05-004402GM Florida Wildlife Federation, Inc.; Friends Of Matanzas, Inc.; Patrick Hamilton; William Hamilton; And Phil Cubbedge vs. Town Of Marineland And Department Of Community Affairs Status: Closed Recommended Order on Friday, April 28, 2006.

Summary: It was not proven beyond fair debate that the revision of plan of Town now all in CHHA is not "in compliance."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA WILDLIFE FEDERATION, )

INC.; FRIENDS OF MATANZAS, )

INC.; PATRICK HAMILTON; and )

WILLIAM HAMILTON, )

)

Petitioners, )

)

vs. )

) Case No. 05 - 4402GM

TOWN OF MARINELAND and )

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondents, )

)

an d )

)

CENTEX HOMES d/b/a CENTEX )

DESTINATION PROPERTIES, )

)

Intervenor. )

____ )

RECOMMENDED ORDER

On March 7 - 9, 2006, a final administrative hearing was

hel d in this case in Marineland, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioners: Thomas W. Reese, Esquire

2951 61st Avenue South

St. Petersburg, Florida 33712 - 4539

For Respondent, Town of Marineland:

Dennis K. Bayer, Esquire

306 South Oceanshore Boulevard

Flagler Beach, Florida 32136

For Re spondent, Department of Community Affairs:

Shaw P. Stiller, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

For Intervenor: David C. Ashburn, Esquire

Sherry A. Spiers, Esquire

Greenberg Traurig, P.A.

Post Office Drawer 1838

Tallahassee, Florida 32302 - 1838

STATEMENT OF THE ISSUES

The main issue in this case is whether the Town of

Marineland's Comprehensive Plan Amendments adopted by

Ordinance 2005 - 1 on August 18, 2005, 1 are "in compliance," as

defined by Section 163.3194(1)(b), Florida Statutes (2005). 2

Another issu e is whether Petitioners have standing. 3

PRELIMINARY STATEMENT

On November 21, 2005, Petitioners (along with Phil

Cubbedge) served and filed with the Department of Community

Affairs (DCA) a Petition for Hearing contending that the Plan

Amendments are not "in compliance." On November 23, 2005,

Petitioners served a First Amended Petition for Hearing

(dropping Mr. Cubbedge) (Amended Petition). 4 On December 5,

2005, the matter was referred to the Division of

Administrative Hearings (DOAH) for assignment of an

Administrative Law Judge to conduct a hearing on the Amended

Petition. Discovery proceeded, Centex Homes, d/b/a Centex

Destination Properties (Centex) intervened, and the case was

set for final hearing on March 7 - 10, 2006, in Marineland.

On Febr uary 8, 2006, Centex filed a Demand for Expedited

Hearing under Section 163.3189(3)(a) - (b), Florida Statutes,

which did not seek a change in the scheduled final hearing

dates.

On February 28, 2006, Centex filed a Motion to Strike

Portions of First Amende d Petition and Motion in Limine

(Motion). On March 2, 2006, a Pre - Hearing Stipulation was

filed. On March 3, 2006, Petitioners filed a Response in

opposition to Centex's Motion.

At the outset of the final hearing, the caption was

amended to drop Phil C ubbedge, in accordance with the Amended

Petition; oral argument was heard on Centex's Motion, which

was denied; and Joint Exhibits 1 - 3 were received in evidence.

Petitioners called the following witnesses: Phil

Cubbedge; Town Mayor James C. Netherton, I II; Susan R. Parker,

Ph.D., an expert interpreter of documents from Spanish

colonial Florida; Paul Johnson, an expert in marine biology,

marine ecology, and coastal zone planning and management;

Patrick Hamilton; Michael Greenberg, Ph.D.; Sarah Owen,

Plann ing Advocate for the Florida Wildlife Federation (FWF),

Northeast Office, and an expert in comprehensive and other

land use planning; and George William (Bill) Hamilton. The

following Petitioners' Exhibits were admitted in evidence: 1,

3 - 6, 8 - 11, 14 - 19, 21, 26 - 30, 32 - 36, 46 - 47(A), and 50. 5

Petitioners' Exhibits 43 - 45 and section 1816 of the Florida

Building Code were officially recognized. Objections to the

following Petitioners' Exhibits were sustained: 12 - 13, 20,

39, 40(A), and 42. Petitioners' Exhi bit 22 consisted of two

maps, numbers 6.3 and 6.8; map 6.3 was admitted, but

objections to map 6.8 were sustained. Ruling was reserved on

objections to Petitioners' Exhibits 7, 25, and 47(B); at this

time, the objections to Exhibits 25 and 47(B) are overr uled,

and the exhibits are received, but the objections to Exhibit 7

are sustained.

The Town called Michael Brown, Planner for the Northeast

Florida Regional Planning Council (RPC), and an expert in

drafting and implementing comprehensive plans, but did not

offer any exhibits.

Centex called the following witnesses: Robert Pennock,

Ph.D., an expert in comprehensive and other land use planning;

Henry Fishkind, Ph.D., an expert in economics; William Michael

Dennis, Ph.D., an expert in environmental analys is; Donald C.

Lewis, an expert in hurricane evacuation planning and

hurricane clearance time evaluations and analysis. Centex

also had Intervenor's Exhibits 8, 21, 22, 25, and 26 admitted

in evidence.

DCA called Joseph Addae - Mensa, Ph.D., a Senior Plann er

who reviews local government comprehensive plans for DCA, and

had DCA Exhibits 1 and 2 admitted in evidence.

When the presentations of evidence concluded on March 9,

2006, Centex ordered a transcript, and the parties were given

ten days from the filin g of the transcript to file proposed

recommended orders (PROs). The Transcript was filed (in four

volumes) on March 30, 2006, making PROs due April 10, 2006.

The parties filed timely PROs.

On April 13, 2006, Centex moved to strike portions of

Petitione rs' PRO. Petitioners filed a Response in opposition

on April 17, 2006. No other party responded in the time

allotted by Florida Administrative Code Rule 28 - 106.204(1). 6

Based on the filings, Centex's motion to strike portions of

Petitioners' PRO is gran ted in part and denied in part.

Specifically, it is granted as to PRO ¶104.o. and FLUE Policy

A.1.12.2, but it is otherwise denied. 7 In accordance with

this ruling, due consideration has been given to the post -

hearing filings.

On April 19, 2006, Petiti oners filed a Request for

Official Recognition of Petitioners' Exhibits 41 (A - C). The

request is denied for some of the reasons given in Centex's

Response in Opposition.

FINDINGS OF FACT

A. Background

1. The Town of Marineland is unique. Its history is not

only interesting but helpful to an understanding of why the

Plan Amendments may or may not be "in compliance," and also

why Petitioners may or may not have standing.

2. Marineland originated as the Marine Studios, which

was created so that oceani c life would exhibit natural

behavior that could be filmed for feature Hollywood films.

The Marineland Attraction (Attraction) followed, and the new

word "Oceanarium" was coined. The A ttraction was the first

marine theme park and served as the model for those that

followed. The Town of Marineland was created in 1940

essentially to provide support services for the Attraction.

3. Eventually, the Attraction's founding members died,

and the property was sold to a group of St. Augustine

investors, with the new entity being called Marineland, Inc.

The investors looked at the property as a real estate

investment, and the 1992/2005 Plan reflects this vision,

calling for a community of 1500 persons and 600 dwelling

units. The Town and the Attraction remained interdependent,

with the Attraction being the entity that generated revenue

and provided for most of the financial needs of the Town. As

the face of Florida tourism changed during the 1970's and

1980's, fewer and fewer people came to Marineland, opting

in stead for the high profile attractions in the Orlando area.

Rather than being a profit center for the investors that

allowed them leisure to develop the rest of the land at their

convenience, the Attraction became a money sink and required

the investors t o put money in each year to keep the facility

going. This was an untenable situation in the long run and

ultimately Marineland, Inc., sold its holdings to Marineland

Ocean Resort (MOR), which split off another entity, the

Marineland Foundation, to manage the Attraction. The

Marineland Foundation operated under the umbrella of the Town

of Marineland and not specifically as part of MOR.

4. As this was happening, the Town of Marineland found

itself having to be self - sufficient for the first time in 55

yea rs. It needed to assume all the trappings of a municipal

government and deal with matters that had previously been

handled in whole or part by Marineland, Inc. During all these

changes various attorneys examined different aspects of the

Town's operation and found certain deficiencies. The most

serious for land use planning was that the Town had not

followed through after adoption of the 1992/2005 Plan and

adopted any sort of land development regulations (LDRs).

5. Simultaneously, MOR was considering h ow to develop

the land it had bought. Its model was timeshares, and it

considered turning the two oceanfront hotels into timeshare

units, building an additional oceanfront timeshare hotel,

selling timeshare campground slots, selling timeshare marine

slips , and building timeshare units along the riverfront in

the maritime hammock. Since the town had no LDRs, MOR would

have had a free hand to build anything it pleased.

6. To remedy this deficiency as quickly as possible the

Town passed: Ordinance 97 - 1, which adopted the Flagler County

development code provisions for signage, storm water and

drainage, wetlands, tree protection, road construction and

coastal construction; Ordinance 97 - 2 to adopt various standard

codes relating to amusement devices, buildin gs, fire

prevention, gas, grading, housing, mechanical, plumbing and

swimming pools; and Ordinance 97 - 3 establishing zoning

districts and providing for zoning regulations. Ordinance 97 -

3 allowed for medium - density housing at four units per acre in

the dis turbed and cleared areas and at two units per acre in

the the partially - disturbed maritime hammock. The intention

was to prevent the rest of the maritime hammock, a rapidly

disappearing environment throughout Florida and an environment

of special concern, from being cleared for river - view

timeshare units along the Intracoastal Waterway (ICW). The

Town wished to balance the need to preserve important lands

with the need to rebuild the town and regain lost population.

It was not clear from the evidence how many units of

residential development would be allowed under Ordinance 97 - 3,

but it would be less that under the 1992/2005 Plan or under

the Plan Amendments.

7. Shortly after these ordinances were passed, MOR,

which had been struggling financially and unable to realize

any of its development plans, filed for bankruptcy and sale of

their holdings. Its attorneys expressed great concern about

the effect of the town ordinances on the pending bankruptcy

and sale, and pointed out that when MOR filed, the cou rt froze

the status quo, preventing the Town from amending the

1992/2005 Plan's future land use map (FLUM) to reflect

Ordinance 97 - 3.

8. The Trust for Public Land (TPL) was successful in

purchasing the MOR holdings from the bankruptcy proceedings.

The result was a substantial reshaping of the land ownership

within the Town. Approximately 90 acres of the most

vulnerable lands were purchased from TPL with grant money from

Florida Communities Trust (FCT)and set aside for conservation.

The University of F lorida's Whitney Marine Lab purchased

additional land to double its holdings, and Jacoby

Development, Inc. purchased about 40 acres of the disturbed

lands for development.

9. Concurrent with these activities, DCA awarded two

planning grants to the Tow n under the Remarkable Coastal Place

Program. The purpose of the grants was to enable the Town to

take advantage of state experts in various aspects of

community planning who could help the Town reorganize itself,

recover its lost population, and rebuild itself from the

ground up. It became apparent during this work that the Town

would need a new comprehensive plan, not simply an update to

the existing plan, in order to reflect the different structure

of land ownership and to support the vision that the

s takeholders had created during the planning process of a

sustainable community that would be a center of science,

education, recreation, and ecotourism. This was begun while

state expertise was still available to the town, and once

again incorporation of Ordinances 97 - 1, 97 - 2, and 97 - 3 into

the existing comprehensive plan and FLUM was put on the back

burner, since a new set of LDRs would have to be written to

support the new comprehensive plan work in progress.

B. Existing Uses

10. The Town's exis ting land uses are distributed into

two major categories: those found within and those found

outside the River - to - Sea Preserve.

(i) The Preserve

11. Approximately 89 acres of the total 151 acres of

the Town is off - limits to development through protec tion in

the River - to - Sea Preserve. The River - to - Sea Preserve is

undeveloped and vegetated with maritime hammock, coastal

strand, beaches, dunes, and approximately eight acres of salt

marsh within the Town's boundaries. The land has experienced

significan t disturbance in some areas. However, the majority

of the site consists of native forested and non - forested

vegetative communities.

12. Lands covered with coastal scrub growth dominated by

saw palmetto are located along the barrier dunes and to some

exte nt to the west along the southern border of the Town but

mostly seaward of the Coastal Construction Control Line

regulated by Florida Department of Environmental Protection.

This is a rapidly - disappearing community, and some sites

harbor numerous endanger ed species. For that reason, it is

one of three which has been designated by the Florida Fish and

Wildlife Conservation Commission (FFWCC) as a "Rare and Unique

Upland Community" within Florida. Development to the south of

the Town has left these scrubla nds as an isolated remnant of

the former community. The Preserve protects approximately

seven acres of the coastal scrub community located in the

Town.

13. The Preserve protects three - fourths (32.6 acres) of

the coastal hammock community located in the Town. The

coastal hammock community also has been designated as a "Rare

and Unique Upland Community" by the FFWCC. This community

provides valuable cover and feeding areas for migratory

songbirds in fall and spring as they migrate down the Atlantic

Coas t.

14. Running the length of the Town along the Atlantic

Ocean are 8.9 acres of beach area, an area of unconsolidated

material that extends landward from the mean low water line to

the primary dune system. The north and south ends of the

beach are in the Preserve.

(ii) Outside the Preserve

15. Development in the Town, outside the Preserve,

includes the existing Oceanarium facilities, the Whitney Lab,

and the presently closed marina facility.

16. Approximately 2.2 acres in the northeastern portion

o f the Town between A1A and the Atlantic Ocean contain the two

original Oceanarium tanks of Marineland and has been included

in The National Register of Historic Places. The Marine Park

of Flagler has purchased the MOR property and intends to

revitalize th ese areas.

17. The Whitney Lab consists of the Whitney Laboratory

for Marine Bioscience and the Marine Education Building, all

operated by the University of Florida. These facilities

occupy approximately 10 acres and are used for educational and

resear ch purposes. The Whitney Lab has broken ground on a new

Center for Marine Studies and has plans for a Center for

Marine Animal Health.

18. The marina facility is located in the northwestern

part of the Town adjacent to the ICW. It is 3.4 acres in

size . The marina has been closed due to the deteriorating

facilities. There is a plan to redevelop the Marina as a

"Clean Marina."

19. A smaller (0.74 acre) parcel is located adjacent to

the Preserve on the west side of A1A and is the location of

the Guana Tolomato Matanzas National Estuarine Research

Reserve (GTMNERR) Administrative Offices, classroom, lab, and

research facilities.

20. Besides the beach, undeveloped urban lands outside

the Preserve consist primarily of an approximately 47 - acre,

privately - o wned parcel located in the center of the Town west

of A1A. It is surrounded on three sides by already - developed

areas within the Town. It includes approximately 10.3 acres

of the Temperate Hardwood Hammock.

C. Adjacent Lands

21. The Flagler County/St. Joh ns County line passes

through the northern tip of the Town so that the Town is

primarily located in Flagler County. Flagler County is a

fast - growing county having five incorporated municipalities.

22. Land to the north of the Town, located in St . Johns

County, consists of undeveloped coastal scrub and dune,

saltwater marshes, and single - family houses along the barrier

dune and in the vicinity of Summer Haven, a small

unincorporated community located on the south side of the

Matanzas Inlet.

23. To the south, in Flagler County, there are large

areas of coastal scrub and temperate hammock. A residential

development called Matanzas Shores is being constructed. This

development was permitted by Flagler County after Development

of Regional Impact ( DRI) review by the RPC. Immediately to

the south of this development is the Washington Oaks Gardens

State Park.

24. To the west of the Town are saltwater marshes

associated with Pellicer Creek, which is designated an

Outstanding Florida Water (OFW), and the Matanzas River, which

is part of the ICW. Pine flatwoods and temperate hammock are

on the mainland shore. The Princes Place Preserve, Faver

Dykes State Park, and St. Johns River Water Management

District lands along Pellicer Creek serve as a 19,000 - a cre

buffer between the ICW and the U.S. 1/I - 95 corridor to the

west. Two islands located in the Matanzas River estuary have

been purchased through the FCT program and are owned by the

Town. The southern island is located directly across from the

Marinela nd marina on the west bank of the ICW and on the

Flagler/St. Johns County boundary. The north island is on the

west side of the ICW just south of the Matanzas Inlet in St.

Johns County. The Florida Park Service will manage the

islands. Although owned by the Town, these islands have not

been annexed into the Town boundaries. It is the intent of

the Town to annex these islands and incorporate them into

long - term research, education and protection.

D. Density 8

25. On several fronts, Petitioners take i ssue with the

density of development allowed by the Plan Amendments. They

point to the designation of the Coastal High Hazard Area

(CHHA), as well as data and analysis concerning erosion,

topography (ground elevations), hurricane frequency and

severity (o r intensity), hurricane evacuation and shelter

concerns, and effects on the sensitive environment of the Town

and vicinity.

(i) CHHA

26. In accordance with the law at the time, the Town's

1992/2005 Plan designated the CHHA to be seaward of the Town's

c oastal dune. In compliance with Rule 9J - 5.012(3)(b)6., which

required (and still requires) coastal management elements of

plans to contain one or more specific objectives which

"[d]irect population concentrations away from known or

predicted coastal high - hazard areas," the Town's 1992/2005

Plan included Coastal/Conservation Element (C/CE) Objective

E.1.6, which provided:

Marineland shall direct population

concentrations away from known or predicted

high - hazard areas and shall ensure that

building and dev elopment activities outside

high - hazard areas are carried out in a

manner which minimizes the danger to life

and property from hurricanes. Development

within Coastal High - Hazard Areas shall be

restricted and public funding for

facilities with[in] Coastal High - Hazard

Areas shall be curtailed. Marineland shall

provide a timely review of the hazard

mitigation and evacuation implications of

applications for rezoning, zoning variances

or subdivision approvals for all new

development in areas subject to coastal

flooding.

In addition, the Town's 1992/2005 Plan did not allow

residential (or any other) development in the designated CHHA.

27. In 1993 the Florida Legislature amended the

definition of the CHHA mean the Category 1 hurricane

evacuation zone. See Section 163.3178(2)(h), Fla. Stat. See

also Rule 9J - 5.003(17) (defining the CHHA to mean the

evacuation zone for a Category 1 hurricane as established in

the applicable regional hurricane study). Rule 9J - 5.002(8)

requires a local government to "address" rule changes in the

next cycle of amendments. Since the entire Town is in the

evacuation zone for a Category 1 hurricane as established in

the applicable regional hurricane study, the Plan Amendments

designate the entire Town as the CHHA. The Plan Amendm ents

allow residential development west of the ocean dune in what

is now the CHHA. The Plan Amendments also replace Objective

E.1.6 with a new C/CE Objective E.1.6, Hazard Mitigation,

which requires the Town to "ensure that building and

development activi ties areas [sic] are carried out in a manner

which minimizes the danger to life and property" and "provide

a timely review of the hazard mitigation and evacuation

implications of applications for rezoning, zoning variances or

subdivision approvals for all new development in areas subject

to coastal flooding." A series of policies follow the new

objective.

28. The question under these circumstances is whether

the Plan Amendments adequately address the change in CHHA

definition and comply with Rule 9J - 5.0 12(3)(b)6. As the

following findings explain, it is found that they do.

29. Petitioners contend that they do not and that the

Town was required to keep the 1992/2005 C/CE Objective E.1.6,

which arguably would prohibit any residential development in

the Town. This also would be the result if Rule 9J -

5.012(3)(b)6. were construed to require the Town to direct all

population away from the CHHA. At least some Petitioners

candidly would prefer that result, and Petitioners make a

seemingly half - hearted initi al argument that allowing any

residential development in the Town ( i.e. , in the CHHA) would

be inappropriate and not "in compliance." But it is clear

that such a result is not mandated by the statute or rules.

30. To the contrary, DCA interprets the st atutes and

rules as not even requiring a re - evaluation or "down - planning"

of land uses (in particular, a reduction in residential

densities) allowed under an existing comprehensive plan when a

local government "addresses" the change in definition of the

CH HA by increasing its size. DCA has not required such a re -

evaluation anywhere in the State. Rather, DCA interprets the

statutes and rules to prohibit the local government from

increasing density in the CHHA above the density authorized by

its existing co mprehensive plan.

31. In this case, the Town not only has designated the

new CHHA but also has conducted a re - evaluation and revised

its comprehensive plan. Under the rather unusual

circumstances here, where the CHHA covers the entire Town,

changing re sidential densities in various parts of the Town is

not significant in determining whether population

concentrations are directed away from the CHHA. Rather, what

is important is the total residential development allowed in

the Town as a whole.

32. T he Town contends, along with DCA and Centex, that

the Plan Amendments reduce residential density in the Town.

Petitioners, on the other hand, contend first of all that the

density allowed by the Plan Amendments cannot be compared to

the 1992/2005 Plan bec ause the existing plan did not establish

residential density standards, as required by Section

163.3177(6)(a), Florida Statutes ("[e]ach future land use

category must be defined in terms of uses included, and must

include standards to be followed in the co ntrol and

distribution of population densities"). Instead, Petitioners

contend that the 1992/2005 Plan was written in terms of "vague

and standardless" design criteria and a policy direction for

the Town to adopt LDRs consistent with the design criteria.

Primarily for that reason, Petitioners contended that the

density allowed by the Plan Amendments had to be compared to

the residential density established by Ordinance 97 - 3 to

determine whether the Plan Amendments increased residential

density.

33. Reg ardless of the way it was written, the 1992/2005

Plan was found to be "in compliance." In addition, while the

policies in the Future Land Use Element (FLUE) of the

1992/2005 Plan were written in terms of average gross acre lot

sizes, maximum lot coverage, and maximum floor area ratios

characteristic of design criteria, it is nonetheless possible

to calculate (albeit not without difficulty and with room for

minor differences in results depending on the approach taken

and assumptions made) the residential de nsity allowed under

the 1992/2005 Plan. The adopted FLUM depicted the various

residential land use categories, as required by Section

163.3177(6)(a)("[t]he proposed distribution, location, and

extent of the various categories of land use shall be shown on

a land use map or map series"), and a summary of the total

allowable residential land uses was included in data and

analysis that accompanied the 1992/2005 Plan, 9 making it

possible to calculate residential density. Contrary to

Petitioners' argument, it is not necessary to use Ordinance

97 - 3 to determine the residential density allowed under the

1992/2005 Plan, and there is no other plausible reason, or any

precedent, for using land development regulations in that

manner.

34. As represented in the data and analysis summary for

purposes of calculating the land requirements for housing, the

1992/2005 Plan allowed a maximum of 427 residential dwelling

units on 37.7 acres, including apartments above retail uses,

which are not depicted on the FLUM but are al lowed under

Housing Element (HE) Policy C.1.1.2 to provide affordable

housing. This maximum of 427 assumed 98 apartments above

retail uses although more arguably would be allowed under the

1992/2005 Plan. In addition, the 1992/2005 Plan's HE Policy

C.1.1 .1 allowed "out - buildings" as "ancillary structures to

the rear of lots containing single family dwellings." Like

the apartments over retail, these dwelling units are not

depicted on the FLUM but are allowed as of right and

theoretically could result in 1 76 additional dwelling units on

a total of 37.6 acres.

35. To arrive at the residential density allowed under

the 1992/2005 Plan, DCA's expert added 12 of the approximately

12 - 20 dwelling units not shown in the summary but mentioned in

the data and anal ysis of the 1992/2005 Plan as being either

existing or allowed on the Whitney Lab's 5.4 acres, bringing

the total theoretical maximum under the 1992/2005 Plan to 615

residential units on 43 of the Town's 151 acres, at various

densities ranging from 2.2 uni ts per acre at the Whitney Lab

to 28.8 units per acre for apartments above retail uses, for

an average residential density of 14.3 units per acre. 10

36. Centex's expert took a different tack. First, for

the apartments over retail uses, he assumed t wo units per

retail use, for a total of 198 units (while also pointing out

that there was no cap on these units in the 1992/2005 Plan).

Second, he did not include any units for the Whitney Lab

because they were not grounded in Plan policies. Using this

a pproach, he arrived at a total of 704 residential units

allowed under the 1992/2005 Plan. While he maintained the

validity of that calculation, he pointed out that eliminating

the units (both residential units and associated "out -

buildings") allowed on la nd now included in the River - to - Sea

Preserve would lower the total to 611 units.

37. The Town's expert did not count apartments above

retail uses or the units at the Whitney Lab and arrived at a

total of approximately 421 - 425 dwelling units allowed unde r

the 1992/2005 Plan. When he eliminated the units (residential

units with associated "out - buildings") allowed on land now

included in the River - to - Sea Preserve, he decreased his total

to 275 units. The reason for the differences in his

calculation was n ot clear from the record.

38. Turning to the Plan Amendments, although more

typical residential density standards are used, the experts

still disagree on exactly what residential density the Plan

Amendments allow and achieve. Most development under the Plan

Amendments will occur in the Sustainable Mixed Use (SMU)

future land use category, which allows a maximum of 241

residential units, a maximum of 50,000 square feet of

commercial uses, and accessory residential units for

affordable housing. Centex's expert determined that, under

the Plan Amendments, the maximum theoretical number of

dwelling units that could be developed in the Town, including

the SMU category, is 565 units.

39. It is not reasonable to conclude that 565 dwelling

units would actuall y be developed, because this number

includes 241 affordable accessory units, one for each

residential unit. However, the Town concluded there is only a

need for 39 such units. Centex's expert found that 13 of the

39 affordable housing units needed in the Town will be

provided in FLUM categories other than SMU -- namely,

Institution Research (the Whitney Lab) and Conservation. It

is more reasonable to expect that only the remaining 26

accessory units needed to address affordable housing will be

developed in the SMU category to meet the 39 - unit affordable

housing need, instead of 241, and that 350 units actually will

be built under the Plan Amendments.

40. In his analysis, DCA's expert did not count any

affordable housing units in the SMU category in reach ing the

conclusion that a 315 residential units are allowed under the

Plan Amendments. Adding the theoretical maximum of 241, his

total maximum theoretical number of residential units would be

553. The record is not clear as to why his numbers differ

som ewhat from the Centex expert's.

41. The Town's expert somehow arrived at the conclusion

that the Plan Amendments allow a total of 279 residential

units. Like the DCA expert, he apparently did not count

affordable housing units in the SMU category. The reason for

other differences in his calculation are not clear from the

record. It may be that he did not count residential units in

the Tourist/Commercial category, while the others counted 35

units because there is a possibility that 35 condominium units

could be developed there instead of 70 hotel rooms.

Differences may also involve how he assessed and counted the

possibility for residential units in the Institutional

Research and Conservation categories.

42. Despite these computational differen ces, it is clear

that the Plan Amendments allow fewer residential units in the

Town than the 1992/2005 Plan did, even assuming no residential

development under the 1992/2005 Plan in what became the River -

to - Sea Preserve. The density allowed under the Plan

Amendments is comparable to densities authorized by

comprehensive plans north and south of the Town, as well as

the actual development that has occurred and is occurring in

those areas.

43. Since the entire Town is within the new CHHA, the

Plan Amendme nts can be said to result in a reduction in

population concentration within the CHHA by comparison to the

1992/2005 Plan. This also is reflected in the population

projections on which the two plans were based. The 1992/2005

Plan was based on a projected total 2005 population of 1,551

people, including 900 permanent and 651 seasonal. The Plan

Amendments are based on a projected 2015 population of 630,

including 386 permanent residents and 244 seasonal residents

and university students living in dormitorie s at the Whitney

Lab.

44. While reluctantly conceding that some residential

growth in the Town ( i.e. , in the CHHA) is appropriate,

Petitioners contend that growth must be limited to what is

allowed under Ordinance 97 - 3 because any more growth than that

would increase residential density in the CHHA. They argue

that Ordinance 97 - 3 should be the benchmark because the

1992/2005 Plan did not establish residential density but

instead relied on Ordinance 97 - 3 to do so. However, as

reflected above, this argum ent was not supported by the

evidence.

45. Under the unusual circumstances of this case, while

the Plan Amendments do not include an objective that parrots

the words in Rule 9J - 5.012(3)(b)6. -- "[d]irect population

concentrations away from known or predic ted coastal high -

hazard areas" -- they do have goals, objectives, and policies

which do so, as well adequately address the new CHHA

definition.

(ii) Data and Analysis

46. Under the proposed findings in the section of their

PRO entitled "Data and Analysi s," Petitioners argue that there

was a: "Failure to prove need for proposed density." The

basis for the argument appears to be that: "[n]o professional

methodology was utilized"; that the Town's population estimate

was based on the "desires of the stake holders," i.e. , the

"property owner investors"; and that the "desire of the

stakeholders was for 'approximately 241 dwelling units,' not

the at least 565 dwelling units authorized by the Amendments."

Petitioners' PRO, at ¶61. But Petitioners did not prov e that

no professional methodology was used or that the population

estimate was based solely on the "desires of the

stakeholders." In addition, while the Plan Amendments state

that the visioning effort undertaken by the Town for

developing the Town's Mast er Plan under Florida's Remarkable

Coastal Place program identified "approximately 241 dwelling

units . . . as a target for meeting the permanent residential

population of the Town," it also stated that "approximately

315 dwelling units were identified as a target for meeting the

sustainability goal of the Town." Joint Exhibit 2, pp. A - 14,

C - 11. Finally, there is no requirement that data and analysis

"prove need for proposed density," but only that they support

allocations of land for various uses. See § 163.3177(6)(a),

Fla. Stat. ("future land use plan shall be based upon surveys,

studies, and data regarding the area, including the amount of

land required to accommodate anticipated growth").

Accommodating need for affordable housing on the same land

all ocated for other residential and commercial development

does not run afoul of this data and analysis requirement. See

Fla. Admin. Code R. 9J - 5.006(2)(c). No witness for

Petitioners opined that the population projection for the Plan

Amendments was not sup ported by data and analysis. To the

contrary, several witnesses for the other parties opined that

the data and analyses supporting the Plan Amendments were

surprisingly comprehensive for a local government the size of

the Town and were more than adequate.

E. Land Use Suitability

47. Petitioners' PRO contends: "The data and analysis

concerning Town erosion, the low elevation of the Town,

increased hurricane frequency and severity, inadequacy of

hurricane evacuation time and shelter capacity, the advers e

impacts of the land use designations on shellfish beds,

estuarine nursery areas, the Tropical Hardwood Hammock, the

designation of domestic waste water treatment and discharge

facilities in the River to Sea Preserve, and water pollution

resulting from fo reseeable flooding establishes that the

density of the Amendments is unsuitable for the Town land."

Petitioners' PRO, ¶63.

(i) Erosion and Elevation

48. It is clear that the Town of Marineland, due to its

location and low elevation (generally 5 - 6 fe et NGVD west of

A1A), has been, is, and will continue to be vulnerable to

beach erosion and flood damage from a major hurricane.

Several hundred years ago, there was a navigable tidal pass

north of the Town. The pass closed naturally through sand and

sed iment accretion but in recent years the area has been

suffering significant erosion, resulting in State Road A1A

having to be rerouted and access to homes along the old A1A

being severely limited. In 1999, when Hurricane Floyd was

100 - 150 miles east of th e Town in the Atlantic Ocean,

significant erosion occurred within the Town, including the

waters and sand of the Atlantic Ocean overtopping A1A in the

north end of the Town, along with flooding the Town. As a

result, the Town was a declared a disaster zon e, and FEMA

awarded two separate redevelopment grants. The Town's

shoreline has been critically eroded, but is stable at this

time.

49. Notwithstanding these characteristics of the Town,

which contribute to its designation as a CHHA, and as

previously discussed, the evidence is clear that the Town is

not considered unsuitable for development. To the contrary,

the development allowed by the Plan Amendments is considered

acceptable.

50. Petitioners also cite evidence that sea level is

expected by some to rise approximately 20 inches in the next

100 years. But no qualified witness opined that, for planning

purposes, the Town should be considered unsuitable for

development for that reason.

(ii) Hurricane Frequency and Intensity

51. Petitioners also contend that the Town is unsuitable

for development in light of data and analysis concerning

hurricane frequency and intensity. Indeed, there is

persuasive evidence that hurricane frequency and intensity is

cyclical and that in about 1995 a period of heig htened

hurricane frequency and intensity that usually lasts 10 - 20

years probably began.

52. The evidence was clear that DCA does not consider

the frequency and intensity of hurricanes to be relevant data

and analysis in evaluating whether comprehensive plan

development density and intensity are "in compliance."

Rather, this is considered to be a matter to be addressed by

the Legislature. So far, there has been no legislation to

either further enlarge the CHHA or further restrict

development in the CHHA . 11

(iii) Hurricane Evacuation and Shelter Study

53. Petitioners allege that the Town did not undertake

adequate hurricane evacuation planning in connection with the

Plan Amendments. Specifically, their PRO cites Section

163.3178(2)(d), Florida Statute s, which requires a

comprehensive plan's coastal management element to include:

"A component which outlines principles for hazard mitigation

and protection of human life against the effects of natural

disaster, including population evacuation, which take into

consideration the capability to safely evacuate the density of

coastal population proposed in the future land use plan

element in the event of an impending natural disaster." They

also cite Rule 9J - 5.012(2), which addresses the requirement

that the c oastal element be based on the following data and

analysis, among others:

(e) The following natural disaster planning

concerns shall be inventoried or analyzed:

1. Hurricane evacuation planning based on

the hurricane evacuation plan contained in

the l ocal peacetime emergency plan shall be

analyzed and shall consider the hurricane

vulnerability zone, the number of persons

requiring evacuation, the number of persons

requiring public hurricane shelter, the

number of hurricane shelter spaces

available, eva cuation routes,

transportation and hazard constraints on

the evacuation routes, and evacuation

times. The projected impact of the

anticipated population density proposed in

the future land use element and any special

needs of the elderly, handicapped,

hos pitalized, or other special needs of the

existing and anticipated populations on the

above items shall be estimated. The

analysis shall also consider measures that

the local government could adopt to

maintain or reduce hurricane evacuation

times.

They po int out that Rule 9J - 5.003(57) defines Hurricane

Vulnerability Zone (HVZ) as "the areas delineated by the

regional or local hurricane evacuation plan as requiring

evacuation" and that it also requires the HVZ to "include

areas requiring evacuation in the e vent of a 100 - year storm or

Category 3 storm event." Finally, they cite Rule 9J -

5.012(3)(b)7., which requires one or more specific Coastal

Element objectives which: “Maintain or reduce hurricane

evacuation times.” The evidence was that these planning

re quirements were met.

54. There are no mandatory state, regional, or local

evacuation clearance times. The 1992/2005 Plan included C/CE

Objective E.1.5., which provided: "The time period required

to complete the evacuation of people from flooding of

vu lnerable coastal areas prior to the arrival of sustained

gale force winds shall be maintained at less than 12 hours."

The Plan Amendments replaced that objective with C/CE E.1.5.,

which now provides: "Evacuation clearance time should be

maintained or red uced to less than 12 hours." This complies

with Rule 9J - 5.012(3)(b)7.

55. The Plan Amendments were based on appropriate data

and analysis. Because the entire Town is in the CHHA, the

Town population must evacuate in a Category 1 and all higher

storm c ategories. Evacuation routes for the Town are S.R. A1A

north to S.R. 206 in St. Johns County, and S.R. A1A south to

Palm Coast Parkway in Flagler County. The best and most

current evidence, based on a 2005 update to the RPC's 1998

Regional Hurricane Evac uation Study, indicates that evacuation

clearance times for St. Johns County are estimated to be 11

hours for Category 1 hurricanes, 14 for Category 2 hurricanes,

16 hours for Category 3 hurricanes, and 16.75 hours for

Category 4 through 5 hurricanes; evac uation clearance times

for Flagler County are estimated to be 7.75 hours for Category

1 and 2 hurricanes and 12 hours for Category 3 through 5

hurricanes. The Flagler clearance times are lower than those

estimated in a 1998 version of the study, even thou gh based on

a higher population, primarily because the widening of the

Palm Coast Parkway to four - lanes has been completed. The

evidence does not demonstrate that the evacuation

clearance times in St. Johns County increased under the 2005

Study.

56. Cle arance times are based on the worst bottleneck in

a county, where traffic is metered to derive the actual

clearance times. Evacuation of Town residents under the Plan

Amendments will not impact the bottlenecks in either St. Johns

County or Flagler County. For that reason, evacuation of Town

population would be expected to be take less time than the

clearance times calculated for those counties in the RPC's

2005 study; conversely, evacuation of Town residents under the

Plan Amendments will have no effect o n the overall clearance

times in either St. Johns County or Flagler County.

57. Assuming a maximum additional population (resulting

from the addition of 829 dwelling units) under the Plan

Amendments, 652 cars would be added to an evacuation during

high tourist occupancy season (which includes the summer

tourist season, which generally corresponds to hurricane

season). This would increase traffic during the worst

theoretical hour of the Town's evacuation ( i.e. , during which

30 percent of the Town's traff ic would try to enter the

evacuation road network) by 8.7 percent heading north from the

Town on A1A and by 13 percent heading south of the Town on

A1A.

58. Based on a comparison of maximum theoretical

densities under the 1992/2005 Plan and under the Pl an

Amendments, the number of evacuating vehicles added to the

road network is reduced under the Plan Amendments. By

comparison, assuming a maximum additional population

(resulting from the addition of 565 dwelling units) under the

1992/2005 Plan, 922 cars would be added to an evacuation

during high tourist occupancy season. This would increase

traffic during the worst theoretical hour of the Town's

evacuation by 12.3 percent heading north from the Town on A1A

and by 18.4 percent heading south of the Town on A1A.

59. Likewise, based on a comparison of maximum densities

under the 1992/2005 Plan and the Plan Amendments, the Plan

Amendments result in a reduced demand for shelter space.

60. Obviously, since the entire Town is in the CHHA and

must evacuate in a Category 1 and all higher storm categories,

there is no requirement for the Town itself to provide

hurricane shelter. Similar to most Florida counties, St.

Johns and Flagler Counties have deficits in shelter space that

are expected to increase as th e population increases.

According to DCA's Division of Emergency Management (DEM), in

2004 Flagler County had hurricane shelter spaces for 4,267

persons and a deficiency of 2,401 shelter spaces. This

deficiency is expected to almost double (be 4,020) by 2008.

According to DCA's DEM, in 2004 St. Johns County had hurricane

shelter capacity for 7,320 persons, and a hurricane shelter

demand of 9,829 people, resulting in a deficiency of 2,509

spaces. In 2009, the St. Johns County shelter demand is

projected t o be 11,564, “leaving an anticipated shelter

deficit of 4,244.” However, the evidence was not clear that

the shelters to which Town residents would be assigned are

either over capacity or under capacity. In addition, it was

not clear that future developm ent would not include the

construction of facilities that may serve as shelters.

Finally, there was no clear evidence why these anticipated

shelter deficits should restrict development in either county,

or in the Town, so as to make the Plan Amendments no t "in

compliance."

(iv) Natural Resources

61. Petitioners contend that the Plan Amendments are not

"in compliance" because of effects on various natural

resources in the Town and vicinity, including shellfish

harvesting areas, important estuarine nurse ry for juvenile

fish and invertebrates, and the Town's high - quality oak

hammock area (also referred to as a maritime hammock, a

coastal temperate hammock, or a tropical hardwood hammock.)

Petitioners' main argument regarding adverse effects on

shellfish h arvesting and nursery areas was that flooding

during hurricane events will cause household chemicals and

other pollutants stored inappropriately at ground level to be

released into the environment, probably at a time when

juvenile fish are present in the e stuarine nursery areas . But

there also was persuasive evidence that chemicals released

during these kinds of flood events would be substantially

diluted by the massive volume of water associated with them,

which would greatly reduces any deleterious effec ts on nursery

and shellfish areas.

62. Through C/CE Policies E.1.3.4 and E.1.3.5 in the Plan

Amendments, the Town has chosen to impose OFW standards that

substantially exceed those that would otherwise be imposed by

the St. Johns River Water Managem ent District. OFW standards

prohibit degradation of water below ambient conditions and

typically require the design of stormwater systems that

provide 1.5 times the level of treatment that otherwise would

be provided for stormwater.

63. There was evide nce that shellfish harvesting has

declined in the waters of the GTMNEER to the north of the Town

over the recent past as the land near these waters has been

developed. The evidence was not comprehensive as to the

reason(s) for the decline, but poorer wate r quality generally

is thought to be the primary cause. Some shellfish harvesting

areas still are productive, including some near the Town where

Mr. Cubbedge has an oyster and clam lease.

64. Petitioners presented no testimony related to the

temperate hardwood hammock. Centex's expert in environmental

analysis observed that portions of the hammock areas have been

altered or disturbed and that the higher - quality areas have

been placed in the River - to - Sea Preserve where they are

protected from developmen t. Much of the natural vegetative

communities in the Town are within the Conservation future

land use category and not subject to development.

65. To protect 10.3 acres of oak hammock located on land

that is subject to development, the Plan Amendme nts impose a

Maritime Hammock Overlay. In addition to otherwise applicable

density and intensity standards, development within the

Overlay is subject to numerous restrictions on adverse impacts

on natural vegetation. Amendment FLUE Policies A.1.8.3. and

A.1.8.4. allow only 50 percent of single - family and multi -

family parcels to be cleared of trees, understory, and

groundcover, and only 25 percent of the tree canopy to be

removed.

66. Petitioners also argue that the designation of the

"Public Facilities" future land use category in the River - to -

Sea Preserve in Amendment Policy A.1.4.2 is unsupported by

data and analysis and "fairs [sic] to show the extend [sic] of

the category as required by Section 163.3177(6)(a), Fla.

Stat., and it does not estimate the gross acreage of the

category as required by Rule 9J - 5.006(2)(c)." Actually, the

statute cited requires the FLUE to designate the "extent of

the uses of land," and the rule requires an " analysis of the

amount of land needed to accommodate the projected po pulation,

including: . . . 2. The estimated gross acreage needed by

category . . . ." There was no testimony or other adequate

evidence to support these arguments, and it was not proven

that the Plan Amendments are not "in compliance" for any of

these rea sons.

(v) Conclusion

67. It was not proven that data and analysis concerning

the above matters establish that the density of the Plan

Amendments is unsuitable for the Town land.

F. Meaningful and Predictable Standards

68. Similar to the Amended Petition and Petitioners'

Statement of Position in the Prehearing Stipulation,

Petitioners' PRO lists numerous objectives and policies in the

Plan Amendments and contends that they are not "in compliance"

because they do not provide meaningful and predict able

standards. One expert called by Petitioners (Ms. Owen)

testified in general that the Plan Amendments contain

objectives and policies "which do not contain meaningful and

predictable standards" or "that are not measurable or provide

any standards or s pecificity." (T. 359). She also initially

testified that the Plan Amendments (at her request)

incorporated into data and analysis OFW water quality

standards for discharges into the ICW but that "their goals,

objectives and policies, as drafted, do not p rovide specific

enough standards to be able to measure that"; later, she

conceded that C/CE Policy E.3.5 incorporated OFW water quality

standards. Another expert for Petitioners (Mr. Johnson)

testified, "I think there's not enough detail in these

policies and standards by which somebody could measurably

allow growth to occur and measurably predict that it's not

going to have an effect, a negative effect, on the

environment." Otherwise, Petitioners put on no expert

testimony to explain why the objectives a nd policies in the

Plan Amendments do not provide meaningful or predictable

standards, and they put on no expert testimony that the Plan

Amendments were not "in compliance" for that reason.

69. Meanwhile, experts for the Town (Mr. Brown), Centex

(Dr. Pe nnock), and DCA (Dr. Addai - Mensa) testified in general

terms that the Plan Amendments were "in compliance." Another

expert for Centex (Dr. Dennis) testified specifically that

incorporation of the OFW standards in the C/CE and other

goals, objectives, and policies were adequate to protect the

waters of the ICW and its natural resources and the River - to -

Sea Preserve even with the development allowed by the Plan

Amendments.

70. Rule 9J - 5.005(6) provides in pertinent part:

"Goals, objectives and policies s hall establish meaningful and

predictable standards for the use and development of land and

provide meaningful guidelines for the content of more detailed

land development and use regulations. This chapter does not

mandate the creation, limitation, or eli mination of regulatory

authority for other agencies nor does it authorize the

adoption or require the repeal of any rules, criteria, or

standards of any local, regional, or state agency."

71. Rule 9J - 5.003 sets out definitions, including:

(52) "Goal" means the long - term end toward

which programs or activities are ultimately

directed.

(82) "Objective" means a specific,

measurable, intermediate end that is

achievable and marks progress toward a

goal.

(90) "Policy" means the way in which

programs and activities are conducted to

achieve an identified goal.

72. Properly understood, these Rules require that an

objective's "intermediate end" be specific and measurable in

the sense that it can be determined when the "intermediate

end" is reached. They do not mean that objectives must

eliminate all possibility ambiguity or be amenable to

quantitative measurement. They only require that objectives

provide "meaningful guidance" and be enforceable in that

sense.

73. All of the objectives and policies list ed by

Petitioners have been reviewed. The evidence does not prove

beyond fair debate that any of the listed objectives and

policies are inconsistent with the cited Rule provisions,

properly understood.

74. Petitioners complain that several of the lis ted

objectives and policies require the adoption of LDRs without

including meaningful and predictable standards. In some

cases, the objectives and policies themselves provide

meaningful and predictable standards. But it is not necessary

for comprehensive standards to be included in each such

objective or policy. Rather, when required, meaningful and

predictable standards to guide the LDR adoption process can be

placed elsewhere in the comprehensive plan, as is often the

case with the Plan Amendments. (I n addition, not all plan

directions to adopt LDRs are required by statutory and rule

mandatory criteria, and it is possible that all of them may

not be required to include meaningful and predictable

standards if superfluous.)

75. As they did elsewhere i n their PRO, Petitioners

contend that FLUE Policy A.1.4.2 does not "state what is the

areal extent of the 'Public Facilities' land use category as

required by Section 163.3177(6)(a), Fla. Stat. or estimate the

gross acreage of the 'Public Facilities' land use category as

required by Rule 9J - 5.006(2)(c)." They also characterize the

alleged failing as a lack of meaningful and predictable

standards. But as previously mentioned, the Plan Amendments

are not inconsistent with that statute and rule. See Finding

73, supra .

76. Petitioners also argue that a listed objective and

several listed policies fail to provide meaningful and

predictable standards because they do not contain a percentage

distribution of mixed uses. 12 Actually, these are two

different issu es. As already indicated, it was not proven

beyond fair debate that the objectives and policies fail to

provide meaningful and predictable standards.

77. As for the separate issue of percentage distribution

of mixed uses, Rule 9J - 5.006(4)(c) provides:

Mixed use categories of land use are

encouraged. If used, policies for the

implementation of such mixed uses shall be

included in the comprehensive plan,

including the types of land uses allowed,

the percentage distribution among the mix

of uses, or oth er objective measurement ,

and the density or intensity of each use.

(Emphasis added.)

78. Petitioners put on no expert testimony to explain

why the objective and policies in the Plan Amendments do not

meet the requirements of this Rule, and they put on no expert

testimony that the Plan Amendments were not "in compliance"

for that reason. Meanwhile, as already mentioned, experts for

the Town (Mr. Brown), Centex (Dr. Pennock), and DCA (Dr.

Addai - Mensa) testified in general terms that the Plan

Amendments were "in compliance."

79. On the evidence presented, it was not proven beyond

fair debate that the Plan Amendments do not contain policies

with "[an]other objective measurement" of the distribution

among the mix of uses in the SMU, General Commercial, a nd

Tourist Commercial land use categories established in FLUE

Policy A.1.4.2.

H. Petitioners' Other Issues

80. The Amended Petition and Prehearing Stipulation

raised other issues that were not included in Petitioners'

PRO. Some of these were addressed in the parts of Centex's

PRO, which the Town and DCA joined, including financial

feasibility, planning timeframes, and deletion of a policy

requiring habitats of listed species to be designated

Conservation. To the extent that these other issues have not

been abandoned by Petitioners, it is found that they were not

proven.

I. Petitioners' Standing

81. All of the Petitioners submitted oral or written

comments, recommendations, or objections to the Town during

the period of time beginning with the trans mittal hearing for

the Plan Amendments on March 31, 2005, and ending with their

adoption on August 18, 2006.

82. None of the Petitioners own property or reside in

the Town or own real property abutting real property in the

Town.

(i) The Hamilton Brother s

83. Brothers George William (Bill) Hamilton, III, and

Patrick S. Hamilton live in Crescent Beach, which is four to

five miles north of the Town in St. Johns County. Together

(along with their wives), they own and operate Homecomers,

Inc., which does bu siness as Southern Realty of St. Augustine

and Crescent Beach (Southern Realty), and as Southern

Horticulture, which is located in Crescent Beach or St.

Augustine (the evidence was not clear which). Patrick

operates the real estate brokerage, which has of fices in St.

Augustine and in Crescent Beach, and Bill operates the retail

garden and landscaping business. The brothers also own part

of Coastal Outdoor Center, which is located in Crescent Beach

at S.R. 206 and features kayak tours of the Matanzas River ,

mostly south to Pellicer Creek. The Hamilton family also has

oyster and clam leases in St. Johns County.

84. It appears that the vast majority of the brothers'

business activities are conducted in St. Johns County north of

the Town. However, over th e years, some limited business has

been conducted in the Town. In 1993 Patrick Hamilton twice

brokered the sale of land from Marineland, Inc., one parcel to

an private individual and the other to the Whitney Lab. In

1995 he procured a contract for the sa le of Marineland, Inc.

(and, with it, essentially the entire Town) for a fish farm

operation for approximately $10 million; when the contract was

breached, Southern Realty got part of the forfeited $100,000

binder. In 1998 Hamilton was authorized by MOR t o sell its

holdings in the Town for a ten percent commission. Hamilton

was successful in efforts to arrange for it to be purchased by

FCT and the Trust for Public Lands (TPL) through the

bankruptcy court in Jacksonville, and some of the land was

immediate ly resold at a profit to Mr. Jacoby. When Hamilton

pursued payment of Southern Realty's brokerage commission

through the bankruptcy court, he learned that TPL had

indemnified MOR for the brokerage commission. At that point,

Southern agreed to accept an $ 18,000 fee from TPL and drop its

bankruptcy claim for ten percent on the overall purchase. In

2002, Hamilton paid for and prepared grant applications for

the Town's purchase of two islands that were outside the

Town's municipal boundaries but which the To wn intends to

annex. In September 2004 he wrote an offer on behalf of a

trustee of the Whitney Lab to purchase a small parcel of land

TPL still owned in the Town and donate it to the Lab.

However, no contract was reached, and Southern Realty received

no commission. In 2005 Phil Cubbedge asked Hamilton to

represent him in the sale of his oyster and clam lease to

Centex but then backed out when Centex proposed to deal

directly with Cubbedge without Southern Realty's involvement.

85. Southern Horticultur e used to do business with the

Marineland Attraction but has not done any business in the

Town in nine years, since the Attraction went into

receivership and did not pay a Southern Horticulture bill in

full.

86. The Town never has required the Hamiltons or their

businesses to obtain and maintain an occupational license, and

none was obtained prior to 2004. In 2004 and 2005 Southern

Realty applied and paid for and obtained an occupational

license to "engage in the business of real estate." This was

done in response to a finding in the Recommended Order in a

previous administrative challenge to St. Johns County plan

amendments by FWF and FOM that neither had an occupational

license in the County.

87. On several occasions over the years, the Hamilton

br others have engaged in various civic activities pertaining

to the Town. Most of these activities have been Patrick's.

These have included: participation on the management advisory

group for the GTMNERR and efforts in the early to mid - 1990s to

have its A dministrative Office established in the Town;

efforts in 2000 or 2001 related to the designation of A1A as a

scenic highway in St. Johns County, with a segment being in

the Town; subsequent work to persuade the Florida Department

of Transportation to const ruct a bike path along A1A in St.

Johns County; advocacy related to the St. Johns County

Comprehensive Plan; service on the Board of Trustees of the

Whitney Lab; and financial contributions to and fund - raising

for the Whitney Lab. The brothers do these th ings out of a

sense of civic duty and for the good of the community and

their vision for it. However, they also believe these

activities provide a benefit for their business, particularly

the real estate and outfitting businesses.

88. It is found, base d primarily on the activities of

Southern Realty, that the Hamilton brothers own or operate a

business within the Town.

(ii) Florida Wildlife Federation

89. FWF is a not - for - profit Florida corporation with

approximately 50,000 members and supporters. No FWF members

reside or own property in the Town, and FWF does not have an

office in the Town. One member (Mr. Cubbedge) has an oyster

and clam lease in the Town. Cubbedge, the Hamilton brothers,

and Dr. Michael Greenberg, who works and has his office a t the

Whitney Lab in the Town, are the only members who have a

connection to the Town, according to the evidence.

90. In April 2004, FWF established a regional office in

St. Johns County outside the Town for the primary purpose of

reviewing comprehensiv e plan amendments, focusing on natural

resource protection.

91. FWF monitors growth management and habitat

protection during the development stages of the Town, focusing

on the draft of the goals, objectives and policies for the

comprehensive plan. In furtherance of this effort, FWF’s

planning advocate (Ms. Owen) has attended and participated in

meetings of the Remarkable Coastal Place work group

stakeholder meetings, where they reviewed drafts of

comprehensive plan amendments; has talked with elected

o fficials to educate them on FWF (and FOM) concerns; and has

attended meetings of and made presentations to the South

Anastasia Community Association, a civic organization that

holds its meetings in the Town.

92. Through the Post Office and its website, FWF

publishes a newsletter with information about FWF’s activities

in the state, including fundraising. No evidence was

presented that the newsletter is distributed in the Town.

93. FWF’s regional office held a fundraiser in St.

Augustine in February 2 006 to raise money to pay attorney’s

fees and expert witness fees for this proceeding.

94. The Town never has required FWF to obtain and

maintain an occupational license, and none was obtained prior

to 2004. In 2004 and 2005 FWF applied and paid for an d

obtained an occupational license "to engage in the business of

monitoring growth management and habitat protection." As with

Southern Realty, this was done in response to a finding in the

Recommended Order in a previous administrative challenge to

St. J ohns County plan amendments by FWF and FOM that neither

had an occupational license in the County.

95. Based on the evidence, it is found that FWF owns or

operates a business within the Town.

(iii) Friends of Matanzas

96. FOM is a not - for - profit Flo rida corporation

established in 2001 to preserve and protect the estuary and

its watershed, and to maintain the rural beach community,

particularly on South Anastasia Island and in southern St.

Johns County to Marineland.

97. FOM has 34 - 44 members. No FOM members reside in the

Town, but at least two of them -- its current president,

Dr. Greenberg, and Maureen Welsh -- work at the Whitney Lab.

The Hamilton brothers also are members.

98. FOM itself does not have an office in the Town.

However, Dr. Greenb erg is its president, and he may keep some

FOM records and documents in his office at the Whitney Lab.

99. There was no evidence that FOM ever has had a Town

occupational license, or that the Town ever has required it to

have one.

100. In part (if no t primarily) through the activities

of the Hamilton brothers, FOM has been involved in: efforts

in the mid - 1990s to have the Administrative Office of GTMNERR

established in the Town; efforts, including production of a

video in 2000 or 2001, related to the designation of A1A in

St. Johns County, including within the Town, as a scenic

highway; and work to persuade the Florida Department of

Transportation to construct a bike path along A1A in St. Johns

County, including within the Town. There also was eviden ce

that FOM holds annual meetings in the Town.

101. Based on the evidence, it is found that FOM does

not own or operate a business within the Town.

CONCLUSIONS OF LAW

J. Standard of Review/Standard of Proof

102. Except for certain "amendments direct ly related to

proposed small scale development activities" and described in

Section 163.3187(1)(c), DCA reviews 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 designated areas of critical state

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

§ 163.3184(1)(b), Fla. Stat.

103. When DCA determine s that a local government's plan

or plan amendment is "in compliance," administrative

proceedings under Section 163.3184(9) may take place. Most

administrative proceedings initiated after preliminary agency

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

are de novo proceedings under Sections 120.569 and 120.57(1)

designed to "formulate final agency action, not to review

action taken earlier and preliminarily." McDonald v

Department of Banking and Finance , 346 So. 2d 569 (Fla. 1st

DCA 1977). But the Legislature has chosen to treat

administrative review of comprehensive plan and plan amendment

cases differently. In proceedings under Section 163.3184(9),

a different standard of review is established: "In this

proceeding, the local plan or pl an amendment shall be

determined to be in compliance if the local government's

determination of compliance is fairly debatable."

§ 163.3184(9)(a), Fla. Stat.

104. The phrase “fairly debatable” is not defined in

Chapter 163 or in Rule Chapter 9J - 5. The Supreme Court of

Florida has opined, however, that the fairly debatable

standard under Chapter 163 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

stated that the fairly debatable standard is deferential and

requires “approval of a planning action if reasonable persons

could differ as to its propriety.” 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

dispute or controversy on grounds that make

sense or point to a logical deduction that

in no way involves its co nstitutional

validity.

Id.

105. Petitioners make several arguments why this

standard of review/burden of proof should not apply in this

case. Those arguments are rejected.

106. Only issues plead or tried by consent may be

considered. Cf. §§ 120.569, 120.57(1), Fla. Stat.; Fla.

Admin. Code R. 28 - 106.201(2); Heartland Environmental Council

v. Department of Community Affairs , DOAH Case No. 94 - 2095GM,

1996 Fla. Div. Adm. Hear. LEXIS 3152, at *49 (DOAH October 15,

1996; DCA Novembe r 25, 1996). In this case, the allegations

in the Amended Petition were further amended without objection

in the Prehearing Stipulation, and those allegations are

considered to have been heard by consent to the extent that

evidence was presented on them. 13 No other issues may be

considered.

K. Substantive Compliance Criteria

107. The pertinent substantive compliance criteria have

been cited in the Findings.

108. As found, considering all the pertinent compliance

criteria, Petitioners did not prove b eyond fair debate that

the Plan Amendments are not "in compliance."

109. Petitioners contend that finding the Plan

Amendments "in compliance" would conflict with Village of Key

Biscayne v. Department of Community Affairs , 696 So. 2d 495

(Fla. 3d DCA 199 7). In that case, DCA found a plan amendment

to be "in compliance" if the plan, as amended, would made

progress towards consistency with new or changed minimum

compliance criteria even if still not completely consistent

with those compliance criteria. Th e court invalidated the

plan amendment "because it [did] not comply with the mandatory

requirement of section 163.3177(6)(a), Florida Statutes (1995)

that any comprehensive plan or amendment include 'specific

standards for the density or intensity of use.' " Id. The

court also held that DCA rules, " to the extent that they

permit non - compliance with the statutory requirement are

themselves invalid . . . ." Id. There is no conflict between

that decision and the finding that the Plan Amendments are " in

com pliance," not that they " make progress towards being 'in

compliance.'"

L. Standing

110. A proceeding under Section 163.3184(9), Florida

Statutes. may be initiated by an "affected person." An

"affected person" is defined in Section 163.3184(1)(a),

Flori da Statutes:

"Affected person" includes the affected

local government; persons owning property,

residing, or owning or operating a business

within the boundaries of the local

government whose plan is the subject of the

review; owners of real property abu tting

real property that is the subject of a

proposed change to a future land use map;

and adjoining local governments that can

demonstrate that the plan or plan amendment

will produce substantial impacts on the

increased need for publicly funded

infrastru cture or substantial impacts on

areas designated for protection or special

treatment within their jurisdiction. Each

person, other than an adjoining local

government, in order to qualify under this

definition, shall also have submitted oral

or written comm ents, recommendations, or

objections to the local government during

the period of time beginning with the

transmittal hearing for the plan or plan

amendment and ending with the adoption of

the plan or plan amendment.

111. As found, it is clear in this ca se that

Petitioners: submitted the required oral or written comments,

recommendations, or objections; are not adjoining local

governments; and do not reside in or own property either

within or abutting the Town, all of which is the subject of

the FLUM cha nges in the Plan Amendments. The remaining issue

under Section 163.3184(1)(a) is whether they own or operate a

business within the boundaries of the Town.

112. In St. Joe Paper Co. v. Department of Community

Affairs , 657 So. 2d 27 (Fla. 1st DCA 1995), review denied , 667

So. 2d 774 (Fla. 1996), there was no evidence that 1000

Friends of Florida had any connection to Walton County beyond

submittal of oral or written comments, recommendations, or

objections to the County between the transmittal hearing and

adoption hearing for the comprehensive plan at issue in that

case. The court characterized 1000 Friends' level of

participation in that case as an "incidental and transient

presence" that "does not suffice under section

163.3184(1)(a)." St. Joe , 657 So. 2d at 29. The court

continued: "Rather, the statute contemplates a more

substantial local nexus, of a type which might make the

business potentially subject to the constraints of the local

comprehensive plan." Id.

113. The evidence in this case was that Petitioners had

a "more substantial local nexus" than it appeared to the St.

Joe court that 1000 Friends had in Walton County under the

evidence of that case. Their local presence or nexus probably

was less than that of RGMC in Dept. of Community Aff airs v.

Lee County , DOAH Case No. 95 - 0098GM, 1996 Fla. ENV LEXIS 101,

at **120 - 21 (Admin. Comm. 1996). For all but FOM, and

especially for the Hamiltons' Southern Realty business, it

more than (and different from) the local presence or nexus in

Potiris v. Dept. of Community Affairs and Village of

Wellington , DOAH Case No. 05 - 0943GM, 2005 Fla. ENV LEXIS 95

(DCA 2005). For all of them, especially for FWF and FOM, it

was somewhat comparable to the local presence or nexus of 1000

Friends and Audubon in 1000 F riends of Florida, Inc. v. Dept.

of Community Affairs, DOAH Case No. 01 - 0781GM, 2001 Fla. ENV

LEXIS 297 (DCA 2001). It was enough for FWF and FOM to be

considered "affected person" under Florida Wildlife Federation

Inc., and Friends Of Matanzas, Inc. v. D ept. of Community

Affairs and St. Johns County , DOAH Case No. 03 - 2164GM, 2004

Fla. ENV LEXIS 239 (DCA 2004). It is concluded, as found,

that the Hamiltons and FWF own or operate a business within

the Town but that FOM does not.

114. Petitioners argue t hat a "person . . . whose

substantial interests will be affected by proposed agency

action" so as to have standing as a party under Section

120.52(12)(b), Florida Statutes, but who is not an "affected

person" under the definition in Section 163.3184(1)(a),

Florida Statutes, also has standing under Section 163.3184(9),

Florida Statutes. The decisions in St. Joe , supra at 28

("[S]ection 163.3184(10)(a) [here (9)] specifies that a person

must be an 'affected person' in order to participate in the

section 120. 57 proceeding" and "Commission's unilateral

expansion of section 163.3184(1)(a) does not accord with the

statutory catalog of affected persons, which appears to be a

comprehensive listing and which should not be altered without

clear authorization and dire ction from the legislature"), and

in Coastal Development of North Fla., Inc. v. City of

Jacksonville , 788 So. 2d 204, 209 n. 25 (Fla. 2001) ("Section

163.3187(3) [here Section 163.3184(9)] confers standing in

these administrative hearings to any 'affected person' as

broadly defined in section 163.3184(1)(a), without the need to

allege an injury."), suggest otherwise, and one administrative

decision has decided the issue and concluded otherwise. See

Shady Historic And Scenic Trails Association, Inc. vs. Cit y Of

Ocala and Red Oak Farm, Inc. , DOAH Case No. 98 - 4144GM, 2003

Fla. Div. Adm. Hear. LEXIS 1131, at *30, Endnote 1 (Fla. Div.

Adm. Hear. 2003)("this test is inappropriate here because the

law does not require that a person (or association) be

'substantial ly affected' in order to challenge a plan

amendment.") But it is not necessary to decide the issue in

this case since the Hamiltons and FWF have standing under

Section 163.3184(1)(a), Florida Statutes.

115. Similarly, no judicial decision directly deci des

whether "associational standing" is possible under Section

163.3184(1)(a), using the principles of Florida Home Builders

Ass'n v. Dept. of Labor and Employment Security , 412 So. 2d

351 (Fla. 1982), and Farmworker Rights Organization, Inc. v.

Dept. of H ealth , 417 So. 2d 753 (Fla. 1st DCA 1982). The

administrative decision in Shady Historic And Scenic Trails ,

supra , decided that it is not, but it also is not necessary to

decide this issue since the Hamiltons and FWF have standing

under Section 163.3184(1 )(a), Florida Statutes.

116. Petitioners also sought findings that they also are

"adversely affected" for purposes of appellate review under

Section 120.68(1), Florida Statutes. See Melzer v. Dept. of

Community Affairs , 881 So. 2d 623 (Fla. 4th DCA 200 4);

O'Connell v. Dept. of Community Affairs , 874 So. 2d 673 (Fla.

4th DCA 2004); Fla. Chapter of the Sierra Club v. Suwannee

American Cement Co. , 802 So. 2d 520 (Fla. 1st DCA 2001). It

is considered unnecessary and premature to determine whether

any party would be entitled to judicial review of the final

order entered in this case, or to make findings as to whether

the parties would be "adversely affected." It is believed

that such determinations, if they become necessary, can be

made upon the evidence in the record.

M. Disposition by ALJ, DCA, and Administration

Commission

117. Under Section 163.3184(9)(b), Florida Statutes, if

the ALJ recommends that a plan or plan amendment be found "in

compliance," the recommended order (RO) is submitted to the

D CA, which is required to allow for the filing of exceptions

and either: (1) enter a final order finding the plan or plan

amendment to be "in compliance"; or (2) submit the RO to the

Administration Commission for final agency action if DCA

determines that the plan or plan amendment is not "in

compliance."

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that that DCA enter a final order determining

that the Plan Amendments are "in compliance."

DON E AND ENTERED this 28th day of April, 2006, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallah assee, 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 April, 2006.

ENDNOTES

1 / I n the body of this Recommended Order, these will be

referred to as the Plan Amendments, without reference to

either their year of adoption (2005) or their long - term

planning horizon (2015), which is how they are sometimes

referenced in the record -- potentia lly a cause for confusion in

the record since the existing Comprehensive Plan planned for

the year 2005 and is sometimes referred to as the 2005 Plan,

in addition to its year of initial adoption (1990), the year

remedial amendments were stipulated (1991), and the year the

remedial amendments were adopted (1992). In the body of this

Recommended Order, the existing Plan usually is referred to as

the 1992/2005 Plan.

2 / Unless otherwise indicated, all statutory references are

to the 2005 codification of th e Florida Statutes.

3 / Petitioners' PRO questioned Centex's standing, but that

issue was not raised previously, and it is not necessary to

consider Centex's standing. See Jim Durham, et al. v. Polk

County ¸ DOAH Case No. 03 - 0593GM, 03 - 0933GM, 2004 Fla. ENV

LEXIS 230 (Admin. Comm'n June 25, 2004).

4 / Petitioners also served and filed an unnecessary Motion

for Leave to File First Amended Petition for Hearing. Cf.

Fla. Admin. Code R. 28 - 106.202.

5 / Several of these exhibits were composites: 11(A - C, D.1 - 4,

and E - F); 30(A - B); 46(A - D); 35(A - B); and 47(A - B).

Petitioners' Exhibit 50 is the same as Intervenor Exhibit 8.

6 / Unless otherwise noted, rule citations are to the current

version of the Florida Administrative Code.

7 / See Conclusion 106, infra . While not stricken from

Petitioners' PRO, the references to alleged internal

inconsistencies in PRO ¶111, timeshares in PRO fn. 26 and

¶110, and to the FEMA Study in PRO fn. 29 were not properly

raised by Petitioners as reasons why the Plan Amendme nts are

not "in compliance," and they are not considered or treated as

such. Arguments concerning the need to review the unamended

and unchallenged provisions in the "plan as a whole" to

determine whether they cure minimum criteria failures of the

Plan A mendments are not stricken from Petitioners' PRO.

However, a ruling on the validity of those arguments is

unnecessary in light of the Findings and Conclusions in this

Recommended Order.

8 / Petitioners' PRO also refers to intensity, but the primary

iss ue relates to residential density.

9 / According to the "Introduction" to the 1992/2005 Plan,

what followed, which included the referenced data and

analysis, "constitutes the adoption document . . . ."

10 / These calculations do not include any of the 12 5 hotel

rooms, which are not ordinarily counted as residential units,

or any live - aboard boats at the marina, both of which were

allowed under the 1992/2005 Plan.

11 / DCA has, however, taken steps to require local governments

to prepare for more intense hurricanes. Rule 9J - 5.003(57)

defines "Hurricane Vulnerability Zone" as "[t]he areas

delineated by the regional or local hurricane evacuation plan

as requiring evacuation" and requires it to "include areas

requiring evacuation in the event of a 100 - year storm or

Category 3 storm event." In addition, the benchmark storm for

the Northeast Regional Planning Council's 2005 Update to its

1998 Regional Hurricane Evacuation Study is a Category 3

storm, the most probable major hurricane .

12 / As reflected in t he Preliminary Statement, Centex moved to

strike the issue of alleged failure to contain a percentage

distribution of mixed uses, but the motion was denied.

13 / This Conclusion is part of the basis for the ruling on

Centex's Motion to Strike Portions of Petitioners' PRO.

COPIES FURNISHED :

Thaddeus Cohen, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard

Suite 100

Tallahassee, Florida 32399 - 2100

David Jordan, General Counsel

Department of Community Affairs

2555 Shumard Oak Boul evard

Suite 325

Tallahassee, Florida 32399 - 2160

Thomas W. Reese, Esquire

2951 61st Avenue South

St. Petersburg, Florida 33712 - 4539

Shaw P. Stiller, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Dav id C. Ashburn, Esquire

Sherry A. Spiers, Esquire

Greenberg Traurig, P.A.

Post Office Drawer 1838

Tallahassee, Florida 32302 - 1838

Dennis K. Bayer, Esquire

306 South Oceanshore Boulevard

Flagler Beach, Florida 32136

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the final order in this case.