06-000049GM Department Of Community Affairs vs. Lee County Status: Closed Recommended Order on Friday, August 25, 2006.

Summary: Respondent`s amendment to the Future Land Use Map of its comprehensive plan was "in compliance" despite the fact that the amendment increased the residential density in a coastal high hazard area.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY )

AFFAIRS , )

)

Petitioner , )

)

vs. ) Case No. 06 - 0049GM

)

LEE COUNTY , )

)

Respondent, )

)

and )

)

LEEWARD YACHT CLUB, LLC, )

)

Intervenor . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on April 25 and 26, 2006, in Ft. Myers, Florida , before

Bram D. E. Canter, Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner Department of Community Affairs:

Shaw P. Stiller, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

For Lee County: Susan M. Henderson , Esquire

Lee County Attorney's Office

2115 Second Street

Post Office Box 398

Fort Myers, Florida 33902

For Leeward Ya cht Club:

Karen A. Brodeen , Esquire

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

101 North Monroe Street, Suite 1090

Post Office Box 11240

Tallahassee, Flo rida 32301 - 1240

Matthew D. Uhle, Esquire

Knott, Consoer, Ebelini & Swett, P.A.

1625 Hendry Street, Third Floor

Fort Myers, Florida 33901

STATEMENT OF THE ISSUE

The issue in this case is whether the amendment to the Lee

County Comprehensive Plan adopted by Ordinance No. 05 - 20 is "in

compliance," as that term is defined in Section 163.3184(1)(b),

Florida Statutes (2005), 1 for the reasons set forth in the

Petition for F ormal Administrative Hearing and Statement of

Intent filed by the Department of Community Affairs ("the

Department").

PRELIMINARY STATEMENT

On October 12, 2005, Lee County ("the County") amended its

comprehensive plan through the adoption of Ordinance No. 05 - 20,

which made changes to the Future Land Use Map (FLUM). After

reviewing the amendment, the Department determined that it was

not in compliance and issued a Notice of Intent and a Statement

of Intent on December 19, 2005. This proceeding was initiate d

when the Department filed a petition with DOAH on January 5,

2006, which incorporated the issues identified in the Statement

of Intent. Leeward Yacht Club, LLC (Leeward) , was granted leave

to intervene in support of the amendment.

In addition to contest ing the Department's determination

that the County's amendment was not in compliance, Leeward

initially challenged the validity of certain Department rules

and an alleged "unadopted rule." Prior to the final hearing,

however, Leeward withdrew these rule c hallenges.

Leeward filed a Motion to Strike or, in the Alternative,

Motion in Limine in opposition to certain citations in the

Department's Statement of Intent as not having been raised

previously in the Department’s Objections, Comments, and

Recommendatio ns (ORC) Report. The motion was denied. Leeward's

unopposed motion for official recognition of the final order in

Dubin v. Lee County , Final Order No. DCA00 - GM - 005 (2000), was

granted.

At the final hearing, Joint Exhibits 1 through 7 were

admitted into e vidence. The Department presented the testimony

of Paul O’Connor, Gerald Campbell, Bernard Piawah, Matt Noble,

and Dan Trescott. The Department's Exhibits 1 through 9, 12,

and 13 were admitted into evidence. Leeward presented the

testimony of Paul O’Con nor, Gerald Campbell, Matt Noble, Dan

Trescott, Ned Dewhirst, Michael Roeder, and Pat Riley.

Leeward's Exhibits 11, 12, 22, 24, 26, 29, 31, 40, and 41 were

admitted into evidence. The County presented no witnesses or

exhibits. Official recognition was t aken of portions of Florida

Administrative Code Chapter 9J - 5, as it existed in September

1991.

The three - volume Transcript of the final hearing was

prepared and filed with DOAH. The parties twice moved to extend

the time for filing their post - hearing subm ittals and were

ultimately granted a deadline of June 19, 2006. The Department

and Leeward timely filed P roposed R ecommended O rders that were

carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

The Parties

1. The Departme nt is the state land planning agency and is

statutorily charged with the duty of reviewing comprehensive

plans and their amendments, and determining whether a plan or

amendment is “in compliance,” as that term is defined in

Section 163.3184(1)(b), Flori da Statutes.

2. Lee County is a political subdivision of the State of

Florida and has adopted a comprehensive plan that it amends from

time to time pursuant to Section 163.3167(1)(b), Florida

Statutes.

3. Leeward is a Florida limited liability company th at owns

a portion of the real property that is the subject of the

amendment at issue.

The Amendment

4. The amendment would change the future land use

designation for 41.28 acres in the northeast quadrant of the

Interstate 75 (I - 75) /State Road 80 (SR 80) i nterchange from

General Commercial Interchange to Urban Community, as shown on

the FLUM.

5 . The General Commercial Interchange land use is described

in the County Plan as “intended primarily for general community

commercial land uses: retail, planned com mercial districts,

shopping, office, financial, and business.” It does not allow

residential development.

6 . The Urban Community land use provides for a mix of

residential, commercial, public , quasi - public, and limited light

industrial uses. The standar d density range for residential

uses in the Urban Community category is one to six dwelling

units per acre (du/a).

7 . The 41.28 acres affected by the amendment ("the

amendment site") consist of 19.28 acres of lands along the

Orange River owned by Leeward, a platted subdivision known as

Dos Rios of approximately 11 acres, and the remaining acreage

consists of right - of - way for SR 80 and I - 75.

8 . Currently operating on Leeward's property is a vessel

repair facility, a marina with wet and dry slips, and an

ec otourism company. Leeward also has its office on the site.

9 . The Dos Rios subdivision includes 26 single - family

lots. Apparently, only a few of the lots (the number was not

established in the record) have been developed. Because

residential land uses a re not allowed in the General Commercial

Interchange category , the Dos Rios lots were non - conforming

uses.

Maximum Allowed Density

1 0 . The County Plan provides residential density bonuses

to promote various County objectives, such as the provision of

affo rdable housing. With density bonuses, lands designated

Urban Community can boost their density to a maximum of ten

du/a.

1 1 . There was testimony presented by Leeward that the

County has not often approved applications for density bonuses.

Even if the pr actice of the County in approving density bonuses

were relevant, the practice can change. It is reasonable for

the Department to consider the maximum intensity or density

associated with a future land use designation when determining

whether a FLUM amendm ent is in compliance. Therefore, in this

case, it is reasonable to consider the Urban Community land use

designation as allowing up to ten du/a.

1 2 . The Department asserts that the amendment would allow

the 41.2 acres affected by the amendment to have a total of

412 dwelling units (41.2 acres x 10 du/a). Leeward disputed

that figure because the 41.2 acres i ncludes road right - of - way

and the Dos Rios subdivision.

1 3 . A hearing officer appointed to review a Lee County

development order recently determined that right - of - way external

to a development should not be included in calculati ng allowable

units , and the County accepted the hearing officer's

recommendation based on that determination . The definition of

"density" in the County Plan supports the deter mination. 2

Therefore, for the purposes of this case, the right - of - way in

the northeast quadrant should not be included in calculating the

maximum residential density that woul d result from the

amendment.

1 4 . On the other hand, Leeward's argument that the Dos

Rios subdivision acreage should not be included in the ten du/a

calculation is rejected. For the purposes of an "in compliance"

determination, it is reasonable for the Department to apply the

maximum potential densities to all developable and re -

deve lopable acreage.

1 5 . Using 29 acres as the approximate acreage affected by

the amendment when road right - of - way is subtracted, the

amendment would create the potential for 290 residences in the

northeast quadrant of the interchange.

Adoption of the Amendm ent

1 6 . The amendment was initiated as part of the County's

re examination of the existing land use designations in the four

quadrants of the I - 75 /SR 80 interchange. Following the County

planning staff's completion of a study of the entire

interchange, it recommended several changes to the County Plan,

but no change was recommended for the northeast quadrant.

Apparently, the amendment at issue was urged by Leeward , and , at

a public hearing held on June 1, 2005, the Board of County

Commissioners voted to a dopt the amendment.

1 7 . Pursuant to Section 163.3184(6), Florida Statutes, the

proposed amendment was forwarded to the Department for an "in

compliance" review. Following its review, the Department issued

its ORC Report on August 19, 2005. In the ORC Re port, the

Department object ed to the proposed amendment based upon what it

considered to be inappropriate residential densities in the

coastal high hazard area (CHHA) and floodplain. The Department

recommended that the County not adopt the proposed amendm ent.

1 8 . On October 12, 2005, another public hearing was held

before the Board of County Commissioners to consider adoption of

the amendment. At the public hearing, the County planning staff

recommended that the land use designation in the northeast

quad rant not be changed to Urban Community "due to the potential

increase in density in the Coastal High Hazard Area."

Nevertheless, the Board of County Commissioners approved the

amendment.

19 . Representatives of Leeward appeared and submitted

comments in s upport of the amendment at the public hearings

before the Board of County Commissioners.

2 0 . On December 16, 2005, the Department issued its

Statement of Intent to Find Comprehensive Plan Amendment Not in

Compliance , identifying three reasons for its det ermination :

(1) inconsistency with state law regarding development in the

CHHA and flood prone areas , (2) internal inconsistency with

provisions of the County Plan requiring the consideration of

residential density reductions in undeveloped areas within t he

CHHA , and (3) inconsistency with the State Comprehensive Plan

regarding subsidizing development in the CHHA and regulating

areas subject to seasonal or periodic flooding.

2 1 . On January 5, 2006, the Department filed its petition

for formal hearing with DOAH.

Coastal High Hazard Area

2 2 . The Florida Legislature recognized the particular

vulnerability of coastal resources and development to natural

disasters and required coastal counties to address the subject

in their comprehensive plans.

[I]t is the in tent of the Legislature that

local government comprehensive plans

restrict development activities where such

activities would damage or destroy coastal

resources, and that such plans protect human

life and limit public expenditures in areas

that are subjec t to destruction by natural

disaster.

§ 163.3178(1), Fla. Stat . The statute also requires evacuation

planning.

2 3 . Until 2006, the CHHA was defined as the "category 1

evacuation zone." § 163.3178(2)(h), Fla. Stat. In 2006, the

CHHA was redefined as "t he area below the elevation of the

category 1 storm surge line as established by the Sea, Lake, and

Overland Surges from Hurricanes (SLOSH) computerized storm surge

model." 3 Ch. 2006 - 68, § 2, Laws of Fla.

2 4 . The County P lan defines the CHHA as "the cate gory 1

evacuation zone as delineated by the Southwest Florida Regional

Planning Council." Map 5 of the County Plan, entitled "Lee

County Coastal High Hazard Area (CHHA)," shows the entire

amendment site as being within the CHHA. Nothing on Map 5,

however , indicates it was produced by the Regional Planning

Council.

2 5 . Daniel Trescott, who is employed by the Southwest

Florida Regional Planning Council and is responsible for, among

other things, storm surge mapping, stated that the Category 1

evacuation zo ne is the storm surge level for the worst case

scenario landfall for a Category 1 storm. He stated that the

Category 1 storm surge for Lee County was determined by the

SLOSH model to be 5.3 feet. Mrescott stated that the 5.3

foot contour ( shown on Pl ate 7 of the Regional Planning

Council's "Hurricane Storm Tide Atlas - Lee County" ) more

accurately delineates the CHHA than Map 5 of the County Plan.

Although Mrescott's testimony suggests a conflict between

the County Plan's definition of the CHHA a nd Map 5's depiction

of the CHHA, the two can be reconciled by a finding that Map 5

is a gross depiction of the CHHA for general public information

purposes, but the precise location of the CHHA boundary is the

one delineated by the Regional Planning Counc il, and the latter

is controlling.

2 6 . Using the 5.3 contour on the amendment site, Leeward's

witness, Michael Raider, estimated that there are approximately

16 acres of the amendment site within the CHHA. Applying the

maximum allowable residential densi ty under the Urban Community

land use designation (with bonuses) of ten du/a means the

amendment would result in a potential for 160 dwellings in the

CHHA.

2 7 . Florida Administrative Code Rule 9J - 5.012(3)(b)6. and

Rule 9J - 5 .012 (3)(c)7., respectively, requ ire each local

government’s coastal management element to contain one or more

specific objectives that "[d]irect population concentrations

away from known or predicted coastal high - hazard areas” and

limit development in these areas. The parties' evidence and

argument regarding whether the amendment was "in compliance"

focused on these rules and the following goal, objective , and

policy of the County Plan related to the CHHA:

GOAL 105: PROTECTION OF LIFE AND PROPERTY IN

COASTAL HIGH HAZARD AREAS . To protec t human

life and developed property from natural

disasters.

OBJECTIVE 105.1: DEVELOPMENT IN COASTAL HIGH

HAZARD AREAS . Development seaward of the

1991 Coastal Construction Control Line will

require applicable State of Florida

approval; new development on barrier islands

will be limited to densities that meet

required evacuation standards; new

development requiring seawalls for

protection from coastal erosion will not be

permitted; and allowable densities for

undeveloped areas within coastal high hazard

ar eas will be considered for reduction.

POLICY 105.1.4 : Through the Lee Plan

amendment process, land use designations of

undeveloped areas within coastal high hazard

areas will be considered for reduced density

categories (or assignment of minimum

allowable densities where ranges are

permitted) in order to limit the future

population exposed to coastal flooding.

2 8 . In the opinion of Bernard Piawah, a planner employed by

the Department, the amendment is inconsistent with the goal,

objective and policy set forth above because these provisions

only contemplate possible reductions of residential densities in

the CHHA and there is no provision of the County Plan that

addresses or establishes criteria for increasing residential

densities in the CHHA.

Population Concentrations

29 . As stated above, Florida Administrative Code

Rule 9J - 5.012(3)(b)6 . directs local governments to include

provisions in their comprehensive plans to direct population

concentrations away from the CHHA. The term "population

concentration s" is not defined in any statute or rule. The term

apparently has no generally accepted meaning in the planning

profession.

3 0 . The word "population" has the ordinary meaning of "all

of the people inhabiting a specific area." The American

Heritage Dicti onary of the English Language (1981). The word

"concentration" has the ordinary meaning of "the act or process

of concentrating." Id . The word "concentrate" means "to direct

or draw toward a common center." Id .

3 1 . In the context of Florida Administr ative Code

Rule 9J - 5.012, the term "population concentrations" suggests a

meaning of population densities (dwelling units per acre) of a

certain level, but the level is not stated.

3 2 . Leeward argues that, because there is no state

guidance on the meanin g of the term "population concentrations,"

surrounding land uses should be examined to determine whether a

proposed density would be "proportionate to its surroundings."

According to Leeward, in order to be a population concentration,

the density under re view would have to be greater than the

surrounding density. This comparative approach is rejected

because the overarching Legislative objective is protection of

life, which plainly calls for a straightforward consideration of

the number of lives placed in harm's way.

3 3 . The Department, in its Proposed Recommended Order,

states:

By assigning either zero residential density

to land by virtue of an Open Space land use

designation, or a maximum density of one

unit per acre by assigning a low density

land use designation, the County Plan

fulfills the mandates of State law that

development be limited in and residential

concentrations be directed away from the

CHHA.

Thus, not surprisingly, the Department does not consider one

du/a to be a population concentrati on.

3 4 . A density of ten du/a is an urban density, as

indicated by the fact that it is the maximum density allowed in

the Urban Community land use designation and the highest density

within the "standard density range" for the County's Central

Urban land use designation. It is a generally known fact, of

which the undersigned takes notice, that urban areas are areas

where populations are concentrated.

3 5 . It is a another generally known fact, of which the

undersigned takes notice, that ten dwelling units on one acre of

land amounts to a lot of people living in a small space.

3 6 . Leeward, itself, described the residential density

allowed under the Urban Community designation as "relatively

intense." Leeward's Proposed Recommended Order, at 7.

3 7 . Whether measured by density alone ( ten du/a) or by

Leeward's estimate of 160 residences on 16 acres, the amendment

places a population concentration in the CHHA.

Offsets in the CHHA

3 8 . Leeward presented evidence that the County has been

reduc ing residential den sities , sometimes referred to as "down -

planning," in other areas of the CHHA in Lee County. The

reduction in dwelling units in the CHHA over the past several

years may be as high as 10,000 units. The Department did not

present evidence to dispute that th ere has been an overall

reduction in dwelling units in the CHHAs of Lee County.

39 . Leeward argues that these reductions "offset" the

increase in dwelling units in the CHHA that would result from

the amendment and this "overall" reduction in densities in the

CHHA must be considered in determining whether the amendment is

"in compliance" with state law and with provisions of the County

Plan related to directing population concentrations away from

the CHHA.

4 0 . At the hearing and in its Proposed Recommended Order,

the Department argued that the consideration of offsets in the

CHHA was improper and unworkable, but that argument conflicts

with the Department's actual practice and official position as

described in the January 2006 "Department of Community Affai rs

Report for the Governor's Coastal High Hazard Study Committee."

In that report, the Department acknowledged there is no

statutory or rule guidance regarding what the maximum density

should be in the CHHA. The Report notes that some local

governments h ave established maximum densities for the CHHA

( e.g. , Pinellas County, 5 du/a; Franklin County 1 du/a). The

Department states in the report that it reviews amendments to

increase density in the CHHA on a "case by case" basis, and

explains further:

When a Comprehensive Plan Amendment in the

CHHA proposes a density increase, DCA's

review considers the amount of the density

increase, the impact on evacuation times and

shelter space, and whether there will be a

corresponding offset in density through

"down pla nning" (generally accomplished

through public acquisition ) .

4 1 . One of the visual aides used in conjunction with the

2006 report to Governor's Coastal High Hazard Study Committee,

entitled "Policy Issue #2 - Densities in High Hazard Areas,"

also describes the Department's practice:

4. Without locally adopted density limits,

DCA conducts a case by case review of

amendments without any defined numeric

limit.

5. DCA considers amount of density

increase, impact on evacuation times and

shelter space, and whe ther there will be a

corresponding offset in density through

"down planning" in other areas of the CHHA.

4 2 . These statements use the phrase "there will be a

corresponding offset," which suggests that for an offset to be

considered, it would have to be p roposed concurrently with an

increase in residential density on other lands within the CHHA.

However, according to the d irector of the Department's Division

of Community Planning, Valerie Hubbard, offsets in the CHHA do

not have to be concurrent; they can include previous reductions .

Furthermore, although the Department pointed to the absence of

any criteria in the County Plan to guide an offset analysis,

Ms. Hubbard said it was unnecessary for a comprehensive plan to

include express p rovisions for the us e of offsets.

4 3 . To the extent that this evidence of the Department's

interpretation of relevant law and general practice conflicts

with other testimony presented by the Department in this case,

the statements contained in the report to the Governor's Co astal

High Hazard Study Committee and the testimony of Ms. Hubbard are

more persuasive evidence of the Department's policy and practice

in determining compliance with the requirement that

comprehensive plans direct population densities away from the

CHHA a nd limit development in the CHHA.

4 4 . As long as the Department's practice when conducting

an "in compliance" review of amendments that increase

residential density in the CHHA is to take into account offsets,

the Department has the duty to be consistent and to take into

account the County's offsets in th e review of this amendment .

4 5 . The County p lanning d irector testified that he

believed the applicable goal, objective , and policy of the

County Plan are met as long as there has been a reduction in

resid ential densities in the CHHAs of the County as a whole .

The Department points out that the planning director's opinion

was not included in the County planning staff's reports prepared

in conjunction with the amendment . However, it necessarily

follows fro m the Board of County Commissioners' adoption of the

amendment that it does not interpret Objective 105.1 and Policy

105 - 1.4 as prohibiting an increas e in residential density in the

CHHA. Although these provisions make no mention of offsets, the

Departmen t has not required offset provisions in a comprehensive

plan before the Department will consider offsets in its

determination whether a plan amendment that increases density in

the CHHA is in compliance.

46. The wording used in Objective 105.1 and Policy 105 - 1.4

requiring "consideration" of density reductions in the CHHA can

be harmonized with the County planning director's testimony and

with the County's adoption of the amendment by construing these

plan provisions consistently with the Department's own p ractice

of allowing increases in the CHHA when the increases are offset

by overall reductions in dwelling units in the CHHA. Seeking to

harmonize the amendment with the provisions of the County Plan

is the proper approach because, as discussed later in th e

Conclusions of Law, whether an amendment is consistent with

other provisions of the plan is subject to the "fairly

debatable" standard which is a highly deferential standard that

looks for " any reason it is open to dispute or controversy on

grounds that make sense or point to a logical deduction ."

Martin County v . Yusem , 690 So. 2d 1288, 1295 (Fla. 1997).

2 0

Shelter Space and Clearance Time

4 7 . Prior to the hearing in this case, Leeward moved to

strike certain statute and rule citations in the Department' s

petition relate d to shelter space and clearance time 4 because

they were not included in the Department's ORC Report. The

motion was denied because, although Section 163.3184(8)(b),

Florida Statutes, limits the Department's petition to issues

raised in t he "written comments" in the ORC Report, the statute

does not indicate that the Department is barred from citing in

its petition, for the first time, a rule or statute that is

directly related to the written comments.

4 8 . The CHHA is defined in the County Plan as the category

one "evacuation zone." It is the area most in need of

evacuation in the event of a severe coastal storm. S helter

space and clearance time are integral to e vacuation planning and

directly related to the Department's comment in the OR C Report

that the amendment would, "expose a substantial population to

the dangers of a hurricane." Therefore, the Department was not

barred from presenting evidence on shelter space and clearance

time in support of this comment.

49 . The Department's pra ctice when reviewing an amendment

that increases residential density in the CHHA, described in its

2006 report to the Governor's Coastal High Hazard Area Study

Committee, is to consider not only dwelling unit offset s in the

CHHA, but also the effect on she lter space and clearance time.

That report did not elaborate on how shelter space and clearance

time are considered by the Department , but evidence that a

comprehensive plan amendment would have a significant adverse

effect on shelter space or clearance t ime could presumably

negate what would otherwise appear to the Department to be an

acceptable offset of residential density in the CHHA. On this

record, however , the Department did not show that a significant

adverse impact on shelter space or clearance t ime would be

caused by this particular amendment. 5

Special Planning Areas

50 . Leeward argues that, even if the amendment were

determined to be inconsistent with Objective 105.1 and Policy

105 - 1.4, that inconsistency should be balanced against other

provis ions in the County Plan that are furthered by the

amendment, principally the provisions related to the

Caloosahatche e Shores Community Planning Area and the Water -

Dependent Use Overlay Zone . There is no authority for such a

balancing approach that can ove rcome an inconsistency with an

objective or policy of the comprehensive plan. Therefore,

whether the amendment furthers the provisions of the County Plan

related to the Caloosahatche e Shores Community Planning Area,

Water - Dependent Use Overlay Zone , or ot her subjects is

irrelevant to whether the amendment is consistent with Objective

105.1 and Policy 105 - 1.4.

5 1 . On the other hand, the Department's contention that the

amendment is inconsistent with the provisions of the County Plan

related to the Caloosah atchee Shores Community Planning Area is

contrary to the more credible evidence.

100 - Year Floodplain

5 2 . The amendment site is entirely within the 100 - year

floodplain. In its Statement of Intent, the Department

determined that the amendment was not in co mpliance, in part,

because the amendment site's location in the 100 - year floodplain

made it unsuitable for residential development. In addition,

the Department determined that the amendment caused an internal

inconsistency with the following policies of t he County Plan

related to development in the floodplain:

POLICY 61.3.2 : Floodplains must be managed

to minimize the potential loss of life and

damage to property by flooding.

POLICY 61.3.6 : Developments must have and

maintain an adequate surface water

ma nagement system, provision for acceptable

programs for operation and maintenance, and

post - development runoff conditions which

reflect the natural surface water flow in

terms of rate, direction, quality,

hydroperiod, and drainage basin. Detailed

regulatio ns will continue to be integrated

with other county development regulations.

5 3 . According to Mike McDaniel, a growth management

administrator with the Department, "we try to discourage

increasing densities in floodplains and encourage that it be

located in more suitable areas."

5 4 . The policies set forth above are intended to aid in the

achievement of Goal 61 of the Community Facilities and Service

Element " to protect water resources through the application of

innovative and sound methods of surface wat er management and by

ensuring that the public and private construction, operation,

and maintenance of surface water management systems are

consistent with the need to protect receiving waters.” Plainly,

Goal 61 is directed to regulating construction and s urface water

management systems. There is no mention in this goal or in the

policies that implement the goal of prohibiting all development

or certain kinds of development in the 100 - year floodplain.

5 5 . The Department's argument i n this case regarding

d evelopment in the 100 - year floodplain is rejected because it

ignores relevant facts and law. First, substantial portion s of

Lee County and the State are within the 100 - year floodplain.

Second, there is no state statute or rule that prohibits

development in the 100 - year floodplain. Third, the Department

of Environmental Protection, water management districts, and

local governments regulate development in the floodplain by

application of construction standards, water management

criteria, and similar regula tory controls to protect floodplain

functions as well as human life and property. Fourth, there has

been and continues to be development in the 100 - year floodplain

in Lee County and throughout the State, clearly indicating that

such development is able to comply with all federal, state, and

local requirements imposed by the permitting agencies for the

specific purpose of protecting the floodplain and the public.

Fifth, the Department "discourages" development in the

floodplain but has not established by r ule a standard, based on

density or other measure, which reasonably identifies for local

governments or the general public what development in the

floodplain is acceptable to the Department and what development

is unacceptable. Finally, the Department's p ractice in allowing

offsets in the CHHA, as discussed previously, necessarily allows

for development in the 100 - year floodplain in that particular

context.

CONCLUSIONS OF LAW

5 6 . DOAH has jurisdiction over the parties to and the

subject matter of this pro ceeding pursuant to Sections 120.569,

120.57(1), and 163.3184(10), Florida Statutes.

5 7 . Intervenor Leeward is an affected person with standing

to participate in this proceeding pursuant to Section

163.3184(1)(a), Florida Statutes.

5 8 . The term "in compl iance" is defined in

S ection 163.3184(1)(b) , Florida Statutes :

"In compliance" means consistent with the

requirements of ss. 163.3177, 163.3176, 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 are as of

critical state concern and with part III of

chapter 369, where applicable.

59. W hen the Department determines that a local

government's plan or plan amendment is not in compliance,

administrative proceedings are conducted pursuant to

Section 163.3 184(10) , Florida Statutes . These proceedings are

conducted under Sections 120.569 and 120.57 , Florida Statutes.

Proceedings under Sections 120.569 and 120.57 are generally de

novo , designed to "formulate final agency action, not to review

action taken ea rlier and preliminarily." McDonald v . Florida

Department of Banking and Finance , 346 So. 2d 81 (Fla. 1st DCA

1977). But the Legislature has chosen to treat administrative

review of comprehensive plan and plan amendment cases

differently :

In the proceedin g, the local government's

determination that 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 compre hensive plan or plan

amendment is not in compliance. 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.

60 . T he Department's Statement of Intent cites the

following statutes and rules in support of its determination

that the amendment is not in compliance: Sections 163.3177(2),

163.3177(6)(a), 163.3177(6)(g)7. and 8., 163.3178(1),

163.3178(2)(d) and (h), 1 87.201(8)(a), 187.201(8)(b) 3. and 6.,

187.201(15)(a) and 187.201(15)(b)6., Florida Statutes , and

Florida Administrative Code Rules 9J - 5.003(17) ; 9J - 5.005(5) ;

9J - 5.006(2)(b) ; 9J - 5.006(3)(b)1., 5., and 6. ; 9J - 5.006(3)(c)1. ;

9J - 5.006(4)(b)6. ; 9J - 5.012(3)(b) 5. and 6. ; and 9J - 5.012(3)(c)7.

6 1 . Florida Administrative Code Rule 9J - 5.003(17) is the

definition of CHHA. The Department did not meet its burden to

prove by a preponderance of the evidence that the amendment is

not "in compliance" with the definition.

6 2 . Florida Administrative Code Rule 9J - 5.006(2)(b)

requires that the coastal element be based on an "analysis" of

the suitability of undeveloped or vacant land for use. The

Department did not meet its burden to prove by a preponderance

of the evidence that the FLUM was not based on such an analysis.

The Department simply disagreed with the result of the County's

analysis.

6 3 . Florida Administrative Code Rule 9J - 5.006(4)(b)6.

requires a FLUM to show the CHHAs. The D epartment did not

dispute that the F LUM in the County Plan shows the CHHAs.

6 4 . The following statutes and rules cited in the

Department's Statement of Intent require a comprehensive plan to

contain specified elements, objectives or policies: Sections

163.3177(6)(a), 163.3177(6)(g)7. and 8 ., and 163.3178(2)(d)

and (h), Florida Statutes , and Florida Administrative Code

Rules 9J - 5.006(3)(b)1., 5., and 6. ; 9J - 5.006(3)(c)1. ;

9J - 5.012(3)(b)5 ; 9J - 5.012(3)(b)5. and 6. ; and 9J - 5.012(3)(c)7.

Leeward contends that these statutes and rules do not apply to

FLUM amendments because the FLUM is neither an objective nor a

policy. The Department responds that the definition of "in

compliance" is applicable to FLUM amendments and requires

consistency with all of Florida Administrative Code

Chapter 9J - 5.

6 5 . The Department cites the following portion of the

Supreme Court of Florida decision in Coastal Dev. of North Fla.,

Inc. v. City of Jacksonville Beach , 788 So. 2d 204, 209 (Fla.

2001) , in support of its argument that the provisions of Florida

Administ rative Code Chapter 9J - 5 requiring comprehensive plans

to contain certain objectives and policies are also applicable

to FLUM amendments:

The FLUM is part of the comprehensive plan

and represents a local government's

fundamental policy decisions. Any prop osed

change to that established policy is

likewise a policy decision. The FLUM itself

is a policy decision. A decision that would

amend the FLUM requires those policies to be

reexamined, even though that change is

consistent with the textual goals and

ob jectives of the comprehensive plan.

Therefore, the scope of the proposed change

is irrelevant because any proposed change to

the FLUM requires a reexamination of those

policy considerations and not an application

of those policies.

6 6 . The Department as serts that this reasoning of the

Court "made clear that an amendment to the FLUM is a legislative

decision that requires a reexamination of the entire plan and

its policies." However, there is no dispute that the FLUM

amendment at issue here is a legislat ive decision. Nor is it

disputed that this amendment to the County Plan required the

County to reexamine all of the related objectives and policies

of the County Plan. The dispute is whether the provisions of

Florida Administrative Code Chapter 9J - 5 requ iring that a

comprehensive plan contain certain objectives and policies can

be violated by a FLUM amendment. On that issue the Court had

nothing to say because that issue was not before the Court.

6 7 . In another important comprehensive planning case

deci ded by the Supreme Court of Florida, Martin County v. Yusem ,

690 So. 2d 1288 (Fla. 1997), the Court emphasized that FLUM

amendments are legislative acts subject to the "fairly

debatable" standard of proof. The argument that the Department

makes in this ca se, that a FLUM amendment must comply with the

provisions of Florida Administrative Code Chapter 9J - 5 requiring

comprehensive plans to contain certain objectives and policies,

would mean that a local government's legislative act in adopting

a FLUM amendmen t , after reexamining all related provisions of

its comprehensive plan , would be subject to the lower

preponderance of evidence standard of proof.

6 8 . It is not helpful to argue, as the Department does,

that a FLUM amendment is subject to all the requireme nts of

Florida Administrative Code Chapter 9J - 5 because many provisions

of Florida Administrative Code Chapter 9J - 5 are expressly

limited to particular subjects. The plain meaning of a rule

that requires a comprehensive plan to include "one or more

object ives" or "one or more policies" addressing a particular

subject is that compliance with the rule is achieved if, in

fact, the comprehensive plan has one or more of the required

objectives or policies.

69 . An agency’s interpretation of its own rule is enti tled

to great weight. However, the undersigned is not required to

defer to an implausible or unreasonable interpretation. See

Atlantis at Perdido Association, Inc. v. Dept. of Environmental

Protection , 932 So. 2d 1206 (Fla. 1st DCA 2006). When an

agency 's construction contradicts the unambiguous language of

the rule, the construction is clearly erroneous and cannot

stand. Woodley v. Dept. of Health and Rehab. Services , 505 So.

2d 676, 678 (Fla. 1987). If a subject is not adequately

addressed by an agen cy's rules, the solution is to amend the

rules rather than contort their plain meaning.

70 . The parties' pre - hearing stipulation included a

stipulation that the County Plan, with the exception of the

amendment at issue here, is in compliance. That equ ates to a

stipulation that the County Plan contains all the objectives and

policies required by Sections 163.3177 and 163.3178, Florida

Statutes, and Florida Administrative Code Chapter 9J - 5. The

amendment does not delete or modify any of the objectives o r

policies of the County Plan. Therefore, the D epartment did not

meet its burden to prove by a preponderance of the evidence that

the amendment is not in compliance with the statutes and rules

cited in paragraph 6 4, above , that require comprehensive plans

to contain certain objectives and policies .

7 1 . Section 163.3177(2) , Florida Statutes, and Florida

Administrative Code Rule 9J - 5.005(5)(a) require the provisions

of a comprehensive plan to be internally consistent. The gist

of the Department's case is t hat the amendment is internally

inconsistent, that it conflicts with Goal 105, Objective 105.1 ,

and Policies 105.1.4 , related to l imiting development in the

CHHA, and Policies 61.3.2. and 61.3.6., related to regulating

development in the floodplain.

7 2 . A local government's determination that the elements of

its comprehensive plan are related to and consistent with each

other shall be sustained if the determination is fairly

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

7 3 . The term "fairly debatable" is not defined in

Chapter 163, Florida Statutes, or Florida Administrative Code

Chapter 9J - 5. The Supreme Court of Florida has opined, however,

that the fairly debatable standard under Chapter 163, Florida

Statutes, is the same as the common law fairly debatabl e

standard applicable to decisions of local governments acting in

a legislative capacity. In Martin County v. Yusem , supra , at

1295, the Court stated , "The fairly debatable standard of review

is a highly deferential standard requiring approval of a

planni ng 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 d ispute or controversy on grounds that make sense

or point to a logical deduction that in no way involves its

constitutional validity." Id .

74. When the County's previous reductions of dwelling units

in the CHHA are taken into account, it is fairly debata ble that

t he amendment is internally consistent with Goal 105,

Objective 105.1 , and Policies 105.1.4 . Furthermore, because the

County Plan does not prohibit development in the floodplain but,

instead, requires "management" of such development through the

application of design and construction standards, it is fairly

debatable that the amendment is internally consistent with

Policies 61.3.2 and 61.3.6.

7 5 . The Department contends the amendment is inconsistent

with provisions of the State Comprehensive Pla n set forth in

Sections 187.201(8)(a), 187.201(8)(b) 3. and 6., 187.201(15)(a) ,

and 187.201(15)(b)6., Florida Statutes. These goals and

policies of the State Comprehensive Plan address public safety

in the coastal zone and the suitability of land for deve lopment,

but are expressed in the same general terms as the parallel

provisions of the County Plan. For the same reasons that the

amendment was found to be internally consistent with the County

Plan, it is determined to be consistent with the State

Compre hensive Plan. The Department did not meet its burden to

prove otherwise.

76. The Department failed to overcome the statutory

presumption of correctness of the County's determination that

the amendment is in compliance.

RECOMMENDATION

Based on the foregoi ng Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be issued by the Florida

Land and Water Adjudicatory Commission determining that the

amendment adopted by Lee County in Ordinance No. 05 - 10 is "in

compliance" as defined in Ch apter 163, Part II, Florida

Statutes.

DONE AND ENTERED this 25th day of August , 2006 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buil ding

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 25th day of August , 2006 .

ENDNOTES

1/ Unl ess otherwise indicated, all references to the Florida

Statutes are to the 2005 codification.

2 / The definition includes the following statement:

For the purpose of calculating gross

residential density, the total acreage of a

development includes those lands to be used

for residential uses, and includes lands

within the development proposed to be used

for streets and street rights of way,

utility rights of way, public and private

parks . . . and existing man - made

waterbodies within the residential

devel opment. (Emphasis added.)

3 / The 2006 amendment added new criteria to be used by the

Department in determining whether a comprehensive plan amendment

is "in compliance" with state coastal high - hazard provisions

pursuant to Florida Administrative Code Ru le 9J - 5.012(3)(b)6

and 7. No party mentioned the new statutory criteria. The

County adopted the amendment on October 12, 2005, prior to the

effective date of the 2006 amendments to Section 163.3178,

Florida Statutes.

4 / The term "c learance time " is de fined as the time it takes all

v ehicles leaving the evacuation zone to get through the most

restrictive portion of the evacuation route.

5 / For example, because the amendment site is located next to

two major roads, I - 75 and SR 80, it has a low clearance time .

The calculations of shelter space demand and added traffic in

the Department's Exhibit 2 was based on an assumption of 412 new

units in the CHHA and is rejected as contrary to the more

credible evidence. Furthermore, the amendment's effect on

shel ter space and clearance time must be considered in the

context of offsetting reductions of dwelling units in the CHHA

that reduce the demand for shelter space and improve clearance

times.

COPIES FURNISHED :

Shaw P. Stiller, Esquire

Department of Communi ty Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Susan M. Henderson , Esquire

Lee County Attorney's Office

2115 Second Street

Post Office Box 398

Fort Myers, Florida 33902

Karen A. Brodeen , Esquire

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

101 North Monroe Street, Suite 1090

Post Office Box 11240

Tallahassee, Florida 32301 - 1240

Matthew D. Uhle, Esquire

Knott, Consoer, Ebelini & Swett, P.A.

1625 Hendry Street, Third Floor

Fort Myers, Florida 33901

Michael P. Hansen, Secretary

Florida Lan d and Water Adjudicatory

Commission

Office of the Governor

The Capitol, Room 1802

Tallahassee, Florida 32399 - 1001

Raquel Rodriguez, General Counsel

Office of the Governor

The Capitol, Suite 209

Tallahassee, Florida 32399 - 1001

Barbara Leighty, Clerk

G rowth Management and

Strategic Planning

The Capitol, Room 1802

Tallahassee, Florida 32399

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 excep tions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.