91-006599DRI Department Of Community Affairs vs. Narciso Padilla And Lake County Status: Closed DOAH Final Order on Monday, May 4, 1992.

Summary: Development of Regional Impact project inconsistent with county land use plan. Threatened harm to the Green Swamp area of critical concern.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 91- 6599DRI

)

NARBI INTERNATIONAL )

INVESTMENTS COMPANY, INC. )

and LAKE COUNTY, )

)

Respondents. )

____________________________)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of

Administrative Hearings by its duly designated Hearing Officer, Donald R.

Alexander, on February 25 and 26, 1992, in Tavares, Florida.

APPEARANCES

For Petitioner: L. Kathryn Funchess, Esquire

2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent: Timothy P. Hoban, Esquire

Lake County 315 West Main Street

Tavares, FL 32778

For Respondent: Max Sabeti

Narbi 4063 Goldenrod Road

Suite 208

Winter Park, FL 32792

STATEMENT OF THE ISSUES

The issue is whether Lake County Ordinance No. 63-90 is consistent with the

county comprehensive plan, county land development regulations and Chapter 28-

26, Florida Administrative Code.

PRELIMINARY STATEMENT

This matter began on December 18, 1990, when respondent, Lake County

(County), through its Board of County Commissioners, adopted Ordinance No. 63-90

which granted a request by respondent, Narbi International Investments Company,

Inc. ( Narbi), to rezone Narbi's property from an agricultural zoning

classification to planned unit development for a proposed development to be

known as Corinthian Park. The property is located within the Green Swamp, an

area designated by statute as an Area of Critical State Concern. Thereafter,

the ordinance, which is a development order, was sent to petitioner, Department

of Community Affairs ( DCA), for its review pursuant to Chapter 380, Florida

Statutes. On August 2, 1991, DCA filed its petition for appeal with the Florida

Land and Water Adjudicatory Commission ( FLWAC) alleging generally that the

ordinance did not conform to the principles for guiding development for the

Green Swamp Area of Critical State Concern, contravened the land use element of

the County's Comprehensive plan, was inconsistent with section 696 of the

County's land development regulations, and had been "rendered" by the County to

DCA in an incomplete fashion as proscribed by Chapter 9J-1, Florida

Administrative Code. On January 2, 1992, petitioner was granted leave to file

an amended petition for appeal in order to make minor changes to paragraphs 12,

13, 20 and 21 of its petition.

The matter was referred by FLWAC to the Division of Administrative Hearings

on October 14, 1991, with a request that a Hearing Officer be assigned to

conduct a hearing. By notice of hearing dated November 7, 1991, a final hearing

was scheduled for February 25 and 26, 1991, in Tavares, Florida.

At final hearing, the County presented the testimony of Greg Beliveau, a

professional planner who was accepted as an expert in land use planning, Russell

C. Melling, director of the County's environmental health care department,

Michael D. Sims, a registered professional engineer and accepted as an expert in

hydrology, geology, and related disciplines, Gregory K. Stubbs, head of the

County's department of planning and development and accepted as an expert in the

Lake County comprehensive plan and code, and James E. Barker, Jr., director of

the County pollution control department and accepted as an expert in the Lake

County code and special environmental matters. Also, it offered County exhibits

1-19. All exhibits were received into evidence. Respondent Narbi was

represented by a director of the corporation, Max Sabeti, who was accepted as a

qualified representative, and adopted the testimony and exhibits of the County.

Also, it offered Narbi's exhibit 1 which was received in evidence. DCA

presented the testimony of Maria D. Abadal, a DCA plan review administrator and

accepted as an expert in land use and comprehensive planning, Michael D.

McDaniel, a DCA community program administrator and accepted as an expert in

land use planning and the administration of critical area use programs, Dr.

Rodney S. Dehan, a DER groundwater program administrator and accepted as an

expert in groundwater resource management, Edward J. Barranco, an HRS

environmental specialist II and accepted as an expert in on-site sewage disposal

systems and their impact, and Daniel M. Pennington, a DER planning manager and

accepted as an expert in land use planning. Also, it offered exhibits 1-3 which

were received into evidence.

The transcript of hearing (four volumes) was filed on March 16, 1992. At

the request of the parties, the time for filing proposed findings of fact and

conclusions of law was extended to April 14, 1992, and the same were filed by

the DCA and County on April 14 and by Narbi on April 15, 1992. A ruling on each

proposed finding has been made in the Appendix attached to this Recommended

Order. By extending the time for filing proposed orders, the parties have

agreed that the time limitations in Rule 28-5.402, Florida Administrative Code,

for submitting this recommended order have been waived.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are

determined:

A. Background

1. This controversy began when respondent, Narbi International Investments

Company, Inc. (Narbi or applicant), made application with respondent, Lake

County (County), to rezone a 108.5 acre tract of land from Agricultural to

Planned Unit Development (PUD). The land lies one and one-half miles west of U.

S. Highway 27 and just north of County Road 474 in the southeastern part of Lake

County. It is also within the boundaries of the Green Swamp Area of Critical

State Concern. The purpose of the rezoning was to allow Narbi to construct a

residential development to be known as Corinthian Park.

2. After certain modifications to the project were made, including a

restructuring of the project to eighty single-family residential units, the

County adopted Ordinance No. 63-90 on December 18, 1990, which granted the

rezoning request. Because the ordinance is a "development order" (DO) within

the meaning of Chapter 380, Florida Statutes, the County rendered a copy of the

ordinance to petitioner, Department of Community Affairs (DCA), for its review.

Concluding that the ordinance was inconsistent with the principles for guiding

development in the Green Swamp Area of Critical State Concern as codified in

Chapter 28-26, Florida Administrative Code, the Lake County Comprehensive Plan

(plan) and the County land development regulations, and had been improperly

"rendered" to DCA for its review, DCA filed a petition for appeal of development

order with the Florida Land and Water Adjudicatory Commission (FLWAC). The

petition was later amended in minor respects. At hearing, petitioner withdrew

its contention that the order had been improperly rendered. In addressing the

above issues, the parties have presented numerous expert witnesses. As might be

expected, there is conflicting testimony on many of the issues. In resolving

these conflicts, the undersigned has accepted the more credible and persuasive

testimony, and the accepted testimony is embodied in the findings below.

B. The Parties

3. Petitioner has been designated as the state land planning agency

charged with the responsibility of administering and enforcing the provisions of

Chapter 380, Florida Statutes. It has the authority to appeal any development

order issued in an area of critical state concern within forty-five days after

the development order is rendered to the DCA. The appeal herein was timely

filed.

4. The County is a political subdivision of the State of Florida and has

the responsibility for issuing development orders for developments in

unincorporated Lake County. Ordinance No. 63-90 is such a development order and

is the subject of this appeal.

5. Narbi is the corporate owner and developer of certain real property in

an unincorporated part of southeastern Lake County consisting of approximately

108.5 acres. The eighty-unit project will be known as Corinthian Park.

C. The Proposed Project and Adjacent Properties

6. From a geographical perspective, Narbi's property lies approximately

twelve miles south of Clermont, Florida, or just north of the Polk County line,

and less than five miles west of the boundaries of Reedy Creek Improvement

District (Walt Disney World) and Orange County. The tract of land is odd-shaped

with a small part fronting on the north side of County Road 474 and the

remainder extending northward through a tract of undeveloped acreage, a small

part of which is an abandoned, dead orange grove. Indeed, because of three hard

freezes in a seven year period, the County has an abundance of former orange

grove operations that are now available for development purposes, and Narbi

seeks to convert its property from agricultural purposes to a residential

development. Except for the development described in the following finding of

fact, the area is largely forests and wetlands, and the area surrounding Narbi's

land is vacant.

7. Approximately one mile west of the project site and to the north of

County Road 474 lie an asphalt plant and excavation fill area. Both of these

activities predated the designation of the Green Swamp as an area of critical

state concern. In addition, a corridor of development lies along U. S. Highway

27 to the east. However, that development sits on or near the Lake Wales Ridge,

which is a high, dry sandy ridge on the eastern boundary of the Green Swamp area

and out of the hydrologic basin of the Green Swamp. The development in that

area includes another approved residential development project known as the

Greater Groves Subdivision, which was given an approval by the DCA for 150,000

square feet of retail space and 445 homes having a density of 2.75 units per

acre, a large, mixed-use tract of land known as South Lake Subdivision having

8,000 units and a DCA-approved density of 13 units per acre, a travel trailer

park, a campground and travel trailer park, and migrant housing. In addition,

there is a 900 acre project one mile west of Corinthian Park called the Ray

Ranch development which is the subject of another DCA challenge. However, at

the time of the final hearing, the parties were in the process of executing a

settlement agreement, the terms of which are not of record. It is noted that

there was no evidence that the Ray Ranch development or any other approved

project was comparable in any respect to Corinthian Park or had the same

physical characteristics as are found on Narbi's land and thus those

developments have no precedential value in this proceeding.

8. The project is designed to have eighty single-family dwelling units on

separate lots with a gross density of .74 units per acre. Prior to the approval

of the rezoning, the site was zoned agricultural with a permitted density of one

unit per five acres. Present plans call for each home, including driveways, to

have a maximum 3,000 square feet. A central water system will serve the

subdivision but individual septic tanks will be utilized for each home. Narbi

proposes to construct the project in three phases consisting of 30, 27 and 23

lots, respectively. However, the third phase cannot be constructed until the

County adopts a new stormwater management ordinance that meets the DCA's

approval.

9. After the build out is completed, approximately forty-eight percent of

the acreage, or fifty-two acres, including all wetlands on the property, will be

dedicated to conservation, preservation, recreation and open space areas. At

the same time, eight percent of the acreage will have impervious surfaces, roads

and houses, while the remaining ninety-two percent will have pervious or

noncovered areas.

10. Narbi's property contains 26.1 acres of wetlands and approximately ten

acres within the 100 year flood plain. The only alteration to the flood plain

will be one road crossing, and all water retention areas are to be located

outside of the 100 year flood plain. In addition, stormwater runoff will be

treated before going into the flood plain. The remainder of the property

consists of pine flatwoods and uplands. The center of the property, which once

contained a small orange grove, has been cleared. The features on this property

are similar to those found on other property in the immediate area, all of which

is zoned agricultural.

D. The Green Swamp and its Significance

11. In 1979, a part of an area known as the Green Swamp was designated by

the legislature as an area of critical concern. As such, it is one of only four

areas in the state given this designation. The area was accorded special

protection because of its significance as a source of potable water, its

function as a wildlife habitat and refuge, and its importance as a high recharge

area for the Floridan Aquifer. The designated area covers approximately 900

square miles in parts of Lake and Polk Counties and consists largely of

undeveloped forested and wetland areas. In addition, five major rivers

originate in this portion of the State. It should be noted that all of the land

in and around Narbi's project which lies west of U. S. Highway 27 is within the

Green Swamp area.

12. The Floridan Aquifer underlies the entire state except for the extreme

northwestern corner. It serves as a source of drinking water for one-half of

the state's population and thus constitutes the state's principal water supply

aquifer. The Green Swamp is a source of recharge (or replenishment through the

downward percolation of surface water into the aquifer) of the groundwater in

the aquifer thereby allowing the aquifer to maintain its volume and high quality

of water. A principal feature of the aquifer is a series of limestone

formations which lie below the ground surface keeping the fresh water under

pressure. The high point ( potentiometric surface) of the pressure system occurs

in the Green Swamp thus giving that area critical importance.

13. In the area around Narbi's project, there is a layer of sand overlying

the aquifer. There is also a geologic fault that allows direct connection to

the aquifer. This means that in this area there is direct recharge into the

aquifer with very little filtration to remove contaminants. Even where a clay

layer exists over the aquifer, it is not confining because it contains cracks,

fissures, and outcroppings of limestone which allow direct contact into the

aquifer. Moreover, clay soils do not retain organic compounds, but allow them

to filter through to the aquifer. Thus, the aquifer is vulnerable to

contamination found in runoff which percolates without filtration into the

aquifer.

E. The Documents Governing this Controversy

14. The land use element of the comprehensive plan was originally adopted

in February 1977 and has been amended from time to time. It applies within the

unincorporated portions of the County. On November 5, 1985, the County adopted

Ordinance 1985-19 which brought the plan into conformity with all state

regulations regarding the Green Swamp Area of Critical State Concern, including

the principles for guiding development. Those principles are codified in

Chapter 28-26, Florida Administrative Code. It is noted that in 1986 the DCA

determined that the 1977 plan, as amended through 1985, and the land development

regulations, as amended through 1985, were in compliance with state law as they

applied to those portions of the Green Swamp Area of Critical State Concern

within Lake County. That approval is codified in Chapter 9J-8, Florida

Administrative Code.

15. The conservation element to the plan was adopted on June 4, 1980, and

sets forth various goals, objectives and policies "aimed at protecting the

natural environment from misuse." There is also a compendium of land

development regulations found in a document known as the Lake County Zoning

Regulations, as amended 1988, which are relevant since they provide regulations

governing the development of a PUD and include the zoning map which was changed

by virtue of the rezoning application. Effective July 9, 1991, the County

adopted a new comprehensive plan. However, Narbi's rezoning request is subject

to the old plan requirements.

F. Consistency with County Comprehensive Plan

16. According to the amended petition for appeal, as later clarified by

the DCA, Ordinance No. 63-90 is inconsistent with the county comprehensive plan

in two respects. First, DCA contends that the proposed residential density for

Narbi's project is inconsistent with a land use element, three general plan

policies and one objective set forth in the comprehensive plan. More

specifically, it contends that the approved density contravenes the conservation

subsection of the plan categories for residential uses, policies 4, 10 and 11 of

the general plan policies, and objective 5 of the conservation element of the

plan. All of these items were specifically incorporated into the plan to

provide special protection to the Green Swamp Area of Critical State Concern.

DCA also asserts that the ordinance is in conflict with Section 3.C. of the land

use element (the Urban Containment Policy) in that the project would constitute

or contribute to "leapfrogging and uncontrolled urban sprawl." These

contentions are addressed separately below.

17. The conservation plan category for residential uses is found in

section 4 of the land use element. In all, six plan categories were established

to provide a range of residential density to be used in various categories of

land use, including conservation areas. As is relevant here, the conservation

element provides that county lands lying within the Green Swamp Area of Critical

State Concern are determined to be of environmental value and should be

"conserved". The conservation element goes on to define the term "conserve" to

mean:

uses such as parks, agriculture, very low

density residential which will not overly

damage natural conditions, as well as,

"no development" use.

The cited general plan policies are found in the land use plan element and were

developed for the purpose of "implement( ing) the urban containment policy and to

establish policies to develop the land use map, upon which the resulting zoning

map will be based." Among them is policy 4 pertaining to residential

development in the County. In 1985, the County amended policy 4 by adding

subsection E. to provide that all residential development within the Green Swamp

Area of Critical State Concern shall conform to the principles of guiding

development. Those principles of guiding development are more fully discussed

in a subsequent section of this Recommended Order. Also relevant is policy 10

requiring that the County give "full consideration . . . to environmental

factors . . . as they pertain to land use" and that a conservation element be

established. Finally, policy 11 recognizes agriculture as an important and

necessary economic activity within the County, provides that adequate and

appropriate water shall be reserved for its continuance, and provides further

that urban development shall be discouraged in those portions of the County

presently used as agriculture. The last item cited by the DCA is objective 5 of

the conservation element which pertains to environmentally sensitive areas. It

establishes a goal of preserving "those environmentally sensitive areas . . . in

order to safeguard Lake County's natural resources for present and future

residents."

18. The above cited provisions of the plan show clearly that the site of

Narbi's project is considered to be an environmentally sensitive area which must

be afforded special protection. The plan itself uses such terms as "very low

density", "no development", "conserve" and "preserve" in describing the type of

development to be allowed. At the same time, in order to comply with its plan,

the County is obliged to give full consideration to environmental factors,

discourage urban type development in portions of the county now zoned

agricultural, and preserve sensitive areas for future residents.

19. In devising residential densities for various plan categories, the

County has adopted the following guidelines:

Estate 1 unit per 3 or more acres

Low Density 1.1 - 2.75 units per acre

Medium 2.76 - 7.0 units per acre

High 7.1 - 15.0 units per acre

However, as noted earlier, the conservation element calls for "very low

residential" density in lands to be "conserved", such as those in the Green

Swamp area where Narbi's project will be located. As can be seen, there is no

plan category for "very low residential", and this omission underpins in part

the controversy between the parties. At hearing, the parties sharply differed

on what gross density falls within the category of "very low residential".

Since the plan defines "low density" residential as 1.1 to 2.75 units per acre,

the County takes the position that anything below that level of density,

including the proposed .74 units per acre for Narbi's project, would necessarily

fall within the very low density category. Indeed, it has consistently

interpreted the plan in this manner since the 1985 amendment was adopted.

20. The DCA contends that a density of .2 units per acre (or one unit per

five acres) is consistent with the conservation element of the plan. This view

is deemed to be more credible and reasonable since that element refers to parks,

agricultural, very low density and no development uses as being appropriate for

the Green Swamp area. This interpretation of the term "very low density" is

also consistent with other portions of the plan in that only scattered,

residential housing was contemplated in environmentally sensitive lands, the

residential density for agricultural lands is one unit per five acres and thus

this residential density would be consistent with the lands surrounding Narbi's

project, and the DCA's suggested density is lower than the one unit per three

acres approved for estates, a category that falls between regular residential

and agricultural densities. It is also noted that a one unit per five acres

density would be more compatible with the objective of safeguarding the County's

natural resources for future residents, and the general policies of discouraging

urban type development on lands now zoned agriculture, "conserving" protected

lands, and giving "full consideration" to environmental factors. Therefore, it

is found that Ordinance 63-90 is inconsistent with the conservation subsection

of the plan categories, general plan policies 4, 10 and 11, and objective 5 of

the conservation element of the plan.

21. The DCA also contends that the project would constitute or contribute

to "leapfrogging and urban sprawl" and thus be violative of section 3.C. (urban

containment policy) of the plan. That policy is found on page 1-12 of the land

use element of the plan and provides in part as follows:

Only limited expansion shall be approved

beyond the current limits of any Urban Area

or Urban Compact Node until the gross

residential density of that existing Urban

Area reaches two dwelling units per acre.

Further, no urban development should be

permitted unless the half section(s) in which

it is situated be contiguous with the declared

urban area. This limitation does not apply

to agricultural uses requiring approval

procedures, such as, conditional use permits

and site plan approval in the agricultural

zoning districts. The intent of this

recommendation is to prevent "leapfrogging"

and uncontrolled urban sprawl, but without

creating an undesirably high density urban

environment.

* * *

The urban containment policy then is the

general framework upon which the Lake County

Land Use Plan and the resultant implementative

ordinances and policies are based. The Urban

Containment Policy is based on limited growth

in rural areas rather than on existing trends.

Almost all proposed development is placed in

or around existing urban areas, so that urban

services and transportation facilities can be

provided economically. Environmentally

sensitive areas were avoided whenever possible

as were agricultural areas. (Emphasis added)

The same policy goes on to establish ten criteria for the location of urban

activities. Among them are two which provide that (a) urban development should

be "clustered around existing communities" and (b) "areas for rural density

residential development are limited to existing areas that have low agricultural

potential." It is noted that the County has classified the existing development

along U. S. Highway 27 to the east of the project site as being an urban compact

node.

22. The County does not view the urban containment policy as being a

barrier to the Narbi project for several reasons. First, it does not consider

the project as being "urban development" within the meaning of the plan and thus

believes the urban containment policy has no application. Second, in light of

the high start-up costs for developing orange groves, which was the former use

of a small part of the property, it sees no agricultural potential for the land.

As to the first reason, the plan considers urban areas to be those areas in

which residential use is more than one dwelling unit per gross acre. The plan

does not have a similar provision for rural areas in terms of residential

density. However, the County has historically interpreted its plan to mean that

anything "non-urban" is rural. Since the plan defines the minimum threshold for

residential low density in urban areas as being 1.1 units per acre, the County

construes all development outside of urban areas to be rural or non-urban so

long as the density is less than 1.1 units per acre. Thus, it considers the

contention that the project constitutes urban sprawl to be misplaced. As to the

second reason, the County forsees no agricultural potential in Narbi's property.

Therefore, it views the project as being consistent with the criterion that

"areas for rural density residential development are limited to existing areas

that have low agricultural potential."

23. On page 1-3 of the land use element, the term "urban sprawl" is

defined as "the scattering of generally low-intensive developments in suburban

and rural areas." The plan goes on to state that urban sprawl "causes severe

problems for local municipalities and the County," imposes a "heavy" financial

burden on local jurisdictions for added services, and "yields a low return on a

large capital investment" by extending public services through undeveloped lands

to outlying developments. After recognizing these adverse impacts, the policy

states that its intent is to "prevent 'leapfrogging' and uncontrolled urban

sprawl" especially in "environmentally sensitive areas."

24. The County's definition of urban sprawl is similar in many respects to

the definition used by DCA. Though the term is not defined by statute or agency

rule, the agency has, on a case by case basis, utilized a nonrule policy of not

favoring development orders which approve projects that constitute or contribute

to urban sprawl. The DCA construes the term to mean a development pattern that

is associated with scattered, low intensity, unplanned, uncontrolled development

that is usually approved in what are generally rural areas. When this occurs,

there is no coordination between such development and public facilities and

services or the protection of natural resources. Put another way, urban sprawl

results in the inefficient use of public services, higher costs to local

government, and a lack of protection for natural resources. Thus, the policy

used by DCA is rational, logical and persuasive and is supported by an adequate

record foundation.

25. There are three types of urban sprawl: leapfrog development, strip

development, or single use pattern of development. Leapfrog development is

described in the record as being a spot zone type of development in which vacant

areas have been bypassed, and where a single development exists in an outlying

area that is not contiguous or connected to an existing residential pattern. It

is also a land use that is incompatible with the surrounding land uses. In this

case, the Corinthian Park project falls within the category of leapfrog

development.

26. Applying the above considerations to the project in question, it is

found that the project is inconsistent with the plan's urban containment policy.

More specifically, the project falls within the definition of leapfrogging and

urban sprawl as defined by the plan and DCA, and most importantly, the County's

urban containment policy specifically recommends that this type of growth be

"avoided whenever possible" in environmentally sensitive areas. In making this

finding, the undersigned has rejected the County's contention that the proposed

subdivision is non-urban development and has accepted the DCA testimony which

establishes that a level of density no greater than one unit per five acres is

properly considered rural density. Therefore, the development is properly

characterized as urban. Next, while the land probably has little potential for

agricultural purposes as the County suggests, that consideration is but one of

many in the determination of whether the project violates the urban containment

policy. When weighed against the admonitions that there be "only limited

expansion . . . beyond the current limits of an . . . urban compact node", that

the purpose of the policy is to "prevent 'leapfrogging' and uncontrolled urban

sprawl", that there be "limited growth in rural areas", and that such growth be

"avoided whenever possible" in environmentally sensitive areas, it is found that

Ordinance 63-90 is in contravention of Section 3.C. of the plan.

G. Consistency With Land Development Regulations

27. This issue involves allegations by the DCA that the proposed increase

in residential density for the project is incompatible with subsection 696.20B.

of the zoning code and that the site alteration criteria in Rule 28-

28.28.008(7), Florida Administrative Code, have not been met. The latter

allegation has been categorized as a land development regulation issue since

such regulations, if properly enacted, should require compliance with chapter

28-28. In addition, the County has cited section 696.13 of the zoning code as

authorizing the approval of the rezoning application. Findings regarding the

validity of these allegations are set forth below.

28. Paragraph B.1. of Section 696.20 provides the following criterion for

residential density in a PUD:

1. Density. The criteria for establishing

the residential gross density (not including

natural water bodies) shall be:

a. Compatibility with other zoning districts

in the vicinity of subject property with

adopted densities in the Lake County Land Use

Element of the comprehensive plan.

DCA contends that the approved density for Narbi's project is in violation of

the above criterion. As noted earlier, the authorized (adopted) residential

density for agricultural zoning is one unit per five acres. All of the land

surrounding the site of the project is now zoned agricultural. Thus, with a

proposed density of .74 units per acre, the project will be inconsistent with

the adopted density for the surrounding lands as proscribed by subsection

696.20B.

29. Even though the County's land development regulations do not

specifically require compliance with Rule 28-28.008(7)(a), Florida

Administrative Code, Ordinance 63-90 must still meet its requirements. That

rule pertains to site alteration limitations in the Green Swamp area with the

aim of preserving the natural drainage capabilities of major soil associations.

The rule limits the amount of site alteration to the following percentages of

the area of each association within any given total site:

Upland association 60%

Pine flatwood

association 25%

Wetland association 10%

In other words, only ten percent of wetlands, twenty-five percent of pine

flatwoods, and sixty percent of the uplands can be disturbed. The remainder of

the area must remain in its natural state.

30. As now proposed, the project exceeds the criteria for pine flatwoods

and upland areas by some twenty acres. That is to say, Narbi proposes to

develop approximately twenty acres of pine flatwoods and upland areas that

should remain undisturbed under the rule criteria. All of the excess acreage is

related to phase 3 of the project which, assuming the County prevails in this

action, is still on hold until the County adopts a stormwater drainage ordinance

meeting DCA's approval. It is noted, however, that even after the approval of

an ordinance, there is no guarantee that this would cause DCA to waive the

requirements of the rule.

31. Section 696.13 of the zoning code prescribes a four-step process for a

developer to secure final plat approval and construct a PUD. In general terms,

these steps are rezoning, preliminary plat or preliminary plan, construction

drawings, and final plat. As of the time of hearing, Narbi had only completed

the first of the four steps. Later on in the process, Narbi will be required to

give the County more detailed engineering and technical data regarding the

project, and it will not be allowed to complete construction of the project

until the final plat is approved and recorded. The County suggests that since

phases 1 and 2 of the project meet the site alteration criteria for both

flatwood areas and uplands, Narbi should be allowed to proceed with construction

of the project as to those two phases, but not allowed to complete phase 3 until

the stormwater drainage ordinance is approved and Narbi can demonstrate

compliance with the rule and other criteria through more detailed information.

32. Besides the fact that it would be difficult, if not impossible, to

revoke the zoning once Narbi had completed two of the three phases of the

project, the criteria in rule 28-28.008(7)(a) are applied to the entire project,

and not just on a phase by phase basis. Thus, to demonstrate compliance with

the rule, an applicant must show compliance with the site alteration criteria

for the total project. In addition, approval of the stormwater drainage

ordinance by itself does not necessarily mean that the rule criteria will be

waived. Therefore, it is found that Ordinance 63-90 is incompatible with

section 696.20 of the land development regulations and rule 28-28.008(7)(a).

H. Consistency with Chapter 28-26

33. The Florida Cabinet, sitting as the Administration Commission, has

promulgated Chapter 28-26, Florida Administrative Code, which defines the

boundaries of the Green Swamp Area of Critical State Concern and provides

principles for guiding development within that area. These principles are

designed to conserve and protect the natural environmental resources and public

facilities within the designated area and ecologically linked areas and apply to

all development within the critical area. The principles contain eleven

objectives which are codified as paragraphs (a) through (k) of rule 28-

26.003(1).

34. Relevant to this proceeding are the objectives in paragraphs (a)-(d)

and (g) of rule 28-26.003(1), which seek to "minimize the adverse impacts of

development on resources of the Floridan Aquifer, wetlands and flood-detention

areas", "(p) rotect . . . ground water and surface water which are necessary for

the protection of resources of state and regional concerns", "(p) rotect the

water available for aquifer recharge", "(p) rotect the functions of the Green

Swamp Potentiometric High of the Floridan Aquifer", and "(p) rotect . . .

existing ground and surface-water quality." By its appeal, DCA asserts that

Ordinance 63-90 is in violation of each of those objectives and thus is

inconsistent with the comprehensive plan which has adopted these objectives.

The validity of this allegation turns on whether the use of individual septic

tanks for each home in the subdivision will adversely affect the groundwater

quality of the Green Swamp, and whether the project itself will negatively

impact the groundwater and the Floridan Aquifer. In resolving these factual

issues, the undersigned has discounted the County's contention that because it

is prohibited by special act from regulating wastewater facilities with an

average flow of less than 1200 gallons per day, and residential septic tanks

have a much lower average daily flow, the County had no authority to deny the

rezoning request on the ground septic tanks would be used at each home site.

This is because the County has far wider authority under its plan to disapprove

a project because of an applicant's failure to comply with chapter 28-26.

35. The development order requires that, as a prerequisite to obtaining a

building permit, the applicant meet the minimum requirements for septic tanks

pursuant to Chapter 10D-6, Florida Administrative Code. That chapter, which is

administered by the Department of Health and Rehabilitative Services (HRS),

provides minimum construction standards for septic tanks on a statewide basis,

except for the Florida Keys. Under this chapter, an applicant must obtain a

permit from HRS to install a septic tank. It should be noted that these

statewide standards are construction standards and not performance-based

standards for monitoring environmental degradation. In addition, the standards

do not take into account environmentally-sensitive lands such as those having an

Area of Critical State Concern designation. Thus, it is found that the chapter

10D-6 requirements are primarily intended to protect the public health as

opposed to the environment.

36. On-site sewage disposal systems are made up of two components: the

septic tank component and the soil infiltrative component. The tank is nothing

more than a holding tank designed to (a) separate solids and floatable materials

contained in domestic wastewater and (b) allow anaerobic digestion of the

organic materials by anaerobic type organisms. The remaining clear effluent

then exits the tank into the soil infiltrative process, which is a network of

drain pipes placed in a twelve-inch layer of gravel. The network is more

commonly referred to as the drain field. The drain field distributes the

effluent evenly throughout that area of land. It is then treated by the soils.

After traveling through the soils, the effluent eventually enters the

groundwater table. Because the drain field provides the only treatment to the

effluent after it leaves the tank, it is important that the soils in which the

drain fields are placed have good soil hydraulic conductivities and that the

distance from the pipes to the groundwater table be adequate.

37. In the project area where the tanks are to be placed, the water table

will be only ten inches below the bottom of the drain field system. In

addition, the sands in that area are Immokalee, Myakka and Placid sands and are

considered either moderately or severely limited for on-site sewage disposal

systems. This is because those types of sand allow the effluent to percolate

through the soil more quickly than other types of soil and thus the effluent

receives very little treatment prior to entering the groundwater.

38. Comtaminants such as nitrogen, phosphorus, toxic biodegradable and

non-biodegradable organic compounds are often present in domestic wastewater

and, because of the soil composition and water table elevation, could be

expected to enter the groundwater from the septic tanks.

39. Chapter 10D-6 does not provide for follow-up inspections by HRS for

residential septic tank systems. An inherent problem with the use of septic

tanks is that property owners fail to properly maintain their septic tank

systems. As a general rule, maintenance is undertaken only when the organic

loading to the system has been substantial enough to make it back up in the

home. In addition, a septic tank failure can go undetected long enough for the

introduction of contaminants into the groundwater.

40. Although Narbi has agreed to modify its plans and to install 1,000

gallon septic tanks and water savers for toilets and showers to reduce the

loading rate in each home to 333 gallons per day rather than the average of 450,

there will still be unacceptable levels of contaminants entering the groundwater

without adequate treatment. This is true even if the tanks are constructed in

accordance with chapter 10D-6. Therefore, it is found that Ordinance 63-90 is

inconsistent with the plan in that the adverse impacts caused by the use of

individual septic tanks in the density proposed for the project will result in a

violation of the objectives in paragraphs (a) through (d) and (g) of rule 28-

26.003(1).

41. The DCA also asserts that the project itself will negatively impact

the groundwater and the Floridan Aquifer. As noted earlier, the project sits on

the eastern edge of the Green Swamp Area of Critical State Concern. A geologic

fault found beneath the surface of the ground allows direct connection to the

Floridan Aquifer. At the same time, there is no confining clay layer overlying

the aquifer, and the soil in the project area is of the type that provides very

little filtration to harmful contaminants which percolate through the soil and

into the groundwater.

42. Nitrates are contaminants that are generated from a variety of

sources, including human beings and warm-blooded animals. A large amount of

nitrates can be expected to be generated in the project area thereby causing

contamination of the groundwater. Although it is possible to filter nitrates

through complex and expensive technology, the applicant has not proposed this

curative measure. It should be noted that soils by themselves do not adequately

filter nitrates out of the runoff.

43. There are also 26.1 acres of wetlands on Narbi's property. Because of

the interaction between the surface water and groundwater, it is possible over

the long-term for the contaminants and runoff to adversely impact the wetlands.

A lowering of the groundwater quality will indirectly lower the quality of the

wetlands water or its base flow.

44. Once contaminants enter the groundwater, they have a very long

residence time. This is because the groundwater is a protected confined medium,

not subject to the sun's ultraviolet radiation nor oxidation by air, and it has

a very stable PH. Although Narbi has proposed to have stormwater runoff

designed to meet the Outstanding Florida Waters ( OFW) criteria, this in itself

is insufficient to assure that the groundwater will not be harmed. Given these

considerations, it is found that Ordinance 63-90 violates the plan in that the

project will cause a violation of the objectives in paragraphs (a) through (d)

and (g) of rule 28-26.003(1).

I. Conditions Under Which the Project Can be Approved

45. The evidence supports a finding that if the proposed density of the

project is downsized to one unit per five acres, and all other provisions in the

plan are satisfied, as well as the site alteration criteria in rule 28-

28.008(7)(a), the rezoning application may be approved.

CONCLUSIONS OF LAW

46. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida

Statutes (1991).

47. In application proceedings for developments of regional impact, the

burden is on the State to show that an adverse impact will result if the project

as proposed goes forward. The Babcock Co. v. State, Land & Water Adjudicatory

Commission, 558 So.2d 76 (Fla. 1st DCA 1990) rev. dism, 567 So.2d 434 (Fla.

1990). Once that burden is met, the burden of proof shifts to the applicant

(and County) to prove that its curative measures are adequate. However, as was

done here, it is entirely appropriate to order the applicant and County to have

the burden of going forward initially. Young v. State, Department of Community

Affairs and FLWAC, 567 So.2d 2 (Fla. 3rd DCA 1990).

48. This controversy involves an appeal by the DCA under Subsection

380.07(2), Florida Statutes (1991) of a development order and land development

regulation (Ordinance No. 63-90) issued in an area of critical state concern.

As such, all proposed development activities must be "in accordance with

(chapter 380)". Subsection 380.05(16), F. S. (1991). Under Subsection

380.07(4), Florida Statutes (1991) the undersigned's responsibility is to

prepare a recommended order for the Florida Land and Water Adjudicatory

Commission recommending the granting or denying of permission to develop

pursuant to chapter 380 and any conditions or restrictions that may be

appropriate.

49. In its appeal, as amended, the DCA contends that the development order

is not consistent with the (a) County comprehensive plan, (b) County land

development regulations and Rule 28-28.008(7)(a), Florida Administrative Code,

and (c) principles for guiding development within the Green Swamp area as

codified in Chapter 28-26, Florida Administrative Code. The more credible and

persuasive evidence supports a conclusion that (a) Ordinance 63-90 is

inconsistent with the conservation element of the plan categories, general plan

policies 4, 10 and 11, objective 5 of the conservation element of the plan, and

the urban containment policy of the plan (section 3.C); (b) Ordinance 63-90 is

inconsistent with section 696.20 of the land development regulations and Rule

28-28.008(7)(a), Florida Administrative Code; and (c) Ordinance 63-90 is

inconsistent with the objectives set forth in paragraphs (a) through (d) and (g)

of Chapter 28-26, Florida Administative Code, also known as the principles for

guiding development within the Green Swamp Area of Critical State Concern.

Therefore, it is concluded that the County's approval of Ordinance 63-90 should

be rescinded and the prior zoning on the property reinstated. It is further

concluded that in the event the developer agrees to use a project density of no

more than one unit per five acres and otherwise shows compliance with all

provisions within the plan and rule 28-28.008(7)(a), it may proceed with its

development.

50. In reaching the above conclusions, the undersigned has given

thoughtful consideration to the contentions raised by the County and Narbi.

Most, if not all, turn on the issue of the credibility of the witnesses, which

issue has been resolved in the DCA's favor. While some of the County's

positions might well stand muster under normal circumstances, it should be

recognized that the land sought to be developed here is one of four areas in the

state with an area of critical state concern designation. As such, it is to be

accorded the highest protection due to its importance as the source of drinking

water for millions of the State's residents. With this in mind, once the DCA

established the adverse impact that would result if the project as proposed went

forward, the burden shifted to Narbi and the County to prove that their curative

measures were adequate. Having failed to do so, Narbi's request for rezoning

must fail.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

recommended that the Florida Land and Water Adjudicatory Commission enter a

final order rescinding approval of Ordinance 63-90; that the order state that

Narbi International Investments Company, Inc. may develop the project if it

reduces the density to one unit per five acres and otherwise shows compliance

with all provisions in the plan and rule 28-28.008(7)(a); and that Lake County

be directed to properly administer and enforce its land development regulations

in accordance with chapter 380.

RECOMMENDED this 4th day of May, 1992, in Tallahassee, Florida.

___________________________________

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of May, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91- 6599DRI

Petitioner:

1. Accepted in finding of fact 3.

2. Accepted in finding of fact 4.

3. Accepted in finding of fact 5.

4-5. Accepted in finding of fact 8.

6. Accepted in finding of fact 11.

7. Accepted in finding of fact 8.

8-9. Accepted in findings of fact 14 and 15.

10. Accepted in finding of fact 11.

11-12. Accepted in finding of fact 7.

13. Accepted in findings of fact 29 and 30.

14. Partially accepted in finding of fact 6.

15. Accepted in finding of fact 30.

16. Accepted in finding of fact 19.

17. Accepted in finding of fact 20.

18. Accepted in finding of fact 17.

19-20. Accepted in finding of fact 20.

21. Accepted in finding of fact 24.

22-24. Accepted in finding of fact 25.

25. Rejected as being unnecessary.

26-27. Accepted in finding of fact 21.

28. Accepted in finding of fact 23.

29-30. Accepted in finding of fact 26.

31. Rejected as being unnecessary.

32. Accepted in finding of fact 31.

33-36. Accepted in finding of fact 12.

37-40. Accepted in finding of fact 13.

41-42. Accepted in finding of fact 42.

43. Accepted in finding of fact 41.

44. Accepted in finding of fact 44.

45. Rejected as being unnecessary.

46. Accepted in finding of fact 43.

47-51. Accepted in finding of fact 44.

52-54. Accepted in finding of fact 37.

55. Accepted in finding of fact 38.

56-57. Accepted in finding of fact 35.

58-60. Accepted in finding of fact 39.

61. Rejected as being unnecessary.

62-63. Accepted in finding of fact 40.

Respondent County:

1. Accepted in finding of fact 5.

2. Accepted in finding of fact 4.

3. Accepted in finding of fact 3.

4. Accepted in finding of fact 11.

5. Accepted in finding of fact 14.

6. Rejected as being unnecessary.

7-8. Accepted in finding of fact 2.

9. Accepted in finding of fact 8.

10. Partially accepted in finding of fact 9. The remainder is rejected. See

finding of fact 43.

11. Accepted in finding of fact 44.

12-13. Accepted in finding of fact 10.

14-15. Accepted in finding of fact 9.

16-20. Accepted in finding of fact 20.

21. Rejected as being contrary to the more credible evidence.

22. Accepted in finding of fact 30.

23. Rejected as being contrary to the more credible evidence.

24. Accepted in finding of fact 11.

25. Accepted in finding of fact 13.

26. Accepted in finding of fact 34.

27. Rejected as being unnecessary.

28. Partially accepted in finding of fact 40.

29. Accepted in finding of fact 35.

30. Rejected as being contrary to the more credible evidence.

31-32. Rejected as being unnecessary.

33. Rejected as being irrelevant.

34-35. Rejected as being contrary to the more credible evidence.

36. Rejected as being unnecessary.

37. Rejected as being irrelevant.

38. Accepted in finding of fact 40.

39. Partially accepted in finding of fact 40. The remainder has been

rejected as being contrary to the more credible evidence.

40. Accepted in finding of fact 40.

41. Rejected as being contrary to the more credible evidence.

42. Partially accepted in finding of fact 44.

43-52. Rejected since the testimony of witness Dehan has been accepted on this

issue.

Respondent Narbi:

1. Rejected as being irrelevant.

2. Rejected as being contrary to the more credible evidence.

3. Rejected as being unnecessary.

4-7. Rejected as being contrary to the more credible evidence.

8-9. Rejected as being irrelevant for the reasons cited in finding of fact 7.

10. Partially accepted in finding of fact 19. The last sentence is rejected

as being contrary to the more credible evidence.

11-12. Rejected as being contrary to the more credible evidence.

13. Rejected as being irrelevant.

14. Partially accepted in finding of fact 24. The last sentence is rejected

as being contrary to the more credible evidence.

15. Rejected as being contrary to the more credible evidence.

16. Accepted in finding of fact 31.

17-18. Rejected as being irrelevant.

19. The first sentence is rejected as being contrary to the more credible

evidence. The second sentence is accepted in finding of fact 44.

20. Rejected as being unnecessary.

21. Accepted in finding of fact 8.

22. Rejected as being contrary to the more credible evidence.

23. Rejected as being irrelevant.

24. Rejected as being contrary to the more credible evidence.

25. Accepted in finding of fact 40.

26-29. Rejected as being contrary to the more credible evidence.

30. Rejected as being irrelevant.

31-32. These matters were considered in evaluating the testimony of the

witnesses.

COPIES FURNISHED:

Douglas M. Cook, Director

Land and Water Adjudicatory Commission

The Capitol, PL-05

Tallahassee, FL 32399-0001

L. Kathryn Funchess, Esquire

2740 Centerview Drive

Tallahassee, FL 32399-2100

Timothy P. Hoban, Esquire

315 West Main Street

Tavares, FL 32778

Max Sabeti

4063 Goldenrod Road

Suite 208

Winter Park, FL 32792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED

ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT

WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL

ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS

TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE

FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.