07-004843DRI Bonita Bay Properties, Inc., And Swf Properties Of Southwest Florida, Ltd. vs. City Of Bonita Springs Status: Closed Recommended Order on Thursday, April 17, 2008.

Summary: Proposed change to DRI to allow residential development within 330 feet of eagle`s nest is not a substantial deviation, not likely to adversely impact the eagle, and is consistent with the local comprehensive plan. The proposed change should be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BONITA BAY PROPERTIES, INC., )

AND SWF PROPERTIES OF SOUTHWEST )

FLORIDA, LTD., )

)

Petitioners, )

)

vs. ) Case No. 07-4843DRI

)

CITY OF BONITA SPRINGS, )

)

Respondent. )

)

RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on February 12

and 13, 2008, in Bonita Springs, Florida.

APPEARANCES

For Petitioners: Kenneth G. Oertel, Esquire

Jeffrey Brown, Esquire

Oertel, Fernandez, Cole & Bryant, P.A.

Post Office Box 1110

Tallahassee, Florida 32302-1110

For Respondent: Craig D. Varn, Esquire

Jacob D. Varn, Esquire

Fowler White Boggs Banker, P.A.

Post Office Box 11240

Tallahassee, Florida 32302-3240

STATEMENT OF THE ISSUE

The issue is whether the proposed change to the Bonita Bay

Development of Regional Impact to allow residential development

within 330 feet of an active bald eagle's nest in an area that

had been set aside for preservation should be approved.

PRELIMINARY STATEMENT

On July 21, 2006, Petitioners submitted to the City of

Bonita Springs (City) a proposed change to the Bonita Bay

Development of Regional Impact (Bonita Bay DRI). The proposed

change would allow residential development within 330 feet of an

active bald eagle's nest in an area that had been set aside for

preservation. On June 27, 2007, the City denied the proposed

change through Resolution No. 07-02. On August 3, 2007,

Petitioners "appealed" the City's decision by filing a Petition

for Formal Administrative Proceeding with the Florida Land and

Water Adjudicatory Commission (FLWAC) pursuant to Section

380.07, Florida Statutes. 1/

On October 22, 2007, FLWAC referred this matter to the

Division of Administrative Hearings (DOAH). The referral was

received by DOAH on October 23, 2007.

The pleadings referred to DOAH included a Response in

Opposition to Request for De Novo Hearing filed by the City and

a reply to the response filed by Petitioners. FLWAC did not

rule on the issue prior to referral of the matter to DOAH. On

November 28, 2007, the undersigned entered an Order concluding

that "[t]his case shall be conducted as a de novo proceeding

under Chapter 120, Florida Statutes."

On February 6, 2008, the parties filed a comprehensive

Pre-Hearing Stipulation. The stipulated facts in that document

are interspersed in the Findings of Fact below.

The final hearing was held on February 12 and 13, 2008. At

the hearing, Petitioners presented the testimony of Kris

VanLengen, Daniel DeLisa (expert in land use planning), William

Cox (expert in wildlife ecology), Kenneth Passarella (expert in

ecological science), and Tom Logan (expert in wildlife ecology,

with a specialty in listed species), and the deposition

testimony of Pamela Houck, Dominick Amico, and Bryan Kelner; and

the City presented the testimony of Becky Sweigert (expert in

wildlife ecology) and the deposition testimony of Kimberly

Trebatoski. 2/ The following exhibits were received into

evidence: Joint Exhibits 1 through 4, 7 through 9 and 13;

Petitioners' Exhibits 7 through 9, 21, 23, 35, 37, 39, 40, 44,

45, 54, 56 through 59, 63A, 63F, 63J and 64; and the City's

Exhibits 2, 3, 11 through 15 and 18.

The two-volume Transcript of the final hearing was filed on

February 28, 2008. The parties requested and were given 14 days

from that date to file proposed recommended orders (PROs), and

the parties thereby waived the deadline for this Recommended

Order. See Fla. Admin. Code R. 28-106.216(2). The PROs were

timely filed and have been given due consideration.

FINDINGS OF FACT

A. Parties

1. Bonita Bay Properties, Inc., is the developer of the

Bonita Bay DRI.

2. SWF Properties of Southwest Florida, Inc., is the owner

of the Bonita Bay DRI.

3. The City is an incorporated municipality in Southwest

Lee County.

B. Relevant History of the Bonita Bay DRI

4. The Bonita Bay DRI includes 2,422 acres in the City,

near the Lee County/Collier County border.

5. The City approved the original development order for

the Bonita Bay DRI in November 1981. The DRI, as originally

approved, included 8,250 multi-family units, 990 single-family

units, 125 marina slips, 360,000 square feet of office space,

850,000 square feet of commercial space, 175 hotel rooms, and a

200-room conference center.

6. The DRI development order has been amended on four

prior occasions. The most significant of the amendments was the

third amendment, which occurred in 1993.

7. The 1993 amendment added a golf course, reduced the

density of the DRI to 6,000 residential units, and reduced the

commercial intensity of the DRI to 700,000 square feet. After

the 1993 amendment, and currently, the Bonita Bay DRI includes

approximately 588 acres of preservation areas, which is

approximately 24.3 percent of the acreage in the DRI.

8. The 1993 amendment also included conditions intended to

protect a bald eagle's nest within the DRI known as nest LE-005.

The conditions included the establishment of "primary protection

zones" and "secondary protection zones" relative to the golf

course and residential development in the vicinity of the nest.

All activities in the protection zones were required to comply

with a bald eagle management plan (BEMP) prepared by Petitioners

and approved by the U.S. Fish and Wildlife Service (USFWS).

9. For the golf course, the primary protection zone was a

radius of 750 feet from the nest, and the secondary protection

zone was an additional 750 feet beyond the primary protection

zone. For residential development, the primary protection zone

was a radius of 1,000 feet from the nest, and the secondary

protection zone was an additional 500 feet beyond the primary

protection zone.

10. The protection zones and the original BEMP were

approved in a 1993 Biological Opinion issued by USFWS under

Section 7 of the Endangered Species Act (ESA). The protection

zones were based upon the 1987 habitat management guidelines

adopted by USFWS for the southeast United States.

11. The BEMP was modified in 1997 to reduce the primary

protection zone for residential development to the south of the

nest to 850 feet. USFWS approved the modification.

C. Recent Regulatory Developments Regarding Bald Eagles

12. In 2006, USFWS proposed bald eagle management

guidelines to be applied throughout the United States (hereafter

"the national guidelines").

13. The national guidelines were implemented in July 2007,

concurrent with the formal announcement that the bald eagle had

recovered and that it would be removed from the list of species

protected under the ESA. The rule "de-listing" the bald eagle

under the ESA took effect on August 8, 2007.

14. The national guidelines are "recommendations based on

several decades of behavioral observations, science and

conservation measures to avoid or minimize adverse impacts to

bald eagles." USFWS "strongly encourages adherence to these

[national] guidelines to ensure that bald . . . eagle

populations will continue to be sustained."

15. The national guidelines recommended a single buffer

zone around active eagle nests, rather than the primary and

secondary protection zones recommended in the 1987 regional

guidelines.

16. The width of the buffer zone recommended in the

national guidelines depends on the nature of the use and its

visibility from the nest. For most activities that will be

visible from the nest, the recommended buffer zone is 660 feet.

For activities that will not be visible from the nest, the

recommended buffer zone can be as little as 330 feet.

17. When the bald eagle was listed under the ESA, the

recommended protection zones were larger. For example, the 1987

regional guidelines recommended against most activities within a

750-foot primary protection zone and included seasonal

restrictions on activities within a 1,500-foot secondary

protection zone.

18. The recommended buffer zone widths in the national

guidelines are flexible. USFWS can approve reduced buffer zones

based upon "special circumstances" that "diminish the likelihood

of bald eagle disturbance."

19. That is effectively what happened in this case

because, as discussed below, USFWS approved a 330-foot buffer

around nest LE-005, even though a 660-foot buffer was

recommended under the national guidelines.

20. The Florida Fish and Wildlife Conservation Commission

(FWCC) is in the process of developing a State Bald Eagle

Management Plan, patterned after the national guidelines. The

goal of the State plan is "to maintain a stable or increasing

population of bald eagles throughout Florida in perpetuity."

21. The most recent draft of the FWCC plan received into

evidence, "Draft 4" dated December 21, 2007, 3/ includes buffer

zone guidelines similar to those in the national guidelines–-

660 feet for activities visible from the nest and 330 feet for

activities not visible from the nest.

D. The Proposed Change

(1) Generally

22. The proposed change will revise the BEMP adopted in

1993 for nest LE-005 by reducing the buffer around the nest to

330 feet.

23. The reduced buffer will enable Petitioners to

construct 15 single-family residences in the vicinity of the

nest, along with a road to serve the residences and an expanded

stormwater pond.

24. The rationale for the proposed change was explained as

follows in the Notice of Proposed Change (NOPC) submitted by

Petitioners:

The proposed change is to the [BEMP] only.

The third amendment to the Bonita Bay DRI

[development order] incorporated an Eagle

Management Plan. The [BEMP] was based upon

the level of understanding at that time.

There was limited knowledge about the

habitats of eagles and what was needed to

assure their recovery. The agencies acted

with an abundance of caution. Since that

time, there has been extensive study. Based

on the recovery of the species and the

additional study, it has been determined

that a radius of 330 feet is appropriate and

adequate to protect the bird. This

application is a request to amend the [BEMP]

consistent with today's standards. The

request does not open up any new areas for

development; it simply permits the

development of an area previously approved

for residential development.

25. The property impacted by the proposed change is a

23-acre parcel in the northwest corner of the Bonita Bay DRI,

which is referred to in the NOPC as Baywoods Phase II (hereafter

"the subject property").

26. The subject property is roughly triangular in shape.

It is surrounded by a marsh/slough area to the north and east, a

golf course and existing single-family residences to the south,

and undeveloped uplands and marsh to the west. It is the last

remaining developable upland parcel in the Baywoods area of

the DRI.

27. The residences proposed for the subject property will

be compatible in size and design to the existing residences in

the adjacent Baywoods area of the DRI. Those residences are

detached, one and two-story, single-family units with densely

landscaped lots.

28. The subject property is zoned R-3. All types of

residential uses are permitted in that zoning category,

including high-rise, multi-family, mid-rise, townhouses, zero

lot line, duplexes, and single-family.

29. The proposed change meets the requirements of the

City's land development code. There are no compatibility or

zoning issues with the proposed change.

30. The proposed change is technically a "down-zoning" of

the subject property in that it restricts the use of the

property to low-density, single-family residences.

31. The proposed change will not result in any net

decrease in the total acreage set aside for permanent

preservation in the Bonita Bay DRI because the subject property

is currently zoned for residential development. Technically,

the proposed change will increase the acreage set aside for

permanent preservation through the placement of a conservation

easement on the revised buffer zone around nest LE-005.

32. However, as a practical matter, the proposed change is

an "up zoning" in that it authorizes development in an area that

none can presently occur due to the existing eagle protection

zones, and it reduces the area within the DRI that is protected

from present development by reducing the size of the buffer zone

around the nest.

(2) Review by the City

33. In July 2006, Petitioners submitted a NOPC to the City

and the Southwest Florida Regional Planning Council in

accordance with Section 380.06(19), Florida Statutes.

34. On or about February 15, 2007, the City staff 4/

prepared a report recommending approval of the NOPC, subject to

various conditions that were unacceptable to Petitioners. The

conditions included the elimination of five of the proposed

residences in order to reduce the visual impacts associated with

the proposed development and to create a "fly zone" for the

eagles to the northwest of the nest. The conditions also

incorporated the "best management practices" recommended by the

City's Eagle Technical Advisory Committee (ETAC), which included

phasing and other restrictions on construction of the proposed

residences.

35. On April 6, 2007, the City's Board for Land Use

Hearings and Zoning Board of Appeals (Board) held a seven-hour

quasi-judicial hearing on the NOPC. The hearing included "[a]

lengthy Applicant presentation . . . followed by Staff's

presentation" and public comment.

36. Petitioners had a full and complete opportunity to

present evidence in support of the proposed change at the Board

hearing. The testimony and evidence presented to the Board was,

for the most part, the same as that presented at the final

hearing in this case.

37. At the conclusion of the hearing, the Board

recommended the approval of the NOPC, as proposed by

Petitioners. The Board considered, but rejected the City

staff's recommendation to eliminate five of the proposed

residences and to implement the ETAC recommendations.

38. On June 25, 2007, the City Council held a hearing on

the NOPC and rejected, by voice vote, a motion to approve "the

advice of the zoning committee, which was basically to approve

the development as it's presented . . . ." 5/

39. The City Council's denial of the NOPC was memorialized

in Resolution No. 07-02, which was rendered on June 27, 2007.

40. The City Council did not, in its voice vote or the

Resolution, make any finding or reach any conclusion whether the

proposed change required further DRI review, as required by

Section 380.06(19)(f)5., Florida Statutes.

41. The "findings of fact" included in the Resolution

stated in pertinent part:

5. Bonita Bay Group did not prove

entitlement for the [proposed change] by

demonstrating compliance with the Bonita

Springs Comprehensive Plan, with the

conditions referenced in this Resolution and

other Bonita Springs Comprehensive Plan

Goals, Objectives and Policies.

6. The [proposed change], as conditioned,

was not compatible with existing or planned

uses in the surrounding area; will adversely

affect environmentally critical areas or

natural resources, in particular, gopher

tortoise and eagle habitat, both species

protected by the State of Florida. City

Council further found that the proposed

development order amendment would have an

unfavorable impact upon the environment and

natural resources of the area and that this

negative impact would override the positive

value of the [proposed change].

7. The proposed use is not appropriate at

the subject location in the DRI.

8. The recommended conditions considered

for the eagle management plan, gopher

tortoises and other applicable regulations

did not provide sufficient safeguards to the

public interest. . . .

(3) Potential Impacts on Nest LE-005

42. Nest LE-005 is located in a live pine tree within an

undeveloped area of pine flatwoods on the subject property. The

nest-tree is located just to the west of a marsh/slough area

that flows into Estero Bay.

43. The eagles using nest LE-005 do not forage in the area

immediately around the nest-tree. They primarily forage in

Estero Bay, which is to the northwest of the subject property.

44. Nest LE-005 is one of only two remaining bald eagle's

nests in the City.

45. The nest was first documented by the Florida Game and

Freshwater Fish Commission (the predecessor to FWCC) in 1977,

which is four years prior to approval of the original

development order for the Bonita Bay DRI and prior to any

construction in the DRI.

46. The nest has been continuously occupied for the past

30 years, except for two short periods in which the eagles were

displaced by great horned owls. The nest has produced

31 eaglets over the period that it has been monitored.

47. The eagles have continued to return to the nest

despite the ongoing development in the Bonita Bay DRI over the

past 25 years. The development has not disrupted the eagles

from using the nest or successfully fledging eaglets.

48. It is likely that the existing protection zones around

nest LE-005 have helped to protect the eagles and the nest.

However, it is also clear that the eagles have adapted to the

development in the DRI and the associated human activities.

49. The eagles have been observed flying near the high-

rise condominiums to the west of the subject property, resting

and perching on roofs of residences in the areas, and resting on

the golf course to the south of the subject property.

50. The existing protection zones around the nest LE-005

are not encumbered by a conservation easement, but the area

cannot be developed so long as the nest remains "active." If

the nest is no longer active ( i.e. , not used by eagles for five

years), then, under the 1993 amendment to the DRI development

order, Petitioners "may proceed with development of the property

within the primary and secondary zones in accordance with the

approved plan of development for that area."

51. In April 2006, prior to submittal of the NOPC,

Petitioners met with USFWS and ETAC regarding proposed revisions

to the existing BEMP for the subject property. USFWS and ETAC

recommended changes to a draft revised BEMP prepared by

Petitioners' consultants. Some of the changes were incorporated

into a revised BEMP that was submitted to USFWS for its formal

review.

52. On October 16, 2006, USWFS issued a letter amending

its 1993 Biological Opinion concerning nest LE-005.

53. The letter does not specifically state that the

revised BEMP proposed by Petitioners is "approved," but that is

clearly the effect of the letter. Indeed, the more persuasive

evidence establishes that Petitioners need no additional

authorization from USFWS (or FWCC 6/ ) in order to proceed with the

proposed development in accordance with the revised BEMP.

54. The October 2006 letter adopts the conservation

measures proposed in the revised BEMP, including a 330-foot

buffer area that would be protected in perpetuity through a

conservation easement; preservation of the vegetative canopy in

the area; limitations on the right-of-way for the road;

landscaping for the residential lots to enhance the vegetative

buffer; a two-story limitation on the height of the residences;

limits on the timing of construction; limits on exterior

lighting; installation of a fence and signage along the

perimeter of the buffer zone; and a $35,000 donation to the

Wildlife Foundation of Florida to support monitoring of bald

eagles in Lee County.

55. The portion of the buffer zone that will be encumbered

by a conservation easement is approximately 5.1 acres in a

semi-circle shape with a 330-foot radius around the west side of

nest LE-005. The area to the east of the nest is a wetland

preserve that is already protected from development.

56. The proposed residences will be visible from the nest,

but the visual impacts of the residences will be minimized

through extensive landscaping.

57. All but one of the proposed residences will be at

least 400 feet from the nest. Currently, the closest

development to the nest is the golf course, which is 850 feet to

the southwest and east of the nest. The closest residences to

the nest are approximately 900 feet to the south in Baywoods

Phase I.

58. There is no credible evidence that the proposed

development will cause the abandonment of nest LE-005. The City

admitted in a discovery response that it could produce no bona

fide opinion from a biologist or other qualified expert that the

proposed development would cause the nest to be abandoned, and

the wildlife ecologist presented by the City could only testify

that the proposed development "may" and "has the potential to"

adversely affect the eagles using the nest.

59. The City is concerned that the proposed 330-foot

buffer is not sufficient to protect the eagles using nest

LE-005. That concern is based, in large part, upon the premise

that all eagles "do better" with a larger protection zone than a

smaller one.

60. The preponderance of the evidence is contrary to this

premise. For example, a 2004 study presented by the City found

no difference in nesting success of eagles in rural and suburban

areas, 7/ and a 2007 analysis of the active eagle's nests in Lee

County showed that there was no correlation between the distance

of a nest from development and the success of the nest.

61. The more persuasive evidence establishes that eagles

are able to adapt and acclimate to human activities in order to

take advantage of suitable habitat, and that is what has

happened with the eagles using nest LE-005. The eagles were

using the nest before construction began in the Bonita Bay DRI;

they have continued to use the nest as the project has developed

around them over the past 25 years; and they have been observed

flying over residences and in close proximity to high-rise

buildings in the DRI and perching on roofs of residences within

the DRI.

62. Likewise, the more persuasive evidence establishes

that the reduction in the size of the buffer around nest LE-005

will not adversely impact the nest. Adequate protections are

included in the revised BEMP, which has been approved by USFWS.

63. The proposed roadway serving the residences will not

adversely impact the eagles using nest LE-005. Eagles' nests

are known to co-exist with far more heavily used traffic

corridors, such as interstate highways.

64. The proposed residences will not disturb the flight

paths of the eagles from nest LE-005. The eagles do not have a

preferred flight path; they have been observed flying to and

from the next in all directions, and they will have no problem

flying over the proposed residences.

(4) Potential Impacts on Gopher Tortoises

65. The subject property includes gopher tortoise habitat.

A November 2006 survey identified 62 active gopher tortoise

burrows and 12 inactive burrows on the subject property.

66. In 1993, FWCC issued a permit authorizing Petitioners

to "take" gopher tortoises, their eggs and their burrows where

such taking is incidental to development activities. As a

condition of the permit, Petitioners paid a mitigation fee of

$208,895.90 to FWCC as "seed money" for the Hickey Creek

Mitigation Park in Lee County. FWCC confirmed in a

September 2006 letter that the 1993 permit remains in effect.

67. Notwithstanding the incidental take authorization in

the FWCC permit, Petitioners intend to relocate the gopher

tortoises on-site in order to comply with the City's

requirements. The tortoises will be relocated to the 5.1-acre

portion of the subject property around nest LE-005 that will be

protected by a conservation easement and to an 11.64-acre site

immediately to the west of the subject property.

68. The relocation areas will be maintained and managed in

accordance with a relocation and management plan in order to

enhance the habitat for the gopher tortoises.

69. No concerns with the gopher tortoise relocation and

management plan were raised in the City's staff report on the

proposed change.

70. The wildlife ecology expert presented by the City

expressed a concern that the relocation plan is "putting

tortoises into a much smaller area," but she also acknowledged

that the relocation plan is consistent with the City's gopher

tortoise regulations and that Petitioners did what they were

required to do in relation to gopher tortoises.

(5) Consistency with the City's Comprehensive Plan

71. The resolution through which the City denied the

proposed change stated that Petitioners failed to demonstrate

"compliance with the Bonita Springs Comprehensive Plan . . . ."

72. The only comprehensive plan provisions specifically

cited in the Resolution in support of that conclusion were

Objective 7.6 and Policy 7.6.1 of the Conservation/Coastal

Management Element of the plan. 8/

73. The City identified several additional provisions of

the plan at the final hearing and in its PRO that it contends

the proposed change is inconsistent with, namely Policy 7.2.4

and Objective 7.3.

74. The City does not contend that the proposed change is

inconsistent with any provision of the Future Land Use Element

of the plan.

(a) Policy 7.2.4

75. Policy 7.2.4 provides:

The City shall encourage the protection of

viable tracts of sensitive or high-quality

natural plant communities within

developments.

76. According to the City, this provision is implicated

because the subject property contains "high-quality habitat," in

that it does not contain significant exotic vegetation, and it

supports a diversity of wildlife species, including gopher

tortoises and eagles.

77. A vegetative survey of the subject property was

performed in 2006. The survey found that the majority of the

subject property consists of disturbed scrubby pine flatwoods,

disturbed pine flatwoods, and disturbed palmetto prairies. No

protected plant species were located on the subject property.

78. There is no persuasive evidence as to the existence of

any "high-quality natural plant communities" on the subject

property apart from the existence of nest LE-005.

79. The proposed development would result in the removal

of vegetation on the subject property to make way for the

proposed residences, the road serving the proposed residence,

and an expanded stormwater management pond.

80. The wildlife ecologist presented by the City was

unable to testify how much of the subject property would have to

be set aside for permanent preservation to comply with Policy

7.2.4, as interpreted by the City. She simply testified that it

would have to be "[m]ore than the current proposal."

81. The proposed change will place a conservation easement

on approximately 5.1 acres surrounding the tree in which nest

LE-005 is located.

82. The eagles using the nest are likely to find the

closest suitable tree in the event that the current nest-tree

dies or falls. There are other mature pine trees within the 5.1

acres surrounding the current nest-tree that would be suitable

for an eagle's nest.

83. Thus, to the extent that the nest-tree and the

surrounding pine trees are considered to be a "high-quality

natural plant communit[y]" for purposes of Policy 7.2.4, the

proposed change includes adequate protection of that community.

84. Therefore, the proposed change is consistent with

Policy 7.2.4.

(b) Objective 7.3

85. Objective 7.3 provides:

Wildlife -- The City shall continue to

maintain and enhance the fish and wildlife

diversity and distribution within the City

for the benefit of a balanced ecosystem.

86. According to the City, the proposed change is

inconsistent with this objective because the proposed change

will result in a significant modification of the habitat

currently being used by the diverse wildlife on the subject

property.

87. A wildlife survey of the subject property was

performed in 2006. The only protected species identified in the

survey, other than the eagles, were the American alligator,

gopher tortoises, and two types of heron.

88. The alligator and heron were observed in the existing

stormwater pond on the southern edge of the subject property.

The pond will be expanded as part of the proposed development,

which will provide increased habitat for these species.

89. The gopher tortoises were observed throughout the

subject property, including areas that are proposed for

development. The gopher tortoises found in the areas proposed

for development will be relocated, as discussed above.

90. The existing eagle's nest, and the surrounding 5.1

acres, will be protected in perpetuity through a conservation

easement, as discussed above.

91. The proposed change includes adequate protections for

the eagle, gopher tortoises, and other wildlife species located

on the subject property, and will not adversely impact the

diversity or distribution of those species.

92. Therefore, the proposed change is consistent with

Objective 7.3.

(c) Objective 7.6 and Policy 7.6.1

93. Objective 7.6 provides:

Southern Bald Eagles -- The City shall use

its bald eagle habitat regulations to

protect Southern bald eagle nesting sites

and request the County to monitor Southern

bald eagle nesting activities.

94. Policy 7.6.1 provides:

The City shall maintain a policy of

negotiations with owners of land surrounding

eagle nests to provide an optimal management

plan within which all development within

critical eagle nesting habitat and buffer

areas must be consistent. The management

plans shall address at a minimum:

a. A description of the land around the

critical eagle nesting habitat, including

locations of nest tree(s) and perch tree(s),

vegetation types, and a description of the

type and density of understory and canopy

vegetation;

b. A history and behavior patterns of the

eagle pair;

c. An aerial map and a map at the scale

of the development which shows the location

of the eagle's nest and other critical eagle

nesting habitat features as well a the

proposed development;

d. The size and shape of the buffer area;

e. Measures to reduce potential adverse

impacts of the development on the nesting

bald eagles;

f. A critical eagle nesting habitat

management plan, which shall include

techniques to maintain viable nesting

habitat. These techniques may include

controlled burning, planting, or removal of

vegetation, invasive exotic species control,

maintaining hydrologic regimes, and

monitoring;

g. Deed restrictions, protective

covenants, easements, or other legal

mechanisms, ensuring that the approved

management plan will be implemented and

followed.

h. A commitment to educate future owners,

tenants, or other users about the specific

requirements of the approved eagle

management plan and the state and federal

eagle protection laws.

The eagle technical advisory committee will

consider the guidelines promulgated by the

FFWCC and the U.S. Fish and Wildlife Service

in the review of management plans and may

request assistance from these agencies

whenever necessary.

95. The revised BEMP addresses each of the items listed in

Policy 7.6.1, which are identified in the policy as "minimum"

requirements. The revised BEMP also includes additional

elements, including fencing along the perimeter of the buffer

zone and a monetary donation to support eagle monitoring in Lee

County.

96. The City contends that the proposed change is

inconsistent with this objective and policy because the revised

BEMP is not "an optimal management plan," because the 330-foot

buffer is smaller than the buffer zone recommended by the

national guidelines and because the project could be redesigned

by reducing the size of the stormwater pond.

97. The more persuasive evidence establishes that the

revised BEMP is the optimal plan for the development, as

proposed, which is the appropriate inquiry under Policy 7.6.1.

98. The revised BEMP has been approved by USFWS and FWCC,

and as discussed above, includes adequate protections for nest

LE-005 and the eagles using the nest.

99. Therefore, the proposed change is consistent with

Objective 7.6 and Policy 7.6.1.

E. Ultimate Findings

100. The proposed change is not a substantial deviation

from the original development order for the Bonita Bay DRI.

101. The proposed change meets the conditions of Section

380.06(19)(e)2.j., Florida Statutes, in that it is a change that

modifies the boundaries and configuration of the protection

areas around nest LE-005 based upon science-based refinements

concerning bald eagle habitat protection.

102. The more persuasive evidence establishes that the

proposed change will not adversely affect nest LE-005 and that

the revised BEMP includes adequate protections for the nest and

the eagles using the nest. On these issues, the opinions of the

wildlife ecologists presented by Petitioners were more

persuasive than the opinions of the wildlife ecologists

presented by the City. 9/

103. The more persuasive evidence establishes that the

proposed change is consistent with the City's comprehensive

plan. The revised BEMP protects the environmentally sensitive

plant communities on the subject property, consistent with

Policy 7.2.4; protects and maintains the diverse wildlife on the

subject property, consistent with Objective 7.3; and provides

adequate safeguards to protect nest LE-005 from the impacts of

the proposed development, consistent with Objective 7.6 and

Policy 7.6.1.

CONCLUSIONS OF LAW

A. Jurisdiction

104. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569,

120.57(1), and 380.07, Florida Statutes.

105. Petitioners have standing. See § 380.07(2), Fla.

Stat.

B. Scope of Proceeding

106. Section 380.07, Florida Statutes, provides in

pertinent part:

(2) . . . Within 45 days after the order

is rendered, the owner, the developer, or

the state land planning agency may appeal

the order to [FLWAC] by filing a petition

alleging that the development order is not

consistent with the provisions of this

part. . . .

* * *

(6) Prior to issuing an order, [FLWAC]

shall hold a hearing pursuant to the

provisions of chapter 120. The commission

shall encourage the submission of appeals on

the record made below in cases in which the

development order was issued after a full

and complete hearing before the local

government or an agency thereof.

(7) [FWWAC] shall issue a decision

granting or denying permission to develop

pursuant to the standards of this chapter

and may attach conditions and restrictions

to its decisions.

107. The City argued from the outset of this case that the

resolution of Petitioners' appeal should be based solely upon a

review of the record developed at the City. This argument was

rejected in an Order entered on November 28, 2007.

108. The Order concluded that "[t]his case shall be

conducted as a de novo proceeding under Chapter 120, Florida

Statutes." The Order reasoned as follows:

Section 380.07(6), Florida Statutes,

requires FLWAC to "hold a hearing pursuant

to the provisions of chapter 120" before

deciding an appeal of a DRI development

order. The statute also requires FLWAC to

"encourage the submission of appeals on the

record made below in cases in which the

development order was issued after a full

and complete hearing before the local

government or an agency thereof."

Where, as here, the parties do not agree to

an appeal on the record below, the decision

to be made by FLWAC or the Administrative

Law Judge "is not whether to conduct a de

novo evidentiary hearing as opposed to a

classic appellate review, but whether

certain evidence [i.e., the record below] is

to be admitted at the Chapter 120 hearing."

Transgulf Pipeline Co. v. Gadsden County ,

438 So. 2d 876, 879 (Fla. 1st DCA 1983).

See also General Development Corp. v. Fla.

Land and Water Adjudicatory Comm'n , 368

So. 2d 1323 (Fla. 1st DCA 1979); Cox v. Lake

County , 2001 Fla. ENV LEXIS 259 (FLWAC

2001).

109. The City renewed this argument in its PRO, contending

that a de novo hearing should not have been conducted because

Petitioners did not present any evidence or witnesses at the

final hearing that they did not present at the hearing before

the City. This argument is again rejected based upon Transgulf

and the other decisions cited in the November 28, 2007, Order,

which make clear that the appeal under Section 380.07, Florida

Statutes, is to be a de novo hearing pursuant to Chapter 120,

Florida Statutes, unless the parties agree otherwise.

110. The City also argues in its PRO that state-level

review of DRI development orders is "limited to regional and

statewide issues, not local issues, such as the ones present in

this case." In support of this argument, the City relies

primarily on a 1977 law review article describing the DRI law's

respect for "the principle of localism." 10/

111. This argument is rejected. First, protection of the

bald eagle is an issue of statewide concern, not a "local

issue." Second, Section 380.07, Florida Statutes, does not

limit the issues that can be reviewed on appeal or provide for

different levels of review for "local issues" as compared to

state or regional issues. Third, Section 380.07(7), Florida

Statutes, clearly gives FLWAC, not the local government, the

ultimate authority to determine whether a challenged DRI

development order should be approved. See also Bay Point Club,

Inc. v. Bay County , 890 So. 2d 256, 266 (Fla. 1st DCA 2004)

(Kahn, J., dissenting) ("Rather than vindicating any local

government rights to control development, the majority opinion

bestows that right upon the most centralized institution

conceivable, the Governor and the Cabinet."). Fourth,

comprehensive state-level review serves to ensure that the local

government's decision on the development order complies with the

requirements of the DRI law and is not based upon inappropriate

parochial or political concerns. 11/ See Manatee County v. Estech

General Chemicals Corporation , 402 So. 2d 1251, 1255 (Fla. 2d

DCA 1981).

C. Burden of Proof

112. Petitioners have the burden to prove by a

preponderance of the evidence that the proposed change to the

Bonita Bay DRI should be approved. See Young v. Dept. of

Community Affairs , 625 So. 2d 831, 835 (Fla. 1993); Graham v.

Estuary Properties , 399 So. 2d 1374, 1379 (Fla. 1981); Bay Point

Club, Inc. v. Bay County , Case No. 01-4890, 2002 Fla. Div. Adm.

Hear. LEXIS 1593, at ¶ 44 (DOAH Dec. 11, 2002), adopted , 2003

Fla. ENV LEXIS 49 (FLWAC Mar. 17, 2003), aff'd , 890 So. 2d 256

(Fla. 1st DCA 2004).

D. Merits

113. Section 380.06(19), Florida Statutes, sets forth the

procedure for making changes to an approved DRI.

114. Section 380.06(19)(a), Florida Statutes, provides

that a proposed change that "creates a reasonable likelihood of

additional regional impact, or any type of regional impact

created by the change not previously reviewed by the regional

planning agency, shall constitute a substantial deviation and

shall cause the proposed change to be subject to further [DRI]

review." (Emphasis supplied).

115. Section 380.06(19)(b), Florida Statutes, lists

various changes that are substantial deviations, including:

Any change which would result in development

of any area which was specifically set aside

in the application for development approval

or in the development order for preservation

or special protection of endangered or

threatened plants or animals designated as

endangered, threatened, or species of

special concern and their habitat . . . .

The refinement of the boundaries and

configuration of such areas shall be

considered under sub-subparagraph (e)2.j.

§ 380.06(19)(b)14., Fla. Stat. (emphasis supplied).

116. Section 380.06(19)(e), Florida Statutes, lists

various changes that are not substantial deviations, including:

Changes that modify boundaries and

configuration of areas described in

subparagraph (b)14. due to science-based

refinement of such areas by survey, by

habitat evaluation, by other recognized

assessment methodology, or by an

environmental assessment. In order for

changes to qualify under this sub-

subparagraph, the survey, habitat

evaluation, or assessment must occur prior

to the time a conservation easement

protecting such lands is recorded and must

not result in any net decrease in the total

acreage of the lands specifically set aside

for permanent preservation in the final

development order.

§ 380.06(19)(e)2.j., Fla. Stat.

117. A proposed change that is not a substantial deviation

is still subject to review and approval by the local government,

and in that regard, the flush-left language at the end of

Section 380.06(19)(e)2., Florida Statutes, provides:

This subsection . . . shall require an

application to the local government to amend

the development order in accordance with the

local government's procedures for amendment

of a development order. In accordance with

the local government's procedures, including

requirements for notice to the applicant and

the public, the local government shall

either deny the application for amendment or

adopt an amendment to the development order

which approves the application with or

without conditions. . . . .

118. Furthermore, Section 380.06(19)(f), Florida Statutes,

provides in pertinent part:

3. [T]he local government shall give 15

days' notice and schedule a public hearing

to consider the change that the developer

asserts does not create a substantial

deviation. . . .

* * *

5. At the public hearing, the local

government shall determine whether the

proposed change requires further [DRI]

review. . . .

6. If the local government determines

that the proposed change does not require

further [DRI] review and is otherwise

approved . . ., the local government shall

issue an amendment to the development order

incorporating the approved change and

conditions of approval relating to the

change. The requirement that a change be

otherwise approved shall not be construed to

require additional local review or approval

if the change is allowed by applicable local

ordinances without further local review or

approval. . . .

119. The parties agree that the proposed change at issue

in this case is not a substantial deviation pursuant to Section

380.06(19)(e)2.j., Florida Statutes. Thus, the proposed change

does not require further DRI review.

120. The parties disagree whether the proposed change is

"otherwise approved" for purposes of Section 380.06(19)(f)6.,

Florida Statutes. Petitioners argue that the proposed change is

"otherwise approved" as a matter of law because there is nothing

in the City's land development code requiring additional local

review or approval of the change. The City argues that the

proposed change must be consistent with the City's comprehensive

plan in order to be considered "otherwise approved."

121. Petitioners' argument is rejected in light of Bay

Point Club , supra , in which the en banc court affirmed a final

order issued by FLWAC denying a proposed change to a DRI

development order on the grounds that the change was

inconsistent with the local comprehensive plan. The court

expressly held that proposed changes to previously-authorized

DRIs must "comply with the [local] comprehensive plan," and in

reaching its decision, the court explained that the "and is

otherwise approved" language in Section 380.06(19)(f)6., Florida

Statutes, "clearly and unambiguously requires a proposed change

be subjected to, rather than exempted from, additional local

approval even when no further DRI review is necessary." Bay

Point Club , 890 So. 2d at 259-60.

122. To be consistent with the local comprehensive plan, a

proposed change must be compatible with, and further, all of the

objectives and policies in the plan. See § 163.3194(3)(a), Fla.

Stat.; Franklin County v. S.G.I. Limited , 728 So. 2d 1210, 1211

(Fla. 1st DCA 1999); Bay Point Club , 2002 Fla. Div. Adm. Hear.

LEXIS 1593, at ¶ 46.

123. The City's interpretation of its comprehensive plan

is entitled to deference, but the City's decision to deny the

proposed change is not entitled to a presumption of correctness

in this de novo proceeding. See Estech , 402 So. 2d at 1256.

124. As detailed in the Findings of Fact, the more

persuasive evidence establishes that the proposed change is

consistent with the City's comprehensive plan. Therefore, the

proposed change should be approved.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that FLWAC enter a final order approving the

proposed change to the Bonita Bay DRI.

DONE AND ENTERED this 17th day of April, 2008, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of April, 2008.

ENDNOTES

1/ All statutory references in this Recommended Order are to the

2007 version of the Florida Statutes.

2/ The depositions were received into evidence as Petitioners'

Exhibits 63A (Kilner), 63J (Houck), and 63F (Amico), and City

Exhibit 18 (Trebatoski). Only the highlighted portions of the

depositions were received.

3/ A more recent draft existed at the time of the final hearing,

but that draft was not offered into evidence.

4/ The City relies upon Lee County staff to review environmental

impacts of proposed developments, and the individuals primarily

responsible for evaluating the potential impacts of the proposed

change on nest LE-005 were county staff members Kimberly

Trebatoski and Becky Sweigert.

5/ The record from the City Council hearing was not offered into

evidence. The City Attorney explained that the Board hearing

was "the only time where witnesses are sworn and testify to the

evidence"; that the City Council makes its decision "on the

basis of [the Board hearing] transcript, along with the staff

report and all the documents that are included that they receive

in a package"; that the City Council received "nonsworn

testimony at the time they make their decision," but are advised

by counsel that such testimony is not evidence; and that the

evidence presented to the Board is what constitutes the

substantial competent evidence for the City Council's decision.

See Transcript, at 285-86.

6/ See Petitioners' Exhibit 37, which is a letter from FWCC to

the City Attorney dated April 13, 2007, in which FWCC expresses

its opinion that "the required conservation measures [in the

revised BEMP and amended USFWS biological opinion] are adequate

to protect the eagles and their nest." This letter is hearsay,

but it is corroborated by the testimony of Ken Passarella

concerning the deference that FWCC gives to biological opinions

issued by USFWS in determining whether proposed development will

adversely impact eagle nests.

7/ Despite the results of the study, the authors speculated that

eagles are more likely to respond negatively to disturbance when

development encroaches on the nest site than when the eagle

voluntarily build nests in developed areas. See Joint Exhibit

13, at 1028. There is no credible scientific evidence on this

issue, one way or the other.

8/ All references to specific provisions of the City's

comprehensive plan are to the Conservation/Coastal Management

Element of the plan.

9/ Petitioners' wildlife experts have far more extensive

qualifications and experience concerning eagles than did the

City's wildlife experts. For example, Petitioners' witness Tom

Logan had more than 30 years of work experience with FWCC and

its predecessor agency involving research and management plans

for eagles and other listed species.

10/ See Thomas G. Pelham, Regulating Developments of Regional

Impact: Florida and the Model Code , 29 U. Fla. L. Rev. 789, 814

(1977)). The author of the article is the current Secretary of

the Department of Community Affairs and a respected authority on

Florida's growth management laws.

11/ This last reason is particularly important in this case

because the record does not reflect whether the City Commission

gave any deference to the Board's recommendation to approve the

proposed change even though the Board's recommendation came

after an extensive quasi-judicial hearing in which the Board had

the opportunity to observe the demeanor of the witnesses as they

gave sworn testimony and were subjected to cross-examination.

COPIES FURNISHED :

Barbara Leighty, Clerk

Growth Management and Strategic

Planning

The Capitol, Room 1801

Tallahassee, Florida 32399

Jerry McDaniel, Director

Office of the Governor

The Capitol, Room 1802

Tallahassee, Florida 32399-1001

Jason Gonzalez, General Counsel

Office of the Governor

The Capitol, Suite 209

Tallahassee, Florida 32399-1001

Shaw Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Suite 325

Tallahassee, Florida 32399-2160

Kenneth G. Oertel, Esquire

Jeffrey Brown, Esquire

Oertel, Fernandez, Cole & Bryant, P.A.

Post Office Box 1110

Tallahassee, Florida 32302-1110

Craig D. Varn, Esquire

Jacob D. Varn, Esquire

Fowler White Boggs Banker, P.A.

Post Office Box 11240

Tallahassee, Florida 32302-3240

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.