97-005053DRI Department Of Community Affairs vs. Charlotte County, Mrp Land Trust And Riverwood Land Development Company Limited Partnership Status: Closed Recommended Order on Monday, April 13, 1998.

Summary: County resolutions approved noticed of proposed change to existing DRI as not a substantial deviation. DCA appeals arguing that abandonment of bald eagle nest did not change property bald eagle habitat status. Finding for DCA; insuff. wildlife survey.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Petitioner, )

)

)

vs. ) Case No. 97-5053DRI

)

CHARLOTTE COUNTY, a political )

subdivision of the State of )

Florida; MRP LAND TRUST, Owner; )

and RIVERWOOD LAND DEVELOPMENT )

COMPANY LIMITED PARTNERSHIP, )

Developer, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on January 8 and 9, 1998, in Port Charlotte, Florida, before

Lawrence P. Stevenson, a duly designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Shaw P. Stiller, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Respondent, Carl Kitchner

Charlotte County: Assistant County Attorney

118500 Murdock Circle

Port Charlotte, Florida 33948-1094

For Respondents, Kenneth G. Oertel, Esquire

MRP Land Trust Oertel, Hoffman, Fernandez

and Riverwood & Cole, P.A.

Land Development Post Office Box 6507

Company: Tallahassee, Florida 32314-6507

STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether

Charlotte County Resolution Number 97-0870A0 (titled “A

Resolution Amending Resolution #90-286, the Increment One DO for

Riverwood DRI, as Amended by Resolutions #91-268, 92-07, 93-21,

94-38 and 95-190; Finding That This Amendment Does Not Constitute

a Substantial Deviation; and Providing for an Effective Date”)

and Charlotte County Resolution Number 97-0860A0 (titled “A

Resolution Amending Resolution #90-285, the Master DO for

Riverwood DRI, as Amended by Resolution #91-267; Finding That

This Amendment Does Not Constitute a Substantial Deviation; and

Providing for an Effective Date”)(collectively referred to herein

as “the Resolutions”) are consistent with Chapter 380, Florida

Statutes; Rule 9J-2, Florida Administrative Code; the State

Comprehensive Plan; the State Land Development Plan; and the

Riverwood Master Development Order, as amended.

PRELIMINARY STATEMENT

By a Notice of Appeal and Petition filed with the Florida

Land and Water Adjudicatory Commission on September 15, 1997,

pursuant to Section 380.06, Florida Statutes, and Rules 9J-2.026

and 42-2.002, Florida Administrative Code, Petitioner appealed

two ordinances adopted by the Charlotte County Board of County

Commissioners on July 29, 1997. These resolutions amended the

Master Development Order (“MDO”) and the Increment One

Development Order (“Increment One DO”) for the Riverwood

Development of Regional Impact ("DRI"), as more fully described

below, to add a 67.6 acre-parcel to said development orders. The

67.6 acre-parcel at issue had been subject to a Bald Eagle

Management Plan, and was characterized by Petitioner as having

been set aside in preservation as bald eagle habitat. The

premise of Petitioner’s appeal is that Charlotte County’s finding

that these amendments do not constitute “substantial deviations”

from the previously approved MDO and Increment One DO is contrary

to Chapter 380, Florida Statutes, and its implementing rules, and

that Respondents MRP Land Trust and Riverwood Land Development

Company Limited Partnership (“Riverwood LDC”) should be required

to submit an Application for Incremental Development Approval

(“AIDA”) and undergo further DRI review prior to adding the 67.6

acre-parcel to the existing development orders.

By letter dated October 27, 1997, the Florida Land and Water

Adjudicatory Commission forwarded the Notice of Appeal and

Petition to the Division of Administrative Hearings for

assignment of an Administrative Law Judge and the conduct of a de

novo formal administrative hearing in this matter, pursuant to

Section 120.57(1), Florida Statutes.

The case was originally assigned to Judge Richard Hixson and

scheduled for hearing on December 22-23, 1997. Upon motion by

Petitioner, the hearing was continued and rescheduled for January

8-9, 1998. Due to scheduling conflicts, the case was reassigned

to the undersigned prior to the final hearing.

At the final hearing, Petitioner presented the testimony of

James I. Crews, a planner with the Department of Community

Affairs; Charles Gauthier, a growth management administrator with

the Department of Community Affairs; and Kimberly A. Dryden, a

biological scientist with the Florida Game and Fresh Water Fish

Commission. Respondents MRP Land Trust and Riverwood LDC

presented the testimony of Thomas C. Smith, the President of

Riverwood LDC; Bruce C. Layman, an environmental consultant with

the firm of Wilson, Miller, Baron & Peek; Steven C. Hartsell, an

attorney with the law firm of Pavese, Garner, Haverfield, Dalton,

Harrison & Jensen; and David W. Depew, President of Morris-Depew

Associates, a land planning and civil engineering firm.

Respondent Charlotte County called no witnesses.

Petitioner’s Exhibits 1, 3-8, 10, 12-16, 18, 20-28, and 34-

36 were admitted into evidence. Respondents MRP Land Trust and

Riverwood LDC’s Exhibits 1-8 were admitted into evidence.

Respondent Charlotte County offered no exhibits.

A transcript of the final hearing was filed at the Division

of Administrative Hearings on February 2, 1998, and the parties

filed proposed recommended orders on February 19, 1998.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing, and the entire record in this proceeding, the

following findings of fact are made:

1. Pet itioner, the Department of Community Affairs (“DCA”),

is the state land planning agency with the power and duty to

enforce and administer Chapter 380, Florida Statutes.

2. “Riverwood” is a Mixed Use Master Plan Development of

Regional Impact (“DRI”) located on approximately 1,265 acres

adjacent to the Myakka River in Charlotte County. The parcel is

more specifically located in Township 40 South, Range 21 East,

Sections 17, 20, 21, 28 and 29, in Charlotte County.

3. Respondent MRP Land Trust is the owne r of the property.

Respondent Riverwood LDC is the developer of the property.

4. Respondent Charlotte County is a political subdivision

of the State of Florida and, through its Board of County

Commissioners, is responsible for issuing development orders for

properties in unincorporated Charlotte County, pursuant to

Section 163.3171, Florida Statutes. Riverwood falls within this

jurisdiction.

5. On November 13, 1990, the Charlotte County Board of

County Commissioners adopted Resolution Number 90-285, approving

the MDO for the Riverwood DRI, pursuant to Chapter 380, Florida

Statutes. Resolution Number 90-285 provided conceptual approval

of the following uses on the property: 3,300 residential units;

334,000 square-feet of commercial development; an 18-hole golf

course; a marina; wet-slip docking; and 264 acres of open space.

The MDO also called for a utility site to accommodate the

wastewater treatment facility, a golf course maintenance area,

irrigation facilities, storage for boats and recreational

vehicles, and potentially a potable water supply tank.

6. The MDO called for the property to be developed in a

number of increments. Each increment would require, prior to

actual development, the issuance of an Incremental Development

Order by Charlotte County. Resolution Number 90-285 set forth

the various criteria that must be met prior to issuance of each

development order.

7. Also on November 13, 1990, the Charlotte County Board of

County Commissioners adopted Resolution Number 90-286, the

Increment One DO, encompassing approximately 752 acres of the

subject property. Increment One included 1,100 residential

dwelling units, 140,000 gross square-feet of commercial

development, and the 18-hole golf course.

8. During the application process for the MDO and the

Increment One DO, two bald eagles' nests were discovered on the

Riverwood property, including one nest on a portion of the

Increment One property adjacent to the Myakka River (the “river

eagle” nest).

9. Resolution Number 90-285 placed certa in conditions,

restrictions and limitations on the MDO. In recognition of the

discovery of the bald eagles' nests, Resolution Number 90-285

placed the following condition on the MDO:

Land uses within the primary and secondary

Bald Eagle zones shall be consistent with the

Bald Eagle Habitat Management Plan to be

approved by Charlotte County through the

appropriate F.S. Chapter 380 development

order amendment procedures at a later date.

10. In order to proceed with approval of the Increment One

DO without the delay that would be caused by waiting for the

development of the Bald Eagle Habitat Management Plan, Riverwood

LDC voluntarily excluded a 67.6 acre-parcel surrounding the river

eagle’s nest from its application for the Increment One DO.

11. A draft of the Bald Eagle Management Plan was submitted

to the Florida Game and Fresh Water Fish Commission (“FGFWFC”),

Charlotte County, and the Southwest Florida Regional Planning

Council in October 1990. The final version of the Bald Eagle

Management Plan, adjusted to reflect the comments of the named

agencies, was submitted on April 2, 1991.

12. The Plan provided for primary and flyway zones in which

no activity would be allowed during the October 1 through May 15

nesting season, and in which only passive recreational uses would

be allowed during the remainder of the year. The Plan also

provided for secondary zones, in which residential and golf

course uses would be allowed, though construction would be

restricted during the nesting season.

13. For purpo ses of this proceeding, the following portions

of the Plan, as amended by Charlotte County Resolution Number 91-

268, adopted on October 22, 1991, are relevant:

III. Plan Approach

The Riverwood DRI was filed and reviewed as

an Application for Master Development

Approval (AMDA). An Application for

Incremental Development Approval (AIDA) for

Increment One was submitted and reviewed

concurrently with the AMDA.

Only that part of the Riverwood DRI which is

within Increment One can be considered for

development approvals. Any parcels within

the remainder of the Riverwood DRI will be

required to submit an Application for

Incremental Development Approval to the

Southwest Florida Regional Planning Council

for detailed review prior to any development

approval.

This Bald Eagle Management Plan applies only

to Increment One. Within the primary,

secondary or flyway zones located outside

Increment One..., it also provides

recommendations on avoiding the disturbance

of nesting bald eagles. It does not address

permanent habitat protection for eagles in

those areas, however, and is therefore

subject to future review and revision

regarding that issue.

For those areas outside Increment One,

including those areas within the primary,

secondary and flyway zones, the Applicant

acknowledges that prior to development in

those areas, a future Application for

Incremental Development Approval must be

filed and that DRI review of bald eagle

habitat and management will take place

pursuant to the laws, rules and regulations

governing the DRI process in effect at the

time of the review.

* * *

IX. Abandoned Nests

The land use criteria related to either the

lake eagle pair or the river eagle pair

remain in effect until the nest is abandoned

for a period extending at least through five

consecutive breeding seasons of non-use.

Once either of the nests has been abandoned,

as defined herein, the restrictions imposed

in this document on the primary zone(s),

flyway zone(s), and secondary zone(s)

associated with that nest are vacated.

Determination of abandonment under this

Section shall be made by the Florida Game and

Fresh Water Fish Commission, Office of

Environmental Services upon application made

by, and considering factual evidence provided

by, the Applicant. Notice of the application

shall be simultaneously provided by the

Applicant to the Southwest Florida Regional

Planning Council and the Department of

Community Affairs who may also provide

evidence for Florida Game and Fresh Water

Fish Commission’s consideration on the

matters if they so desire.

In the event that a future Application for

Incremental is filed for development in the

primary or flyway zones because a nest has

been determined to be abandoned, the

Applicant acknowledges that that DRI review

of bald eagle habitat management will take

place pursuant to the laws, rules, and

regulations in effect at the time of the

review. The reviewing agencies will not be

deemed to have waived their rights to apply

those laws, rules, and regulations by virtue

of this Bald Eagle Management Plan having

been previously approved.

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

circumstances under which proposed changes to previously approved

DRIs must undergo further DRI review. Those circumstances

generally are changes to a DRI creating a reasonable likelihood

of additional regional impact, or regional impacts created by the

change that have not been previously reviewed by the regional

planning agency. Such circumstances are referred to as

“substantial deviations.”

15. The statute provides that some circumstances

conclusively create substantial deviations, while others merely

establish a rebuttable presumption that a substantial deviation

has been created.

16. The bald eagle is listed as a state threatened species

in Chapter 39, Florida Statutes (or federal listed animal species

in 50 C.F.R. 17.11-12). Section 380.06(19)(b)16, Florida

Statutes, provides the following substantial deviation standards

in regards to development impacts on protected plant and animal

species caused by changes in previously approved DRIs:

(b) Any proposed change to a previously

approved development of regional impact or

development order condition which, either

individually or cumulatively with other

changes, exceeds any of the following

criteria shall constitute a substantial

deviation and shall cause the development to

be subject to further development-of-

regional-impact review without the necessity

for a finding of same by the local

government:

* * *

16. 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,

primary dunes, or archaeological and

historical sites designated as significant by

the Division of Historical Resources of the

Department of State. The further refinement

of such areas by survey shall be considered

under sub-subparagraph (e)5.b.

17. The referenced sub-subparagraph of Section 380.06(19),

Florida Statutes, provides:

5. The following changes to an approved

development of regional impact shall be

presumed to create a substantial deviation.

Such presumption may be rebutted by clear and

convincing evidence.

* * *

b. Except for the types of uses listed in

subparagraph (b)16., any change which would

result in the development of any area which

was specifically set aside in the application

for development approval or in the

development order for preservation, buffers,

or special protection, including habitat for

plant and animal species, archaeological and

historical sites, dunes, and other special

areas.

18. Read together, the quoted subparagraphs of Section

380.06(19), Florida Statutes, appear to establish that a change

which would result in development of an area set aside for

preservation or protection of endangered, threatened, or species

of special concern and their habitat is conclusively presumed to

create a substantial deviation, whereas a change resulting in

development of an area set aside for preservation, buffers or

special protection of other species would create only a

rebuttable presumption of a substantial deviation. An area

subject to the conclusive presumption of subparagraph (b)16 may

be considered under the rebuttable presumption of sub-

subparagraph (e)5.b if it is “further refined” by survey.

19. Rule 9J-2.041, Florida Administrative Code, titled

“Listed Plant and Wildlife Resources Uniform Standard Rule,” is

DCA’s rule implementing the statutory provisions quoted above.

Subsection (6)(c) of the rule provides:

Development of an onsite preservation or

special protection area previously set aside

in an ADA [Application for Development

Approval] or DRI development order for listed

species, or their habitat, designated as

endangered, threatened, or species of special

concern shall be allowed only under any

conditions allowing such development in a

previously approved final DRI development

order, or if approved after review of a

substantial deviation ADA, in compliance with

Subparagraph 380.06(19)(b)16., F.S.,

proposing a change from onsite preservation

to any necessary appropriate mitigation,

pursuant to the criteria and provisions of

this rule.

20. Rule 9J-2.041(2)(e), Florida Administrative Code,

defines “habitat” as “the place or type of site where a species

lives and includes any area that is associated with the life

history requirements of a particular listed plant or animal

species.”

21. “Habitat” is thus not restricted to the actual location

of an eagle’s nest, but includes any area associated with the

eagle’s life history requirements.

22. The bald eagle is a bird of aquatic ecosystems, and

requires suitable perching and nesting sites within two miles of

water. Eagle nesting territories are typically found along the

coasts, major lakes, and rivers of Florida. Because eagles tend

to use various nests within their established territories,

protection of the territory is considered more important than

protection of the nest itself, from a biological and habitat

standpoint.

23. The study on which the Bald Eagle Management Plan was

based recognized the importance of habitat protection,

recommending habitat improvement and mitigation giving priority

to the areas included in the primary and secondary protection

zones. This study, commissioned by the developer and performed

by Dr. Jeffrey Lincer of Eco-Analysts, Inc., was included as an

Appendix to the Bald Eagle Management Plan.

24. Rule 9J-2.041, Florida Administrative Code, sets forth

standards for the avoidance and mitigation of “significant

impacts” to listed plant and animal species caused by

development, and establishes thresholds for determining when a

given development activity constitutes a “significant impact.”

Relevant to this case is Rule 9J-2.041(4)(b)1., Florida

Administrative Code, which provides:

(b) SIGNIFICANT IMPACT. In order of priority

use for this rule, a significant impact shall

consist of:

1. A Guideline Established Impact. Where a

listed wildlife species guideline has been

prepared to address developmental impacts on

that listed species by either the Florida

Game and Fresh Water Fish Commission

(FGFWFC), the Florida Department of

Environmental Protection (DEP), or the U.S.

Fish and Wildlife Service, the impact

criteria established in the guideline shall

be considered by the Department to constitute

a significant impact, consistent with any

project specific recommendations by FGFWFC or

the DEP to utilize the guidelines under its

listed species jurisdiction for the onsite

and offsite impacts of the specific Chapter

380, F.S., land use application under review,

pursuant to this rule.

25. DCA has adopted the “Habitat Management Guidelines for

the Bald Eagle in the Southeast Region,” by the U.S. Fish and

Wildlife Service, as one of the “listed wildlife species

guidelines” referenced above. Rule 9J-2.041(2)(o)4., Florida

Administrative Code.

26. The river eagle nest remained active and occupi ed for

some time after adoption of the Bald Eagle Management Plan.

However, the FGFWFC observed that the nest was last used by

nesting eagles during the 1990-91 nesting season. The nest was

damaged during the March 1993 “no name” storm, and only remnants

remained during the 1993-94 nesting season.

27. The U.S. Fish and Wildlife Service guidelines recommend

continued protection of an abandoned nest site for at least two

complete breeding seasons after the loss. By letter dated

December 14, 1995, the U.S. Fish and Wildlife Service declared

the river eagle nest “lost,” and stated that the primary and

secondary protection zones implemented by the Bald Eagle

Management Plan could be discontinued.

28. Riverwood LDC on March 25, 1997, submitted to the

Southwest Florida Regional Planning Council a Notice of Proposed

Change (NOPC) to a Previously Approved DRI, and a revision

thereto on May 1, 1997. By its May 1, 1997, revision, Riverwood

LDC sought to add for residential development the 67.6 riverfront

acres that were subject to the Bald Eagle Management Plan, and to

delete the bald eagle management area from the Increment One DO.

29. Section 380.06(19)(f), Florida Statutes, provides that

a developer may submit an NOPC for a previously approved DRI.

The NOPC is applicable to situations in which the proposed change

does not create a substantial deviation causing the need for

further DRI review. The developer is required to submit the NOPC

simultaneously to the local government, the regional planning

agency, and DCA. After a public hearing and comment from the

appropriate regional planning agency or DCA, the local government

decides whether the proposed change in fact creates a substantial

deviation. The local government’s decision is subject to the

appeal provisions of Section 380.07, Florida Statutes.

30. By letter to the Southwest Florida Regional Planning

Council dated May 2, 1997, Bradley J. Hartman, Director of the

Office of Environmental Services for the FGFWFC, submitted his

agency’s comments on the proposed NOPC. Mr. Hartman expressed

his agency’s long-standing concerns over the protection of eagle

habitat, as opposed to mere nest protection, on the Riverwood

site. He made specific reference to the Bald Eagle Management

Plan’s requirement that prior to development in areas covered by

the plan, an AIDA must be filed and DRI review of bald eagle

habitat and management must take place.

31. Mr. Hartman recommended that habitat within this former

nesting territory be set aside as a permanent conservation area

and managed for bald eagles and other wildlife species on the

site, and that a conservation easement be granted to his agency

or to the U.S. Fish and Wildlife Service to implement those

recommendations.

32. By letter dated May 9, 1997, to the Charlotte County

Planning Department, J. Thomas Beck, Chief of the Bureau of Local

Planning of DCA, informed Charlotte County that DCA objected to

the NOPC pursuant to Section 380.06(19)(c), Florida Statutes, and

Rule 9J-2.025, Florida Administrative Code. The reasons for the

objection were the inclusion of new dwelling units in existing

residential areas without proper review and approval, deletion of

the bald eagle management area without approval by the FGFWFC,

and development in the bald eagle management area without proper

review and approval.

33. James I. Crews, the DCA planner with day-to-day

responsibility for this NOPC, testified that DCA’s objections

were the result of his review of the NOPC and the applicable

statutes and rules.

34. Mr. Cre ws testified that after the May 9, 1997,

objection letter was issued, he received a letter from Steven C.

Hartsell, the attorney for Riverwood LDC, clarifying the NOPC and

addressing some of DCA’s concerns. Mr. Hartsell’s letter, dated

June 10, 1997, pointed out that the 67.6 acres in question was

part of the MDO and was pulled out of the Increment One boundary

for future agency review should the river eagle nest be

abandoned. The letter stated that, in light of the more than

five-year abandonment of the nest site, the issue in the NOPC

should be confined to whether the proposed residential

development and removal of the bald eagle management plan

restrictions would create a reasonable likelihood of additional

regional impact not previously reviewed. The letter attached the

correspondence referenced above regarding the U.S. Fish and

Wildlife Service’s determination that the river eagle nest was

“lost.”

35. In his letter, Mr. Hartsell strenuously argued that the

express terms of the Bald Eagle Management Plan did not require

that any property be set aside for permanent bald eagle habitat.

Rather, he argued, the plan “simply left the door open” for the

relevant agencies to require permanent habitat if the applicable

rules or regulations were ever changed to require permanent

habitat. Because the nest was abandoned, Mr. Hartsell concluded,

the 67.6 acres was no longer an area of state or regional

significance for any endangered or threatened species.

36. Mr. Hartsell also disputed the suggestion that th is

application might be forced to go through the AIDA process rather

than the NOPC process, stating that the applicant here had

attempted to provide the same level of information as would be

required in an AIDA and pointing out that the 67.6 acres had been

previously surveyed and reviewed during the original MDO and

Increment One DO process. He concluded that the NOPC process

seemed reasonable, given that the property had already been

surveyed for species and that no additional development density

had been requested.

37. Mr. Crews drafted a DCA response to Mr. Hartsell,

issued over the signature of J. Thomas Beck on June 24, 1997.

The response expressed DCA’s acceptance that the river eagle nest

was in fact abandoned. However, the response also noted that

there had not been a vegetation and wildlife survey conducted on

the subject property since the MDO and Increment One DO were

adopted on November 13, 1990. The response concluded that:

the proposed deletion of the Bald Eagle

Management Plan area along the Myakka River

may still create a substantial deviation

because it will result in the development of

an area specifically set aide in the DO for

preservation or special protection of a

listed animal or its habitat. At the very

minimum, a thorough new survey is required

for this portion of the DRI prior to

completion of the NOPC review. Based on the

survey’s findings, additional DO conditions

may be necessary to address vegetation and

wildlife issues.

38. Mr. Crews testified that, after the June 24 le tter was

sent, he was contacted by Mr. Hartsell, who told him that

Riverwood LDC was going to prepare a new vegetation and wildlife

species survey for the 67.6 acres in question. To expedite

consideration of the survey, DCA made arrangements with Riverwood

LDC to have the survey results sent directly to the relevant

commenting agencies: the FGFWFC; the Florida Natural Areas

Inventory; and the DRI coordinators for both Charlotte County and

the Southwest Florida Regional Planning Council.

39. The Listed Sp ecies Survey Report for the 67.6 acre-site

was performed by Bruce Layman of Wilson, Miller, Barton & Peek,

Inc., on July 1-8, 1997, and was submitted to the various

agencies on July 8, 1997. The survey was conducted over five

days of morning and afternoon transects for listed flora and

fauna, with particular attention to the species targeted by those

lists. The report stated that “particular attention” was given

to the potential presence of bald eagles, given their known

existence in the area, but found no signs of nesting or perching

activities.

40. Mr. Crews testified that his agency received comments

on the survey report from the FGFWFC and from the Florida Natural

Areas Inventory, and recalled that those agencies expressed

concern about its adequacy.

41. The Florida Natural Areas Inventory, in a memorandum to

Mr. Crews dated July 11, 1997, expressed concern that the survey

report did not include the list of species “targeted” for field

investigation, or any statement as to how the list was derived or

whether seasonal considerations were made in developing the list.

The memorandum was also critical of the fact that the survey was

taken over a single week in July, and that the site visits

occurred mostly during the same early afternoon hours, when many

species of birds and mammals may not be active.

42. Ms. Kimberly Dryden, a biological scientist with the

FGFWFC and an expert in wildlife habitat and listed species

surveys, echoed these concerns in her testimony. She found that

the survey was not consistent with acceptable practice as to both

the season in which it was conducted and the time of day in which

the site visits were made.

43. Ms. Dryden testified that, if one did not want to find

anything on the site, one would do what was done here: conduct a

survey in July, during the middle of the wet season, and during

the hottest part of the day in a tropical area of the United

States.

44. Ms. Dryden testified that the survey methodology was

not consistent with the FGFWFC’s Wildlife Methodology Guidelines,

and not consistent with any professional survey technique she has

reviewed and accepted.

45. Ms. Dryden found no indication in the survey report or

the included maps that the surveys had been meandered in

accordance with the Guidelines. While the survey report

indicated that nearly three times the recommended square footage

had been surveyed, Ms. Dryden stated that the Guidelines place

less emphasis on the raw square footage than on knowing whether

the survey was meandered to cover a representative sample of the

entire site.

46. Ms. Dryden noted that the report made a general

statement that the survey had been conducted in accordance with

the Guidelines, but she found no detail included that would

permit a third party to confirm that the Guideline methodologies

had in fact been followed.

47. Ms. Dryden testified that the Guidelines were written

to provide cursory survey recommendations for DRI applicants, and

that the typical listed species survey submitted exceeds the

minimum standards set forth in the Guidelines. She found that

this survey did not meet even the minimum standards set forth in

the guidelines.

48. Ms. Dryden testified that the surveyor should collect

historical information on the site, to know what species may be

there. She testified that the Guidelines call for morning and

evening surveys, conducted as randomly as possible to ensure that

no repeat surveys occur and there is as much chance as possible

to pick up all the wildlife on the site. The survey report did

not indicate that the Guidelines were followed in these respects.

49. Ms. Dryden noted that the report included no discussion

or identification of eagle habitat, and did not outline the

history of eagles on the site. She also testified that July is

the wrong time to survey for bald eagles in South Florida,

because bald eagles tend to migrate after they have completed

their nesting activities in the spring.

50. Ms. Dryden stated that, as part of the preapplication

process for an Application for Master Development Approval, an

applicant is required to provide a list of potential species on

the site. No such list was provided with this survey report.

51. Mr. Layman, who conducted the survey, admitted that the

list of species he was looking for was “mentally based,” i.e., it

was in his head, not on paper. He testified that this list was

based on his experience working on this project and his

familiarity with sites in other counties in the same region of

Florida.

52. Mr. Layman disagreed with Ms. Dryden’s crit icisms

regarding the methodology of the survey. He noted that the

survey was not conducted in a vacuum, and that no attempt was

made to recreate all the work that had been performed in prior

surveys conducted as part of the MDO and Increment One DO

process. Based on that earlier work, he already had an idea as

to which listed species he might find on the site.

53. Mr. Layman also disagreed with Ms. Dryden’s criticism

as to the timing of the survey. He agreed that July would not be

the right time to look for nesting eagles, but he stated that

neither the time of day or time of year would affect the search

for general bald eagle activity. He testified that, in South

Florida, eagles that have established a territory stay in the

region year round, and are active throughout the day.

54. Mr. Layman testified that he found no evidence of

recent bald eagle activity of any kind on the 67.6 acre-site.

There were no nests, no evidence of roosting, and none of the

usual signs indicating that eagles were feeding in the area.

55. Mr. Layman admitted that the Guidelines call for

morning and afternoon transects of the site, and that he did not

perform morning and afternoon transects. However, he testified

that in his five years of performing protected species surveys,

he has seen such morning and afternoon transects recommended in

practice only for red cockaded woodpeckers. Because that species

is not on the subject property, there was no need to perform a

morning and evening survey to be sure he was seeing everything.

56. On balance, the criticisms voiced by Ms. Dryden are

well taken. Mr. Layman’s explanations and justifications of his

methods, even if reasonable, were rationalizations of the

admitted shortcomings of his survey report.

57. There was no list of anticipated species developed

prior to the survey and published in the report. Four out of the

five site visits were conducted at the same time of day, and none

of the visits were conducted prior to 9 a.m. or after 3:30 p.m.

The survey was mostly conducted in the early afternoon on summer

days in South Florida, when the temperature was in excess of 90

degrees.

58. The survey report provides no detail as to how the

transects were determined or to what extent the survey was

randomized to ensure adequate coverage of the site as a whole.

59. The report states that the survey methods “meet, or

exceed, the Florida Game and Fresh Water Fish Commission’s

Wildlife Methodology Guidelines published in January 1988,” but

that statement must be accepted largely on faith. A third party

could not read the contents of the survey report and state with

any degree of confidence that the Guidelines were in fact

followed.

60. The circumstances under which the survey was conducted

support a finding that its conclusions are suspect at best. The

decision to conduct the survey could have been made by Riverwood

LDC no sooner than June 24, 1997, the date of Mr. Beck’s letter

to Mr. Hartsell suggesting such a survey. Less than one week

later, Mr. Layman was actually in the field conducting the

survey, leading to the inference that only minimal preparatory

work could have been performed prior Mr. Layman’s taking to the

field. This would explain the missing information regarding what

species were being sought.

61. Further, the survey report was submitted on July 8,

1997, despite its textual indication that Mr. Layman was still in

the field as late as 11 a.m. on that date. This observation

leads to the inference that the preparation of the report was

rushed, and may explain the cursory nature of the survey report.

62. Mr. Layman pointed out that in April 1997, he performed

a listed species survey for a different 26.5 acre-site on the

Riverwood property, using the same methodology and the same

reporting form as he used for the 67.6 acre-site, and that all

reviewing agencies accepted it without criticism.

63. From this, Riverwood LDC argues that it is unfair to

apply a more stringent standard to the survey conducted on the

67.6 acre-site, and that a double standard is being applied here

in the effort improperly to require Riverwood LDC to grant

permanent preservation status to the 67.6 acre-site.

64. However, the 26.5 acre-site in question had already

been disturbed by development, with a man-made lake in the center

of the property, and a network of roads and ditches in place.

Exotic plants such as Brazilian pepper, melaleuca and wax myrtle

dominated many portions of the site. None of this acreage was

even arguably bald eagle habitat.

65. It would not have been u nreasonable for the FGFWFC and

other reviewing agencies to accept a less thorough survey of this

heavily disturbed area than it would accept for a relatively

pristine riverfront area known to have been the historic home of

bald eagles.

66. The original Resolution Number 90-285, which restricted

land-use development within the primary and secondary bald eagle

zones, required development of a “Bald Eagle Habitat Management

Plan.” Whether through inadvertence or design, the word

“habitat” was dropped when the Plan was actually adopted.

67. Nonetheless, the Plan’s language makes clear that it

was designed not merely to shield the river eagle nest from undue

encroachment by development, but to provide protection of the

habitat in the 67.6 acre-portion of Riverwood that was

voluntarily severed from the Increment One DO.

68. While it expressly stated that the Plan did not address

“permanent habitat protection for eagles” in Increment One, the

Plan did require that “DRI review of bald eagle habitat

management will take place pursuant to the laws, rules, and

regulations in effect at the time of the review,” should the nest

itself ever be determined to have been abandoned, and that such

DRI review would occur pursuant to an AIDA filed by the

developer.

69. These provisions of the Plan were consistent with

Section 380.06(19)(b)16., Florida Statutes, which conclusively

finds a “substantial deviation” occurs when a proposed change to

a previously approved DRI results in development of “any area

which was specifically set aside in the application... for

preservation or special protection of endangered or threatened

plants or animals designated as endangered, threatened, or

species of special concern and their habitat . . .”.

70. Even accepting Riverwood LDC’s contention that Section

380.06(19)(e)5.b., Florida Statutes, negates the conclusiveness

of the presumption of a “substantial deviation” by allowing

“refinement by survey,” and thus permits the applicant to

demonstrate by clear and convincing evidence that this change

would not cause a substantial deviation, Riverwood LDC has not

met that burden in this case.

71. As of the date the Bald Eagle Management Plan was put

in place, the 67.6 acres at issue were bald eagle habitat. The

nesting eagles lived there. To overcome the presumption of a

substantial deviation and demonstrate its entitlement to proceed

under the less stringent NOPC process, rather than the DRI review

contemplated by the AIDA process, Riverwood LDC would be required

to demonstrate that this acreage was no longer bald eagle

“habitat,” as that term is defined by Rule 9J-2.041(2)(j),

Florida Administrative Code.

72. The undisputed demonstration that the river eagle nest

has been abandoned, and the U.S. Fish and Wildlife Service’s

official declaration that it is a “lost” nest, do not alone

demonstrate that the 67.6 acre-tract is no longer bald eagle

“habitat,” because the definition of “habitat” covers more than

nesting activities.

73. The survey was suggested by DCA in an effort to assist

Riverwood LDC to demonstrate that the area was no longer bald

eagle habitat, and thus avoid an appeal of the development order

by DCA. For the reasons stated above, the survey is inherently

unreliable and cannot be used as evidence that this area is no

longer bald eagle habitat.

74. DCA’s efforts to assist Riverwood LDC in its attempted

expediting of its application did not constitute approval of

Riverwood LDC’s decision to pursue the NOPC process rather than

the AIDA process. DCA was entitled to review the results of the

survey, as well as the comments thereon by the FGFWFC and the

Florida Natural Areas Inventory, prior to reaching a final

conclusion that Riverwood LDC’s proposed addition of the 67.6

acre-tract to the Increment One DO constituted a “substantial

deviation.”

75. It is not DCA’s typical practice to request submission

of listed species reports as part of the NOPC process. Mr. Crews

characterized it as a “very unorthodox approach.” The wisdom of

its request is questionable, given that it arguably led the

developer to believe that DCA approved its use of the NOPC

process rather than the AIDA, or at least that DCA was treating

this NOPC as a de facto AIDA.

76. However, DCA’s suggestion that a thorough wildlife

survey be conducted did not, and could not, estop DCA from later

performing its statutorily mandated duty of appealing what it

perceived to be an improperly adopted development order.

77. Mr. Hartsell, Riverwood LDC’s representative, testified

that there was never any agreement by his client to provide

permanent habitat protection for the 67.6 acres. This is

accepted as true, but does not contradict the plain language of

the Bald Eagle Management Plan, which unequivocally calls for DRI

review of future development applications in any abandoned eagle

nest area.

78. By letter dated July 15, 1997, Bradley Hartman of the

FGFWFC informed Mr. Crews of DCA Affairs that his office had

reviewed the survey report submitted by Riverwood LDC, and that

the comments contained in his letter of May 2, 1997, remained

applicable. Mr. Hartman stated that, although bald eagles were

not observed during the survey, the pinelands in the vicinity of

the abandoned river eagle nest provide documented habitat for the

species, and the FGFWFC continues to recommend that the area be

protected with a conservation easement and managed for bald

eagles and other wildlife species on the site.

79. By letter dated July 25, 1997, from J. Thomas Beck to

Matthew DeBoer, Chairman of the Charlotte County Board of County

Commissioners, DCA strongly encouraged Charlotte County to

consider the comments of the FGFWFC and the Florida Natural Areas

Inventory, and to designate a preservation area in the vicinity

of the abandoned river eagle nest.

80. Despite the concerns voiced by DCA and the FGFWFC, the

Charlotte County Board of County Commissioners thereafter adopted

the subject resolutions, finding that no substantial deviation

would be caused by adding the 67.6 acre-tract to Increment One

and abolishing the bald eagle protection areas established by its

earlier resolutions.

CONCLUSIONS OF LAW

81. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57, 380.07, Florida Statutes,

and Chapter 42-2, Florida Administrative Code.

82. DCA has the authority and discretion to appeal any

local government development order regarding a DRI within 45 days

after the development order is rendered to DCA. Section

380.07(2), Florida Statutes; Rule 9J-2.026, Florida

Administrative Code.

83. Charlotte County Resolution Number 97-0870A0 and

Charlotte County Resolution Number 97-0860A0 are “development

orders” within the meaning of Section 380.07, Florida Statutes.

See Section 380.031(3), Florida Statutes (defining the term

“development order”).

84. The Charlotte County resolutions do not meet the

requirements of Chapter 380, Florida Statutes, or Chapter 9J-2,

Florida Administrative Code, in that they find that the proposed

amendments to the MDO and the Increment One DO do not constitute

a “substantial deviation” from the terms of the existing MDO and

Increment One DO.

85. The 67.6 acre-parcel proposed to be added to the

Increment One DO was unquestionably bald eagle habitat at the

time the MDO and the Increment One DO were originally adopted.

While the evidence in this proceeding demonstrated that the river

eagle nest located on the parcel was abandoned, the evidence

produced by Respondents did not demonstrate that this parcel is

no longer bald eagle “habitat,” i.e., an “area that is associated

with the life history requirements” of the bald eagle. Rule 9J-

2.041(2)(e), Florida Administrative Code.

86. The Bald Eagle Management Plan specifically set aside

the 67.6 acre-parcel for preservation or special protection of

the bald eagle, a threatened species. The Bald Eagle Management

Plan was developed and approved as part of the MDO and the

Increment One DO.

87. Section 380.06(19)(b)16., Florida Statutes, provides

that any change to a previously approved DRI or development order

condition which would result in the development of an area

specifically set aside in the application for development

approval or in the development order for preservation or special

protection of a threatened animal species “shall constitute a

substantial deviation” and shall cause the development to be

subject to further DRI review.

88. The proper format for obtaining approval of a change

constituting a substantial deviation is to submit an AIDA.

89. This proposed amend ment to the MDO and the Increment

One DO could not be approved by way of an NOPC, because the

addition of the 67.6 acres to Increment One conclusively

constituted a “substantial deviation.”

90. The terms of the Bald Eagle Management Plan itself

required the developer to submit an AIDA prior to development

approval for acreage covered by the Plan.

91. Riverwood LDC contends that the NOPC, considered with

the survey information produced at the request of DCA and the

FGFWFC and with all the information submitted with its earlier

applications, provided all the information that an AIDA would

have required. Therefore, Riverwood LDC contends, it elevates

form over substance to find that an AIDA should have been

submitted in this case.

92. The evidence demonstrates that Riverwood LDC did not

submit everything that would be required by an AIDA. At the very

least, the listed species survey it submitted was inadequate to

demonstrate Riverwood LDC’s main contention: that the 67.6 acres

was no longer bald eagle habitat. Thus, even accepting Riverwood

LDC’s legal argument that Section 380.06, Florida Statutes,

allowed it to rebut the presumption of “substantial deviation,”

Riverwood LDC failed to marshal the clear and convincing evidence

required to make that rebuttal.

93. The claim that DCA is elevating form over substance

ignores the fact that there is substance to the form. The

Legislature has provided a clear, substantive distinction between

an NOPC and an AIDA. In attempting to avoid the more stringent

DRI review contemplated by the AIDA process, Riverwood LDC has

relied on a simple proposition: the Bald Eagle Management Plan

was developed and adopted for the sole purpose of protecting an

eagle’s nest; the nest no longer exists, therefore the Bald Eagle

Management Plan is a nullity. The acreage protected by the Plan

should revert to Increment One and become part and parcel of that

Development Order, pursuant to the less exacting NOPC process.

94. The testimony of Mr. Hartsell indicates that this

simple proposition was Riverwood LDC’s intent from the outset of

this DRI process. However, the actual documents generated during

that process--the various Charlotte County resolutions and the

Bald Eagle Management Plan itself--do not support Riverwood LDC’s

proposition.

95. Whatever Riverwood LDC’s intent, the documentary record

convincingly demonstrates that the concern underlying the Bald

Eagle Management Plan was not merely an eagle’s nest sitting in a

given tree, but protecting the habitat of the bald eagles in that

area.

96. Potential abandonment of the nest was specifically

contemplated by the Plan. While the Plan states that abandonment

would operate to vacate the restrictions imposed in the primary,

flyway, and secondary zones associated with the nest, it goes on

to state an AIDA must be filed for development in those vacated

zones and that “DRI review of bald eagle habitat management will

take place pursuant to the laws, rules and regulations in effect

at the time of the review.” It is precisely that Plan-mandated

“DRI review” that Riverwood LDC seeks to avoid by pursuing the

NOPC process.

97. Riverwood LDC cannot avoid the plain requirements of

Chapter 380, Florida Statutes; of Chapter 9J-2, Florida

Administrative Code; and of a Bald Eagle Management Plan that the

developer itself prepared and voluntarily accepted as a binding

restriction on its project.

98. Finally, Riverwood LDC makes the legal argument that

the development order it seeks here is a "license" subject to the

provisions of Section 120.60, Florida Statutes. Riverwood LDC

argues that, because it provided all the information requested by

DCA during the NOPC process, Section 120.60(1), Florida Statutes,

forbids DCA from denying the "license" for failure to supply

additional information.

99. A development order issued by a local government is not

a license as defined by Section 120.52(9), Florida Statutes.

Even accepting arguendo that a development order is akin to a

license, Riverwood LDC's analogy fails because DCA is not the

agency empowered to approve or deny this "license application."

100. Even if Section 120.60, Florida Statutes, had some

application to this proceeding, the specific requirements of

Section 380.07(2), Florida Statutes, would govern the general

procedural requirements set forth in Section 120.60, Florida

Statutes. Palm Harbor Special Fire Control Dist. v. Kelly , 500

So. 2d 1382, 1386 (Fla. 2d DCA 1987), affirmed 516 So. 2d 249

(Fla. 1987)(where two different legislative enactments generally

apply, but only one specifically applies, the specific enactment

governs over the general).

101. DCA's earlier requests for information from Riverwood

LDC did not negate DCA's statutory authority to appeal the

development order to the Florida Land and Water Adjudicatory

Commission. Riverwood LDC's contention that this is a licensing

proceeding is without merit.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is recommended that the Florida Land and Water Adjudicatory

Commission enter a final order declaring that Charlotte County

Resolution Number 97-0870A0 and Charlotte County Resolution

Number 97-0860A0 are inconsistent with Chapter 380, Florida

Statutes; Chapter 9J-2, Florida Administrative Code; and the Bald

Eagle Management Plan described in the foregoing; denying

permission to proceed under those Resolutions; and issuing a

final development order consistent with the provisions of Chapter

380, Florida Statutes.

DONE AND ENTERED this l3th day of April, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of April, 1998.

COPIES FURNISHED:

Shaw P. Stiller, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Kenneth G. Oertel, Esquire

Oertel, Hoffman, Fernandez

& Cole, P.A.

Post Office Box 6507

Tallahassee, Florida 32314-6507

Steven C. Hartsell, Esquire

Post Office Drawer 1507

Ft. Myers, Florida 33902-1507

Carl Kitchner

Assistant County Attorney

Charlotte County

118500 Murdock Circle

Port Charlotte, Florida 33948-1094

Stephanie Gehres Kruer

General Counsel

Department of Community Affairs

Suite 325-A

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.