03-004758GM Charles Osborne; Bernard Knight; And Mary Jo Knight vs. Town Of Beverly Beach And Department Of Community Affairs Status: Closed Recommended Order on Monday, August 29, 2005.

Summary: The Town`s comprehensive plan amendment to re-designate spoil areas from conservation to residential use is "in compliance." A challenger who alleges data and analysis insufficient must do more than identify the data errors; they must undermine the case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES OSBORNE , BERNARD )

KNIGHT , AND MARY JO KNIGHT, )

)

Petitioner s , )

)

vs. ) Case No. 03 - 4758GM

)

TOWN OF BEVERLY BEACH AND )

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondent s . )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on July 12

and 13, 2005, in Bunnell, Florida by Bram D. E. Canter, the

duly - assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioners: Robert J. Rigio, Esquire

Rigio & Mitchell, P.A.

400 South Palmetto Avenue

Daytona Beach, Florida 32114

For Respondent: Shaw Stiller, Esquire

(Department) Kelly A. Ma rtinson, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

For Respondent: Sidney F. Ansbacher, Esquire

(Town) Upchurch, Bailey, and Upchurch, P.A.

Post Office Drawer 3007

St. Augustine, Florida 32085 - 3007

STATEMENT OF THE ISSUE

The issue in the case is whether the Town of Beverly

Beach's Comprehensive Plan Amendment 03 - 1, initially adopted by

Ordinance 2 003 - ORD - 6 and amended by Ordinance 2004 - ORD - 6, is "in

compliance," as required by Section 163.3184, Florida Statutes

(2004).

PRELIMINARY STATEMENT

This matter began in June 2002, when the Town of Beverly

Beach (Town) proposed an amendment to the Future Lan d Use Map of

the Beverly Beach Comprehensive Plan. Pursuant to the statutory

scheme created by the Local Government Comprehensive Planning

and Land Development Regulation Act (the Act), Chapter 163, Part

II, Florida Statutes (2004), the Town transmitted t he proposed

amendment to the Department to review for compliance with the

Act.

On July 11, 2003, the Department issued its Objections,

Recommendations and Comments (ORC) Report, setting forth four

objections to the proposed amendment. The Town made change s to

the proposed amendment to address the objections in the ORC

Report and adopted the amendment on October 6, 2003.

The adopted amendment was originally designated as

Comprehensive Plan Amendment (CPA) 02 - 1. The amendment was

later designated CPA 03 - 1. Throughout this Recommended Order,

it will be referred to as Plan Amendment 03 - 1. Plan Amendment

03 - 1 changed 14.5 acres in the Town from "Conservation/Spoil

Area" (no development allowed) to "Low Density Residential" (up

to five dwelling units per acre allowed).

On November 28, 2003, the Department published a Notice of

Intent to Find the Comprehensive Plan Amendment Not in

Compliance. Shortly thereafter, the Department initiated these

proceedings against the Town. Three residents of the Town,

Charle s Osbourne, Bernard Knight, and Mary Jo Knight,

intervened.

In September 2004, the Department and the Town entered into

a settlement agreement ("compliance agreement") , wherein the

Department agreed that if specified remedial actions were taken

by the Town , including making changes to Plan Amendment 03 - 1 and

other policies within the Beverly Beach Comprehensive Plan, the

Plan Amendment would be deemed in compliance. On December 6,

2004, the Town adopted the changes specified by the compliance

agreement thr ough Ordinance 2004 - ORD - 6 (hereafter referred to as

the "Remedial Amendment").

On February 28, 2005, the Department published a Cumulative

Notice of Intent to Find the Beverly Beach Comprehensive Plan

Amendment and Remedial Comprehensive Plan Amendment in

Compliance. Thereafter, the Intervenors filed an Amended

Petition to Intervene. Because there was a compliance agreement

between the Town and the Department, the procedures set forth in

Subsection 163.3184(16), Florida Statutes (2004), became

applicable and the parties were realigned with the Intervenors

becoming the Petitioners and the Department and the Town

becoming the Respondents.

At the final hearing, the Petitioners presented the

testimony of Charles Osbourne, a resident of the Town and the

former Mayor; Charles Gautier, Chief of the Department's Office

of Comprehensive Planning; James Stansbury, a planner employed

by the Department; Gail Duggins, a bird - watcher with knowledge

about scrub jays; Lindsay Haga, formerly a senior regional

planner with the Northeast Florida Regional Planning Council;

and Edward Lehman, a planning supervisor with the Northeast

Florida Regional Planning Council. Petitioners' Exhibits 1 - 3,

5, 6A - D, 11 - 12, 14 - 17, 19, 22 - 24, 28, 30, and 31 were received

into evidence. At th e hearing, the undersigned rescinded the

admission into evidence of Petitioners' Exhibit 30 as

irrelevant. The Town presented the testimony of Lindsay Haga;

Lorraine Capasse, Town Clerk for Beverly Beach; and Stephen

Emmett, the current Mayor of Beverly B each. The Town's Exhibits

A, C - E , G, H, and 6B were received into evidence. The

Department presented the testimony of Sergey Kireyev, a planner

with the Department. The Department's Exhibits 1 - 5 and 8 - 10

were received into evidence.

The Town's motion f or official recognition of the Petition

for Writ of Certiorari, Amended Order Granting Petition f or

Certiorari, and Judgment Taxing Attorneys Fees and Costs Under

Section 57.105, Florida Statutes, from the case of Raymond

Gustafson and A1A Realty and Devel opment, Inc. v. Town of

Beverly Beach , Case No. 99 - 143 - CA, Seventh Judicial Circuit

Court, Flagler County, Florida, was granted.

A two - volume Transcript of the hearing was filed with the

Division. Proposed recommended orders were filed by the parties

on A ugust 16, 2005, and were considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. The Department is the state land planning agency and

has authority to administer and enforce the Local Government

Comprehensive Planning and Land Develop ment Regulation Act,

Chapter 163, Part II, Florida Statutes (2004).

2. One of the Department's duties under the Act is to

review proposed amendments to local government comprehensive

plans to determine whether the amendments are in compliance with

the Act .

3. The Town of Beverly Beach is a small municipality in

Flagler County, Florida, and has the duty and authority to adopt

a local government comprehensive plan pursuant to Chapter 163,

Florida Statutes (2004), and to amend the plan from time to

time.

4. In June 2002, the Town proposed to amend its Future

Land Use Map (FLUM) to change some of the land uses within the

37 - acre Shelter Cove Planned Unit Development (PUD). The

Shelter Cove PUD was the subject of an earlier lawsuit in the

circuit cour t for Flagler County brought by the owners and

developers of the property after the Town denied their PUD

application. In 2002, the court entered judgment against the

Town and ordered the Town to approve the PUD application. In

its order, the court inclu ded a statement that the Shelter Cove

PUD was consistent with the Beverly Beach Comprehensive Plan.

5. The purpose of the plan amendment proposed in June 2002

was to re - designate 14.25 acres from Conservation/Spoil Area to

Low Density Residential, 0.75 ac res of Conservation/Spoil Area

to Medium Density Residential, and 8.25 acres of Low Density

Residential to Medium Density Residential. The proposed

amendment was transmitted to the Department for compliance

review.

6. In its July 2003 ORC Report, the Dep artment set forth

four objections to the proposed amendment: 1) increased density

in a Coastal High Hazard Area; 2) no traffic impact analysis

regarding emergency evacuation; 3) inadequate potable water and

sanitary sewer services; and 4) unsuitability fo r development

because of saltwater marsh and potential use by threatened and

endangered animal species.

7. The Town made changes to the proposed amendment to

address the Department's objections and adopted Plan Amendment

03 - 1 on October 6, 2003. One sign ificant change made by the

Town was to reduce the size of the land affected by the

amendment from 23.25 acres to 14.5 acres. The stated purpose of

the revised amendment was to deal exclusively with the spoil

areas within the Shelter Cove PUD; to convert t hem from

Conservation to Low Density Residential.

8. The Department was not satisfied with the changes made

by the Town and on November 17, 2003, it issued a Statement of

Intent To Find The Comprehensive Plan Amendment Not In

Compliance. This statement d id not reassert the four objections

of the ORC Report, but identified only two reasons for its

determination that Plan Amendment 03 - 1 was not in compliance:

1) increased density in a Coastal High Hazard Area that would

increase evacuation clearance times and 2) inadequate sanitary

sewer facilities based on the denial of the utility's permit

renewal by the Department of Environmental Protection (DEP).

The Department recommended remedial actions that would bring

Plan Amendment 03 - 1 into compliance.

9. Ther eafter, the Department and Town entered into a

compliance agreement to identify remedial actions by the Town

that would bring the plan amendment into compliance. Pursuant

to the agreement, the Town adopted remedial measures in

Ordinance 2004 - ORD - 6 (the Re medial Ordinance) that caused the

Department to determine that the plan amendment was in

compliance. The Remedial Ordinance (with additions and

deletions as indicated in the ordinance) states in pertinent

part:

1. Limiting Density on the 14.5 - acre

amendm ent site & Hurricane Evacuation Plan

Future Land Use Element : contains policies

controlling the density and intensity of

development (both residential and non -

residential) in the Town of Beverly Beach.

Policy A.1.1.9

The Low Density Residential (LDR) lan d use

(up to 5 dwelling units/acre) shall be

applied to 14.5 acres of upland spoil sites

in the Shelter Cove development as shown in

Exhibit A, not to exceed a total gross

density of 28 residential units. In

addition to the provisions described in

Policy 1.1.4, the following provisions shall

apply to the Shelter Cove Development:

1. Residential land use for the Shelter

Cove Planned Unit Development(PUD)shall be

limited to a maximum of 115 dwelling

units.

2. The Town of Beverly Beach shall not

issu e a permit or certificate of occupancy

until the Building Official certifies the

required public facilities and services

will be provided consistent with Chapter

9J - 5, Florida Administrative Code (see

Policy A.1.1.1).

* * *

Policy A.1.1.10

No later t han December 2005, Beverly Beach

shall revise its comprehensive plan to

update the goals, objectives and policies

and future land use map series and transmit

such revisions to the Department of

Community Affairs. The updated plan shall

reflect changes to Chapter 163, Florida

Statutes, and Rule 9J - 5, Florida

Administrative Code, since the plan went

into effect in 1991. This revision shall be

based on a planning period through Year

2015, with current and forecasted conditions

and satisfy data and analysis r equirements.

* * *

3. Revise policies under Objective D.2.1,

Beverly Beach Comprehensive Plan regarding

the provision of potable water and sanitary

sewer

Public Infrastructure/Facilities Element:

refers to the protection of water quality by

specifi c policies that require deficiencies

in wastewater treatment facilities be

corrected in accordance with DEP

requirements.

Objective D.2.1

By December 31, 1992 December 31, 2005 , the

Town shall require that existing

deficiencies in the wastewater treatment

package plants owned by Surfside Utilities

operated by Ocean City Utilities be

corrected in accordance with FDER Department

of Environmental Protection [DEP]

requirements.

Policy D.2.1.1

As the Town does not own the wastewater

treatment plants nor has op erational

control over the same, the Town shall

formalize a coordination committee to

include the owner /operator of Surfside

Utilities Ocean City Utilities , the

members of the Town Commission , members of

the Flagler County Board of County

Commissioners or their appointee, members

of the City of Flagler Beach Commission or

their appointee, and FDER the Department

of Environmental Protection [DEP] and any

other identified stakeholder in the Town.

Policy D.2.1.2

The Town shall use the coordination

committee t o address the deficiencies in

the wastewater plants, to set priorities

for upgrading and replacing components of

the plants, and to request FDER the

Department of Environmental Protection

[DEP]to increase and enforce their

regulations requiring periodic mo nitoring

and maintenance of package treatment

plants.

Policy D.1.2.3

The Town shall use the coordination

committee to investigate the feasibility

of assuming operational responsibility of

the wastewater treatment system by another

entity.

10. Applying t he five dwelling units per acre density

allowed in the Low Density Residential category to 14.5 acres

would generate 72.5 units. However, as indicated above, the

Remedial Ordinance also restricted the total allowable dwelling

units in the 14.5 acres to 28 units. The 28 units coincide with

the site plan for the Shelter Cove PUD that was the subject of

the circuit court judgment. The site plan called for 28 single -

family lots in the former spoil areas.

11. Charles Osbourne, Bernard Knight, and Mary Jo Kni ght

were residents of the Town of Beverly Beach when the Town

adopted Plan Amendment 03 - 1. They intervened against the Town

in the original proceedings initiated by the Department.

Following the Department's determination that the plan amendment

had been brought into compliance by the Remedial Ordinance, they

filed an Amended Petition to Intervene and were realigned as the

Petitioners.

12. On some date between the filing of their original

petition in this case and the date of the final hearing,

Petitione rs Bernard Knight and Mary Jo Knight moved out of

Beverly Beach. They are no longer residents of the Town.

13. In their Amended Petition to Intervene, the

Petitioners assert that the Remedial Ordinance did not resolve

all the problems originally identifi ed by the Department's ORC

Report, and Plan Amendment 03 - 1 is still not in compliance. The

Petitioners' objections to the amendment fall into three

categories: insufficient and inaccurate data and analysis,

insufficient legal description for the lands af fected by the

plan amendment, and inadequate wastewater services available for

the increased density resulting from the amendment. These three

categories will be used to organize the findings of fact that

follow.

Data and Analysis/Maps

14. The Petitione rs assert that the maps used for Plan

Amendment 03 - 1 and the Remedial Amendment are not the official

maps currently contained in the Beverly Beach Comprehensive

Plan. They contend the unofficial maps contained errors that

caused some of the area designate d as Conservation/Saltwater

Marsh to be included in the 14.5 acres re - designated Low Density

Residential.

15. At the hearing, the Petitioners also attempted to show

that maps used by the Town with Plan Amendment 03 - 1 were not

consistent with the Beverly Beach FLUM with regard to the

depiction of saltwater marsh areas outside the 14.5 acres

affected by the plan amendment. Whether such discrepancies

exist is not a relevant inquiry for determining whether Plan

Amendment 03 - 1 is in compliance.

16. A 1997 r eport regarding threatened and endangered

animal species, prepared by Lotspeich and Associates for the

developer of the Shelter Cove PUD, includes a statement that

there are 10.3 acres of spoil on the 37 - acre PUD site. That

figure is inconsistent with the Town's claim that the lands

affected by Plan Amendment 03 - 1 consist of 14.5 acres of spoil.

17. Lindsay Haga, a regional planner with the Northeast

Florida Regional Planning Council (Council), made the

determination that there are 14.5 acres of spoil a rea. Because

the Town does not have a professional planning staff, the

Council was providing planning services to the Town under

contract. Ms. Haga worked on Plan Amendment 03 - 1 on behalf of

the Town.

18. Ms. Haga obtained a mapping of the land uses w ithin

the Shelter Cove PUD from information maintained by the

St. Johns River Water Management District (District). The land

use categories are based on the Future Land Use Classification

Categorization System, and were applied by the District using

aeria l photography. Using professional software called

"ArcView," Ms. Haga derived the size of the various land uses

mapped within the Shelter Cove PUD by the District. The

software calculated the size of the spoil areas as 14.5 acres.

According to Ms. Haga, planners use this method "100 percent" of

the time to delineate land uses on future land use maps.

19. Ms. Haga was called as a witness by the Petitioners

and by Beverly Beach and testified at length on direct and

cross - examination on how she determined the size of the spoil

areas. Nevertheless, some ambiguity remains as to whether the

size and position of the spoil areas designated in the official

Town FLUM are the same as their size and position as delineated

by Ms. Haga for Plan Amendment 03 - 1 using information from the

St Johns River Water Management District.

20. The Town and the Department seem to suggest in their

joint post - hearing submittal that the size and position of the

spoil areas on the FLUM can be "cleaned up" or re - drawn using

more site - specific information presented at the final hearing.

The implication is that, if the Town's FLUM delineated less than

14.5 acres as Conservation/Spoil Area, but better data is

presented at the hearing to show that the spoil areas actually

cover 14.5 acre s, the FLUM delineation can be ignored or treated

as if did cover 14.5 acres. The redrawing of land uses as they

are depicted on an adopted FLUM is arguably beyond the authority

granted to the Department in Chapter 163. That issue need not

be decided on this record, however, because the more credible

and persuasive evidence shows there were no material changes to

the size and position of the spoil areas in Plan Amendment 03 - 1,

and no saltwater marsh was re - designated as Low Density

Residential.

Data and A nalysis/Topographic Information

21. The Petitioners assert that topographic data used by

the Town was flawed and did not accurately reflect that much of

the Shelter Cove PUD is within the 100 - year floodplain. For

example, the June ansmittal Packet sent to the Department

included a statement that, "According to FEMA the 100 year

floodplain is confined to the saltwater marsh areas located

adjacent to the Intracoastal Waterway."

22. At the hearing, the Town admitted that some of

topographic informati on was inaccurate and described it as a

"scrivener's error." The parties stipulated to the introduction

into evidence of topographic information that indicates a

portion of the 14.5 acres affected by Plan Amendment 03 - 1 lies

within the 100 - year floodpla in.

23. The Petitioners have not shown how the inclusion of

inaccurate topographic in the data and analysis causes Plan

Amendment 03 - 1 to be not in compliance; or, put another way, the

Petitioners have not shown how the accurate topographic

information p roves Plan Amendment 03 - 1 will be inconsistent with

the Beverly Beach Comprehensive Plan or applicable state laws

and regulations. The Beverly Beach Comprehensive Plan does not

prohibit Low Density Residential uses in the 100 - year

floodplain.

Data and Ana lysis/Clustering

24. The Petitioners contend that the data and analysis was

flawed because it included a reference to the possibility of

clustering dwelling units to avoid adverse impacts to areas

unsuitable for development, but the Town has no regulation s that

allow for or address clustering.

25. Neither the Amended Petition to Intervene nor the

evidence presented by the Petitioners make s clear how this

alleged error causes Plan Amendment 03 - 1 to be not in

compliance. Any alleged error must relate to th e 14.5 acres

affected by the amendment. The Petitioners did not show that

clustering of dwelling units is planned or necessary on the 14.5

acres.

Data and Analysis/Scrub Jays

26. The Petitioners contend that the data and analysis is

insufficient because it fails to describe and account for the

current use of the site by the Florida scrub jay, a bird listed

as threatened by the Florida Fish and Wildlife Conservation

Commission and the United States Fish and Wildlife Service. The

Town and Department stipul ated that scrub jays have been seen on

the property.

27. Charles Osbourne and Gail Duggins, a birdwatcher,

testified that they have seen scrub jays in the Shelter Cove PUD

area on several occasions. They marked Petitioners' Exhibit 15

to indicate eight s pecific sites within the PUD where they had

observed scrub jays. None of the marked sites are located on

the 14.5 acres affected by Plan Amendment 03 - 1.

28. Lotspeich and Associates conducted a scrub jay survey

on the 37 - acre Shelter Cove PUD in 1997. T hey observed no scrub

jays on the 14.5 acres that will be affected by Plan Amendment

03 - 1. In the written report of the survey, Lotspeich and

Associates concluded that, "no jays reside on - site nor did any

birds react as though they were defending territor y which

extended onto the property." Following a second survey in 2002,

Lotspeich and Associates reached the same conclusion that the

property "is unlikely to support a resident Florida scrub jay

population."

29. The observations of scrub jays made by Mr . Osbourne

and Ms. Duggins do not contradict the conclusions of the

Lotspeich and Associates reports. Mr. Osbourne and Ms. Duggins

did not offer an opinion (and no foundation was laid for their

competence to offer such an opinion) that scrub jays reside o n

the 14.5 acres affected by Plan Amendment 03 - 1.

30. The Department's ORC Report stated that the

originally - proposed amendment was not consistent with Policy E

1.4.3 of the Town's comprehensive plan which calls for the Town

to obtain information from app ropriate agencies concerning the

known locations of listed plant and animal species. The

Department recommended in the ORC Report that the Town conduct a

survey for gopher tortoises and other listed species. The

Department's objection about listed specie s, however, was not

included its subsequent Statement of Intent to Find The

Comprehensive Plan Amendment Not in Compliance.

31. The Town had available to it, as part of the data and

analysis to support Plan Amendment 03 - 1 and the Remedial

Amendment, the L otspeich and Associates reports prepared for the

United States Fish and Wildlife Service. The reports convey the

results of Lotspeich and Associates' surveys of the Shelter Cove

PUD property for gopher tortoises, scrub jays and other listed

species. It i s likely to be the best information available

since it is a site - specific, scientific study. The Petitioners

did not show that better data were available or that the

Lotspeich and Associates reports are flawed. In fact, the

Lotspeich and Associates repor ts were exhibits offered by the

Petitioners.

32. Policy E.1.4.3 of the Beverly Beach Comprehensive Plan

directs the Town to adopt land development regulations that

provide protections for known listed species. Land development

regulations are the usual a nd appropriate tools for applying

specific protective measures to specific development proposals.

No regulations have yet been adopted by the Town to protect

listed species. Listed species are not left unprotected from

development activities in the Town, however, since there are

both state and federal laws to protect listed species and their

habitats.

Data and Analysis/Beach Access

33. The Petitioners contend that the data and analysis was

insufficient because it indicated that there are five locations

in the Town where the public can gain access to the beach, but

the Petitioners allege there are only two public beach walkovers

that qualify under the Beverly Beach Comprehensive Plan.

34. The beach access issue relates to the Town's

recreational level o f service standard adopted in the Recreation

and Open Space Element of the Beverly Beach Comprehensive Plan.

Policy F.1.1.1 specifies that the adopted level of service

standard is "Five publicly - owned beach access facilities."

35. The Petitioners appare ntly believe that the easements

acquired by the Town that provide for public beach access across

private property do not qualify as publicly - owned beach access

facilities as contemplated by the Beverly Beach Comprehensive

Plan. The term "publicly - owned be ach access facilities" is not

defined in the Recreation and Open Space Element, but one can

find a statement at page F - 2 that, "Access points and parking

areas are support facilities for public owned beaches."

Therefore, the Town considers an access point , without any man -

made structures, to be a "facility."

36. Furthermore, the comprehensive plan, itself, includes

a map that depicts the location of the five public beach access

points. It must be assumed that these access points met the

Town's intent and meaning. By raising the issue of whether the

data and analysis for Plan Amendment 03 - 1 is accurate in

referring to the existence of five public beach access points,

the Petitioners are collaterally attacking the existing

comprehensive plan.

37. Stephen Emmett, the mayor of Beverly Beach, stated

that the five public beach access points depicted in the Beverly

Beach Comprehensive Plan, as well as a new sixth beach access

point, are currently maintained by the Town.

Description of the Land Affected

38. The Petitioners alleged in their Amended Petition to

Intervene that the Town did not have an adequate legal

description for the lands affected by the plan amendment. The

issue was not raised in the Petitioners' Pre - Hearing Statement.

When the Department objected to the Petitioners' presentation of

evidence on this issue because it was not raised in their Pre -

Hearing Statement, the Petitioners voluntarily withdrew the

issue.

Sanitary Sewer Services

39. The Petitioners contend that sanitary sewer services

are not adequate for the increased residential density that

would result from Plan Amendment 03 - 1. The Beverly Beach

Wastewater Treatment Facility is operated by Ocean City

Utilities. Ocean City's application to renew the permit for the

facility was den ied by DEP in September 2003 because the

facility was not in compliance with several DEP regulations.

40. As a result of the denial of Ocean City's permit

renewal application, DEP would not allow new customers to

connect to the Beverly Beach Wastewater Tr eatment Facility,

including the Shelter Cove PUD. DEP subsequently approved the

connection of the Shelter Cove PUD wastewater collection system

to the Beverly Beach Wastewater Treatment Facility.

41. Permitting problems associated with the treatment

plan t was one reason for the Department's objection to the

originally proposed plan amendment and the Department's

subsequent determination that Plan Amendment 03 - 1 was not in

compliance. No evidence was presented to show that Ocean City

Utilities has correct ed the deficiencies in the wastewater

treatment plant or has obtained a renewal permit from DEP.

42. Nevertheless, the Department determined that Plan

Amendment 03 - 1 is in compliance based on the changes to the

Beverly Beach Comprehensive Plan called for in the compliance

agreement and adopted in the Remedial Ordinance. Objective

D.2.1 of the Beverly Beach Comprehensive Plan was amended to

require that existing deficiencies in the wastewater treatment

plant be corrected by December 31, 2005. Policies D.2 .1.1,

D.2.1.2, D.2.1.3 were amended to re - constitute and re - energize a

coordination committee to address the deficiencies in the

wastewater plant and the feasibility of giving operational

responsibility to another entity (such as Flagler County).

43. In a ddition, the Remedial Ordinance amended Policy

A.1.19 of the Beverly Beach Comprehensive Plan to prohibit the

Town from issuing a permit or certificate of occupancy for the

Shelter Cove PUD "until the Building Official certifies the

required public facilit ies and services will be provided

consistent with Chapter 9J - 5, Florida Administrative Code."

44. No dispute was raised about the available capacity of

the Beverly Beach Wastewater Treatment Facility to serve the

Shelter Cove PUD.

CONCLUSIONS OF LAW

45. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties pursuant to

Sections 120.569, 120.57(1), and 163.3184(9), Florida Statutes

(2004).

4 6 . Under the comprehensive planning scheme established in

Chapter 163, Par t II, Florida Statutes (2004), the Department

has the duty to review proposed and adopted local government

comprehensive plan amendments. The Department's role is not to

opine as to whether a local government's amendment is the "best"

of the alternative a pproaches available to the local government

for addressing a subject, but to determine whether the amendment

is "in compliance," as defined in Subsection 163.3184(1)(b),

Florida Statutes (2004).

4 7 . "In compliance" means consistent with the requirements

o f Sections 163.3177, 163.31776, 163.3178, 163.3180, 163.3191,

and 163.3245, with the State Comprehensive Plan, with the

appropriate strategic regional policy plan, and with Florida

Administrative Code Chapter 9J - 5. § 163.3184(1)(b), Fla. Stat.

(2004).

4 8 . The Petitioners have not alleged that Plan Amendment

03 - 1 and the Remedial Ordinance are inconsistent with Sections

163.31776, 163.3178, 163.3180, 163.3191, and 163.3245, Florida

Statutes, or the strategic regional policy plan. The

Petitioners' challe nge is confined to alleged inconsistency with

Sections 163.3177, Florida Statutes (2004), the State

Comprehensive Plan, and Florida Administrative Code

Chapter 9J - 5.

Standing

4 9 . In order to have standing to challenge a plan

amendment, the challenger mus t be an "affected person," which is

defined as a person who resides, owns property, or owns or

operates a business within the local government whose

comprehensive plan amendment is challenged. § 163.3184(1)(a),

Fla. Stat. (2004). As residents of the Town when Plan Amendment

03 - 1 was adopted, the three Petitioners had standing to

challenge the amendment. However, Bernard Knight and Mary Jo

Knight no longer reside in the Town and will not be affected by

the amendment. The claims raised on their behalf in the Amended

Motion to Intervene are now moot.

50 . Because Charles Osbourne is an affected person and has

standing in this proceeding, the question of whether the Knights

have standing need not be addressed. See Coalition for Adequacy

and Fairness in Sc hool Funding, Inc. v. Chiles , 680 So. 2d 400

n. 4 (Fla. 1996).

Burden of Proof

5 1 . The Town determined that Plan Amendment 03 - 1 is in

compliance. Because the Department also determined that Plan

Amendment 03 - 1 is in compliance, Subsection 163.3184(9), Fl orida

Statutes (2004) , provides that the amendment "shall be

determined to be in compliance if the local government's

determination of compliance is fairly debatable."

5 2 . The term "fairly debatable" is not defined in Chapter

163, Florida Statutes, or Flo rida Administrative Code Chapter

9J - 5. The Supreme Court of Florida has suggested, however, that

the fairly debatable standard under Chapter 163, Florida

Statutes, is the same as the common law "fairly debatable"

standard applicable to decisions of local governments acting in

a legislative capacity. In Martin County v. Yusem , 690 So. 2d

1288, 1295 (Fla. 1997), the Court said, "The fairly debatable

standard of review is a highly deferential standard requiring

approval of a planning action if reasonable per sons could differ

as to its propriety." (citation omitted). Quoting from City of

Miami Beach v. Lachman , 71 So. 2d 148, 152 (Fla. 1953), the

Court stated further, "[A]n ordinance may be said to be fairly

debatable when for any reason it is open to disput e or

controversy on grounds that make sense or point to a logical

deduction that in no way involves its constitutional validity."

Martin County v. Yusem , 690 So. 2d at 1295.

Data and Analysis

53. The Petitioners contend that Plan Amendment 03 - 1 and

the R emedial Ordinance are not based upon appropriate data and

analysis as required by S ubs ection s 163.3177(6), (8), and (10),

Florida Statutes, and Florida Administrative Code Rule 9J -

5.005(2)(a). Each amendment to a comprehensive plan must be

based upon appr opriate data. Florida Administrative Code Rule

9J - 5.005(2) requires that, in order for a plan provision to be

"based" upon relevant and appropriate "data," the local

government must "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 adoption of the plan or plan

amendment at issue." The data must also be the "best available

existing data" "collected and applied in a professionally

acceptable manner." Fla. Admin . Code R. 9J - 5.005(2)(a) - (c);

§ 163.3177(10)(e), Fla. Stat. (2004).

54. However, the data and analysis that can support a plan

amendment are not limited to those identified or actually relied

upon by a local government. All data in existence and available

to a loc al government at the time of the adoption of the plan

amendment may be relied upon to support an amendment in a de

novo proceeding. Zemel v. Lee County, et al. , 15 F.A.L.R. 2735

(DCA June 22, 1993), aff’d , 642 So. 2d 1367 (Fla. 1st DCA 1994).

See also Th e Sierra Club, et al. v. St. Johns County, et al. ,

Case Nos. 01 - 1851GM and 01 - 1852GM, 2002 WL 1592234 (DOAH May 20,

2002; DCA July 30, 2002) ("The ALJ need not determine whether

the [local government] or the Department were aware of the data,

or performed the analysis, at any prior point in time.") .

55. Analysis, as opposed to data, need not be in existence

at the time of the adoption of a plan amendment. See Zemel ,

supra . Data that existed at the time of the adoption of a plan

amendment may be subjected to different or even first - time

analysis at the time of an administrative hearing held to hear a

challenge to a plan amendment. Id.

56. A challenger who claims the data and analysis for a

comprehensive plan amendment is insufficient must do more than

sh ow that some of the data was inaccurate. The data and

analysis can include hundreds, even thousands, of individual

"facts," with wide variation in their importance or contribution

to the local government's decision to adopt a particular plan

amendment. O nly errors in the data and analysis that are shown

to undermine the action taken by the local government will serve

to meet the challenger's burden of proving an amendment is not

in compliance. In this case, certain map and topographic

discrepancies found by the Petitioners did not cause the data

and analysis to be insufficient to support the Town's plan

amendments.

57. The Petitioners did not demonstrate that Plan

Amendment 03 - 1 and the Remedial Ordinance are unsupported by

appropriate data and analysis. The Petitioners did not prove

that the data relied on by the Town was not the best available

data, or that the Town did not "react to it in an appropriate

way and to the extent necessary," as required by Florida

Administrative Code Rules 9J - 5.005(2)(a) - ( c) and Subsection

163.3177(10)(e), Florida Statutes (2004).

Internal Consistency

58. The Petitioners contend that the Plan Amendment 03 - 1

and the Remedial Ordinance are inconsistent with existing

provisions of the Beverly Beach Comprehensive Plan. S ubs ec tion

163.3177(2), Florida Statutes (2004) , and Florida Administrative

Code Rule 9J - 5.005(5)(a) require the elements of a comprehensive

plan to be internally consistent. A plan amendment creates an

internal inconsistency when it has the effect of conflicti ng

with an existing provision of the comprehensive plan.

59. The Petitioners contend that the Plan Amendment 03 - 1

and the Remedial Ordinance are inconsistent with Objective A.3.1

of the Beverly Beach Comprehensive Plan, which provides that the

Town will p rotect its natural resources from destruction or

encroachment by development, because the plan amendments will

cause adverse impacts on scrub jays and wetlands. The

Petitioners did not demonstrate, however, that adverse impacts

to wetlands and scrub jays will result from the challenged plan

amendments. Therefore, no inconsistency with Objective A.3.1

was established.

60. The Petitioners also contend that the Plan Amendment

03 - 1 and the Remedial Ordinance are inconsistent with Policy

D.1.2.4 of the Beverl y Beach Comprehensive Plan. Policy D.1.2.4

states, "The Town shall prohibit any development that adversely

affects the economic availability of potable water or sanitary

sewer."

61. The Petitioners have not demonstrated a conflict

between Policy D.1.2.4 and the Plan Amendment 03 - 1, as amended

by the Remedial Ordinance. Plan Amendment 03 - 1 and the Remedial

Amendment support and further the intent of Policy D.1.2.4 by

addressing the problems associated with the Beverly Beach

Wastewater Treatment Facility. In addition, the prohibition

created in new Policy A.1.1.9 against the issuance of any permit

or certificate of occupancy for the Shelter Cove PUD until the

wastewater treatment facility has obtained a permit renewal from

DEP matches the prohibition in Po licy D.1.2.4 against

development that adversely affects the availability of sanitary

sewer.

Consistency with Section 163.3177

62. One part of the statutory definition of "in

compliance" is consistency with Section 163.3177, Florida

Statutes. This statut e identifies and describes the required

and optional elements of a local government comprehensive plan.

The Petitioners assert that Plan Amendment 03 - 1 and the Remedial

Ordinance are inconsistent with several requirements of Section

163.3177.

63. The Pet itioners contend that the plan amendments are

inconsistent with Subsection 163.3177(6)(a), Florida Statutes

(2004), which requires a local government to have a

comprehensive plan element that addresses future land uses and

includes standards for the contro l and distribution of

population densities. The Beverly Beach Comprehensive Plan has

a Future Land use Element and the Petitioners have not

demonstrated that Plan Amendment 03 - 1 and the Remedial Ordinance

conflict with any particular policy or objective o f the Future

Land Use Element.

64. The Petitioners contend that the plan amendments are

inconsistent with Subsection 163.3177(6)(c), Florida Statutes

(2004), which requires a local government to have a

comprehensive plan element that addresses, among othe r related

subjects, the provision of adequate sanitary sewer services.

The Beverly Beach Comprehensive Plan has a Public Facilities

Element and, as explained above, Plan Amendment 03 - 1 and the

Remedial Ordinance are consistent with Policy D.1.2.4 of that

element pertaining to the prohibition of development that

adversely affects the availability of sanitary sewer services.

65. The Petitioners failed to prove beyond fair debate

that Plan Amendment CPA 03 - 1 and the Remedial Amendment are

inconsistent with S ection 163.3177, Florida Statutes (2004).

Consistency With the State Comprehensive Plan

66. The Petitioners contend that the plan amendments are

inconsistent with the State Comprehensive Plan that is set forth

in Section 187.201, Florida Statutes (2004). Subsection

163.3177(10)(a), Florida Statutes (2004), explains that the term

"consistency" with regard to the State Comprehensive Plan means

the local plan (or plan amendment) is "compatible with" and

"furthers" the State Comprehensive Plan. The term "co mpatible

with" is defined to mean that the local plan is not in conflict

with the State Comprehensive Plan. The term "furthers" is

defined to mean that the local plan "takes action in the

direction of realizing goals or policies" of the State

Comprehensiv e Plan.

67. The Petitioners contend that Plan Amendment 03 - 1 and

the Remedial Amendment are inconsistent with the policy in

Subsection 187.201(9)(b)3 . , Florida Statutes (2004), which

prohibits the destruction of endangered species and their

habitat. The Florida scrub jay is listed by Florida and the

Federal Government as a threatened species, not an endangered

species. In addition, the Petitioners' evidence regarding scrub

jay sightings in the Shelter Cove PUD did not constitute proof

that Plan Amendmen t 03 - 1 and the Remedial Amendment will

adversely affect the Florida scrub jay.

68. The Petitioners contend that Plan Amendment 03 - 1 and

the Remedial Amendment are inconsistent with the goal in

Subsection 187.201(15)(a), Florida Statutes (2004), which calls

for development in areas where service capacity can accommodate

growth in an environmentally acceptable manner. Because the

Remedial Amendment prohibits the issuance of a permit or

certificate of occupancy by the Town until the Beverly Beach

Wastew ater Treatment Facility has been permitted by DEP, the

Petitioners have failed to demonstrate that the amendment would

violate this particular policy of the State Comprehensive Plan.

69. The Petitioners contend that Plan Amendment 03 - 1 and

the Rem edial Amendment are inconsistent with the policy in

Subsection 187.201(15)(b), Florida Statutes (2004), which is

also aimed at ensuring that there is adequate service capacity

to accommodate growth. For the same reason just stated above,

the Petitioners h ave failed to show that the Town's plan

amendments are inconsistent with this policy.

70. The Petitioners contend that Plan Amendment 03 - 1 and

the Remedial Amendment are inconsistent with the policy in

Subsection 187.201(9)(b)6, Florida Statutes (2004), which

requires a local government, in land use planning and

regulation, to consider the availability of natural resources to

meet demands and the potential for flooding. The Petitioners

have not adequately articulated, much less proven, that the

Town's p lan amendments are inconsistent with this state policy.

71. The Petitioners failed to prove beyond fair debate

that Plan Amendment CPA 03 - 1 and the Remedial Amendment are

inconsistent with the State Comprehensive Plan.

Consistency With Chapter 9J - 5

72. One part of the statutory definition of "in

compliance" is consistency with Florida Administrative Code

Chapter 9J - 5. Chapter 9J - 5 contains minimum criteria the

Department uses in reviewing local government comprehensive

plans and plan amendments. The Pe titioners assert that Plan

Amendment 03 - 1 and the Remedial Ordinance are inconsistent with

several of the minimum criteria in Chapter 9J - 5.

73. The Petitioners contend that Plan Amendment 03 - 1 and

the Remedial Amendment are inconsistent with Rule 9J - 5.00 5(2)

which describes the data and analysis that is necessary to

support a plan amendment. For the reasons stated above in the

section on data and analysis, the Petitioners have failed to

demonstrate that the Town's plan amendments are inconsistent

with th is particular rule.

74. The Petitioners contend that Plan Amendment 03 - 1 and

the Remedial Amendment are inconsistent with Rule 9J - 11.007

(sanitary sewer services), Rule 9J - 5.006(3)(b)4 . (protection of

natural resources), Rule 9J - 5.006(2)(e) (flood prone areas),

Rule 9J - 5.006(3)(c)(availability of services), and Rule 9J -

5(6)(5)(h)7 . (suitability of land uses). The Petitioners'

failure of proof on each of these subjects is set forth in the

findings of fact.

75. The Petitioners failed to prove beyond fair debate

that Plan Amendment CPA 03 - 1 and the Remedial Amendment are

inconsistent with Florida Administrative Code Chapter 9J - 5.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Communit y Affairs enter

a final order determining that the Town of Beverly Beach Plan

Amendment 03 - 1, and Remedial Ordinance 2004 - ORD - 6, are "in

compliance" as defined in Chapter 163, Part II, Florida Statutes

(2004).

DONE AND ENTER ED this 29 th day of August, 200 5 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29 th day of August , 2005 .

COPIES FURNISHED :

Shaw P. Stiller, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevar d

Tallahassee, Florida 32399 - 2100

Sidney F. Ansbacher, Esquire

Upchurch, Bailey and Upchurch, P.A.

Post Office Box 3007

St. Augustine, Florida 32085 - 3007

Robert J. Riggio, Esquire

Riggio & Mitchell, P.A.

400 South Palmetto Avenue

Daytona Beach, Florida 32114

Thaddeus Cohen, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Heidi Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Flo rida 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 iss ue the Final Order in this case.