks can be used on such property by use of enough

appropriate fill dirt. Septic tanks are used extensively in

Wellington Country Place PUD; the entire PUD is on septic

tanks except for the Equestrian Club Estates, a portion of the

PUD on the west side. Further, much of the Village south of

Pierson Road, where the Country Place PUD is located, is on

septic tanks.

71. There was some evidence of failure of septic tanks

in the Village when inundated from heavy rains. But despite

widespread use of septic tanks on land that contains hydric

soils, including the Okeelanta muck, there was no evidence of

substantial health problems.

72. It is common for land that contains some wetlands to

be designated residential. This is especially true in western

Palm Beach County, including the Village, where much of the

soils are hydric and contain wetland features. For example,

there are other wetlands in the Wellington Country Place PUD

that are designated residential, and there are other wetlands

in the Village, outside of Country Place PUD, that have non-

conservation land use designations. Conversely, it is

relatively uncommon to have private land, such as Peacock

Pond, designated Conservation without any density.

73. The Village's Comprehensive Plan contains provisions

that protect the wetlands and other natural resources. The

Amendment does not exempt the Peacock Pond property from these

provisions. Therefore, any development of the Property would

have to be consistent with these Plan provisions.

Functioning and Efficiency of Peacock Pond Facility

74. Even if restored, Peacock Pond could not begin to

solve the larger Basin B drainage problems and indeed may not

even be effective enough to serve the Country Place PUD.

Whether Peacock Pond is restored or not, the Village must seek

alternatives to comply with the Everglades Forever Act.

75. The Peacock Pond facility, as designed, was not very

effective as a storm water quantity attenuation area. As

designed, the facility can only hold about 1/2 inch of runoff

from the Wellington Country Place PUD. Due to this limited

capacity, the facility is barely adequate to serve the PUD and

is of no use at all to the rest of the Village as a storm

water attenuation area.

76. In terms of water quality treatment, the Peacock

Pond facility is also not very effective or efficient. If

operated as permitted, without consideration of any vegetative

uptake of nutrients, the facility would have only limited

ability to remove phosphorus, about 32 kilograms per year.

(Considering vegetative uptake of nutrients, the percentage of

phosphorus removal would be higher but no estimate was

calculated.) Also, the facility cannot provide adequate storm

water quality treatment because of its inadequate design

capacity. Without adequate storm water quantity attenuation

capacity, the facility cannot treat for water quality

effectively.

77. Storm water treatment technology has advanced

greatly since the permitting of the Peacock Pond facility in

1979. Both passive and active/harvested STA's are examples.

A passive STA is designed to include vegetation utilized to

remove nutrients from storm water but leaves the vegetation on

site. An active/harvested STA is an emerging technology which

goes one step further by actively cutting and removing the

aquatic vegetation to an off-site location, thereby removing

the nutrients from the system. As permitted, the Peacock Pond

facility is neither a passive nor an active/harvested STA. It

is only a detention area which holds the water and allows the

nutrients to settle to the bottom, with limited, incidental

uptake of nutrients by whatever vegetation happens to be

onsite. A 1.5-acre active/harvested STA could perform the

same water quality treatment function that Peacock Pond would

perform if operated in accordance with the 1979 permit,

assuming no vegetative uptake of nutrients. Moreover, the

1.5-acre STA could be located anywhere in Basin B.

78. Another alternative to Peacock Pond is also

available for addressing drainage in the Country Place PUD.

The storm water management system permitted in 1979 included a

12-acre lake in addition to the 79-acre Peacock Pond facility.

However, the development of the PUD thus far has actually

generated 54 acres of lakes. Based on current development

patterns, it is reasonable to assume another 37 acres of lakes

will be generated by the build out of the Country Place PUD.

Thus, the original 91 acres of storm water management areas

planned for the PUD (a 12-acre lake plus the 79-acre Peacock

Pond) is likely to be satisfied by development of the

remainder of the PUD, even without retaining Peacock Pond as a

drainage facility.

79. It was indicated at final hearing that Polo would

acquiesce in the future development of an additional 37 acres

of lakes. However, Polo had not made any binding commitment

to do so at the time of final hearing, and the requirement for

Polo to add 37 acres of lakes in the future, as a condition to

future development, has not yet been incorporated in a binding

SFWMD permit.

DCA Review and Approval of the FLUM Amendment

80. The FLUM Amendment was transmitted to the DCA on

June 20, 2000. Roger Wilburn supervised D CA's review of the

Amendment. On September 8, 2000, the DCA issued its ORC

report, which objected to the Amendment because the FLUM

Amendment, which is essentially all that was included in the

transmittal package to DCA, conflicted starkly with data and

analysis in the existing Village Plan. Data and analysis in

the existing plan of just one year prior justified designation

of Peacock Pond as Conservation by its potential for

restoration of important wetlands, wildlife habitat, water

quantity treatment, and water quantity functions. A year

later, and without adequate explanation, the Village was

proposing to change the FLUM designation to "Residential B."

81. Following the issuance of DCA's ORC report to the

Village, Wilburn traveled to the Village for a meeting with

Village officials and consultants to discuss DCA's objections.

During these discussions and his visit to the site, Wilburn

learned of the degradation of Peacock Pond, the development

around the Pond, the Village's legal problems in gaining

access to the site, and the Village's desire to pursue

alternatives other than Peacock Pond to address its drainage

issues. Based on this information, Wilburn advised the

Village that it needed to update its data and analysis to

reflect current conditions to support the proposed Amendment.

82. After responding to DCA's ORC, the Village adopted

the Amendment on December 12, 2000, and transmitted it to DCA

along with the new supporting data and analysis. The

supporting data and analysis included, among other things, the

Joint Cooperation Agreement with SFWMD and the reports

prepared by Village consultants Hudgens and Foy regarding the

environmental assessment of Peacock Pond and its efficiency as

a surface water management facility. In addition, the Village

submitted revisions to the data and analysis in the

Conservation Element of its Plan to reflect the new data and

analysis and the changed circumstances regarding Peacock Pond.

83. DCA also received comments on the Amendment from

SFWMD. SFWMD did not object to the Amendment and, in its

comments, informed DCA of its Joint Cooperation Agreement with

the Village.

84. DCA also received comments on the Amendment from the

Treasure Coast Regional Planning Council. The Council found

that the Amendment was consistent with its Strategic Regional

Policy Plan.

85. Based on the adoption transmittal package, Wilburn

and his staff recommended that the DCA find the Amendment in

compliance. DCA concurred with that recommendation and issued

its Notice of Intent to find the Amendment in compliance on

February 7, 2001.

CONCLUSIONS OF LAW

Standing

86. Any "affected person" may participate in proceedings

challenging proposed plans and plan Amendments under the Act.

Section 163.3184(9).

87. Affected persons are defined in Section

163.3184(1)(a):

"Affected person" includes the affected

local government; persons owning property,

residing, or owning or operating a business

within the boundaries of the local

government whose plan is the subject of the

review. . . . Each person, other than an

adjoining local government, in order to

qualify under this definition, shall also

have submitted oral or written comments,

recommendations, or objections to the local

government during the period of time

beginning with the transmittal hearing for

the plan or plan amendment and ending with

the adoption of the plan or plan amendment.

In St. Joe Paper Co., et al. v. Dept. of Community Affairs, et

al. , 657 So. 2d 27, 28 (Fla. 1st DCA 1995), the court

characterized Section 613.3184(1)(a) as providing "a more

expansive definition of an affected person who may participate

in the section 120.57 proceeding held pursuant to section

163.3184(10)(a)." However, the court also held:

Section 163.3184(10)(a) specifies that a

person must be an "affected person" in

order to participate in the section 120.57

proceeding.

Id. Section 163.3184(9)(a) also specifies that a person must

be an "affected person" in order to participate in the section

120.57 proceeding.

88. As described in the Preliminary Statement, it was

ruled prehearing that Friends and Audubon cannot establish

"associational" standing in this case under Florida Home

Builders Ass'n v. Dept. of Labor and Employment Security , 412

So. 2d 351 (Fla. 1982). In addition, the record in th is case

is clear that neither Friends nor Audubon, as individual legal

entities, reside in or own property in the Village. The

disputed standing issue of fact litigated in this case was

whether Friends and Audubon owned or operated a business

within the boundaries of the Village.

89. In St. Joe Paper , there was no evidence that Friends

had any connection to Walton County beyond submittal of oral

or written comments, recommendations, or objections to the

County between the transmittal hearing and adoption hearing

for the comprehensive plan at issue in that case. The court

characterized Friends' level of participation in that case as

an "incidental and transient presence" that "does not suffice

under section 163.3184(1)(a)." St. Joe Paper , at 29. The

court continued: "Rather, the statute contemplates a more

substantial local nexus, of a type which might make the

business potentially subject to the constraints of the local

comprehensive plan." Id.

90. Clearly, the evidence was that both Friends and,

especially, Audubon have a "more substantial local nexus" than

it appeared from the evidence that Friends had in Walton

County in St. Joe . On the other hand, their local presence or

nexus in the Village clearly is much less than that of any

number of other businesses operating in the Village. It would

appear that their local presence or nexus is less than that of

RGMC in Dept. of Community Affairs v. Lee County , ER FALR

96:118 (Admin. Comm'n 1996)(Recommended Order, 1996 WL 1059844

( Fla.Div.Admin.Hrgs.)).

91. In this case, there was persuasive evidence that

both Friends and, especially, Audubon operated a business in

the Village (as well as elsewhere). The nature of both their

businesses is different from that of a more "classic"

commercial enterprise, but so long as the threshold local

presence or nexus exists, Section 163.3184(1)(a) does not

discriminate based on the kind of business operated. In

addition, as found, although neither Friends nor Audubon felt

"constrained" by the Village's comprehensive plan from

conducting business in the Village, operation of both

businesses in the Village potentially could be "constrained"

by the Village's comprehensive plan. It is concluded that, in

this case, there was evidence of a local presence or nexus as

to both Friends and, especially, as to Audubon so as to

"suffice under section 163.3184(1)(a)."

Burden and Standard of Proof

92. Section 163.3184(9) imposes the burden of proof in

this case on Petitioners and states:

[T]he local plan or plan amendment shall be

determined to be in compliance if the local

government's determination of compliance is

fairly debatable.

93. The terms "fairly debatable" are not defined in the

statutes or rules, but the Supreme Court of Florida held in

Martin County v. Yusem , 690 So. 2d 1288, 1295 (Fla. 1997),

that this "fairly debatable" standard is the same as the

common law "fairly debatable" standard applicable to decisions

of local governments acting in a legislative capacity. The

Court elaborated:

An ordinance may be said to be fairly

debatable when for any reason it is open to

dispute or controversy on grounds that make

sense or point to a logical deduction that

in no way involves its constitutional

validity.

The ultimate issue in this case is whether Petitioners proved

beyond fair debate that the FLUM Amendment is not "in

compliance."

94. Section 163.3184(1)(b) states:

"In compliance" means consistent with the

requirements of ss . 163.3177, 163.3178,

163.3180, 163.3191, and 163.3245, with the

state comprehensive plan, with the

appropriate strategic regional policy plan,

and with chapter 9J-5, Florida

Administrative Code, where such rule is not

inconsistent with this part and with the

principles for guiding development in

designated areas of critical state concern.

Petitioners argue that the FLUM Amendment is not "in

compliance" primarily because of: inadequate data and

analysis; internal inconsistency; failure to promote

conservation and preserve natural resources; site

unsuitability; and inconsistency with the regional and state

policy plans.

Data and analysis

95. Subsection 163.3177(6)(a), (8), and (10)(e) require

that plan amendments be supported by "appropriate" data and

analysis that is collected in a "professionally accepted" way.

Rule 9J-5.005(2) mirrors the statute and requires that plan

amendments be "based upon relevant and appropriate data and

analyses." Under this Rule, "based upon" means "to react to

[data and analysis] in an appropriate way and to the extent

necessary indicated by the data available on that particular

subject at the time of adoption of the plan or plan amendment

at issue." The Rule also requires that data be "collected and

applied in a professionally acceptable manner" and requires

that, when data is being updated, the methodologies "shall

meet professionally accepted standards for such

methodologies."

96. There can be no real dispute that professional

acceptable data and analysis was collected and utilized to

support the FLUM Amendment. The real issue raised by

Petitioners is whether the FLUM Amendment reacts to the data

and analysis in an appropriate way and to the extent

necessary. Petitioners would prefer for Peacock Pond to

remain Conservation at least until the Village implements a

feasible plan to resolve its Basin B drainage problems.

Instead, Petitioners accuse the Village of adopting the FLUM

Amendment essentially under duress and solely to avoid the

threat of Polo's Bert Harris claim. But the evidence was that

there was much more to the Village's motivation. As found,

Petitioners did not prove beyond fair debate that the Village

did not react to the data and analysis, taken as a whole, in

an appropriate way and to the extent necessary.

97. Petitioners also argue that the data and analysis

compelled maintenance of the Conservation designation for

Peacock Pond because of the serious need to protect the Refuge

from the Village's Basin B runoff. But the evidence was clear

that redesignating Peacock Pond as Residential B does

absolutely nothing to prevent the Village from using Peacock

Pond as needed to help resolve those problems -up to and

including purchase of the entire parcel for $5.2 million or

more, and re-implementing the 1979 permit conditions at a cost

of $2.5 million or more. Meanwhile, the data and analysis

were clear that future residential development on Peacock Pond

could accommodate drainage requirements of Wellington Country

Place PUD itself if an additional 37 acres of lakes are

required as part of any such development.

98. Petitioners also argue that the Village relied on

future "data" to support the FLUM Amendment--namely,

modification of the 1979 SFWMD permit for Wellington County

Place PUD, future drainage areas, or construction of an STA

somewhere else. But those are only some of the options for

resolving the Village's Basin B drainage problems. The FLUM

Amendment neither relies on nor compromises any of those

options.

99. Petitioners also argue that, when the Village

updated its data and analysis after DCA's ORC, it did not do

so in a way meeting "professionally acceptable standards"

because it simply deleted previous data and analysis contained

without clearly explaining why the data and analysis is no

longer relevant. To the contrary, the evidence was that the

updated data and analysis not only deleting some previous data

and analysis but also added data and analysis that adequately

explained the deletions. In addition, since the explanation

for the deletions was analysis, this analysis included the

evidence at final hearing. See Zemel v. Lee County , DOAH Case

No. 90- 7793GM, 1992 WL 880139, 15 FALR 2735, 2773-2775 (DCA

1993), aff'd , 642 So. 2d 1367 (Fla. 1st DCA 1994).

100. Finally, Petitioners argue that it was not

"appropriate" or "professional" to cite the impacted condition

of wetlands on Peacock Pond as data, when it was known that

those impacts resulted directly from the illegal acts of ACME

(which serves and is now governed by the Village's Council)

and Polo during the period of time approximately between 1989

and 1995. But Petitioners cite no authority requiring the

Village, under these circumstances, to plan based on facts as

they used to exist. To the contrary, the statutes and rules

generally require a local government to plan for the future

based on actual conditions. In particular, Section

163.3177(6)(a) requires: "The future land use plan shall be

based upon . . . the character of undeveloped land." Rule 9J-

5.006(2)(b) requires that the future land use element be based

on "analysis of the character and magnitude of existing vacant

undeveloped land . . . ." Section 163.3177(6)(d) requires:

"A conservation element for the conservation, use, and

protection of natural resources in the area . . .." Rule 9J-

5.013(1)(a) requires the conservation element to identify and

analyze "natural resources, where present within the local

government's boundaries . . . ." (Whether it is appropriate

for SFWMD to consider the impacts of illegal activities in

characterizing the wetland functions of Peacock Pond for

purposes of permitting and enforcement is another matter.)

Internal inconsistency

101. Section 163.3177(2) requires: "The several

elements of the comprehensive plan shall be consistent

. . . ." Rule 9J-5.005(5) repeats this admonition in

subparagraph (a), and subparagraph (b) adds: "Each map

depicting future conditions must reflect goals, objectives,

and policies within all elements and each such map must be

contained within the comprehensive plan."

102. In contrast to determinations under Section

163.3177(10(a) as to whether a local comprehensive plan is

consistent with a state or regional policy plan, there is no

reason to insist that all objectives and policies of a plan

"take action in the direction of realizing" the other

objectives and policies of the same plan. The meaningful

question is whether objectives are in conflict with each

other; if not, they are coordinated, related, and consistent.

103. Petitioners argue that the FLUM Amendment is

internally inconsistent with the Conservation Map and Natural

Resource Map in the Conservation Element and with the Future

Equestrian Circulation Map in the Equestrian Preservation

Element of the Village's plan. See Findings of Fact 39-40,

supra . On its face, the FLUM Amendment may appear to be some

conflict with those other maps. But the Conservation Map and

Natural Resources Map merely label the site "Peacock Pond

Natural Reserve"; the map legends identify the site as

"Wetlands/Possible Wetlands" on the Conservation Map and as

"Emergent Wetlands" on the Natural Resources Map. In

addition, the Village's plan does not define either "natural

reserve" as used in the Conservation Map and Natural Resources

Map or "natural preserve" as used in the Equestrian

Circulation Map, and the significance of the use of those

terms, as they relate to the FLUM, is not clear. For those

reasons, a determination that the maps are not in conflict is

not beyond fair debate.

104. Petitioners also argue that the FLUM Amendment is

inconsistent with various GOP's in the Infrastructure Element

(drainage) and in the Conservation Element (natural resources

element) of the Village's comprehensive plan. But Petitioners

failed to prove any such inconsistencies.

Natural Resources

105. Petitioners argue that the FLUM Amendment is

inconsistent with Section 163. 3177(6)(d), Rule 9J-5.006(3),

and Rule 9J-5.013. But, as with the similar data and analysis

argument, the Village was not required to plan to protect

natural resources based on facts as they used to exist. See

Conclusion of Law 100, supra .

Site Suitability

106. Rule 9J-5.006(2) requires that land be suitable for

designated land uses, and Rule requires that land uses be

coordinated with appropriate topography, soil conditions, and

the availability of facilities and services for drainage and

storm water treatment. But Petitioners did not prove

inconsistency with those rules.

107. Peacock Pond contains wetlands and has soils which

are "constrained" for development and the use of septic tanks.

It is low and in its natural state was flooded and

hydrologically connected to the Florida Everglades. But

existing conditions are quite different now, and Petitioners

did not prove beyond fair debate that Peacock Pond is

unsuitable for designation as Residential B on the Village's

FLUM.

State and Regional Policy Plans

108. Petitioners argue that the FLUM Amendment is

inconsistent with the State Comprehensive Plan for various

reasons but primarily because the State plan requires local

governments to ensure that growth does not adversely affect

public health, to protect and conserve wetlands, and to

prohibit the destruction of habitat for endangered species.

Section 187.201(6), (10), and (16).

109. Petitioners also argue that the FLUM Amendment is

inconsistent with the Treasure Coast Strategic Regional Policy

Plan for various reasons but primarily because the regional

plan requires local governments to protect wetlands unless

they cannot be restored.

110. Section 163.3177(10) provides that a local

government's comprehensive plan is "consistent" with the state

and regional policy plan if the local plan is "compatible

with" and "furthers" such plans. It also defines the phrase

"compatible with" as meaning "not in conflict" and defines the

term "furthers" to mean "take action in the direction of

realizing goals or policies of the state or regional plan."

In addition, in making these determinations, the state and

regional plans "shall be construed as a whole and no specific

goal and policy shall be construed or applied in isolation

from the other goals and policies in the plan. . . ."

111. As compared to Chapter 9J-5, the state plan sets

out general planning goals and policies. Unlike Chapter 9J-5,

they do not establish "minimum criteria"; rather, if a plan

would appear to violate a provision of the state plan, a

balanced consideration must be given to all other provisions

of both the state and local plan to determine whether a local

comprehensive plan is consistent with the state plan. In

addition, many of the provisions of the state plan apply to

the State of Florida and its agencies in planning on the state

level, as opposed to local governments. Rarely will a local

plan violate the state plan if it does not also violate the

applicable Chapter 9J-5 "minimum criteria." See Heartland

Environmental Council v. DCA , DOAH Case No. 94- 2095GM, 1996 WL

1059751 ( Fla.Div.Admin.Hrgs.)

112. Regional planning council policy plans are similar

to the state comprehensive plan. They set out general

planning goals and policies for the region. They do not

establish "minimum criteria."

113. Using these legal standards, Petitioners did not

prove any inconsistency with either the State or regional

plans.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Community Affairs

enter a final order finding the Village's FLUM Amendment

LUPA1-2000/04, adopted on December 12, 2000, by ordinance

numbers 2000-27, 2000-30, 2000-31, "in compliance."

DONE AND ENTERED this 2nd day of October, 2001, in

Tallahassee, Leon County, Florida.

_______________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of October, 2001.

COPIES FURNISHED:

Terrell Arline, Esquire

1000 Friends of Florida

808 Greenbriar Drive

Lake Park, Florida 33403

Shaw P. Stiller, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Thomas G. Pelham, Esquire

Thomas G. Pelham Law Offices

909 East Park Avenue

Tallahassee, Florida 32301-2646

Michael P. Donaldson, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32301

Christine P. Tatum, Esquire

Village of Wellington

14000 Greenbriar Boulevard

Wellington, Florida 33414-7615

Cari L. Roth, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

Steven M. Seibert, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.