99-002047GM Barbara And William Dubin And Greater Pine Island Civic Association, Inc. vs. Lee County Status: Closed Recommended Order on Monday, December 27, 1999.

Summary: Small-scale comprehensive plan amendment was found to be in compliance with statutory and rule requirements.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA DUBIN, WILLIAM DUBIN, and )

GREATER PINE ISLAND CIVIC )

ASSOCIATION, INC., )

)

Petitioners, )

)

vs. ) Case No. 99-2047GM

)

LEE COUNTY, )

)

Respondent, )

)

and )

)

GREGORY EAGLE, )

)

Intervenor. )

________________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly-designated Administrative Law Judge, Lawrence P.

Stevenson, held a formal hearing in the above-styled case in Fort

Myers, Florida, on August 17 and 18, 1999.

APPEARANCES

For Petitioners: Thomas W. Reese, Esquire

2951 61st Avenue, South

St. Petersburg, Florida 33712

For Respondent: Thomas L. Wright, Esquire

Timothy Jones, Esquire

Assistant County Attorneys

Lee County, Florida

2115 Second Street

Post Office Box 398

Fort Myers, Florida 33902

For Intervenor: Pete Doragh, Esquire

Annis, Mitchell, Cockey,

Edwards & Roehn, P.A.

Post Office Box 60259

Fort Myers, Florida 33906-6259

STATEMENT OF THE ISSUE

At issue in this proceeding is whether PAM 98-01, a small

scale amendment to the future land-use map (" FLUM") of the Lee

County Comprehensive Plan (the "Lee County Plan" or the "Plan"),

changing the future land-use designation of approximately 9.9

acres of land on Pine Island from Rural to Outlying Suburban,

complies with the requirements of the Local Government

Comprehensive Planning and Land Development Regulation Act,

Chapter 163, Part II, Florida Statutes.

PRELIMINARY STATEMENT

On May 3, 1999, Petitioners filed with the Division of

Administrative Hearings a pro se petition for a formal

administrative hearing, pursuant to Section 163.3187(3), Florida

Statutes. The petition alleged that PAM 98-01, adopted by the

Board of County Commissioners of Lee County (the "Board") on

April 13, 1999, was not in compliance with Chapter 163, Part II,

Florida Statutes. On May 7, 1999, the case was assigned to the

undersigned.

Also on May 7, 1999, Gregory Eagle filed a motion to

intervene on the side of Respondent. The motion was granted by

an order entered June 1, 1999.

On May 17, 1999, Intervenor filed a Motion to Dismiss the

petition, citing several deficiencies in that pleading and

requesting that the petition be dismissed without prejudice to

Petitioners filing an amended petition curing the alleged

defects. On June 9, 1999, Petitioners (now represented by

counsel) filed a Motion for Leave to Amend, attaching an amended

petition that appeared on its face to cure the defects cited in

Intervenor’s motion to dismiss. On June 15, 1999, an order was

entered granting Petitioners’ Motion to Amend and Deeming

Intervenor’s Motion to Dismiss Mooted Thereby.

On June 7, 1999, the undersigned issued a Notice of Hearing

that set the final hearing in this matter for September 15

and 16, 1999. In so doing, the undersigned overlooked the

requirement of Section 163.3187(3)(a), Florida Statutes, that

hearings on small scale amendments be held not less than 30 days

nor more than 60 days following the filing of a petition and the

assignment of an Administrative Law Judge. This oversight was

noted by Intervenor’s Motion to Set Expedited Hearing, filed

June 23, 1999. On June 25, 1999, the undersigned issued an Order

Rescheduling the Hearing for July 6-9, 1999.

On June 28, 1999, Petitioners filed a response to the Motion

for Expedited Hearing, asserting that Intervenor had waived his

right to an expedited hearing by his delay in requesting same.

Petitioners requested that the hearing not be held before

July 28, 1999, due to witness unavailability. A telephonic

hearing was held on June 29, 1999. By order issued on that date,

the undersigned concluded that the statute does not provide for

involuntary waiver and that its requirement concerning the

scheduling of hearings is mandatory. The undersigned also noted

that, given the circumstances, Petitioners would be granted a

measure of flexibility in presenting their case, with the

cooperation of Respondent and Intervenor.

On July 2, 1999, Intervenor, by letter notified the

undersigned that he waived the 60 day hearing requirement of

Section 163.3187(3)(a), Florida Statutes. On July 6, 1999, a

telephonic hearing was held during which the parties agreed to

hearing dates of August 17-19, 1999.

On July 9, 1999, Intervenor filed a Motion for Summary Final

Order, contending that Petitioner Pine Island Civic Association

(the "Civic Association") lacked standing to maintain its

petition. The Civic Association filed its response in opposition

to the motion on July 19, 1999. On July 23, 1999, an order was

entered denying the motion, because it appeared that the extent

of "business activities" engaged in by the Civic Association was

a matter of factual dispute and thus not a proper subject for

summary adjudication.

On August 9, 1999, Petitioners filed a motion to amend their

first amended petition to include additional rule citations and

Lee County Plan objectives and policies. At the outset of the

final hearing, Respondent and Intervenor stated they had no

objection to the motion, which was granted ore tenus .

At hearing, Petitioners presented the testimony of Barbara

K. Dubin, a resident and landowner on Pine Island; Betsie Newton

Hiatt, a senior environmental planner with Lee County and an

expert in environmental planning; Matt Noble, a planner with Lee

County and an expert in land-use planning and comprehensive land-

use planning; William M. Spikowski, a city planner and expert in

land-use planning, comprehensive land-use planning, and the use

and interpretation of the Lee County Plan; and public comment

from Pine Island residents Paul Holloway, Anna Stober, Edith

Schulte, and Tanya Player. Petitioners’ Exhibits 1 through 5 and

8 through 11 were received into evidence.

Intervenor presented the testimony of Rae Ann Boylan,

president of Boylan Environmental Consultants and an expert in

environmental land-use planning; James Banks, a professional

engineer and an expert in transportation engineering,

transportation planning, and land-use planning as it relates to

transportation issues; and Greg Stuart, a planner and expert in

comprehensive land-use planning, land-use planning, and the use

and interpretation of the Lee County Plan. Intervenor’s

Exhibits 3, 4, 8 through 17, 19, 21, 22, 24 through 27, 30, and

31 were received into evidence. Respondent called no witnesses

and offered no exhibits, but adopted the testimony and exhibits

presented by Intervenor.

The Transcript of hearing was filed September 17, 1999.

Petitioners filed a Proposed Recommended Order on October 18,

1999, and Intervenor filed a Proposed Recommended Order on

October 19, 1999. On November 4, 1999, Respondent filed a notice

that it adopted the proposed recommended order of Intervenor.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

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

following findings of fact are made:

Parties

1. Petitioners, Barbara Dubin and William Dubin, are

residents and property owners on Pine Island in the portion of

Lee County affected by PAM 98-01. Ms. Dubin testified that she

and her husband timely participated in the adoption process and

made their objections before the Lee County Local Planning Agency

(the " LPA") and the Board. No evidence was offered to contest

Ms. Dubin’s testimony on this point. Therefore, the Dubins are

each "affected persons" as that term is used in Sections

163.3184(1)(a) and 163.3187(3)(a), Florida Statutes, and have

standing to file a petition challenging the adoption of

PAM 98-01.

2. Ms. Dubin is a member of the Civic Association and

knowledgeable regarding its activities. She testified that the

Civic Association has been incorporated as a not-for-profit

corporation in the State of Florida for at least the past ten

years. The purpose of the Civic Association is the preservation

and protection of the environment and quality of life of Pine

Island. The Civic Association has between 130 and 160 members,

all of whom reside on Pine Island.

3. Ms. Dubin testified that the Civic Association owns land

and a building on Pine Island, at the intersection of Pine Island

Road and Stringfellow Road, near the 9.9-acre parcel that is the

subject of PAM 98-01. The Civic Association uses this building

for its meetings, conducted monthly for ten months of the year

with a break during the summer months.

4. The Civic Association collects member dues within Lee

County, and has a bank account in Lee County. It conducts

educational activities, monthly meetings, publishes a monthly

newsletter containing educational information concerning Pine

Island land-use and quality of life issues, and participates in

governmental meetings concerning Pine Island.

5. Through members who spoke on its behalf, the Civic

Association participated in the adoption process and objected to

PAM 98-01 at the LPA hearing and the Board meeting at which the

amendment was adopted. The Civic Association is an "affected

person" as that term is used in Sections 163.3184(1)(a) and

163.3187(3)(a), Florida Statutes, and has standing to file a

petition challenging PAM 98-01.

6. Respondent, Lee County, is the local government whose

land-use plan amendment is at issue in this proceeding.

7. Intervenor, Gregory Eagle, is the owner of the real

property that is the subject of PAM 98-01, and has standing to

participate as a party in this proceeding.

Pine Island

8. The Greater Pine Island Area is located in Lee County

west of the City of Cape Coral, south of the open waters of

Charlotte Harbor, east of Captiva Island, North Captiva Island

and Cayo Costa Island, and north of Sanibel Island. The Greater

Pine Island Area consists of Pine Island, Little Pine Island, and

the historic community of Matlacha, which is located on the Pine

Island Road Causeway across the Matlacha Pass Aquatic Preserve

between Little Pine Island and the Lee County mainland.

9. The waters surrounding the Greater Pine Island Area are

the waters of the Matlacha Pass Aquatic Preserve to the east, San

Carlos Bay to the south, the Pine Island Sound Aquatic Preserve

to the west, and Charlotte Harbor to the north.

10. Pine Island is a long, narrow, roughly rectangular

island, with the long sides running north and south. The island

is roughly 16 miles long and two miles wide.

11. Existing communities and residential development on

Pine Island are essentially confined to five parts of the island.

At the far north end of the island is the fishing community of

Bokeelia, where the Dubins live. A golf course sits just south

of Bokeelia. A residential development called Pineland is

situated on the island’s northwest coast, between Bokeelia and

Pine Island Road. At the center of the island, at the junction

of Pine Island Road and Stringfellow Road, is the Pine Island

Center, which is the main urban area of the island. A

residential development called Flamingo Bay is situated between

the Pine Island Center and the south end of the island. At the

south end of the island is the small fishing village of St. James

City.

12. Matlacha is a small historic village that grew up

around the Pine Island Causeway, which was built in the early

decades of this century to connect Pine Island to the mainland.

Lee County has designated parts of Matlacha as an historic

district.

13. Lee County statistics indicate a total of 26,393 acres

on Pine Island, 13,693 acres of which are reserved for

conservation uses. The existing land-uses of the remaining

approximately 12,700 acres are as follows: 6,032 acres are

vacant or undeveloped; 3,273 acres are used for active and

passive agricultural activities; 2,084 acres are used for

residential activities, including 822 acres classified as rural;

138 acres are used for commercial activities; 24 acres are used

for industrial activities; and 1,148 acres are allocated for

public uses.

14. The current permanent population of Pine Island is

10,511 persons, and the seasonal population is 15,900 persons.

There are currently 5,954 dwelling units on Pine Island.

15. In 1990, the population of Pine Island was 7,300

persons, and the number of dwelling units was 5,520. The Lee

County Plan recognizes and gives priority to property rights

previously granted for about 6,800 additional dwelling units in

Policy 14.2.2, set forth infra in the discussion of

Transportation Need Projections.

Lee County Plan

16. In 1984, Lee County adopted its first official FLUM as

an integral part of the Lee County Plan. On that initial FLUM,

Intervenor’s property was divided into two land-use categories:

Urban Community and Rural. The maximum standard density for the

Urban Community designation established by the 1984 Plan was six

dwelling units per acre (du/ac). Maximum density for the Rural

designation was 1 du/ac.

17. In 1985, the Florida Legislature passed the Local

Government Comprehensive Planning and Land Development Regulation

Act, Chapter 163, Part II, Florida Statutes. In 1987, the Civic

Association hired a professional planner to study the Greater

Pine Island Area and prepare recommendations that Lee County

could incorporate in its 1989 revision of the Lee County Plan,

pursuant to the 1985 legislation.

18. In 1988, the Civic Association issued the resulting

study, which provided a description of the population,

generalized land-use and zoning patterns, historic and

archaeological resources, the area’s transportation network, and

the availability of public services such as potable water and

sewer facilities as of 1987. The "development suitability" of

Intervenor’s property was discussed in relation to the listed

items as well as hurricane evacuation and the condition of Pine

Island and Stringfellow Roads.

19. The study made extensive recommendations to amend the

Lee County Plan, and was used by the Civic Association as the

basis for initiating amendment PAM/T 88-07 to the Lee County

Plan.

20. Lee County staff analyzed and evaluated the

recommendations of the study, and incorporated many of them into

the 1988/89 update of the Lee County Plan, including what is now

Goal 14 relating to Greater Pine Island. As to the property at

issue in this proceeding, staff recommended that the land-use

category be changed to all Rural. The FLUM was indeed amended to

include all of the subject property in the Rural category.

21. William Spikowski, who was the Lee County planner in

charge of preparing the 1988/89 update to the Lee County Plan,

testified that the intent was to limit most industrial and

commercial development on the island to the Pine Island Center,

which was given the Urban Community designation allowing the

greatest number of mixed and nonresidential uses.

22. Mr. Spikowski testified that the lines around this area

were tightly drawn to clearly separate urban from rural uses,

with some exceptions where the intensities "stepped down" to

recognize existing development.

PAM 98-01

23. Since about 1992, Intervenor has owned 58 acres of

vacant land approximately 3/4 of a mile south of the intersection

of Pine Island Road and Stringfellow Road. The 9.9-acre property

that is the subject of PAM 98-01 is a portion of this 58-acre

parcel, and is currently zoned CC and CG, both commercial zoning

designations.

24. The 58-acre parcel has been considered for a change in

land-use classification three times since 1989, when it was

excluded from the adjacent urban center of Pine Island and given

a Rural designation. This parcel was the only commercially-zoned

property adjacent to the urban center that was excluded from the

urban center in 1989. Prior to 1989, as noted above, the subject

parcel was designated as Urban Community in the Lee County Plan.

The change of the parcel from Urban Community to Rural in 1989

was not challenged at the time it was adopted.

25. On two prior occasions, the Board has considered but

not approved proposals that would have returned the full 58-acre

parcel to an urban land-use designation; on another occasion, the

Board rejected a proposal that would have effectively locked the

parcel out of any urban use designation.

26. Greg Stuart, an expert in land-use planning who sits on

the LPA, testified that the county’s concern with the earlier

proposals was a reluctance to change the entire 58-acre parcel to

an urban land-use and thus increase population capacity on the

island. PAM 98-01 was in part an attempt to satisfy this concern

by proposing a change for a smaller portion of the tract, and to

the least intense urban use available.

27. Matt Noble, Lee County’s principal planner, also

testified that he believed the smaller area and less intense

classification were factors in the Board’s decision to approve

PAM 98-01. He added that another factor in the Board's approval

of PAM 98-01 was that this property "appears to have been singled

out" in the 1988 amendment cycle, in that it was the only

commercially-zoned property adjacent to the Pine Island Center

not to have been included in the Pine Island Center.

28. Immediately south of the 58 acre parcel is a vacant

Rural designated parcel with AG-2 and RM-2 zoning. South of this

vacant parcel are three parcels (two Rural designated, one

Wetlands designated) owned by the Greater Pine Island Water

Association. The Water Association has constructed a reverse

osmosis ("RO") plant on one of the Rural parcels.

29. Immediately south of the RO plant site is the Island

Acres Subdivision, with a Rural designation. On June 5, 1995,

the Board approved a rezoning of this property to RPD, which

permits the development of 31 single-family residential dwellings

on lots ranging from just over one acre to just over 1/2 acre,

the excavation of a 12.23-acre lake, and an 8.55-acre wetland

preserve area. As of the submission of the Staff Report on

April 13, 1999, the internal roads of Island Acres Subdivision

had been constructed but no dwellings had yet been built.

30. Immediately east of Intervenor’s 58-acre parcel are

vacant lands designated Rural and Wetlands. To the west is

Stringfellow Road, and on the west side of Stringfellow Road is a

134-acre vacant parcel designated Rural. Additional vacant land

designated Rural is on the west side of Stringfellow Road.

31. To the north of and abutting Intervenor’s 58-acre

parcel is a developed property with a Huntington Bank building.

This property is zoned CC and CG, and is split between Urban

Community and Rural land-use designations. To the north of the

Huntington Bank parcel is a Winn-Dixie Shopping Center,

zoned C-1A and located within the Urban Community of Pine Island

Center.

32. In summary, while Intervenor’s parcel is the only

commercially-zoned property adjacent to the Pine Island Center

that does not also have an Urban land-use designation, it is also

the case that the only urban or commercial development in the

vicinity is to the north of Intervenor’s property, with the

exception of the RO plant.

33. Mr. Noble testified that Intervenor’s parcel is served

by public services at least to the same extent as the nearby

properties included in the Pine Island Center designation.

Mr. Noble agreed that the Staff Report’s notation that there is

no sewer service available to Intervenor’s property was not a

unique characteristic of this property; in fact, there is no

central sewer service on Pine Island that property owners at

large may tap into.

34. As noted above, there are over 600 acres of land in the

Greater Pine Island Area with commercial zoning. This acreage

includes vacant land in the Pine Island Center with a current

land-use designation of Urban Community, which indicates "a

mixture of relatively intense commercial and residential uses,"

"distinctly urban" but developed at "slightly lower intensities."

35. PAM 98-01 would change the land-use designation of

Intervenor’s vacant 9.9-acre parcel from Rural to Outlying

Suburban, increasing the permissible residential density from 1

du/ac to 3 du/ac, an increase of 20 dwelling units, assuming the

entire parcel is developed residentially.

36. Intervenor’s application proposed 25,000 square feet of

commercial development on three acres of the parcel, and 21

dwelling units on the remaining acreage. The Staff Report

pointed out, however, that Lee County cannot condition the

requested change in land-use designations to limit development

potential to this proposed scenario. Therefore, the Staff Report

applied the most intensive scenario of retail commercial uses

that could occur on the property.

37. At the hearing, Mr. Noble, Lee County’s lead planner on

this application, testified that while the staff’s conclusions

were based on commercial uses, the residential aspects of the

project were also evaluated in the section of the Staff Report

dealing with population accommodation.

38. The Staff Report concluded as follows:

The subject property has had quite a

long history concerning it’s [sic] future

land-use designation. The property’s owners

have consistently been requesting an increase

in density and intensity, while the citizens

of Pine Island, just as consistently, have

been opposed. This request is the smallest

in area to date, with the least intensive

increase in density and intensity. The owner

argues that, under the current designation,

the property is not developable. This

contention would appear to be invalid, given

the development of the Island Acres

subdivision, immediately to the south of the

RO plant.

Pine Island is a unique place with

considerable constraints to development as an

urban area. With no increase in land-use

designation, the level of service on Pine

Island Road and Stringfellow Road will

operate below the adopted standard before the

year 2020. The thresholds established by

Policy 14.2.2 will be exceeded by the year

2005.

Limited access and it’s [sic] location

in regards to hurricane vulnerability make it

difficult to entertain or justify increases

in density and/or intensity. There are ample

areas currently designated on the island to

accommodate the proposed development

scenario. The full range of urban services,

such as sanitary sewer and mass transit, are

not and will not be available to this site.

This would be the first land-use

amendment on Pine Island since the 1988 Pine

Island Land-use Study was incorporated into

the Lee Plan. Even though a considerable

amount of time has passed since the study’s

completion, few changes in the condition of

the island have occurred.

Staff concludes that there are viable

uses allowed on this property. Staff can see

no compelling reason to support this proposed

land-use amendment. While the impact of ten

acres changing from a Rural designation to

the Outlying Suburban category, when looked

at on a county wide basis, is minimal, the

unique circumstances on Pine Island do not

support this change.

39. The LPA voted against adoption of PAM 98-01 by a vote

of 4-1, with two members (including Mr. Stuart, who worked on the

project for Intervenor) abstaining. The LPA adopted the findings

of fact set forth in the Staff Report, and added its concern with

maintaining the current line of separation between urban and

suburban uses. One LPA member did comment that "if there is

another shopping center site on Pine Island, it’s probably this

property," and in the "long run" there may be a need for another

shopping center on Pine Island.

40. The Board voted 3-2 to adopt PAM 98-01, finding that

"the request would result in minimal impacts to such services as

transportation, public safety, schools, and population

accommodation."

41. The petition filed by Petitioners, as amended, raised

the following issues of fact and law:

a. Data and Analysis: that PAM 98-01 is

unsupported by data and analysis for

increased residential and commercial

designation on Pine Island and thus is not in

compliance with Section 163.3177(8) &

(10)(e), Florida Statutes, and Rules 9J-

5.005(2), 9J-5.006(2)(b) & (c), and 9J-

5.006(5)(a) & (g), Florida Administrative

Code.

b. Coastal Hazard: that PAM 98-01 is not

in compliance with Section 163.3178(2),

Florida Statutes, and Rules 9J-5.006(2), 9J-

5.012(3), and 9J-5.012(3)(b)6., Florida

Administrative Code, because it directs

population to the known or predictable

coastal high hazard area.

c. Land-use Suitability: that PAM 98-01 is

unsupported by data and analysis supporting

the suitability of land for increased

residential density or intensity of

commercial development and thus is not in

compliance with Section 163.3177(6)(a),

Florida Statutes, and Rules 9J-5.006(2), 9J-

5.006(2)(b), and 9J-5.006(5)(a) & (g),

Florida Administrative Code.

d. Internally Inconsistent: that PAM 98-01

is internally inconsistent with the following

Lee County Plan goals, objectives, and

policies:

(1) Policy 5.1.2 prohibiting

residential development where physical

constraints or hazards exist, or requiring

the density and design to be adjusted

accordingly. Constraints or hazards include

flood, storm, or hurricane hazards, and

environmental limitations.

(2) Goal 14 requiring that the

management of growth on Pine Island maintain

the island’s unique natural resources and

character, and insure that island residents

and visitors have a reasonable opportunity to

evacuate when a hurricane strike is imminent.

(3) Objective 14.1 requiring that Pine

Island have no unnecessary loss of native

upland vegetation or habitat.

(4) Policy 14.2.2, set out in full

above, concerning future development

regulations to limit future development

approvals when traffic reaches certain

thresholds.

(5) Objective 14.3 requiring that

county regulations, policies and

discretionary actions to recognize "certain

unique characteristics" of Greater Pine

Island justifies different treatment of

existing and future residential areas than in

mainland Lee County.

(6) Goal 75 protecting human life and

developed property from natural disasters.

(7) Objective 75.1 and Policies 75.1.2

and 75.1.4 concerning densities in coastal

high hazard areas.

(8) Objective 77.2 and Policies 77.2.3

and 77.2.6 concerning protection of natural

plant communities.

(9) Policy 77.4.4 restricting the use

of protected plant and wildlife species

habitat to that which is compatible with the

requirements of endangered and threatened

species and species of special concern.

(10) Policy 77.8.1 concerning the

protection of gopher tortoise burrows.

(11) Goal 79 and Objectives 79.1 and

79.2 concerning evacuation times and shelter

capacity.

e. Inconsistent with State Plan: that

PAM 98-01 is inconsistent with Section

187.201(7)(b)23, Florida Statutes, which

concerns protecting life and property from

natural disasters such as hurricanes, and

Section 187.201(10)(a), Florida Statutes,

which concerns protecting natural habitats

and ecological systems.

Suitability

42. In 1989, Lee County’s Department of Community

Development prepared the Pine Island Commercial Study, in

response to a general directive by the Board to develop a means

of identifying future commercial sites throughout Lee County, and

in direct response to issues emerging from the review of two

specific commercial zoning cases on Pine Island. The Commercial

Study was initiated to research, analyze, and quantify commercial

zoning needs for Pine Island, and then identify suitable

locations for potential future development.

43. The Commercial Study concluded that in 1989 there were

over 600 acres of commercially-zoned property on Pine Island, and

that this acreage was "far in excess of any possible need, even

at build-out, of Pine Island." The study went on to say:

However, it is recognized that not all

the lands currently zoned commercially are in

advantageous locations, nor are they in

appropriate land-use categories. In fact,

properties in locations with strong market

demand and good transportation access and

suitable lot sizes are relatively limited.

44. The Commercial Study also concluded that much of the

land already zoned for commercial use was zoned C-1 and C-1A,

"carryover" categories from older Lee County ordinances based on

"pyramid" zoning, i.e., they also allowed residential uses. The

study found that the most desirable solution to this problem

would be to rezone these properties to non-commercial categories,

but recognized the prohibitive cost of such a "relatively massive

undertaking." It recommended the more practical option of

modifying zoning regulations to make it clear that retail

commercial uses can only be located within "designated commercial

nodes," regardless of their zoning categories.

45. The Commercial Study also concluded that additional

retail uses would be needed on Pine Island as the population

grows, although current uses were adequate to meet existing needs

"until the year 2000," and that commercial development should be

concentrated in the Pine Island Center, with possible convenience

store sites at St. James City and Bokeelia.

46. Approximately 236 acres were identified in the

Commercial Study as appropriate commercial areas. The Commercial

Study stated that this was more than four times the amount needed

for 1990 retail and general commercial uses. Mr. Spikowski

testified that it is typical for more property to be zoned

commercial than is actually needed, because land owners are

attempting to maximize the value of their property. He testified

that a "slight surplus," in the range of 15 to 25 percent, is

appropriate to avoid giving a few land owners a monopoly on

future development. The property at issue in this proceeding was

not included in the 236 acres deemed appropriate for commercial

development.

47. Despite several efforts from 1990 through 1993, no

amendment establishing these commercial nodes was ever adopted by

the Board. Ultimately, the Civic Association itself withdrew its

support for the commercial nodes plan, stating that the plan as

proposed would promote commercial strip development and

commercial sprawl.

48. In 1993, the Board adopted Policy 14.4.3, which would

have required Lee County staff to update the Commercial Study in

1995. However, no such update was ever undertaken, and in 1998

the Board amended the Lee County Plan to delete Policy 14.4.3.

The staff report recommending deletion of the policy noted that

current demand for commercial sites had been minimal and did not

warrant a full scale update of the Commercial Study, and

concluded that the 1989 Commercial Study was "still a current

document" not in need of an update.

49. The Lee County Plan incorporates a "planning community"

concept through an overlay, commonly referred to as the " FLUM

2020 Overlay," that establishes certain acreage allocations for

uses that can occur within 20 discrete planning areas before the

year 2020. Pine Island is one of these planning areas.

50. The FLUM 2020 Overlay is intended to allocate

development throughout the county and prevent excessive

development in particular land-use categories beyond the

projected need. The FLUM 2020 Overlay allocates development on

Pine Island through the year 2020 as follows:

Category Allocation (in acres)

a. Intensive Development

(for Residential Development) 5

b. Urban Commercial

(for Residential Development) 526

c. Suburban

(for Residential Development) 636

d. Outlying Suburban

(for Residential Development) 466

e. Rural

(for Residential Development) 1,129

f. Outer Island

(for Residential Development) 37

g. Wetlands

(for Residential Development) 88

h. Commercial 165

i. Industrial 64

j. Public 1,722

k. Active Agriculture 2,313

l. Passive Agriculture 960

m. Conservation 13,693

n. Vacant 4,586

Total 26,390

51. Below this list of allocations is a table called "Non

Regulatory Allocations," which shows a total of 26,393 acres,

slightly different from the total derived above. The "Non

Regulatory Allocations" table lists 13,738 acres as conservation

lands, leaving 12,700 acres. An additional 4,586 acres are

designated "Vacant" in the "Non Regulatory Allocations," but

their land-use designation is not identified.

52. The FLUM 2020 Overlay provides for 165 acres of

commercial development on Pine Island by the year 2020.

Mr. Spikowski testified that Lee County’s database indicated that

as of 1997 there were 138 acres developed commercially on Pine

Island, leaving a need of 27 acres of vacant land for commercial

development before the year 2020.

53. Mr. Noble, the principal planner for Lee County,

testified that his conclusion, reflected in the Staff Report, was

that there is no need for additional commercial or urban lands on

Pine Island, and that approval of PAM 98-01 would cause

unnecessary commercial development on Pine Island. He testified

that these conclusions were largely based on the findings of the

1989 Commercial Study of Pine Island.

54. Mr. Noble also testified that, despite his conclusion

as to the lack of need for commercial development, the FLUM 2020

Overlay allocates sufficient acreage to accommodate the property

involved in PAM 98-01 without requiring an amendment to the

overlay.

55. Mr. Noble testified that no effort was made to update

the findings of the 1989 study, because none was needed. He

testified that there has been very little rezoning or development

activity on Pine Island since 1989 aside from some clearing for

agricultural uses, and therefore the 1989 study represents the

best available data.

56. Mr. Spikowski agreed with this assessment, testifying

that while the 1989 study is somewhat out of date, it still

provides good information on how much commercial development is

needed to serve the community. Mr. Spikowski testified that the

study still provides more information than exists for other parts

of Lee County regarding the relationship between commercial

development and commercial zoning.

57. Mr. Noble admitted that the county’s capabilities in

collecting and categorizing data have improved since 1989, but

did not agree that revising the study would result in improved

information, because the county’s zoning information is so

inaccurate that one could not rely on the existing land-use data

base to update the study. Thus, despite the fact that the

county’s data base is now linked to the property appraiser’s

records on a parcel by parcel basis, an accurate revision of the

study would require verification of each parcel, and the lack of

activity on Pine Island indicated to Mr. Noble that such an

expenditure of resources was not needed to assess this

application.

58. Mr. Noble testified that the staff recommendation

against approval was not a statement that approval of PAM 98-01

would be illegal. Mr. Noble also agreed there was a difference

between opining that there is no need for more commercial and

urban classifications, and holding that more such classifications

are not allowed. He attended the meeting at which the Board

approved the amendment, and believed the Board understood staff’s

presentation and considered all relevant information in arriving

at its decision. Mr. Noble testified that the Lee County Plan is

currently in compliance with all applicable legal requirements,

and he did not think that PAM 98-01 would place the plan out of

compliance.

59. Mr. Stuart, Intervenor’s planner, testified that once

he began to understand that Lee County staff had concerns with

overcommercialization of Pine Island based on the 1989 study, he

took a hard look at that data. He testified that the 602 acres

of commercial property set out in the Commercial Study did not

appear correct "when you look at the map."

60. Mr. Stuart testified that he performed a specific land-

use study using the Lee County Division of Planning geographic

information system resources.

61. Mr. Stuart began by looking at the 1989 study, and

noted that no information was available to show how the county

derived the 602-acre figure. The only thing available in the

county’s files was a single sheet aggregating the numbers into a

total, without explanation of how the constituent numbers were

derived. Mr. Spikowski, who was Lee County’s head planner in

1989, testified that the 602-acre figure was calculated "very

carefully," but offered no detail to illumine that conclusory

statement. Mr. Stuart testified that, though he suspected the

total was inflated, he assumed that it was reasonably accurate

for purposes of his analysis.

62. Mr. Stuart considered the currently expected population

of Pine Island based upon currently available data, the county’s

planning conversion ratio of 2.09 persons per household on Pine

Island, the county’s conversion ratio adjusting Pine Island’s

population for seasonal residents, and then calculated the

projected need for commercial development expressed in acres,

using the same ratios that Lee County uses in planning for this

purpose.

63. Mr. Stuart also developed a computer table, with the

assistance of county staff, of all the commercially-zoned

property on Pine Island. He then adjusted the output to correct

data entry errors and approximated the commercial acreage

determined to be available in the 1989 Commercial Study.

64. Mr. Stuart next examined the properties parcel by

parcel to delete those commercially-zoned properties that have

already been put to non-commercial use, that are wetlands

unlikely to be commercially developed, that are in use as public

facilities, and those that may not be developed because they are

designated with outdated zoning categories that are restricted

under the Lee County Land Development Code. This process derived

an estimate of the number of commercially-zoned acres on Pine

Island that are either in commercial use or are available for

commercial use.

65. Mr. Stuart’s analysis concluded that there is actually

a deficit on Pine Island of 69 acres of commercially-zoned

property that may as a practical matter be put to commercial use,

when the projected demand for such property to serve the

projected population of Pine Island is taken into account.

66. In summary, it is found that Petitioners failed to

demonstrate by a preponderance of the evidence that the increase

in residential density and commercial intensity contemplated by

PAM 98-01 is not suited to accommodate the population of Pine

Island. The most conservative estimate rendered by the data and

analysis indicates a need for an additional 27 acres of

commercial development. No amendment of the FLUM 2020 Overlay is

needed to effect this small-scale FLUM amendment. Mr. Stuart’s

analysis is credited to the extent it supports a finding of

substantial need.

67. Petitioners offered no competent substantial evidence

regarding residential allocations and the lack of any need for

additional residential density, and thus failed to overcome the

presumption that the Board’s action in adopting PAM 98-01 was

correct on this point.

Transportation

68. Vehicular access from the mainland to Pine Island is

provided solely by way of Pine Island Road, a two-lane road that

proceeds over Matlacha Pass, through the Matlacha community, and

over Little Pine Island by a series of bridges and causeways.

North/south access on Pine Island is by way of Stringfellow Road,

a two-lane road that runs from the community of Bokeelia at the

north end of Pine Island to the community of St. James City at

the south end of Pine Island.

69. William Spikowski, a planner who testified on behalf of

Petitioners, stated that widening the narrow, two-lane Pine

Island Road to accommodate more traffic would be at best a

difficult and expensive proposition. He testified that the

right-of-way through most of the Matlacha community is only about

66 feet wide, and the buildings are often located directly

adjacent to the right-of-way. He testified that if the right-of-

way were widened to 90 feet to accommodate extra lanes, 75

buildings would have to be removed and several other businesses

would lose their parking lots. Mr. Spikowski concluded that Pine

Island Road is the biggest limitation on the island’s

development.

70. The Lee County Plan designates Pine Island Road as a

constrained roadway as it passes through Matlacha, due to the

narrow right-of-way and scenic, aesthetic, and environmental

considerations. Matt Noble, a Lee County planner, testified that

there were no improvements scheduled for Pine Island Road for the

next three years, and that the road is projected to operate at

Level of Service "F" in the year 2020 based on the applicant’s

analysis. Level of Service "F" is below the standard adopted by

the Lee County Plan.

71. Mr. James Banks, a professional engineer expert in

transportation engineering and planning, testified that the

predictive methodology employed by county staff, i.e., assuming

no road improvements while loading the system with future traffic

demands, would result in a Level of Service "F" rating for nearly

every major roadway in Lee County for the year 2020. He

testified that this was an improper method for reviewing

development permits.

72. Mr. Banks testified that the proper method is to look

at the roadway’s capacity at the time of the development

application to determine whether there is available capacity

today. If there is no capacity available, then the developer

must devise a way to mitigate the impact, alleviating any

degradation below the road’s adopted level of service. The

permitting system is "first come, first serve," meaning that if

the capacity is available today, then the permit is issued.

Mr. Banks testified that there is no data indicating that the

capacity of Pine Island Road will be exceeded by the year 2005.

73. The sole hurricane evacuation route from the Greater

Pine Island Area is by way of Stringfellow Road to Pine Island

Road, then north on Burnt Store Road. Burnt Store Road is also

the evacuation route for the City of Cape Coral.

74. Several Pine Island residents testified as to their

concerns that any increase in development on the island will

further compromise the ability to evacuate the island in the

event of a hurricane. There are no hurricane shelters on Pine

Island, and no public services on the island during hurricanes.

75. The Lee County Staff Report for PAM 98-01 raised

similar concerns, concluding that the applicant is "seeking to

increase density thereby increasing the number of persons at

risk, impacting evacuation routes and shelter space."

76. At the hearing, Matt Noble, Lee County’s principal

planner and the lead planner working on the Staff Report,

testified that the quoted statement in the Staff Report assumed

that the development on the 9.9-acre parcel would be residential.

He further testified that commercial development of the property

would have no effect on evacuation times, which are based on the

number of residents attempting to leave the island.

77. Mr. Noble’s testimony on this point conflicts somewhat

with the Staff Report’s statement that the application was

reviewed using the most intensive scenario of retail commercial

uses occurring on the property. However, given that the proposed

plan amendment could not limit the development that could

ultimately be requested on the property, it was not arbitrary for

the county staff to consider both residential and commercial uses

as potential development scenarios.

78. James Banks, Intervenor’s transportation planning

expert, testified that if residential demand on Pine Island

exceeds the capacity of commercial development to satisfy it,

there would be an increase in traffic on Pine Island Road as

residents leave the island to do their basic shopping.

Conversely, if enough commercial development occurs on the island

to consume the residential demands, the number of off-island

trips would be reduced.

79. Mr. Noble agreed that there might be an increase in

trips off the island if there were insufficient commercial

development to serve the residents on Pine Island. He testified

that there is a planning principle supporting integrated and

coordinated land-use development, and part of that principle is

to capture as many trips as close to residential development as

possible to avoid urban sprawl.

80. Mr. Noble testified that the Board considered this

principle in its deliberations, and that one Commissioner

expressly stated that having additional commercial capacity on

Pine Island might improve the transportation flow on Pine Island

Road by decreasing the number of trips off the island.

81. Policy 14.2.2 of the Lee County Plan states as follows:

In order to recognize and give priority

to the property rights previously granted by

Lee County for about 6,800 additional

dwelling units, the county shall consider for

adoption development regulations which

address growth on Pine Island and which

implement measures to gradually limit future

development approvals. The effect of these

regulations would be to appropriately reduce

certain types of approvals at established

thresholds prior to the adopted level-of-

service standard being reached, as follows:

* When traffic on Pine Island Road

between Burnt Store Road and Stringfellow

Boulevard reaches 810 peak hour, annual

average two-way trips, the regulations shall

provide restrictions on further rezonings

which would increase traffic on Pine Island

Road.

* When traffic on Pine Island Road

between Burnt Store Road and Stringfellow

Boulevard reaches 910 peak hour, annual

average two-way trips, the regulations shall

provide restrictions on the further issuance

of residential development orders (pursuant

to the Development Standards Ordinance), or

other measures to maintain the adopted level

of service, until improvements can be made in

accordance with this plan.

82. Lee County has not actually adopted regulations

restricting rezonings and/or development orders based upon the

810/910 peak hour traffic thresholds on Pine Island Road between

Burnt Store and Stringfellow Roads.

83. Mr. Noble testified that the main reason for the

adoption of Policy 14.2.2 was the county’s concerns regarding

hurricane evacuation. He agreed that, even if the prescribed

regulations had been adopted, they would restrict rezonings and

development orders, not amendments to the comprehensive plan.

84. Mr. Noble testified that the 810 and 910 vehicle limits

are not standard calculations derived by the Department of

Transportation, and cannot be mathematically derived from any

planning model. Mr. Spikowski testified that the 810 and 910

vehicle per hour thresholds were based on roughly 80 percent and

90 percent, respectively, of the level of service proposed by

either the Civic Association or Lee County staff at the time of

the policy’s adoption. He further testified that the 810 trip

per hour threshold has already been reached.

85. James Banks, Intervenor’s expert in transportation

planning, agreed with Mr. Noble that the 810 and 910 vehicle

limits were essentially arbitrary thresholds adopted by the

Board, and further testified that these thresholds are unrelated

to the actual capacity of the road.

86. Mr. Banks testified that Lee County’s own Concurrency

Management Inventory and Projections indicate that the actual

capacity of Pine Island Road between Burnt Store and Stringfellow

Roads is 2,170 vehicles per hour at Level of Service "E", and

that the road is currently operating at Level of Service "A," the

highest designation. Mr. Banks testified that under any possible

development scenario involving the parcel at issue in this

proceeding, the impact would be no worse than Level of Service

"B" for this portion of Pine Island Road, still well below the

road's capacity.

87. In summary, Petitioners failed to demonstrate by a

preponderance of the evidence that PAM 98-01 will compromise

evacuation of Pine Island in the event of a hurricane, or that

the development that might ultimately be allowed pursuant to the

Outlying Suburban designation will strain the operating capacity

of Pine Island Road in the critical areas described above. Even

assuming the additional traffic generated will push trips per

hour beyond the 810 threshold and toward the 910 trip per hour

threshold, Policy 14.2.2 by its terms places no restrictions on

development; rather, it provides that the Board will consider

adopting development regulations "to gradually limit future

development approvals."

Coastal High Hazard Area

88. Closely related to the transportation and evacuation

concerns is the issue of development limitations on barrier

islands such as Pine Island.

89. Goal 75 of the Lee County Plan and its implementing

objectives and policies addresses development in coastal high-

hazard areas. Objective 75.1 limits new development on barrier

islands to densities that meet required evacuation standards, and

states that allowable densities for undeveloped areas within the

coastal high hazard areas will be considered for reduction.

90. Mr. Noble testified that other Outlying Suburban lands

and proposed residential development on Pine Island have been

found to comply with Objective 75.1, but that there have only

been a "couple" of such projects due to the sparse development

activity on the island.

91. Policy 75.1.2 prohibits rezonings to allow higher

densities on barrier and coastal islands if the capacity of

critical evacuation routes would be exceeded. Mr. Spikowski

conceded that approval of three homes per acre on the seven acres

proposed for residential development by Intervenor would not

exceed the Lee County Plan’s stated evacuation times, but argued

that taking a narrow view of this project in a vacuum is "the

antithesis of planning," which calls for a view of the "big

picture" rather than the individual project.

92. Policy 75.1.4 states that density reductions for

undeveloped areas within the coastal high-hazard areas will be

considered, but does not require such reductions.

93. In 1993, the Florida Legislature amended Section

163.3178(2)(h), Florida Statutes, to require that coastal

elements of comprehensive plans designate "coastal high-hazard

areas," defined as Category One evacuation zones, i.e., areas

that must be evacuated for a Category One hurricane. Rule 9J-

5.003(17), Florida Administrative Code, was subsequently amended

to reflect the statutory change.

94. Petitioners contend that PAM 98-01 cannot be adopted at

this time because the Lee County plan amendments defining the

coastal high hazard area have not been finally adopted.

Petitioners contend that adoption of PAM 98-01 would violate Rule

9J-5.002(8), Florida Administrative Code, which provides:

Effect of Rule Amendments. No amendment

to this chapter shall have the effect of

causing plans or plan amendments which were

adopted prior to the effective date of the

amendment to become not in compliance.

Minimum criteria contained in any amendment

to this chapter shall be addressed in the

first subsequent transmitted plan amendment

which is directly related to or requires the

application of those criteria.

95. Petitioners contend that the quoted rule provision

operates to give effect only to such plan amendments dealing with

potential "coastal high-hazard areas" as were adopted prior to

the amendment of Rule 9J-5.003(17), Florida Administrative Code.

Petitioners argue that until the mandated definitions are finally

adopted, PAM 98-01 would render the Lee County Plan out of

compliance.

96. Petitioners' reading of the quoted rule is strained and

not persuasive. They are correct that the first sentence

operates to grandfather plan amendments adopted prior to a given

rule amendment. The language of the second sentence requires the

local government to address rule amendments "in the first

subsequent transmitted plan amendment." By its terms, the rule

would have the practical effect of prohibiting interim plan

amendments dealing with the subject matter of the rule

amendments, as urged by Petitioners, because such an interim plan

amendment would by definition not be the "first subsequent

transmitted amendment."

97. However, the second sentence does not address the

situation presented here, of a small-scale plan amendment that is

not formally "transmitted" to the Department of Community Affairs

for review pursuant to Section 163.3184(3), Florida Statutes.

"Transmittal" of a plan amendment triggers an array of procedural

requirements that Section 163.3187(1)(c), Florida Statutes, is

specifically designed to avoid. Petitioners’ argument on this

point would effectively tie the small-scale plan amendment

process irrevocably to the more cumbersome "large-scale"

amendment process each time the Department of Community Affairs

chooses to amend Chapter 9J-5, Florida Administrative Code, in

such a way as to require compliant local plan amendments. This

would defeat the Legislature’s purpose in disengaging small-scale

amendments from many of the formalities of the plan amendment

process.

98. In any event, no party to this proceeding seriously

contended that the property in question in fact lies outside of

the coastal high-hazard area. The Staff Report, while

acknowledging that the property is not yet "technically included"

in the coastal high-hazard area, expressly treated the property

as if it were, applying Goal 75 of the Lee County Plan in its

analysis of the project. The Intervenor did not contest this

treatment. These findings of fact accept that the subject

property lies within the coastal high-hazard area, and that the

property was treated by both Lee County staff and the Board as

lying within the coastal high-hazard area, rendering moot

Petitioners’ procedural arguments regarding the formal adoption

of the new statutory definition.

99. In summary, Petitioners failed to establish by a

preponderance of the evidence that PAM 98-01 does not comply with

statutory, rule, or Lee County Plan provisions dealing with

development in coastal high-hazard areas.

Natural Resources

100. Intervenor’s 9.9 acre parcel, a pine flatwood

community dominated by slash pine in the canopy with an

understory of saw palmetto and other upland species, contains

protected plants and animals. Uniformly distributed over the

parcel are 551 beautiful pawpaws, as counted in the survey of the

property conducted by Boylan Environmental Consultants on behalf

of Intervenor. Petitioners did not dispute this count of the

beautiful pawpaws on the site.

101. The beautiful pawpaw has been designated an endangered

species by the United States Fish and Wildlife Service and the

Florida Game and Freshwater Fish Commission (now called the

Florida Fish and Wildlife Conservation Commission). Lee County

has designated the beautiful pawpaw as a protected species.

102. Beautiful pawpaws are small plants with deep tubers,

and are difficult to relocate. The beautiful pawpaws on the 9.9-

acre parcel are currently healthy and viable.

103. Intervenor’s 9.9-acre parcel also contains 10 active,

21 inactive, and 22 abandoned gopher tortoise burrows, as counted

by Boylan Environmental Consultants and not disputed by

Petitioners. Gopher tortoises are listed as a species of special

concern by the Florida Fish and Wildlife Conservation Commission,

and are listed as a protected species by Lee County. Gopher

tortoise burrows are also appropriate habitat for indigo snakes

and gopher frogs, both of which are listed as protected species

by Lee County.

104. Betsie Newton Hiatt, a senior environmental planner

with Lee County and an expert in environmental planning,

testified that she made a "cursory inspection" of the subject

property and observed the beautiful pawpaws and gopher tortoise

burrows on the site. She did not actually count the plants or

burrows, but testified that she observed enough to consider the

counts made by Boylan Environmental Consultants to be accurate.

105. Ms. Hiatt testified that a management plan would be

necessary prior to development of the parcel, and that it would

be possible to submit a detailed management plan meeting all Lee

County Land Development Code requirements for property that has

beautiful pawpaws and gopher tortoise burrows and that lies

within an Outlying Suburban land-use category.

106. Ms. Hiatt testified that part of her duties is the

implementation of Policy 77.2.6 of the Lee County Plan, which

requires avoidance of needless destruction of upland vegetation

communities through consideration during the site plan review

process of alternative layouts of permitted uses. She testified

that this policy is implemented in the Lee County Land

Development Code through open space and indigenous preservation

requirements. She finally testified that it would be possible to

meet the open space requirement while developing the parcel at

issue in this proceeding.

107. Ms. Hiatt testified that the policy requires that

approximately one third of the beautiful pawpaws found on a site

be preserved in place, one third may be relocated in preservation

areas, and one third may be removed. She testified that the open

space requirement for commercial use of a 9.9-acre site would be

about three acres, and that about 380 beautiful pawpaws could

survive in this area. This would be about 69 percent of the 551

beautiful pawpaws found on the site, slightly more than the

requisite two-thirds that must be preserved.

108. Rae Ann Boylan, the expert in environmental land-use

planning whose company performed the species survey on the

property, testified that allowing the site to lay fallow would be

as bad for the beautiful pawpaws as development, because other

shrubs would eventually overgrow them without management of the

site.

109. Ms. Boylan also testified that a management plan would

be required prior to development to accommodate the listed

species. She testified that Lee County requires a developer to

excavate the tortoises that can be found and place them out of

harm’s way. She further noted that Policy 77.8.1 of the Lee

County Plan provides for off-site mitigation, if unavoidable

conflicts make on-site protection of the tortoises infeasible.

110. Policy 5.1.2 of the Lee County Plan prohibits

residential development where physical constraints or hazards

exist, including hurricane hazards and environmental limitations.

Mr. Noble of Lee County testified that residential development

has been approved on Pine Island under this policy, and that the

decision whether this policy applies to a given project is made

at the time of development or site plan approval.

111. Mr. Spikowski agreed that Policy 5.1.2 is a limitation

on development, but argued that now is the time to evaluate the

matter. He testified that if there are physical constraints or

hazards that should stop approval of additional subdivisions on

Pine Island, the county should not wait for the development order

stage to draw the line. Mr. Spikowski explained that, as a

practical matter, the development order stage consists of

arguments about the details of the development, not whether it

will occur at all. Mr. Spikowski's testimony is credited as a

valid statement of planning philosophy, but not as stating a

legal barrier to the Board's decision in this matter.

112. In summary, Petitioners failed to demonstrate by a

preponderance of the evidence that PAM 98-01 by its terms will

have any adverse impacts on native upland vegetation, wildlife

habitat, natural plant communities, or protected plant and

wildlife habitat. Even after PAM 98-01 is enacted, the Lee

County Plan provisions protecting all these natural resources

will remain in place. Any subsequent development will be

required to comply with the provisions of the Lee County Plan and

the State Comprehensive Plan establishing protection of the

resources.

Data and Analysis

113. Section 163.3177(8), Florida Statutes, requires that

all elements of a comprehensive plan be based upon data

appropriate to the element involved.

114. Rule 9J-5.005(2)(a), Florida Administrative Code,

provides in relevant part:

All goals, objectives, policies,

standards, findings and conclusions within

the comprehensive plan and its support

documents, and within plan amendments and

their support documents, shall be based upon

relevant and appropriate data and the

analyses applicable to each element. To be

based on data means to react to it in an

appropriate way and to the extent necessary

indicated by the data available on that

particular subject at the time of the

adoption of the plan or plan amendment at

issue.

115. The local government is not required to engage in

original data collection, but the data used must be the best

available. Rule 9J-5.005(2)(b) and (c), Florida Administrative

Code.

116. Rule 9J-5.006(2)(c), Florida Administrative Code,

provides that the Future Land-use Element, including the FLUM and

amendments thereto, must include an analysis of the amount of

land needed in each category of land-use to accommodate the

projected population. This analysis must estimate the gross

acreage needed by land-use category and their densities and

intensities, and describe the methodology used to arrive at those

estimates.

117. The preponderance of the evidence establishes that

there was sufficient data and analysis to permit the Board to

conclude that PAM 98-01 was justified. As found above, even the

most conservative estimate of Mr. Spikowski, the expert retained

to oppose the amendment, conceded that the data indicated there

remains a need for 27 acres of vacant land for commercial

development on Pine Island before the year 2020.

118. The Commercial Study relied upon by Petitioners also

concedes that much of the property currently zoned for commercial

uses is not in fact appropriate for such uses. The evidence

establishes that Lee County itself has historically recognized

this fact but has declined to expend the resources needed to

update the zoning on Pine Island, largely due to the overall

paucity of development activity on the island.

119. The evidence in this proceeding establishes that the

property at issue is the only commercially-zoned property

adjacent to the Pine Island Center that was not included in that

center during the 1989 Plan update process, presumably because it

was vacant property at the time. Despite all the testimony

regarding properties on Pine Island having inappropriate

commercial zonings, not one witness suggested that the property

at issue should not be zoned commercially.

120. At least one member of the LPA recognized the

appropriateness of this property for development "in the long

run," but the LPA voted against the amendment to preserve the

clear demarcation between urban and rural uses in the current

FLUM.

121. However, even Mr. Spikowski conceded that the clear

line between urban and rural uses was compromised at the outset

to allow for existing uses, and that the FLUM change contemplated

by PAM 98-01 would merely add another "blip" to a line on the map

that already contains breaks and changes between urban and rural

uses.

122. Mr. Spikowski’s argument that PAM 98-01 would create

urban sprawl is thus overstated. PAM 98-01 does not designate

uses in excess of demonstrated need. It does not appreciably

compromise the clear separation between rural and urban uses. It

does not discourage or inhibit infill development.

123. In fact, PAM 98-01 could just as plausibly be said to

constitute infill in the vicinity of the Pine Island Center; at

the very least, it does not leap over undeveloped lands that are

available and suitable for development. The subject property

lies between commercial uses to the north and a public facility

use, the RO plant, to the south.

124. PAM 98-01 does not fail to protect environmentally

sensitive habitat, because the beautiful pawpaws and the gopher

tortoise burrows on the site will be dealt with as provided in

the Lee County Plan during any subsequent development and site

planning of the property.

125. Mr. Spikowski’s ultimate opinion that PAM 98-01 is

"illegal" is based on his view, also expressed in the Staff

Report, that there is "no compelling reason" to adopt the

requested amendment. Mr. Spikowski testified that, because Pine

Island has an overallocation of commercial land, anyone wishing

to add to the total has "a really high burden to show that this

is so much better located than the existing land, or [that] other

land should be eliminated in favor of this land, and that burden

hasn’t been met." As explained in the conclusions of law below,

this is not the standard for judging the legality of a small

scale development amendment. Mr. Spikowski’s policy disagreement

with the Board’s action has been noted and fully considered, but

his judgment that PAM 98-01 is "illegal" cannot be credited.

126. In summary, Petitioners failed to demonstrate by a

preponderance of the evidence that PAM 98-01 is not supported by

relevant and appropriate data and analysis as required by Section

163.3177(8), Florida Statutes, and Rule 9J-5.005(2), Florida

Administrative Code.

CONCLUSIONS OF LAW

127. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. Sections 120.569, 120.57, and 163.3187(3), Florida

Statutes.

128. As recited in the findings of fact above, Petitioners

Barbara Dubin, William Dubin, the Civic Association, and

Intervenor Gregory Eagle have standing as "affected persons"

under Section 163.3184(1)(a), Florida Statutes, to participate in

this proceeding.

129. Proposed amendment PAM 98-01 is a "small scale

development amendment" as defined in Section 163.3187(1)(c),

Florida Statutes.

130. Section 163.3187(3), Florida Statutes, sets forth the

standard of proof in this proceeding:

In the proceeding, the local government’s

determination that the small scale

development amendment is in compliance is

presumed to be correct. The local

government’s determination shall be sustained

unless it is shown by a preponderance of the

evidence that the amendment is not in

compliance with the requirements of this act.

131. Section 163.3184(1)(b), Florida Statutes, defines "in

compliance" to mean:

consistent with the requirements of ss.

163.3177, 163.3178, and 163.3191, with the

state comprehensive plan, with the

appropriate strategic regional policy plan,

and with chapter 9J-5, Florida Administrative

Code, where such rule is not inconsistent

with chapter 163, part II and with the

principles for guiding development in

designated areas of critical state concern.

132. Section 163.3177(10)(a), Florida Statutes, sets forth

legislative intent as to the definition of "consistency" as that

term is applied in Chapter 9J-5, Florida Administrative Code.

The relevant portion of the statute reads as follows:

[F]or the purpose of determining whether

local comprehensive plans are consistent with

the state comprehensive plan and the

appropriate regional policy plan, a local

plan shall be consistent with such plans if

the local plan is "compatible with" and

"further" such plans. The term "compatible

with" means that the local plan is not in

conflict with the state comprehensive plan or

appropriate regional policy plan. The term

"furthers" means to take action in the

direction of realizing goals or policies of

the state or regional plan. For the purposes

of determining consistency of the local plan

with the state comprehensive plan or the

appropriate regional policy plan, the state

or regional plan shall be construed as a

whole and no specific goal and policy shall

be construed or applied in isolation from the

other goals and policies of the plans.

133. The State Comprehensive Plan expresses a similar

intent, at Section 187.101(3), Florida Statutes:

The goals and policies contained in the State

Comprehensive Plan shall be reasonably

applied where they are economically and

environmentally feasible, not contrary to the

public interest, and consistent with the

protection of private property rights. The

plan shall be construed and applied as a

whole, and no specific goal or policy shall

be construed or applied in isolation from the

other goals and policies in the plan.

134. The elements of a local government comprehensive plan

must be internally consistent. Section 163.3177(2), Florida

Statutes. A comprehensive plan may be amended only in a way that

preserves the internal consistency of the plan. Section

163.3187(2), Florida Statutes.

135. The Lee County Plan has previously been determined to

be in compliance with Chapter 163, Part II, Florida Statutes, and

internally consistent.

136. The Lee County Plan includes a future land-use element

("FLUE") setting forth policies related to proposed general

distribution, location and extent of the uses of land. The FLUE

must be based upon data, including the amount of land required to

accommodate anticipated growth, projected population, the

character of undeveloped land, and the availability of public

services. Section 163.3177(6)(a), Florida Statutes.

137. PAM 98-01 has not been shown to be inconsistent with

the FLUE of the adopted Lee County Plan. The subject parcel is

suitable for the Outlying Suburban designation. The facts

demonstrated that this property historically had an urban

designation, but was singled out for a rural designation during

the 1989 amendment cycle for the purpose of maintaining a clear

separation between the commercially developed properties to the

north and the rural properties to the south.

138. This "clear separation" was blurred at the outset by

various urban designations designed to accommodate existing

development. Additionally, an RO plant sits on property south of

the subject parcel, further blurring the clear separation. The

most conservative estimate based on Lee County statistics

indicates a need for an additional 27 acres of commercial

development on Pine Island, and even some opponents of the

amendment agree that this is a suitable site for such

development, if any such development is to occur.

139. The Lee County Plan has been found to be consistent

with the goal of the State Comprehensive Plan directing

development to areas able to accommodate growth in an

environmentally acceptable manner. Section 187.201(16)(a),

Florida Statutes.

140. PAM 98-01 has not been shown to be inconsistent with

this element of the State Comprehensive Plan. Petitioners failed

to demonstrate that any unacceptable environmental impacts will

result from the development contemplated by PAM 98-01.

141. The Lee County Plan includes a coastal management

element consistent with Section 163.3177(6)(g), Florida Statutes.

As required by Section 163.3178(2)(d), Florida Statutes, the Lee

County Plan also accounts for the capability to safely evacuate

the coastal population in the event of an impending natural

disaster. The Lee County Plan is also consistent with the State

Comprehensive Plan requirement that Lee County, in cooperation

with regional and state agencies, adopt plans and policies to

prepare for coastal evacuation and to protect property and human

life from the effects of natural disasters. Section

187.201(7)(b)22 and 23, Florida Statutes.

142. Policy 5.1.2 of the Lee County Plan provides that

where physical constraints or hazards exist, residential

development must be prohibited or density and design must be

adjusted to account for the constraints or hazards. Policy

75.1.2 prohibits rezonings to allow higher densities on barrier

and coastal islands if the capacity of critical evacuation routes

would be exceeded. Policy 75.1.4 provides that undeveloped lands

in coastal high-hazard areas will be considered for reduced

density categories to limit future population exposed to coastal

flooding.

143. PAM 98-01 has not been shown to be inconsistent with

these coastal evacuation and development provisions of the Lee

County Plan. All the pertinent witnesses agreed that commercial

development has no effect on evacuation times. Petitioners

failed to demonstrate that the contemplated residential

development will cause evacuation route capacities to be

exceeded, even if this small-scale development proceeding is

likened to a rezoning and Policy 75.1.2 applies. Policy 75.1.4

would arguably apply to this undeveloped property, but does not

mandate the adoption of reduced density categories. No evidence

was presented that any subsequent development would be exempt

from the density and design adjustments mandated by Policy 5.1.2.

144. Policy 14.2.2 of the Lee County Plan, set out in full

above, establishes traffic thresholds for Pine Island Road

between Burnt Store and Stringfellow Roads. Petitioners offered

competent evidence showing that the first threshold of 810 peak

hour, annual average two-way trips, is already being exceeded on

the road in question. Intervenor presented evidence

distinguishing these thresholds from the actual capacity of the

road, but did not seriously question Petitioners conclusion that

the 810 trip threshold has been crossed.

145. From the fact that the 810 trip threshold has been

exceeded, Petitioner derives the conclusion that PAM 98-01 is in

violation of the policy. However, Policy 14.2.2 requires only

that Lee County "consider for adoption development regulations"

when the thresholds are reached. The evidence established that

the county has yet to consider any such regulations under the

policy, which in any event appears not to contemplate outright

prohibitions on development approvals. Thus, while PAM 98-01 may

push the county nearer the point where it must consider measures

to limit future development approvals on Pine Island, PAM 98-01

does not contravene Policy 14.2.2.

146. The Lee County Plan includes a conservation element

setting forth policies related to conservation, use and

protection of natural resources, pursuant to Section

163.3177(6)(d), Florida Statutes. The Lee County Plan is

consistent with the State Comprehensive Plan’s goal of protecting

unique natural habitats, and its policy of prohibiting the

destruction of endangered species and protecting their habitat.

Section 187.201(10)(a) and (b)3, Florida Statutes.

147. Objective 77.2 of the Lee County Plan provides that

the county will maintain an inventory of native plant communities

and protect remnant tracts of all important and representative

plant communities. Policy 77.2.6 provides that needless

destruction of upland vegetation communities will be avoided

through consideration during site plan review of alternate

layouts of permitted uses.

148. Objective 77.4 of the Lee County Plan states that the

county will continue to protect habitats of endangered and

threatened species and species of special concern. Policy 77.4.4

requires that new developments shall protect remnants of viable

habitats when listed vegetative and wildlife species inhabit a

tract slated for development, except where equivalent mitigation

is provided.

149. Policy 77.8.1 of the Lee County Plan states that the

county’s policy is to protect gopher tortoise burrows wherever

they are found. However, if unavoidable conflicts make on-site

protection infeasible, then off-site mitigation may be provided.

150. PAM 98-01 has not been shown to be inconsistent with

these natural resources and species protection provisions of the

Lee County Plan. PAM 98-01 by its terms does not permit any

development of the property. Intervenor will be required to

comply with all of these habitat and species protection

provisions during the development approval process.

151. Petitioners are obviously correct in their implied

argument that the best way to ensure the continued health of the

gopher tortoise population, if not the long term viability of the

beautiful pawpaws, is to permit no development on the subject

parcel. However, the Lee County Plan does not contain such

outright prohibitions on development, and is not required by

state law or the State Comprehensive Plan to do so.

152. All elements of a local government comprehensive plan

must be based upon data appropriate to the element. Section

163.3177(8), Florida Statutes.

153. As found above, PAM 98-01 is consistent with data

appropriate to the relevant elements.

154. In conclusion, Petitioners have failed to establish by

a preponderance of the evidence that PAM 98-01 is inconsistent

with, or renders the Lee County Plan inconsistent with, the

requirements of Chapter 163, Part II, Florida Statutes, Rule 9J-

5, Florida Administrative Code, or the State Comprehensive Plan,

Chapter 187, Florida Statutes. Petitioners have failed to

establish by a preponderance of the evidence that PAM 98-01

renders the Lee County Plan internally inconsistent.

155. Section 163.3187(3)(a), Florida Statutes, cloaks the

local government’s decision to approve a small scale development

amendment with a presumption of correctness. Petitioners well

articulated their concerns with the contemplated development, but

did not offer sufficient competent substantial evidence to

overcome that presumption by the required preponderance of the

evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding small

scale development amendment PAM 98-01 to be in compliance.

DONE AND ENTERED this 27th day of December, 1999, 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]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of December, 1999.

COPIES FURNISHED:

Thomas W. Reese, Esquire

2951 61st Avenue, South

St. Petersburg, Florida 33712

Thomas L. Wright, Esquire

Timothy Jones, Esquire

Assistant County Attorneys

Lee County, Florida

2115 Second Street

Post Office Box 398

Fort Myers, Florida 33902

Pete Doragh, Esquire

Annis, Mitchell, Cockey,

Edwards & Roehn, P.A.

Post Office Box 60259

Fort Myers, Florida 33906-6259

Cari L. Roth, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399-2100

Steven M. Seibert, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.