04-003651GM Department Of Community Affairs vs. City Of Groveland Status: Closed Recommended Order on Monday, November 28, 2005.

Summary: Petitioner`s challenge to the Future Land Use Map amendment in the Green Swamp as urban sprawl, environmentally unsuitable, and against guiding principles was not proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3651GM

)

CITY OF GROVELAND, )

)

Respondent, )

)

and )

)

FRANK GAMMON and BANYAN )

CONSTRUCTION AND DEVELOPMENT, )

INC., )

)

Intervenors. )

)

RECOMMENDED ORDER

On October 5 - 7, 2005, a final administrative hearing was

held in this case in Groveland, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: David L. Jordan, Esquire

Deputy General Counsel

Leslie E. Bryson, Esquire

Assistant General Counsel

Department of Community Affairs

2555 Shumard Oa k Boulevard

Tallahassee, Florida 32399 - 2100

For Respondent: Karen A. Brodeen, Esquire

Fowler, White, Boggs, Banker, P.A.

Post Office Box 11240

Tallahassee, Florida 32302 - 3240

For Intervenors: W. Douglas Moody, Jr., Esquire

William R. Pfeiffer, Esquire

Myers & Fuller, P.A.

2822 Remington Green Circle

Post Office Box 14497

Tallahassee, Florida 32317 - 4497

STATEMENT OF THE ISSUE

The issue in this case is whether the City's Future Land

Use Map (FLUM) Amendment for Site 7 is "in compliance," as

defined in Section 163.3184(1)(b), Florida Statutes. 1

PRELIMINARY STATEMENT

In February 2004, the City of Groveland (City)

transmitted to the Department of Community Affairs (DCA) a

package of proposed comprehensive plan amendments, including

FLUM designations for several annexed sites. DCA issued an

Objections, Recommendations, and Comments Report (ORC), and on

August 2, 2004, the City adopted, through enactment of its

Ordinance No. 2004 - 0 2 - 07, a revised amendment package which

addressed some but not all of the ORC issues. On October 8,

2004, DCA issued a Notice of Intent to find six FLUM

amendments not "in compliance" but to find the rest of the

adopted amendment package "in compliance" a nd filed a

Statement of Intent (SOI) and Petition for Formal

Administrative Hearing (Petition) as to the six adopted FLUM

amendments. While the case was in abeyance, the parties

resolved their disputes as to all of the adopted FLUM

amendments except "Site 7," consisting of 361 acres within the

boundaries of the Green Swamp Area of Critical State Concern

(the Green Swamp). The case was set for final hearing on Site

7 on October 5 - 7, 2005, in Groveland, Florida. Leave to

intervene was granted to Frank Gamm on and to Banyan

Construction and Development, Inc. (Banyan).

Instead of filing a prehearing stipulation, DCA and the

other parties filed separate prehearing statements reflecting

some agreement but much disagreement as to the issues to be

determined at the final hearing.

The disagreements were further specified in two motions

in limine filed by the City and Intervenors on the two days

immediately preceding the final hearing. The first argued

that, contrary to the restrictions in Section 163.3184(8)(b) ,

Florida Statutes, DCA's SOI and Petition expanded upon the

issues raised in the ORC although the proposed and adopted

amendments were identical with respect to Site 7. It sought

to strike from DCA's Petition the issue of consistency with

Rule 9J - 5.006(4 ), 2 as relates to urban sprawl, and to limit

the issues of consistency with the Principles for Guiding

Development in the Green Swamp (Guiding Principles) based on

alleged inconsistencies with Rules 9J - 5.006, 9J - 5.011, and 9J -

5.013 to the specific subsecti ons cited in the ORC. In the

second motion, the City and Intervenors sought to dismiss the

parts of DCA's Petition that had been resolved or lacked site -

specific evidence to establish a baseline for determining

consistency with the Guiding Principles.

A t the outset of the final hearing, the motions in limine

were heard, and ruling was reserved, effectively denying them.

However, it became clear during the course of the final

hearing that several issues in the Petition were indeed

resolved or were being dropped by DCA, leaving essentially

whether the Site 7 FLUM amendment: discourages the

proliferation of urban sprawl; is consistent with Plan

policies designed primarily to discourage urban sprawl and

promote intergovernmental coordination; is consistent with the

Guiding Principles; reacts appropriately to the data and

analysis on environmental site suitability; and is consistent

with certain provisions of the State Comprehensive Plan on

planning for new public facilities. 3

At the final hearing, DCA call ed three witnesses: Brenda

Winningham, an expert in comprehensive planning; T.M. "Mike"

Gurr, an expert in geology and hydrogeology; and Rebecca

Jetton, an expert in the Green Swamp and in land use and

comprehensive planning. DCA also had its Exhibits 1a , 1b, 2,

3, 5 - 7, 9 - 17, 19, 26, 27, 30, 31, 36, 37, 40, 42 - 47, 49 - 51,

53 - 55, and 57 - 61 admitted in evidence. Ruling was reserved on

objections to DCA Exhibits 18, 20, and 41. It is now ruled

that, while the relevance objection to Exhibit 20 is

sustained, the relevance objection to Exhibit 18 is overruled,

and Exhibit 18 is admitted in evidence. As to Exhibit 41, the

objection to policy recommendations in the document is

sustained, but Exhibit 41 is admitted in evidence insofar as

technical data.

The Cit y called one witness: Teresa Greenham, an expert

in land use and comprehensive planning. The City also had its

Exhibits 4, 11, 14, 23, 32, and 45 admitted in evidence.

Frank Gammon testified on behalf of himself and the other

Intervenor, Banyan. Inter venors also called three other

witnesses: Wendy Grey, an expert in land use planning; Chyrl

Ellinor, an expert in biology and resource management; and

Peter Hubbell, an expert in hydrology, the Green Swamp, and

water resource management. Intervenors also had their

Exhibits 1, 2, 4(A - H), 5, 6, 7, 8, and 10 admitted in

evidence.

After presentation of evidence, no party requested a

transcript of the final hearing, and the parties were given

ten days in which to file proposed recommended orders (PROs).

How ever, DCA filed an unopposed motion to enlarge the time to

October 21, 2005, which was granted. Timely PROs were filed

by DCA and jointly by the City and Intervenors.

On October 26, 2005, the City and Intervenors filed a

Motion to Strike portions of D CA's PRO -- namely, portions

addressing the failure of the City's comprehensive plan, as

amended, to discourage the proliferation of urban sprawl and

to react appropriately to data and analysis demonstrating Site

7 to be unsuitable for the FLUM amendment. T hey argued that

those issues were not sufficiently specified in the SOI and

Petition. On November 11, 2005, DCA filed a Response in

Opposition. Based on these filings, the Motion to Strike is

denied.

DCA's Unopposed Motion to Strike, filed November 15,

2005, (to strike from the City's and Intervenors' PRO the

reference to Intervenors' Exhibit 9, which was withdrawn) is

granted.

FINDINGS OF FACT

1. The City of Groveland is located in Lake County,

mostly north of State Road 50 and the northeastern corn er of

the Green Swamp. The core of the City is in the vicinity of

the intersections of State Road 50 with State Road 33 (to the

south) and State Road 19 (to the north). There are many lakes

and wetlands within the City and surrounding the City in Lake

Co unty.

2. The Green Swamp was designated an Area of Critical

State Concern by the Florida Legislature in 1979. It consists

of approximately 500 million acres south from the City through

south Lake County and into Polk County. It is bordered on the

east by U.S. Highway 27 and on the west extends over the

County line into Sumter County. The Green Swamp is important

as a statewide resource to Florida because it is one of the

last remaining intact ecosystems in Florida. It is one of

Florida's largest wetl and systems, second only to the

Everglades. It includes the headwaters of five rivers, and

provides recharge to the Floridan Aquifer, the primary source

of drinking water for Florida. It is an ecologically and

hydrologically significant resource. It pro vides habitat for

many endangered species including gopher tortoise, scrub jay,

and wood stork.

3. In 2003, the City annexed the parcels known in this

proceeding as Sites 4, 5, 6, and 7 from Lake County into the

City. All of the parcels are located eas t of State Road 33

and south of State Road 50 and within the boundaries of the

Green Swamp. Sites 4, 5, and 6 total 171.1 acres of wetlands

bordering Sumner Lake and the City's boundaries before

annexation. Site 7 consists of 361 acres (264 acres of

upla nds and 97 acres of wetlands). (There is an approximately

70 - acre County "enclave" in the middle of Site 7 which

remained in Lake County.) Site 7 currently is used to grow

citrus. It is connected to the City through the other three

sites and Sumner Lake .

4. At the time of annexation (and until City plan

amendments are found to be "in compliance"), 4 the future land

use designation for Sites 4, 5, and 6 was Lake County

Rural/Conservation. Site 7 had and still has its Lake County

future land use designa tions. Its 97 acres of wetlands are

designated Lake County Rural/Conservation, which allows one

dwelling unit per 10 acres, while the 264 acres of uplands are

designated as Lake County Transition, which allows one unit

per 5 acres, or one unit per acre if the “timeliness” criteria

under the Lake County Comprehensive Plan are met.

5. These parcels were the subject of the City's FLUM

amendments adopted on August 2, 2004. The FLUM amendments

changed the designation of Sites 4, 5, and 6 from County

Rural/C onservation to City Conservation. These City

designations have been found to be "in compliance." The FLUM

amendments also changed the future land use designation of

Site 7's 97 acres of wetlands to City Conservation, and its

264 acres of uplands to City of Groveland Green Swamp Single

Family Rural Development (GSRD), which allows two dwelling

units per acre. With a transfer of development rights from

the undevelopable wetlands to the developable uplands, which

would be allowed under both the City's and t he County's

comprehensive plans, the maximum number of dwelling units

allowed on Site 7 under the City's designation would increase

to 532, up from the 57 allowed under the current County

designations.

Compliance Issues

6. As indicated in the Preliminar y Statement, DCA's

Petition and SOI alleged that the City's Plan, as amended by

the Site 7 FLUM amendment, is not "in compliance" because:

(1) it is inconsistent with Rule Chapter 9J - 5 because it fails

to discourage the proliferation of urban sprawl, as r equired

by Rule 9J - 5.006(5); (2) it is internally inconsistent with

the City's Future Land Use Element (FLUE) Policies 1 - 1.10.1

(land use allocation), 1 - 1.10.2 (promoting orderly compact

growth), and 1 - 1.10.3 (coordination with Lake County to reduce

urban sprawl), and Intergovernmental Coordination Element

(ICE) Policy 7 - 1.1.3 (land use planning of adjacent lands);

(3) it is inconsistent with the Green Swamp Guiding

Principles; (4) it is inconsistent with Section 163.3177(6)(a)

and (8), Florida Statutes, an d Rule 9J - 5.005(2)(a), because it

does not react appropriately to the data and analysis on

environmental site suitability; and (5) it is inconsistent

with State Comprehensive Plan Public Facilities Goal 17(a) and

Policies 17(b)1. - 2.

Urban Sprawl

7. It i s no longer disputed that there is a demonstrated

need for the additional residential development allowed by the

Site 7 FLUM amendment. The real contention by DCA is that the

development should not occur at Site 7.

8. DCA's urban sprawl argument focuse s on five of the 13

"primary indicators that a plan or plan amendment does not

discourage the proliferation of urban sprawl" :

4. As a result of premature or poorly

planned conversion of rural land to other

uses, fails adequately to protect and

conserve natural resources, such as

wetlands, floodplains, native vegetation,

environmentally sensitive areas, natural

groundwater aquifer recharge areas, lakes,

rivers, shorelines, beaches, bays,

estuarine systems, and other significant

natural systems.

* * *

6. Fails to maximize use of existing

public facilities and services.

7. Fails to maximize use of future public

facilities and services.

8. Allows for land use patterns or timing

which disproportionately increase the cost

in time, money and energy, o f providing and

maintaining facilities and services,

including roads, potable water, sanitary

sewer, stormwater management, law

enforcement, education, health care, fire

and emergency response, and general

government.

9. Fails to provide a clear separatio n

between rural and urban uses.

Fla. Admin. Code R. 9J - 5.006(5)(g).

Indicator 4

9. DCA's argument as to Indicator 4 is two - fold: Site 7

is surrounded by rural land; and increasing densities will

harm the natural resources of the Green Swamp.

10. Si te 7 is immediately surrounded by generally rural

uses. As indicated, wetlands and Sumner Lake are to the

immediate northwest. Directly to the north of the

northernmost portion of Site 7 is a sprayfield owned and

operated by the City of Clermont. North of the sprayfield is

an open water body. The east side of Site 7 adjoins a marshy

area on the west side of Lake Palatlakaha. The south side of

Site 7 abuts CR 565 and low wetlands areas, with Lake Wash and

other rural lands and wetlands farther south.

11. While immediately surrounded by rural lands (City

Conservation, County Rural/Conservation, and County

Transition), Site 7 is located approximately 3,000 feet (not

three miles, as DCA's primary witness on this issue believed

as late as her deposition i n this case) south of State Road

50, a highly traveled, major road that connects West Central

Florida to East Central Florida. Site 7 is in a fast - growing

area less than two miles southeast of the center of the City.

Immediately to the north of Sumner La ke is the Westwood

residential subdivision which lies along the southern boundary

of State Road 50. Existing homes are scattered around the

sprayfield.

12. Westwood is located within the City’s boundaries and

in the Green Swamp. It has a future land u se designation of

Green Swamp Single Family Low Density Development (GSLD),

which allows up to four single - family detached homes per acre.

This corresponds to the Lake County Ridge designation it had

at the time it was annexed into the City. Westwood cur rently

is under construction, with many homes already occupied.

13. Along the northern side of State Road 50 north of

Westwood is a parcel within the City designated on the FLUM as

Commercial, which is proposed to be used for a Publix grocery

store, and the Green Valley Country Club, an existing golf

course community.

14. To the west of Site 7 is an existing golf course and

water ski community known as the Swiss Ski School. It is

located within unincorporated Lake County in the Green Swamp

and has a Planned Unit Development (PUD) approval for 296

residential units. To the west of the Swiss Ski School lie

Stewart Lake and Olsen Lake and their associated wetlands,

which are in the Green Swamp in the unincorporated County and

have County designations of Rural/Conservation and Transition.

Farther west, along State Road 33 and still in the Green

Swamp, lie developments having FLUM designations of GSSFLD

allowing up to four units per acre. Both those developments

lie within City limits.

15. To the sout h of Site 7, and in unincorporated Lake

County, with a County designation of Transition, lies a

subdivision along Monte Vista Road which is vested for

residential development partly at a density of two units per

acre and partly at one unit per acre.

16. Although there will be wetlands and Sumner Lake in

City Conservation designations between Site 7 and developments

to the north and west in the City, l eapfrog development is not

a concern for Site 7 and its surrounding area. To the extent

Site 7 is separa ted from other urban or suburban uses in the

City by lakes, wetlands, and conservation lands, no urban,

suburban or even rural development of those conservation lands

should be expected, so that "leaping over" those undeveloped

lands should not be consider ed an indicator of sprawl.

17. For these reasons, it is found that the Site 7 FLUM

amendment is not premature. Nor is the conversion from

agricultural use to residential use poorly planned. The

development will be compact and orderly, and public facil ities

and services are available. Natural resources already receive

a significant amount of protection in the plan. The

development of Site 7 will promote conservation of natural

resources by allowing only uplands to be developed onsite and

allowing a de nsity of up to two units per acre. A lower

density would be an inefficient use of developable land. An

inefficient land use pattern encourages the premature

conversion of environmentally significant lands.

Indicators 6 and 7

18. DCA's arguments as t o Indicators 6 and 7 essentially

are that some public facilities and services will have to be

extended to Site 7, that there are places in the City capable

of development using only existing public facilities and

services, and that the City has planned for future public

facilities and services elsewhere -- namely, in the North

Overlay, which is described below.

19. As for existing public facilities and services

(Indicator 6), development under the site 7 FLUM amendment

will receive the same public services of law enforcement,

fire, emergency services, and schools as are currently

available to Site 7, at a lower residential density, under the

existing Lake County Transition land use. Pursuant to an

interlocal agreement with Lake County, the City already

pro vides law enforcement services not only to Site 7 and

surrounding areas in the City, but also to adjacent areas in

unincorporated Lake County. As the City already provides

public services in the area, it will be more cost - efficient to

spread those costs a mong more homeowners. The proposed

amendment will allow more homeowners to share these costs.

DCA's only response to these facts, some of which were not

known by DCA's expert witness, was that "the increased

population on the site may require additiona l staff and

facilities to serve the population." DCA's PRO, at 41.

20. As for water and sewer, as indicated, a connection

to central water and sanitary sewer is available at State Road

50, approximately 3,000 feet from Site 7 (a fact also not

known by DCA's expert witness until shortly before the

hearing). The developer will be required to pay for the cost

of the new lines to Site 7. After those lines are installed,

nearby property owners can voluntarily connect to central

water and sewer. A few of t he nearby property owners who have

septic tanks have indicated an interest in connecting to the

Site 7 sewer lines. For these reasons, the proposed amendment

would result in an efficient use of central water and sanitary

sewer facilities.

21. As for fu ture public facilities and services

(Indicator 7), in 2003, as a result of a settlement agreement

between the City and DCA on the City's 2003 plan amendment,

the City proposed and adopted the "Groveland North Overlay"

area and associated policies as a plan for future growth. The

North Overlay was found to be "in compliance," is part of the

City's FLUE, and is designated on Map 1 - 7 of the City’s FLUM

series.

22. The North Overlay is located to the north of the

existing City limits and consists of several thousand acres.

It is identified as an area in which future annexations are

likely to take place in order to meet growth needs. The area

is adjacent to parcels already annexed by the City, designated

for urban densities, and planned for public facilitie s. It

allows for a mix of uses. It shows that the City had

identified a growth strategy to meet its need for the planning

timeframe and beyond. It was established to ensure that, as

land in the North Overlay was annexed into the City, new

development wo uld not develop as urban sprawl, but rather

would be managed in a way which created a more effective land

use pattern.

23. While adopting the North Overlay, the City has a

policy to annex land only on a voluntary basis. It does not

exercise its rights under Section 171.0413, Florida Statutes,

to require contiguous, compact unincorporated territory to

annex. For this reason, it is difficult for the City to

foresee with certainty which lands will annex into its

municipal boundaries.

24. In addition, s tarting in the mid - 1990's, before

adopting the North Overlay, the City began to annex land to

the south in the Green Swamp. At that time, the City began

the process of amending its comprehensive plan to include

provisions to comply with the Principles for Guiding

Development in the Green Swamp.

25. In late 2000, the City embarked on a study to guide

development and facilitate municipal expansion in the Green

Swamp. The DCA provided funding for the study through a

technical assistance grant. DCA also p rovided feedback for

the study. The City hired a private consulting firm to do the

study and produce a series of four quarterly reports. The

final report is entitled "City of Groveland Small Area Study

Final Report November 1, 2001." The Small Area Stud y

considered an area of approximately 2,580 acres in the Green

Swamp, which the City reasonably projected may be annexed.

The geographic boundaries of the study were larger in the

first three phases of the study, but were constricted for the

final report at the request of DCA planner, Bob Dennis, to be

closer to State Road 33. In addition, future annexations were

projected to be phased, with areas closer to State Road 33

projected to occur before areas farther away from there. Site

7 is even farther away from State Road 33 and entirely outside

the final boundaries of the Small Area Study. But the Small

Area Study was not intended to bind the City, or restrict the

City's annexation rights and powers, or change the City's

policy of voluntary annexation. I n other words, the projected

annexations and phasing did not preclude consideration of out -

of - phase or out - of - area annexations.

26. The DCA grant required the Small Area Study to

evaluate the area south of Groveland using several criteria,

including u pland area, utility availability and expansion,

road/transportation network, Lake County land use designation,

current land use activities, environmental assessment impacts,

and the Green Swamp rules.

27. The Small Area Study recommended that the City a dopt

two land use categories to apply to residential development in

the Green Swamp: a land use category allowing a maximum of

four units per acre, and another land use category allowing a

maximum of two units per acre. A requirement of 60 percent

open s pace and limitations on impervious surface for

residential development also were recommended. For the

protection of the Green Swamp and the Floridian Aquifer, the

study also recommended that clustered development be

encouraged and that central water and s ewer be provided. The

Small Area Study also recommended that wetlands be designated

a Conservation land use. The Small Area Study also

recommended that the plan require an upland buffer of 50 feet

from the edge of the wetland line and that all developmen t be

prohibited in wetlands and floodplains. The City adopted

those recommendations, as well as others. All of those plan

amendments were found be DCA to be "in compliance."

28. One of those amendments, FLUE Policy 1.3.11,

prohibits any structure in the Green Swamp to be located

within fifty feet of a wetland line. This requirement exceeds

the St. Johns River Water Management District (SJRWMD)

performance standards for wetland buffers, which require an

average uplands buffer of 25 feet, with a minim um buffer of 15

feet, as well as the standard included in the plan’s

Conservation Policy 7.3.5, which applies only to development

located outside of the Green Swamp, and requires an average

buffer of 50 feet, with a minimum buffer of 25 feet.

29. FLUE P olicy 1.3.3 and Conservation Policy 7.13.1

prohibit all development in the wetlands and floodplains for

land located within the Green Swamp. This policy is more

stringent than the Guiding Principles and Rule 9J - 5. Rule 28 -

28.008(1) provides performance c riteria for development in

flood - prone areas, which may be adopted in land development

regulations applying in Lake County portions of the Green

Swamp. Rule 9J - 5.013(3)(b) requires that land uses be

distributed to allow wetland impacts to be minimized and

mitigated.

30. The City also implemented the recommendations of the

Small Area Study for the two residential land use categories.

As already indicated, the City adopted the GSLD land use

category, allowing a density of up to four units per acre.

FLUE Policy 1.1.17. It also adopted the GSRD land use

category in FLUE Policy 1.1.18, allowing a density of up to

two single family detached homes per acre. Both categories

require that at least 60 percent of the property remain in

open space and that develo pment be clustered on the least

environmentally sensitive portions of the site.

31. The amendments adopting the GSLD and GSRD land use

categories were found by DCA to be "in compliance" and

consistent with the Principles of Guiding Development in the

Gr een Swamp. However, those categories were not yet assigned

to all land considered in the Small Area Study, much less land

outside its final boundaries. The appropriateness of GSRD for

Site 7 is the issue in this case.

Indicator 8

32. DCA's arguments a s to Indicator 8 essentially focus

on the timeliness provision in Lake County's Transition

designation and the requirement to provide some new public

facilities and services as a result of the City's Site 7 FLUM

amendment. See Finding 4, supra .

33. Dev elopment of Site 7 under Lake County's Transition

designation would be limited to one unit per five acres. Site

7 would not qualify for development at one unit per acre under

the timeliness provision, which requires more than 40 percent

of the surrounding area within a mile radius, and 60 percent

of the surrounding area within a two - mile radius, to be

developed at a density of one unit per acre or greater. 5 In

addition, development of Site 7 under the City's FLUM

amendment would make one unit per acre dev elopment of the 70 -

acre County "enclave" within Site 7 timely, which in turn may

make one unit per acre development of other County land in the

vicinity timely under Lake County's Transition designation.

34. In effect, DCA fears that the City's Site 7 F LUM

amendment will have a "domino effect" that will trigger rapid,

wholesale conversion of rural County Transition land that can

be developed at one unit per five acres to Transition land

"timely" for development at one unit per acre. But DCA did

not prov e that its fear is reasonable. DCA also fears that

the City's Site 7 FLUM amendment ultimately will result in too

much residential development in the Green Swamp. But future

County land use designation changes that will harm the Green

Swamp will be subje ct to challenge by DCA. In any event,

whether the City's FLUM change at issue in this case is timely

depends on a number of factors besides just the timeliness

provision of Lake County's Transition designation.

35. Indicator 8 addresses allowing " land use patterns or

timing which disproportionately increase the cost in time,

money and energy, of providing and maintaining facilities and

services," not just patterns or timing that increases those

costs. (Emphasis added). DCA did not prove that extending

water and sewer lines will be a disproportionately high cost

for the developer to pay and pass on to homeowners. The water

and sewer lines will be placed along an existing right - of - way

and will be required to be extended approximately 3,000 feet

to reach Site 7. Longer lines have been installed within City

limits. Also, as discussed above relating to Indicators 6 and

7, the Site 7 FLUM amendment will allow a greater sharing of

expenses of facilities and services.

Indicator 9

36. As to Indicator 9, th ere is some merit to DCA's

argument that the Site 7 FLUM amendment fails to provide a

clear separation between rural and urban uses. But this is

partly because of the lakes and wetlands between Site 7 and

those urban uses. In addition, there are some urb an - like uses

between Site 7 and other urban uses in the City. See Finding

14, supra .

Internal Consistency

37. DCA's Petition and SOI alleged that the Site 7 FLUM

amendment is internally inconsistent with other parts of the

City's comprehensive plan add ressing urban sprawl

considerations: FLUE Policies 1 - 1.10.1, 1 - 1.10.2, and 1 -

1.10.3; and ICE Policy 7 - 1.1.3 . After the Site 7 FLUM

amendment was adopted, the City further amended its

comprehensive plan. FLUE Policies 1 - 1.10.1, 1 - 1.10.2, and 1 -

1.10.3 bec ame, respectively: Policy 1.1.2; Objective 1.6 and

Policy 1.6.1; and Policy 1.6.2. ICE Policy 7 - 1.1.3 was

replaced by ICE Policy 11.1.1, and there was no objection to

substituting the new, equivalent policy for purposes of this

proceeding.

38. FLUE Po licy 1.1.2 states:

The City shall designate land use on the

[FLUM] to accommodate needs identified

within the Comprehensive Plan supporting

document (i.e., Data Inventory & Analysis).

The City shall allocate a reasonable amount

of land above identified needs to avoid

economic impacts which a controlled supply

of land places on land values and market

potential.

As found, it is undisputed that the Site 7 FLUM amendment is

internally consistent with this policy. In its response to

the ORC, the City adequa tely demonstrated that it had a need

for additional residential land to accommodate its future

population. Moreover, the ratio between the City's future

land use needs and population growth is only slightly more

than 1:1. The Site 7 FLUM amendment does n ot create an over -

allocation of land uses in relation to its estimated

population growth. Again, DCA's challenge is to the location

of Site 7.

39. FLUE Objective 1.6 states: "Discourage urban sprawl

through a future land use pattern which promotes ord erly,

compact development." FLUE Policy 1.6.1 states:

Land use patterns delineated on the [FLUM]

shall promote orderly, compact growth. The

City shall encourage growth and development

in existing developed areas where public

facilities and services are presently in

place and in those areas where public

facilities can provide the most efficient

service. Land shall not be designated for

growth and development if abundant

undeveloped land is already present within

developed areas served by facilities and

services."

Based on the findings as to the urban sprawl indicators,

supra , DCA did not prove that the Site 7 FLUM amendment is

internally inconsistent with FLUE Objective 1.6 and Policy

1.6.1, much less that internal consistency is beyond fair

debate.

40. FLUE Policy 1.6.2 states: "The City of Groveland

shall coordinate with Lake County through a Joint Planning

Agreement to develop an areawide [sic] planning approach by

2010, taking into account environmental suitability,

functional relationships and areas where public facilities and

services are available or proposed to be available by year

2020." ICE Policy 11.1.1 states: "The City of Groveland

shall continue to work closely with Lake County, Lake County

School Board, other municipalities and affe cted regional,

state and national government agencies to coordinate the

comprehensive planning effort of the City with those agencies

affected, through the provision of information and

participation on committees and working parties."

41. DCA did not pr ove that the Site 7 FLUM amendment is

internally inconsistent with FLUE Policy 1.6.2 or ICE Policy

11.1.1, much less that internal consistency is beyond fair

debate.

42. To the extent that internal consistency requires

that the local government to compl y with the intergovernmental

coordination provisions in its comprehensive plan when it

proposes and adopts plan amendments, DCA also did not prove

that the City failed to do so, much less that its failure to

comply is beyond fair debate.

43. The City re gularly coordinates its plan amendments

with Lake County. The City provided a copy of its 2004 - 02

amendment package to Lake County when the amendment was

transmitted to DCA, as was indicated to DCA in the transmittal

amendment cover letter to DCA. A loca l government’s submittal

to an adjacent local government of a copy of an amendment

under review is a common way for a local government to

coordinate amendments with other local governments. The City

also regularly coordinates planning issues with Lake Cou nty

and other Lake County municipalities by attending meetings of

their planning departments. Obviously, the Site 7 FLUM

amendment was adopted long before FLUE Policy 1.6.2's 2010

target for a joint planning agreement. At this time, there is

no voluntary joint planning strategy with which it can be

argued that this amendment is inconsistent.

44. At the hearing, DCA was permitted to also argue

internal inconsistency with new plan provisions adopted in

July 2005, and found to be “in compliance” in Septem ber 2005

(but not provisions adopted in September 2005 and under DCA

challenge at the time of the hearing). 6

45. Newly adopted Sanitary Sewer Objective 5.3 reads:

MAXIMIZE EXISTING FACILITIES AND DISCOURAGE

URBAN SPRAWL. The City shall maximize

exist ing sanitary sewer facilities within

its service area and promote compact

efficient growth patterns.

This objective must be read in conjunction with related

Sanitary Sewer Policy 5.3.1, which requires all new

development in the City to connect to the ce ntral sanitary

sewer system, as well as with FLUE Policy 1.1.18, which

requires all development in land designated GSRD to connect to

central water and sanitary sewer utilities. Density is

related to the ability to provide central sewer and water

services . If a developer runs new water and sewer lines,

which he must do at his own cost in the City, compact density

will make development more economical for those services and

will encourage an efficient land use pattern.

46. A density of two units per acr e is financially

feasible for providing central water and sewer to Site 7,

whereas the evidence was that a density of one unit per five

acres, as urged by DCA, is not cost - effective for Site 7, at

least given the developer's $6.5 million land acquisition

c ost. As the use of septic tanks is not an option in the City

for any new development, a contiguous and compact form of

development is essential not only for the property in

question, but also for future development sites.

47. Development of Site 7 will be connected to an

existing City - owned and operated wastewater treatment plant,

which has adequate capacity for the maximum of 532 homes

allowed by the amendment.

48. As the amendment will allow a compact development

pattern of two units per acre and w ill maximize the use of an

existing sewer facility, it is not internally inconsistent

with ICE Objective 5.3.

49. Newly - adopted ICE Objective 11.2 requires the City

to implement a strategy to ensure the efficient provision of

urban services, sound urban development, and accommodation of

growth. The objective identifies negotiating interlocal

agreements with Lake County and other local governments for

joint planning areas and for providing public services.

50. ICE Objective 11.2 requires future interg overnmental

coordination and is not self - implementing. The Site 7 FLUM

amendment is not internally inconsistent with ICE Objective

11.2.

Guiding Principles

51. The Guiding Principles were adopted by rule by the

Administration Commission in 1974 and su bsequently were

approved by reference by the Legislature. See Rule 28 - 26.003;

Ch. 79 - 73, § 5, Laws of Florida (1979). Preceding Rule

Chapter 9J - 5 and modern Florida statutory requirements for

local comprehensive plans, the Guiding Principles actually

wer e adopted to provide guidelines for the adoption of land

development regulations. See Rule 28 - 26.004 and Rule Chapter

28 - 28, Land Planning - Part VII Boundary and Regulations for the

Green Swamp Area of Critical State Concern - Lake County;

§ 380.0551(2), Fla . Stat.

52. The City's plan contains goals, objectives, and

policies that are consistent with the Guiding Principles.

Nonetheless, DCA contends that the Site 7 FLUM amendment is

inconsistent with the following objectives to be achieved

under the Green Swamp Guiding Principles, Rule 28 - 26.003(1):

(a) Minimize the adverse impacts of

development on resources of the Floridan

Aquifer, wetlands, and flood - detention

areas.

(b) Protect the normal quantity, quality

and flow of ground water and surface water

which are necessary for the protection of

resources of state and regional concern.

(c) Protect the water available for

aquifer recharge.

* * *

(j) Protect the natural flow regime of

drainage basins. 7

53. One of the primary reasons for designati ng the Green

Swamp as an area of Critical State Concern is its relatively

high aquifer recharge capabilities. This results from the

relative proximity of the surficial aquifer to the ground

surface, together with relatively high rate at which water

percol ates through the soils overlying the surficial aquifer.

The relatively high aquifer recharge rate results in a

relatively high potentiometric surface in the underlying

Floridan aquifer (Central Florida's primary drinking water

source) and drives the groun dwater system throughout Central

and Southwest Florida.

54. Florida contains many areas of no recharge, but low -

to - moderate recharge characteristics are common throughout

Florida. Within the Green Swamp, there are areas of low,

moderate, and high aquif er recharge, depending primarily on

the proximity of the surficial aquifer to the ground surface

and the characteristics of the overlying soils. In the area

of Site 7, the surficial aquifer is approximately 150 feet

below ground surface. Site 7 has both Type A (sandy, upland)

soils, which have a high infiltration rate, and Type B

(wetlands) soils. The area has been regionally mapped by

SJRWMD as having a net recharge rate of 0 - 4 inches (low) on

the western side of the site, and 4 - 8 inches (moderate) on t he

eastern part of the site. As such, these recharge

characteristics of Site 7 can be said to be "common" for the

Green Swamp.

55. As for groundwater contamination, a map of the

Floridan Aquifer Groundwater Vulnerability admitted into

evidence by DCA s howed that the groundwater for Site 7 and the

surrounding area are "more vulnerable" to contamination.

However, DCA did not present a map for other parts of the

Green Swamp or the rest of Florida for comparison purposes,

and its expert witness on the subj ect was unable to quantify

vulnerability or directly compare Site 7 to other parts of the

Green Swamp and the rest of Florida. However, he did testify

that areas of "high vulnerability" extend all the way to the

west of Tallahassee and that the western pa rt of the Green

Swamp generally is more vulnerable to groundwater

contamination than the eastern part, where Site 7 is, because

the surficial aquifer is at or near the ground surface in the

western part of the Green Swamp.

56. As to the natural flow reg ime of drainage basins,

Site 7 lies in the Oklawaha River Drainage Basin. The natural

local drainage of Site 7 is into the Palatlakaha River via

several smaller drainage sub - basins: Sumner Lake Outlet,

Palatlakaha Reach, Lake Wash Outlet, and Pine Island Outlets.

The Palatlakaha is a major tributary to the Oklawaha River.

DCA did not prove that the Site 7 FLUM amendment will

adversely impact the natural flow regime of the drainage basin

Site 7 is in.

57. DCA did not prove that Site 7 has any hydrolog ic or

environmental characteristics that would require more

protection than other parts of the Green Swamp. It follows

that DCA did not prove a need for Site 7 to have a lower

density than is allowed under the GSRD land use category

already approved by DC A for the Green Swamp. Similar

residential densities also have been approved in other parts

of the Green Swamp.

58. A plan's goals, objectives and policies must be

considered when evaluating the impacts of development allowed

by a land use category. T he FLUM, the goals, objectives, and

polices are interrelated. See § 163.3177(6)(a), Fla. Stat.

The hydrologic features and functions addressed in the Guiding

Principles are protected in the plan, and those protections

have been found by DCA to be consist ent with the Guiding

Principles. Those plan provisions will guide development to

ensure that the aquifer, wetlands, flood detention areas,

groundwater, surface water, Lake Sumner, and the natural flow

of the drainage basin will be appropriately protected.

59. The essence of DCA's argument that the Site 7 FLUM

amendment is inconsistent with the Guiding Principles is that,

regardless of how much protection the plan's provisions

afford, the Site 7 FLUM will allow approximately ten times the

various impacts of development -- e.g. , impacts on wetlands,

reduction of aquifer recharge due to increased impervious

surfaces, water quality impacts, and water quantity impacts --

at one unit to five acres under the current Lake County

Transition designation, so that adver se impacts are not

minimized, and resources are not protected, as envisioned in

the Guiding Principles. There are several flaws in DCA's

argument, even assuming the impact factor of ten.

60. First, the logical extension of DCA's argument would

be that minimization and protection require no additional

adverse impacts. If so, development at one unit per acre

under Lake County Transition's timeliness provisions -- a

fivefold increase in impacts, under DCA's rationale -- also

would be inconsistent with the Gui ding Principles.

61. Second, planning should be based on reality, 8 and DCA

did not prove that residential development would occur on Site

7 at one unit to five acres. To the contrary, while continued

development of small parcels in areas designated Lak e County

Transition is plausible, the evidence was that it is

financially infeasible to develop Site 7 as a whole

residentially at that density. 9 For that reason, while

ordinarily it is appropriate only to compare potential impacts

from different possible land use designations, in this case it

is appropriate to consider the impacts of the current use of

Site 7 as an orange grove when deciding whether the Site 7

FLUM amendment is consistent with the Guiding Principles. The

evidence was clear that, under al l the criteria in the Guiding

Principles cited by DCA, residential development under the

Site 7 FLUM amendment is far preferable to the continued use

of the property as an orange grove 10 -- the likely if not

absolutely clear result of maintaining Lake County 's

Transition designation. 11

62. Third, as mentioned in Finding 57, supra , it was

clear from the evidence that DCA has found residential land

use designations of two units per acre and greater not only

elsewhere in the Green Swamp, both in the City and elsewhere,

to be consistent with the Guiding Principles, and DCA failed

to explain why those densities would be consistent with the

Guiding Principles elsewhere but not at Site 7.

63. Again under this issue, DCA in effect fears that the

City's Site 7 F LUM amendment will have a "domino effect" that

will ultimately result in the entire Green Swamp being

designated for two - unit per acre residential densities. But

the entire Green Swamp is not like Site 7. Future County land

use designation changes that a ctually will harm the Green

Swamp will be subject to challenge by DCA, and it is

unreasonable to assume that DCA will allow densities of two

units per acre throughout the Green Swamp if it is allowed at

Site 7.

Environmental Suitability

64. For essentia lly the same reasons DCA argues

inconsistency with urban sprawl rules and plan provisions and

with the Guiding Principles, DCA also contends that the City

did not react appropriately to data and analysis indicating

Site 7's alleged environmental unsuitabil ity for residential

development at two units per acre. Based on the previous

findings, DCA did not prove that allegation. 12

State Comprehensive Plan

65. DCA alleges that the Site 7 FLUM amendment is

inconsistent with the State Comprehensive Plan's Pub lic

Facilities goal and two related policies. Public Facilities

Goal (a) addresses the need to protect substantial investments

in existing public facilities. Related Policy (17)(b)1.

provides incentives for developing land in a way that

maximizes the use s of existing public facilities. Public

Facilities Policy 17(b)2. promotes the "rehabilitation and

reuse of existing facilities, structures, and buildings as an

alternative to new construction."

66. As discussed above in the urban sprawl findings, the

Site 7 FLUM amendment encourages the efficient use of existing

public facilities. The increase in density, which the

amendment allows, may be viewed as a land use incentive that

encourages the maximization of existing public facilities both

as to Site 7 a nd as to surrounding properties that may later

connect to City utilities. The amendment furthers Public

Facilities Goal (a) and Policy (b)(1).

67. The Site 7 FLUM amendment also does not undermine or

conflict with Policy (b)(2). The City’s plans to r ehabilitate

a downtown community redevelopment area (CRA) will not be

adversely affected by development allowed by the proposed

amendment. Also, there is insufficient land within the CRA to

accommodate the City’s projected housing and land use needs.

The amendment is not inconsistent with this policy.

CONCLUSIONS OF LAW

Standard of Review/Standard of Proof

68. Except for certain "amendments directly related to

proposed small scale development activities" and described in

Section 163.3187(1)(c), DCA rev iews all local government

comprehensive plans and plan amendments for "compliance" --

i.e. , for consistency "with the requirements of ss. 163.3177,

163.31776, when a local government adopts an educational

facilities element, 163.3178, 163.3180, 163.3191, and

163.3245, 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 this part and with the principles for

guiding development in des ignated areas of critical state

concern and with part III of chapter 369, where applicable."

§ 163.3184(1)(b), Fla. Stat.

69. When DCA determines that a local government's plan

or plan amendment is not "in compliance," administrative

proceedings under Section 163.3184(10) take place. These

proceedings are conducted under Sections 120.569 and 120.57.

Most administrative proceedings initiated after preliminary

agency review and notice of the agency's intent to take final

action, and conducted under Sect ions 120.569 and 120.57 are de

novo proceedings designed to "formulate final agency action,

not to review action taken earlier and preliminarily."

McDonald v Florida Department of Banking and Finance , 346 So.

2d 81 (Fla. 1st DCA 1977). But the Legislatur e has chosen to

treat administrative review of comprehensive plan and plan

amendment cases differently. In proceedings under Section

163.3184(10), a different standard of review is established:

"In the proceeding, the local government's determination tha t

the comprehensive plan or plan 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 comprehensive plan or plan amendment is

not in co mpliance. The local government's determination that

elements of its plans are related to and consistent with each

other shall be sustained if the determination is fairly

debatable." § 163.3184(10)(a), Fla. Stat.

Compliance Criteria

70. Whether the Pla n Amendments are consistent with

relevant provisions of the State Comprehensive Plan , regional

policy plan, Chapter 163, Part II, Florida Statutes, and Rule

Chapter 9J - 5 regarding discouraging urban sprawl is determined

by application of Rule 9J - 5.006(5). 1 3

71. Of the 13 urban sprawl indicators in Rule 9J -

5.006(5)(g), DCA only alleged the existence of indicators 4,

6, 7, 8, and 9. As found, DCA did not prove, by a

preponderance of the evidence, that the City's Site 7 FLUM

amendment fails to discourage t he proliferation of urban

sprawl. As a result, DCA's evidence was not sufficient to

overcome the statutory presumption under Section

163.3184(10)(a) that the City's determination to the contrary

was correct.

72. As found, it was even clearer that DCA d id not prove

beyond fair debate that the City's Site 7 FLUM amendment is

internally inconsistent with provisions in the City's plan

designed to discourage the proliferation of urban sprawl and

promote intergovernmental coordination. As a result, DCA's

evi dence clearly was not sufficient to overcome, beyond fair

debate, the statutory presumption under Section

163.3184(10)(a) that the City's determination to the contrary

was correct.

73. As found, DCA did not prove, by a preponderance of

the evidence, tha t the City's Site 7 amendment is inconsistent

with the Guiding Principles. As a result, DCA's evidence was

not sufficient to overcome the statutory presumption under

Section 163.3184(10)(a) that the City's determination to the

contrary was correct.

74. As found, DCA did not prove, by a preponderance of

the evidence, that the City's Site 7 amendment failed to react

appropriately to the data and analysis on the environmental

suitability of Site 7. As a result, DCA's evidence was not

sufficient to overcom e the statutory presumption under Section

163.3184(10)(a) that the City's determination to the contrary

was correct. 14

75. Section 163.3177(10)(a), Florida Statutes, defines

"consistency" for the purpose of determining whether the plan

is consistent wit h the State Comprehensive Plan. For these

consistency determinations, the plan is consistent if it is

"not in conflict with" the relevant plan and "take [s] action

in the direction of realizing goals or policies" of the

relevant plan. In making these det erminations, the State

Comprehensive 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 in the plan. . .

." Id.

76. As compared to Rule Chapter 9J - 5, the State

Comprehensive Plan sets out general planning goals and

policies. Unlike Rule Chapter 9J - 5, they do not establish

"minimum criteria"; rather, if a local comprehensive plan

provision would appear to violate a provision of the State

Comprehensive Plan, a bal anced consideration must be given to

all other provisions of both the State Comprehensive Plan and

the local comprehensive plan to determine whether a local

comprehensive plan is consistent with the State Comprehensive

Plan. In addition, many of the provi sions of the State

Comprehensive Plan apply to the State of Florida and its

agencies in planning on the state level, as opposed to local

governments. Rarely, if ever, will a local plan violate the

State Comprehensive Plan if it does not also violate the

a pplicable Rule Chapter 9J - 5 "minimum criteria."

77. As found, DCA did not prove, by a preponderance of

the evidence, that the City's Site 7 amendment is inconsistent

with the State Comprehensive Plan. As a result, DCA's

evidence was not sufficient to o vercome the statutory

presumption under Section 163.3184(10)(a) that the City's

determination to the contrary was correct.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Administration Commi ssion enter a

final order finding the City's Site 7 FLUM amendment to be "in

compliance."

DONE AND ENTERED this 28th day of November, 2005, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative La w 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 28th day of November, 2005.

ENDNOTES

1/ Statutory citations are to the 2004 codification of the

Florida Statutes.

2/ Rule references are to the current codification of the

Florida Administrative Code.

3/ The City and Intervenors c ontinued to object to the urban

sprawl issue on grounds raised in their first motion in

limine. They also objected to internal consistency issues

based on provisions adopted by the City after the Site 7 FLUM

amendment at issue in this case. However, they declined a

continuance to give them more time to prepare to address those

issues, and their objections were overruled except as to

provisions adopted in September 2005, still under DCA

challenge at the time of the final hearing, and not yet found

"in comp liance."

4/ See § 171.062(2), Fla. Stat. (2004)(an area that is

annexed to a municipality continues to be subject to the

county land use plan and land development regulations until

the municipality adopts a comprehensive plan amendment that

includes th e annexed area); § 163.3189(2)(a), Fla. Stat.

(2004); Fla. Admin. Code R. Rule 9J - 11.011(9); Moehle v. City

of Cocoa Beach , 20 FALR 3314 (DCA 1998) (challenged amendments

do not become effective until the DCA or Administration

Commission issues a final ord er determining the amendments to

be "in compliance").

5/ Other timeliness provisions appear to be met.

6/ See endnote 3, supra .

7/ DCA's PRO, at 140, cites to paragraph (d), "Protect the

functions of the Green Swamp Potentiometric High of the

Flori dan Aquifer," instead of (j). But that appears to be a

typographical error. Elsewhere in the PRO, DCA refers to

paragraph (j), not (d). Likewise, DCA's Petition and SOI

refer to paragraph (j), not paragraph (d), which also is not

referenced in DCA's pre hearing statement.

8/ See , e.g. , § 163.3177(2) ("the comprehensive plan shall be

financially feasiable"); see also Dept. of Community Affairs,

et al., v. Hillsborough County , DOAH Cases 89 - 5157GM and 90 -

6639GM, 1992 WL 880113, at *110 (DOAH RO Dec. 8, 1992; Admin.

Comm. FO Dec. 16, 1993) ("economic reality may limit

retrofitting [of stormwater systems] to redevelopment").

9/ All parties agree that it would be inappropriate to locate

more intense commercial uses or even mixed use there.

10/ Conve rsion of Site 7 from citrus to residential use at

two units per acre would result in an annual savings to the

Floridan aquifer of approximately 90 million gallons -- three

inches of the Floridan aquifer's water level -- due to the

significant reduction in wate r needed by approximately 530

units compared with the citrus grove's permitted water use.

In addition, the current unregulated (grandfathered)

agricultural practice of applying chemicals to the site

without stormwater diversion into a stormwater managemen t

facility has an extremely negative impact on the quality of

groundwater and Lake Sumner. In the face of these facts,

DCA's only remaining argument for preferring the current use

of Site 7 was the theory that an orange grove could revert to

natural condi tions. But the evidence did not prove that such

a theory would be based on reality. See endnote 8, supra .

11/ The Intervenors' evidence on this subject was not

entirely convincing. It assumed that Banyan would continue

orange grove operations indefi nitely unless the Site 7 FLUM

amendment became effective. But the evidence called into

question whether net revenue from those operations would pay

the debt service on Banyan's purchase of the land for

approximately $6.5 million. In addition, the Interve nors

presented evidence on the feasibility of development only at

two units per acre and at one unit per five acres. Their

evidence did not address directly the possible financial

feasibility of development at one unit per acre, if and when

development at that density might become timely under Lake

County's Transition designation.

12/ DCA's Petition and SOI also allege under "Environmental

Suitability" that the Site 7 FLUM amendment is internally

inconsistent with several provisions in the City's plan.

Policy 7.13.14, former Policy 5 - 1.13.4, requires that

development in the Green Swamp "not alter the quantity,

quality, and natural flow regime of surface water, nor the

quantity or quality of groundwater recharge." Policy 7.13.5,

former Policy 5 - 13.5, r equires that the natural flow of

wetland systems "be maintained by the use of upland buffers,

the City complying with the conditions of its consumptive use

permits regarding limitations on groundwater withdrawals and

controls on stormwater runoff." Policy 1.3.10, former Policy

1 - 3.6.10, requires that impervious surfaces in the Green Swamp

"be kept to a minimum by limiting paved areas and encouraging

alternatives to impervious paving surfaces." All of these

policies apply to all development in the Green Sw amp,

including development at Site 7. DCA's PRO does not address

these allegations. DCA did not prove that the Site 7 FLUM

amendment is inconsistent with any of the policies, much less

that internal inconsistency is beyond fair debate.

13/ Rule 9J - 5. 003 (134) also defines "urban sprawl."

14/ It was even clearer that DCA did not prove beyond fair

debate that the City's Site 7 FLUM amendment is internally

inconsistent with environmental protection provisions in the

City's plan which were cited in DCA' s Petition and SOI but not

in its PRO. As a result, DCA's evidence clearly was not

sufficient to overcome, beyond fair debate, the statutory

presumption under Section 163.3184(10)(a) that the City's

determination to the contrary was correct.

COPIES FU RNISHED :

Barbara Leighty, Clerk

Growth Management and Strategic Planning

The Capitol, Room 2105

Tallahassee, Florida 32399 - 0001

Raquel A. Rodriguez, General Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399 - 0001

Heidi Hugh es, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

Karen A. Brodeen, Esquire

Fowler, White, Boggs, Banker, P.A.

101 North Monroe Street, Suite 1090

Post Office Box 11240

Tallahass ee, Florida 32301 - 3240

Leslie E. Bryson, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

W. Douglas Moody, Jr., Esquire

Myers & Fuller, P.A.

2822 Remington Green Circle

Post Office Box 14497

Ta llahassee, Florida 32317 - 4497

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 ag ency that will

issue the final order in this case.