07-003267GM Department Of Community Affairs vs. City Of Tallahassee And Leon County Status: Closed Recommended Order on Thursday, March 13, 2008.

Summary: The data and analysis were not sufficient to support removal of Lake Jackson Special Development Zones in closed basins.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Petitioner, )

)

and )

)

JOANNE E. KOWAL, C. TOMOKA BRADY, PATRICK M. WRIGHT, and )

C. PERRY BROWN, )

)

)

Intervenors, )

)

vs. ) Case No. 07-3267GM

)

CITY OF TALLAHASSEE and LEON )

COUNTY, )

)

Respondents, )

)

and )

)

ARBOR PROPERTIES DEVELOPMENT, INC., )

)

)

Intervenor. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on November 28-

30 and December 12, 2007, in Tallahassee, Florida, before

J. Lawrence Johnston, an Administrative Law Judge with the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kelly A. Martinson, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Intervenors, Kowal, et al. :

Terrell K. Arline, Esquire

525 Bunkers Cove Road

Panama City, Florida 32401-2336

For Respondent, Leon County:

Herbert W.A. Thiele, Esquire

Laura Youmans, Esquire

301 South Monroe Street, Suite 202

Tallahassee, Florida 32301-1803

and

William B. Graham, Esquire

Carr Allison

305 South Gadsden Street

Tallahassee, Florida 32301-1811

For Respondent, City of Tallahassee:

Linda R. Hudson, Esquire

Cassandra K. Jackson, Esquire

City Attorney

300 South Adams Street

Tallahassee, Florida 32301-1721

For Intervenor, Arbor Properties Development, Inc.:

Martha Harrell Chumbler, Esquire

W. Douglas Hall, Esquire

Carlton Fields, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302-0190

STATEMENT OF THE ISSUE

The issue in this case is whether Leon County's

Comprehensive Plan Amendments 2007-1-T-015 ("the Plan

Amendments"), which exempt "closed basins" from Lake Jackson

Special Development Zone (SDZ) development restrictions, are in

compliance as defined by Section 163.3184(1)(b), Florida

Statutes. 1

PRELIMINARY STATEMENT

On February 1, 2007, Leon County ("the County") transmitted

to the Department of Community Affairs ("DCA" or the

"Department") a package of proposed comprehensive plan

amendments, including the Plan Amendments at issue in this case.

DCA issued an Objections, Recommendations and Comments Report

("ORC") on April 13, 2007, objecting to the Plan Amendments and

urging the County not to adopt them. The County adopted the

Plan Amendments at a public hearing conducted on May 8, 2007,

and transmitted them to DCA on May 24, 2007. The transmittal

package included a response to DCA’s ORC and provided additional

data and analysis in support of the Plan Amendments. On

July 10, 2007, DCA issued a Notice of Intent to find the Plan

Amendments not "in compliance." 2

At the final hearing, Joint Exhibits 1-3 were admitted into

evidence. The Department presented the testimony of

Joe Knetsch, Larry Nall, Wayne Tedder, Eric Livingston,

Harley Means, and Charles Gauthier. DCA's Exhibits 12 and 14-24

were admitted into evidence. Ruling was reserved on objections

to DCA Exhibits 1-11 and 13. DCA Exhibits 1-10 (old newspaper

accounts of Lake Jackson) are received subject to the valid

objections to the hearsay reported in the accounts.

(Similarly, DCA Exhibits 11, a 1989 Executive Order of the

Governor, and 18-19, which are admissible under Section

163.3184(7)(a), Florida Statutes, are received subject to the

valid objections to the hearsay which they contain.) The

relevance objections to DCA Exhibits 13, 25, and 26 are

overruled, and those exhibits also are received in evidence. 3

Intervenors, JoAnne Kowal, Tomoka Brady, Patrick Wright,

and Perry Brown ("the Kowal Intervenors" or "Petitioner-

Intervenors") presented the testimony of Thomas Kwader,

George Baragona, Matthew Aresco, and Tyler Macmillan in their

case-in-chief. They also re-called witnesses Baragona,

Macmillan, and Kwader and called an additional witness,

Mark Endries, in rebuttal. The Kowal Intervenors' Exhibits 1-25

were admitted in evidence.

The County presented the testimony of Wayne Tedder and

John Kraynak, and County Exhibits 1 and 3-10 were admitted in

evidence.

Intervenor Arbor Properties Development, Inc. ("Arbor"),

presented the testimony of Devo Seereeram, Andrew Barth, and

Thomas Missimer. Arbor Exhibits 1-4 were admitted in evidence.

Counsel for the City of Tallahassee ("the City") attended

the final hearing, but the City did not present any evidence or

cross-examine any witnesses.

An eight-volume Transcript of the proceeding was filed on

January 4, 2008. The parties requested and were given 20 days

from the filing of the transcript to submit proposed recommended

orders. The Proposed Recommended Orders (PROs) filed on

January 24, 2008, were considered in preparing this Recommended

Order.

FINDINGS OF FACT

Background

1. The County and City have a joint comprehensive plan in

that most provisions are adopted by both local governments, but

some provisions are only adopted by one or the other local

government. The Plan Amendments at issue in this case were

adopted by the County but not the City; they relate to Lake

Jackson.

2. Lake Jackson is a 4,000-plus acre water body in the

northern portion of the County, north of Interstate 10. When

U.S. Highway 27 was built, it crossed the western edge of Lake

Jackson, dividing the main body of the lake from the part that

became known as Little Lake Jackson. However, Little Lake

Jackson remains connected to the main body of Lake Jackson

through culverts under Highway 27.

3. Lake Jackson is located within the larger Lake Jackson

Drainage Basin, which includes all land from which water drains

to Lake Jackson. The boundary of the City intersects the

southern and eastern reaches of the Lake Jackson Drainage Basin.

4. Lake Jackson is an important state resource. It has

been designated as a Florida Aquatic Preserve, an Outstanding

Florida Water, is on the Northwest Florida Water Management

District’s Surface Water Improvement and Management Program

priority list, and is listed as resource of regional

significance under the Northwest Florida Strategic Regional

Policy Plan. Significant resources, including roughly 9 million

dollars since 1999, have been spent by state, regional, and

local entities to manage and restore the lake.

5. Repeatedly throughout and before its recorded history,

Lake Jackson has flooded or almost entirely disappeared. The

water level of Lake Jackson is mainly controlled by rainfall

conditions. The most extreme flood event recorded occurred on

June 18, 1966, when the water level of Lake Jackson reached

96.16 NAVD. 4 Rainfall conditions are cyclical, and the lake’s

disappearance is due to sinkholes on the lake bottom that

periodically “unplug” and allow the lake water to drain to the

Floridan Aquifer, especially during dry cycles. The local area

is now experiencing an extended generally dry cycle. In 1999

Porter Sink unplugged and much of the lake drained. Porter Sink

and some of the lake filled somewhat during times of more normal

rainfall since 1999, but the lake again drained during the

prevailing drier times and was still low at the time of the

final hearing.

Plan Provisions Relating to Lake Jackson

6. In 1990 the County and the City adopted their joint

comprehensive plan. Among other things, it included a future

land use element and a conservation element.

7. Goal 2 [C] (designating the Conservation Element) of

the Plan was to: "Protect and enhance natural surface water

bodies to provide for fishable and swimmable uses." Objective

2.1 [C] addressed Stormwater Management. Objective 2.2 [C]

addressed Water Bodies Protection and required the County to

"have in place programs and procedures to improve water quality

in degraded water bodies" and, "[i]n other natural water bodies,

. . . to maintain water quality in order to meet local standards

or state standards if no local standards are designated."

8. The comprehensive plan adopted in 1990 also included a

separate Objective 2.3 [C] on Lake Jackson, which was to "adopt

policies and ordinances [by 1991] that will prevent any further

degradation of Lake Jackson and by the year 2000, return water

quality in the lake to its condition at the time of Outstanding

Florida Waters (OFW) designation." Policy 2.3.1 [C], also

adopted in 1990, was to "designate special development zones for

Lake Jackson that restrict activities that impact the quality of

stormwater.”

9. The comprehensive plan adopted in 1990 also included

Policy 2.2.18 [L] (designating the Land Use Element) of the

Plan, which created "a protection category that is specific to

the well documented scientific concerns regarding the

degradation and continuing pollution of Lake Jackson." It

limited density and intensity of development in the Lake

Protection future land use category. As part of the Lake

Protection development limitations, this policy also prohibited

clustered residential development in the Lake Jackson SDZs.

However, it also included a Mixed Use Lake Protection category

for "closed basins." "Closed basin" was defined in the Glossary

of the Plan as "[a] naturally depressed portion of the earth's

surface for which there is no natural outlet for runoff other

than percolation, evaporation, or transpiration."

10. The Department found the comprehensive plan adopted by

the City and County in 1990 not to be "in compliance" and

recommended remedial action, including elimination of the Lake

Protection Mixed Use category and action to protect Lake

Jackson, to “include buffer zones, restrictions on development

activity, reduced densities and intensities, and environmental

design criteria.” [DCA Exhibit 25] During the course of the

resulting administrative proceeding, a Stipulated Settlement

Agreement was reached in 1991 that required the City and County

to adopt remedial action.

11. The remedial action adopted by the City and County

included elimination of the Lake Protection Mixed Use category,

and the following language was added to Policy 2.2.18 [L]:

"Future development will not be subject to the limitations of

the Lake Protection land use category if [it] can be

demonstrated by competent scientific evidence that the

development is located in a closed basin that does not naturally

or artificially discharge to the larger Lake Jackson Basin.

Closed basins must be certified by a registered engineer to the

effect that there are no artificial or natural discharges from

it." (Emphasis added.) The policy also provided that future

development in the Lake Jackson SDZs had to be Planned Unit

Developments (PUDs).

12. In addition, Policy 2.2.12 [C] was adopted in

accordance with the 1991 Stipulated Settlement Agreement and

established SDZs that limit the amount of disturbance that can

occur on properties under certain elevations for several lakes

in Leon County, including Bradford Brook Chain of Lakes, Fred

George Basin, Lake Iamonia, and Lake Jackson. Specific to Lake

Jackson, the Plan established SDZs as follow:

Policy 2.2.12: [C] Special development

zones with accompanying criteria shall be

established and implemented through the LDRs

for the following lakes:

Lake Jackson – Zone A = below elevation 100

feet NGVD (criteria) 5% or 4,000 sq.

ft. may be disturbed

Zone B = between 100 feet NGVD and

110 feet NGVD (criteria) 50% of the

site must be left natural

Preserve shoreline vegetation in its natural

state for minimum of 50 linear feet landward

of the ordinary high water line. Allow

essential access. Government initiated

stormwater facilities for retrofit purposes

may utilize a greater portion of the SDZ if

applicable criteria (Policy 2.1.9[C]) are

met.

[Joint Exhibit 3 at IV-20]

13. As a result of the Stipulated Settlement Agreement and

adopted remedial action, and DCA found the resulting

comprehensive plan (the Plan) to be "in compliance."

14. In 2005, the County eliminated the "closed basin"

exception from Policy 2.2.18 [L]. However, the 2005 revision

provided that PUDs approved prior to January 1, 2005, were

vested for all approved uses, intensities, and densities.

15. Arbor's Summerfield development, which is located just

southwest of Lake Jackson across U.S. Highway 27, and just

southeast of and contiguous to Little Lake Jackson, received a

PUD approval under the "closed basin" exception from Policy

2.2.18 [L] prior to January 1, 2005.

16. Arbor's PUD approval was challenged in circuit court

by some of the Kowal Intervenors, and others, and in May 2006 it

was held in that case that, while the Summerfield PUD was

grandfathered under Policy 2.2.18 [L], the Lake Jackson SDZ

criteria in Policy 2.2.12 [C] applied. The Plan Amendments at

issue in this case ensued.

Plan Amendments

17. The Plan Amendments at issue moved the Lake Jackson

part of Policy 2.2.12 [C] to Objective 2.3 [C], which addresses

Lake Jackson Protection. The rest of Policy 2.2.12 [C] was left

intact and now applies only to the Bradford Brook Chain of

Lakes, the Fred George Basin, and Lake Iamonia. The Lake

Jackson policy was renumbered 2.3.1 [C], replacing existing

Policy 2.3.1 [C]. Besides the re-numbering and replacement of

existing Policy 2.3.1 [C], the amendment added: "These SDZ

criteria shall not apply within closed basins." This language

also was added to Policy 2.1.10 [L], which had prohibited

cluster residential development in the Lake Jackson SDZs. 5

Challenge to the Plan Amendments

18. The Department and the Kowal Intervenors have alleged

numerous statutory and rule provisions to support their

compliance challenge. Generally, they contend that the Plan, as

amended, fails to adequately protect Lake Jackson and natural

resources associated with the lake and is therefore inconsistent

with Section 163.3177(6)(d), Florida Statutes, which sets forth

the requirements of the conservation element. 6

19. They also allege that the Plan Amendments are

inconsistent with the following provisions of Florida

Administrative Code Rule Chapter 9J-5 7 : 9J-5.003(123) (defining

"stormwater"); 9J-5.006(3)(b)4. (requiring protection of natural

resources); 9J-5.013(2)(b)3. (requiring protection of minerals,

soils and native vegetative communities, including forests); 9J-

5.013(2)(b)4. (requiring protection of fisheries, wildlife and

wildlife habitat); 9J-5.013(2)(c)6. and 9J-5.013(3) (requiring

protection of the natural functions of wetlands, floodplains,

fisheries, wildlife habitats and lakes); and 9J-5.013(2)(c)9.

(requiring protection of environmentally sensitive lands).

20. DCA and the Kowal Intervenors also challenge the Plan

Amendments as not supported by adequate data and analysis and

therefore inconsistent with Sections 163.3177(8) and (10),

Florida Statutes. See also Rule 9J-5.005(2) (data and analysis

requirements) and Rule 9J-5.006(2) (land use analysis

requirements).

21. DCA and the Kowal Intervenors also contend that the

Plan Amendments render the Plan internally inconsistent and

therefore violate Section 163.3177(2), Florida Statutes,

(requiring that "the several elements of the comprehensive plan

shall be consistent . . . ."). See also Rule 9J-5.005(5)

(requiring internal consistency). DCA and the Kowal Intervenors

have identified numerous plan provisions to support this claim,

most of which deal with protection of area lakes and natural

resources.

22. Numerous provisions of the state comprehensive plan

have been raised in opposition to the Plan Amendments, as

follows: Section 187.201(7)(b)8. (preservation of

hydrologically significant wetlands and other natural floodplain

features); Section 187.201(7)(b)10. (protection of surface and

groundwater quality and quantity); Section 187.201(7)(b)12.

(elimination of inadequately treated wastewater and stormwater

discharge into the waters of the State); Section 187.201(9)(a)

(protection of unique natural habitats and ecological systems);

Section 187.201(9)(b)1. (conservation of forests, wetlands,

fish, marine life, and wildlife); Section 187.201(9)(b)7.

(protection of wetlands systems); Section 187.201(9)(b)10.

(acquisition and maintenance of ecologically intact systems)

Section 187.201(15)(a) (requiring development to be directed to

areas with resources to accommodate growth in an environmentally

acceptable manner; Section 187.201(15)(b)6. (requiring

consideration in land use planning of the impact on water

quality and quantity, natural resources, and the potential for

flooding).

23. The Plan Amendments also are alleged to be

inconsistent with the Strategic Regional Policy Plan, and

specifically Policy NR 1.2.10, which provides for restoration of

water quality in Lake Jackson to standards established by

Florida Department of Environmental Protection (DEP) and Rule

Chapter 62-302.

More Than Mere Clarification

24. In response to the challenge, the County and Arbor

first take the position that the Plan Amendments merely clarify

that the Lake Jackson SDZs never applied to closed basins.

However, the County and Arbor are estopped from taking that

position in this case because of the circuit court ruling

against the County and Arbor on that precise point. As a matter

of law, that the County may not have applied the Lake Jackson

SDZ criteria in certain "closed basins" means only that the

County did not follow its Plan on those occasions. As a matter

of law, the Plan Amendments actually do have the effect of

exempting closed basins from the Lake Jackson SDZ criteria.

Glossary Definition

25. At one point in their PRO, the County and Arbor argue

that the Plan Glossary's definition of "closed basin" ensures

that the Plan Amendments will not affect Lake Jackson because it

does not allow any surface water discharge from a "closed

basin." (A similar argument was made to the circuit court, that

"common sense and logic support the conclusion that these [SDZ]

restrictions do not apply to a development within a closed basin

because stormwater from a closed basin by definition never

reaches the lake." [DCA Exhibit 13, p.4]) But the Glossary

definition allows percolation into the groundwater, which could

subsequently enter the lake or emerge from the ground and become

surface flow outside the closed basin. In addition, as

indicated, supra , the Glossary definition does not mention

artificial outlets for runoff from a "closed basin." Policy

2.2.18 [L], as it existed prior to 2005, included that concept

in its definition for purposes of the Lake Protection future

land use category exception, but that language has been

eliminated from the Plan.

26. Even setting aside the possibility for groundwater to

reach the lake, and assuming that the Glossary definition

included, or should be interpreted to include, the concept of no

artificial outlet for runoff, the County and Arbor also argue,

inconsistently, that surface water in "closed basins" can

overtop and flow into the Lake Jackson Drainage Basin in certain

rainfall conditions. Indeed, the County found the Summerfield

development to include all or part of two exempt closed basins

for purposes of both Policy 2.1.18 [L] and Policy 2.2.12 [C]

because the basins would not discharge surface water in a 100-

year, 24-hour storm, not because it would never discharge

surface water to the Lake Jackson Drainage Basin.

Other Proposed Closed Basin Definitions

27. As indicated, one possible definition of closed basin

refers to the capacity to retain surface water resulting from a

100-year, 24-hour storm, which was the definition used for the

Summerfield site.

28. For Lake Jackson, 10.9 inches of rain in 24 hours

amounts to a 100-year, 24-hour storm event. However, in

evaluating the Summerfield site, the County followed the

Department of Transportation's conservative practice of assuming

12 inches of rain in a 100-year, 24-hour storm event. However,

it was not clear from the evidence whether the Summerfield

evaluation assumed build-out of the PUD. This is significant

because development reduces the capacity of a basin to retain

stormwater runoff. This is because impervious surface would be

increased, and cleared lands would be subject to soil compaction

which prevents rainfall from soaking into the ground, resulting

in increased stormwater volume.

29. Regardless of how it evaluated the Summerfield site,

the County has not consistently used any one, standard “normal”

rainfall event for determining closed basins. In addition to a

100-year, 24-hour storm event, the County also has used a 50-

year, 24-hour storm, and a three-year, 24-hour storm. 8 The

evidence suggests that the storm event chosen to be used may

have depended on the County's purpose in determining the

existence of a closed basin-- e.g. , if the County was

determining, on the one hand, whether a Lake Protection future

land use category (or SDZ) exemption applied or, on the other

hand, whether flooding was a concern under Policies 1.3.2.d [C]

and 2.2.5 [C].

30. When the County deleted the closed basin exception

from the Lake Protection land use category in 2005, County staff

recommended approval of the amendment at least in part because

of the burden placed on developers and County staff to determine

whether a development included a closed basin, and the confusion

that existed as to how to make that determination. (Another

reason given by County staff was that elimination of the

exception would promote land use densities and intensities more

consistent with the protection of Lake Jackson.)

31. When the County transmitted proposed plan amendments

before adopting the Plan Amendments at issue, it proposed to

define closed basins for purposes of the Lake Jackson SDZ

exemption by reference to a 100-year, 24-hour storm. But when

DCA in its ORC report cited the inconsistency with the

definition in the Plan's Glossary, the County deleted the

definition from the adopted Plan Amendments. It would seem

that, without a clear definition of closed basin, the Plan

Amendments would result in the same kind of burdens and

confusion the County sought to eliminate by removing the Lake

Protection land use category exception in 2005.

32. The County now says that it anticipates adopting the

100-year, 24-hour storm definition through its LDRs. But any

such definition, if actually adopted in the LDRs, would be

subject to change outside the statutory plan amendment process.

33. While adoption of a Plan amendment to define closed

basins for purposes of a Lake Jackson SDZ exception by reference

to a 100-year, 24-hour storm event would be a clearer and more

conservative definition, it would not necessarily be the most

appropriate definition because it would not take into account

antecedent and subsequent rainfall conditions, or the cumulative

effect of smaller events. The evidence was clear that areas

meeting a 100-year, 24-hour storm definition of "closed basin"

would discharge to the Lake Jackson Drainage Basin and

ultimately to Lake Jackson due to the cumulative effect of

various combinations of lesser rainfall events. Arbor's own

expert witness, Dr. Seereeram, described the importance of

determining the antecedent conditions on the ground, as well as

antecedent rainfall conditions, and explained that the highest

recorded level for Lake Jackson in 1966 was attributable to a

100-year, three-year rainfall event. For this reason,

Dr. Seereeram has been preaching to regulators not to use the

100-year, 24-hour storm event for modeling big land-locked lakes

like Lake Jackson, but rather what they "need to do is run

continuous simulation models."

34. Due to the concerns expressed by Dr. Seereeram and the

other experts, if closed basins for purposes of the Lake Jackson

SDZ exemption are defined by reference to a 100-year, 24-hour

storm event, instead of a continuous simulation model, the

definition also should include an appropriate recovery time

requirement. For example, there was evidence that the County's

LDRs have included a requirement that stormwater retention

facilities must be designed so as to recover their volume

capacity within 14 days. This would help to account better for

antecedent and subsequent rainfall conditions, and the

cumulative effect of smaller events.

Insufficient Analysis

35. The County and Arbor take the position that the Plan

Amendments are supported by data and analysis indicating that

only a relatively small area with the Lake Jackson Drainage

Basin that would be affected by a closed basin exception.

However, the County's analysis was based on a 100-year, 24-hour

storm definition. As indicated, the Plan as amended does not

include this definition. Also, as indicated, it is not clear

whether the analysis assumed build-out of the PUD. Without a

clear and appropriate definition of closed basins for purposes

of the Lake Jackson SDZ exception, the County's analysis fails

to support the Plan Amendments at issue.

36. Even assuming a clear and appropriate closed basin

definition in the Plan, the County's analysis would not be

complete for two reasons. First, it failed to identify some

basins that should have been analyzed. Second, it assumed that

groundwater and other data and analysis pertaining to the

Summerfield site was a valid proxy for all identified (and

unidentified) closed basins in the Lake Jackson SDZs.

(i) Closed Basins in Lake Jackson SDZs

37. Ultimately, through the evidence presented at the

final hearing, the County attempted to demonstrate the limited

number of closed basins in the Lake Jackson SDZs through

analysis of Light Detection and Ranging (LIDAR) data, which was

used to produce a Digital Elevation Model (DEM). The model

results were further analyzed by identifying resulting basins at

least two feet deep. The County took the position that, using

this analysis, there were 16 "closed basins" within the Lake

Jackson Drainage Basin, of which seven were within the Lake

Jackson SDZs. Of those seven, the County determined that only

three--named Kane, Old Bainbridge Road, and Perkins Road--retain

development potential and would not discharge in a 100-year, 24-

hour storm. Kane lies entirely within the Summerfield site,

while roughly the southwestern half of the Old Bainbridge Road

basin (the half southwest of Old Bainbridge Road) is within the

Summerfield site.

38. Using this analysis, the County further determined

that those three "closed basins" comprised 40.7 of the 2,221

acres of land in the Lake Jackson Zone A SDZ (1.8 percent) and

37.2 of the 1,204 acres of land in the Lake Jackson Zone B SDZ

(3.1 percent). Since the Lake Jackson Zone B SDZ allows up to

50 percent disturbance, the County's analysis was that only 18.6

acres of the 1,204 acres of land in Lake Jackson Zone B (1.5

percent) would be affected by the Plan Amendments.

39. Mr. Endries, an expert witness for the Kowal

Intervenors, was able to further analyze the LIDAR data using an

ArcView program also available to the County and identify

numerous closed depressions two or more feet deep not identified

or analyzed by the County. One was approximately 272 feet

across. Mr. Macmillan, another expert witness for the Kowal

Intervenors, identified more closed depressions not analyzed by

the County using the U.S. Geological Survey document titled,

“Hydrologic Significance of 1966 Flood Levels at Lake Jackson

Near Tallahassee, Florida.” At least two of those closed

depressions identified by Mr. Macmillan are located within the

Lake Jackson SDZs and outside of the floodplain. Mr. Macmillan

also testified that existing development is minimal-to-none in

most of the closed depressions identified by Mr. Endries north

of the lake, which means that development possibly could occur

in such areas in the future.

40. For these reasons, to the extent that the closed basin

definition used in the County's analysis is not appropriate,

more surface water discharges to Lake Jackson than assumed in

the County's analysis. In addition, the County's analysis of

possible harm to the water quality of Lake Jackson by

groundwater flow to Lake Jackson was deficient.

(ii) Lake Jackson SDZs Not Just For Stormwater

41. The County and Arbor also take the position that,

because Policy 2.3.1 [C] designates Lake Jackson SDZs "that

restrict activities that impact the quality of stormwater," the

Lake Jackson SDZs do not address groundwater or any other

comprehensive plan concerns. For several reasons, this position

is rejected.

42. First, the location of the Lake Jackson SDZs in Policy

2.2.12 [C] of the 1991 Plan requires that they be read in

context with the goal and the objective of the companion

policies, which are not limited to stormwater.

43. Second, Rule 9J-5.003(123) defines "stormwater" as

"the flow of water which results from a rainfall event." It is

clear that some of the runoff from a rainfall event leaves a

natural closed basin via percolation into the ground. For this

reason, the flow of groundwater beneath a closed basin can be

considered part of "the flow of water which results from a

rainfall event."

44. Third, contrary to the arguments of Arbor and the

County that the sole purpose of the Lake Jackson SDZs is to

establish "filter strips" of vegetation around the edges of the

lake, restricting development and impervious surface in other

parts of the Lake Jackson SDZs not only preserves more of the

capacity of the SDZs to hold surface water runoff from rainfall

events but also preserves vegetation that helps remove nutrients

such as nitrogen and phosphorus--contaminants particularly

detrimental to water bodies like Lake Jackson--before they reach

the groundwater. The County and Arbor base their argument on

Policy 2.3.4 [C], which provides for a vegetated buffer zone

around the lake edge. But that policy does not reference either

closed basins or SDZs, is not under the same objective as Policy

2.2.12 [C] on SDZs, and does not mean that the SDZs only apply

to those areas that are contiguous to Lake Jackson.

45. Finally, there are other ancillary benefits beyond

stormwater quality derived from the Lake Jackson SDZs, including

the furtherance of policies in the Plan protecting wildlife and

groundwater.

(iii) Summerfield Groundwater Analysis

46. Besides the possibility of a surface water connection

during certain rainfall conditions (depending on the closed

basin definition used), groundwater also can flow to Lake

Jackson from closed basins. As indicated, this could occur

either from a direct groundwater discharge to the lake, or when

groundwater from a closed basin surfaces outside the closed

basin and becomes surface water that can flow to the lake.

Under any definition of closed basin, water retained in a closed

basin can percolate into the soil and become groundwater. In

the vicinity of Lake Jackson, groundwater typically would

percolate into the Miccosukee formation, a layer of silty sands

and clayey sands overlying the Torreya formation. The Torreya

formation consists of very dense clay that acts like a sheet of

plastic. It is nearly impermeable when it is intact. Due to

the clays in the Miccosukee formation and especially the Torreya

formation, horizontal flow of groundwater in the surficial

aquifer is faster than vertical flow by approximately an order

of magnitude (approximately ten feet per day versus one foot per

day). Hydraulic head is an important consideration in

determining the direction and rate of groundwater flow.

Generally, groundwater flows from higher to lower water levels

and moves faster the greater the difference in water levels.

Groundwater can flow laterally under a road such as U.S.

Highway 27. For these reasons, although a closed basin may not

"pop-off," it can be connected via the sand layer to Lake

Jackson, either directly or indirectly.

47. Arbor's analysis of groundwater flow to Lake Jackson

focused on the Summerfield site. There was some evidence

suggesting that groundwater levels in the surficial aquifer on

the Summerfield site are lower than the water level of Lake

Jackson, which would indicate groundwater flow from Summerfield

away from the lake. However, the data available for making such

a determination was limited and less-than-ideal--seven core

borings on the Summerfield site that were not well-correlated to

the water level of Lake Jackson at the time, and a LIDAR map of

data from a single day in 2003 or 2004 when the level of the

surficial aquifer at the site was below the bottoms of the

closed depressions on the site and undetectable.

48. In any event, Arbor's analysis then assumed

groundwater flow from the Summerfield site towards Lake Jackson

at the conservative rate of 10-12 feet per day. At that rate,

groundwater from the two closed depressions on the site, which

are approximately 180 feet and 600 feet from the lake, would

reach the lake in approximately 18 and 60 days, respectively.

The analysis then demonstrated the unlikelihood of contamination

of Lake Jackson from any of the likely pollutants from a

residential development at Summerfield (mainly hydrocarbon in

oil and grease from automobiles, nutrients from fertilizer,

pesticides, and some heavy metals) due to the attenuation of the

contaminants, which would travel more slowly through the soils

than groundwater, before reaching the lake.

49. Arbor's analysis was that it was even less likely that

contaminants from the other closed basins identified by the

County in its analysis as being in the Lake Jackson SDZs and

still potentially developable would reach the lake via direct

groundwater flow, since they were farther from the lake.

However, this analysis did not expressly address the possibility

of groundwater flow from those closed basins emerging from the

ground and mingling with surface water.

50. As indicated, the evidence presented by the County and

Arbor did not analyze land already developed within the Lake

Jackson SDZs. However, since the Lake Jackson SDZ restrictions

apply to redevelopment, eliminating them for closed basins would

allow redevelopment in closed basins in the Lake Jackson SDZs

without regard to the SDZ restrictions.

51. In addition, Arbor's analysis did not address any

other potential closed basins around Lake Jackson. The evidence

indicated that some ponds around Lake Jackson are higher in

elevation than the lake, and groundwater from those closed

depressions normally would drain towards the lake. As

indicated, the rate of groundwater flow would depend on the

hydraulic gradient. During times of increased rainfall, the

water level in the ponds surrounding Lake Jackson will be even

higher, and the Miccosukee formation will become saturated,

leading to a greater hydraulic head and faster migration of

groundwater to the lake. The possibility of contamination from

groundwater from these other potential closed basins was not

analyzed.

52. These questions only can be answered through a

complete and thorough analysis of all closed basins and

potential closed basins--similar to the way the County analyzed

all parcels to be affected by the establishment of SDZs in the

Lake Lafayette watershed in 2002.

(iv) Habitat for Flora and Fauna

53. Other policies under Objective 2.2 [C] cover

floodplains, inter-basin transfer of water, wetland and lake

function, and other conservation issues. Some of these issues

are broad enough to include habitat for flora and fauna-- e.g. ,

in connection with protection and conservation of wetland and

lake function.

54. The Plan Amendments are to provisions that do not

specifically address wildlife and fish and their habitat.

However, the Plan Amendments nonetheless could have an impact on

fish and wildlife, which in turn can impact water quality in the

lake. This was not raised as an issue by DCA, but was addressed

in the evidence presented by the Kowal Intervenors, who did

raise the issue.

55. Reptiles, amphibians, birds, and mammals, including

some listed and endangered species, use Lake Jackson and the

wetlands and uplands surrounding it. These include seven

species of freshwater turtles, four species of snakes,

alligators, and amphibians, including multiple species of frogs.

56. There is much movement of these wildlife species back

and forth between and among Lake Jackson and the wetlands and

uplands surrounding the lake for a distance of up to two

kilometers from the lake. Many of the wetlands and uplands used

by Lake Jackson's wildlife species, and the connections between

them, are located within the SDZs. The SDZs also include some

"fishless" areas where amphibians can breed.

57. For example, turtles are semi-aquatic and leave the

water to lay their eggs in the uplands around the lake. Frogs

also migrate between these uplands and wetlands and the lake.

Leopard frogs, for example, forage in the uplands around the

lake and then return to the lake. Parts of the Summerfield site

are used for breeding by the barking tree frog and the spadefoot

toad. Thousands of tree frogs have migrated off the Summerfield

site toward the Lake in a single documented event.

58. The terrestrial connections between the areas used by

some of these animals are critical to them because they must use

these different habitats either seasonally or at other times for

their life-cycle requirements and have to move over land in

order to utilize them and for dispersal. If the terrestrial

connections are eliminated, and these animals are restricted to

just one area of their life-cycle, they cannot survive.

59. All of these animals are important to the function of

the Lake Jackson ecosystem because they are part of the overall

food web of the lake. A food web is all of the connections

between species that feed on each other. All of these animals

moving back and forth among the uplands and wetlands around the

lake contribute to the biomass of the lake, which is a measure

of the food web and productivity of the lake. For example,

turtles in the U.S. Highway 27 area of Lake Jackson alone

accounted for approximately 12 tons of biomass over a time

period of six years. This is an indication that Lake Jackson is

a very productive system.

60. If the SDZ disturbance criteria are removed, it could

impact the forage, reproduction, and survival of some of the

wildlife of Lake Jackson. The loss of wildlife can affect the

functioning of the Lake Jackson ecosystem. For example, one

species of turtle, the Florida cooter, eats filamentous algae

and as a group eat tons of algae, which is a benefit to the

Lake. These turtles need the connection between the lake and

the uplands to survive, including areas that are SDZs subject to

the Plan Amendments. A loss of species diversity would simplify

the complex food web of the lake, which could adversely affect

the function of wetlands and the Lake.

61. Arbor presented evidence that Summerfield's wildlife

habitat is relatively degraded and unimportant due to its

history of being used for cattle grazing. However, as

indicated, it still is used by Lake Jackson's wildlife.

62. Since the evidence presented by Arbor and the County

focused on Summerfield, there was no analysis of other potential

closed basins.

Plan's Other Lake Jackson Protections

And Internal Consistency

63. The County and Arbor take the position that other

provisions of the Plan adequately protect Lake Jackson even if

the SDZ criteria are not applied in closed basins in the Lake

Jackson SDZs. DCA and the Kowal Intervenors take the position

that, to the contrary, the Plan Amendments are inconsistent with

many of the same Plan provisions.

64. The Plan contains a number of goals, objectives, and

policies that function in conjunction with the Lake Jackson SDZs

to protect and restore Lake Jackson, in accordance with

statutory and rule requirements.

65. The goal of the Conservation Element is to

"[p]reserve, protect and conserve the ecological value and

diversity of natural resources in Tallahassee and Leon County."

66. Policy 1.1.1 [C] requires that a natural resources

inventory be conducted on a site before any development or

rezoning occurs.

67. Policy 1.3.2 [C] protects conservation areas such as

floodplains, closed basins, significant grades, and active karst

features. Policy 1.3.2.d [C] (County Only) allows development

in closed basins to the extent that there is sufficient

stormwater capacity within the basin. It also states that

"[d]evelopment will be permitted reflective of the density

allowed by the existing land use category."

68. Policy 1.3.6 [C] protects preservation areas such as

wetlands, water bodies, severe grades, and native forests.

Wetlands, floodways, and flood plains are also protected by

Policy 1.1.1 [SM] (designating the Stormwater Sub-element of the

Utilities Element of the Plan), which requires that those

features be maintained in their natural state.

69. Objective 2.1 [C] requires the County and City to

"coordinate the various elements of their overall stormwater

program through a unified plan to ensure the efficient and

effective provisions of stormwater regulations, enforcement,

planning, maintenance, operations, and capital improvements."

70. Policy 2.2.1 [C] is to: "Protect and conserve the

natural function of wetlands by limiting wetland destruction and

adverse impacts."

71. Policy 2.2.4 [C] is to: "Require additional

restrictions in drainage basins that have been identified

through scientific studies as having significant surface water

degradation as defined by declining surface water systems, loss

of aquatic plant and animal species, and an increase in the

level of the parameters that define polluted water."

72. Policy 2.2.5 [C] provides that "development in closed

basins will be permitted only to the extent there is sufficient

stormwater capacity within the basin." It also addresses the

conditions under which inter-basin transfer of water will be

permitted.

73. Policy 2.3.4 [C] requires "a natural vegetation zone

around the lake edge that severely limits clearing and is

sufficient in size to help buffer the lake against runoff and

provide aquatic vegetation for habitat."

74. Objective 3.1 [C] is to "[p]rotect and enhance

populations of endangered, threatened and species of special

concern listed by Leon County and the Florida Game and Fresh

Water Fish Commission, and their habitat so there is no loss of

wildlife species . . . ."

75. Policy 4.2.3 [C] restricts incompatible land uses near

active karst features, which not defined in the Plan, and

prohibits untreated stormwater from entering those features. It

states: "Incompatible land uses are uses that use, produce, or

generate as a waste any listed Resource Conservation and

Recovery Act material or Environmental Protection Agency

priority pollutant."

76. It is found that the foregoing Plan provisions, taken

together, do not make the Lake Jackson SDZ criteria redundant or

superfluous in closed basins. To the contrary, the Plan

provided more protection for Lake Jackson before the Plan

Amendments.

77. At the same time, DCA and the Kowal Intervenors did

not prove beyond fair debate that the Plan Amendments are

inconsistent with any of the foregoing Plan provisions, either

individually or taken together. See § 163.3177(2), Fla. Stat.;

Fla. Admin. Code R. 9J-5.005(5).

Other Statutory and Rule Compliance Criteria

78. Section 163.3177(8), Florida Statutes, states: "All

elements of the comprehensive plan . . . shall be based upon

data appropriate to the element." The implementing rule states:

All goals, objectives, policies, standards,

findings and conclusions within the

comprehensive plan and its support

documents, and within plan amendments and

their support documents, shall be based upon

relevant and appropriate data and the

analysis applicable to each element. To be

based on data means to react to it in an

appropriate way and to the extent necessary

indicated by the data available on that

particular subject at the time of adoption

of the plan or plan amendment at issue.

Fla. Admin. Code R. 9J-5.005(2)(a).

79. It is found that, due to the great importance of Lake

Jackson as a natural resource, the data and analysis were

insufficient to support the Plan Amendments, which do not react

appropriately to the data and analysis. More analysis is

required before it is can be determined that the benefits of the

Lake Jackson SDZs should be eliminated in closed basins. First,

as indicated, the definition of closed basin in the Plan's

Glossary would include basins with an artificial outlet for

runoff into the greater Lake Jackson Drainage Basin. Any other

definition of closed basin not in the Plan, including the 100-

year, 24-hour storm event definition the County indicates it

intends to adopt through its LDRs, would be subject to change

outside the statutory plan amendment process. Even assuming

that such a definition were in the Plan, the data and analysis

suggest that such a definition would not be the most appropriate

definition to use in the interest of Lake Jackson's water

quality. Rather, the definition should specify that it would be

applied post-development and that it should be based on a

continuous simulation model, or at least include an appropriate

recovery time requirement, to account for antecedent and

subsequent rainfall and the cumulative effect of smaller rain

events. Until such an appropriate definition is adopted as part

of the Plan, and the closed basins identified and evaluated, it

cannot be determined that eliminating the SDZs in closed basins

will not harm Lake Jackson, including possible harm from effects

on groundwater beneath the closed basins and from effects on

wildlife using the closed basins. For these reasons, the Plan

Amendments do not react appropriately to the data and analysis.

80. State law requires local governments to include a

conservation element in their comprehensive plans "for

conservation, use, and protection of natural resources in the

area, including air, water, water recharge areas, wetlands,

waterwells, estuarine marshes, soils, beaches, shores, flood

plains, rivers, bays, lakes, harbors, forests, fisheries and

wildlife, marine habitat, minerals, and other natural and

environmental resources." § 163.3177(6)(d), Fla. Stat. The

conservation element must have policies for: "Protection and

conservation of the natural functions of existing soils,

fisheries, wildlife habitats, rivers, bays, lakes, floodplains,

harbors, wetlands including estuarine marshes, freshwater

beaches and shores, and marine habitats" Fla. Admin. Code R.

9J-5.013(2)(c)6. Rule Chapter 9J-5 reinforces this requirement

by requiring: future land use objectives to "[e]nsure the

protection of natural resources” (Fla. Admin. Code R. 9J-

5.006(3)(b)4.); future land use policies for "[p]rotection . . .

of environmentally sensitive lands" (Fla. Admin. Code R. 9J-

5.006(3)(b)6.; and conservation element objectives to conserve

native vegetative communities, fisheries, and wildlife habitat

(Fla. Admin. Code R. 9J-5.013(2)(b)3.- 4.).

81. By a preponderance of the evidence, it is found that

the Plan, as amended, would be inconsistent with the foregoing

statutes and rules in that the data and analysis were

insufficient to determine that the Plan, as amended, would

adequately protect Lake Jackson. Given the data and analysis,

the Plan Amendments do not react appropriately.

82. Local governments are also required to include in

their comprehensive plans a "general sanitary sewer, solid

waste, drainage, potable water, and natural groundwater aquifer

recharge element correlated to principles and guidelines for

future land use, indicating ways to provide for future potable

water, drainage, sanitary sewer, solid waste, and aquifer

recharge protection requirements for the area."

§ 163.3177(6)(c), Fla. Stat. The future land use element must

have policies for: "Provision for drainage and stormwater

management . . . ." Fla. Admin. Code R. 9J-5.006(3)(c)4.

Furthermore, comprehensive plans must have an element for

sanitary sewer, solid waste, stormwater management, potable

water and natural groundwater aquifer recharge with objectives

that "address protecting the functions of natural groundwater

recharge areas and natural drainage features" and policies

"[r]egulating land use and development to protect the functions

of natural drainage features . . . ." Fla. Admin. Code R. 9J-

the evidence that the Plan Amendments would be inconsistent with

any of those provisions.

83. The evidence was that the Plan Amendments were

inconsistent with the State Comprehensive Plan to the extent

that it was inconsistent with other statutory and rule

compliance criteria.

84. No evidence was presented to prove inconsistency with

the Strategic Regional Policy Plan.

CONCLUSIONS OF LAW

85. All parties are affected persons with standing to

participate in this proceeding pursuant to Section

163.3184(1)(a), Florida Statutes.

Consistency with the 1991 Compliance Agreement

86. In their petitions, both DCA and the Kowal Intervenors

asserted that the Plan Amendments were not consistent with the

1991 Stipulated Settlement Agreement entered into by the County

and DCA. But DCA conceded at hearing, and the Kowal Intervenors

also agreed in their PRO, that consistency with an earlier

settlement or compliance agreement is not one of the compliance

criteria identified in Section 163.3184(1)(b), Florida Statutes.

See Melzer, et al. v. Martin County, et al. , DOAH Case Nos. 02-

1014GM and 02-1015GM, 2003 Fla. ENV LEXIS 147 (DCA Oct. 24,

2003); 2003 Fla. ENV LEXIS 149, at *96-97 (DOAH July 1, 2003).

87. With certain exceptions not applicable to this

proceeding, DCA reviews local government comprehensive plan

amendments to determine whether they are “in compliance.” That

term is defined in Section 163.3184(1)(b), Florida Statutes, as

follows:

"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 areas of

critical state concern and with part III of

chapter 369, where applicable.

Burden of Proof

88. A determination by DCA that a local government's plan

amendment is not "in compliance" results in administrative

proceedings conducted pursuant to Section 163.3184(10), Florida

Statutes. The standard of review in such proceedings has been

established by statute and differs somewhat from the de novo

review that is the norm in most administrative hearings. In a

Section 163.3184(10) proceeding,

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

comprehensive 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.

"The fairly debatable standard of review is a highly deferential

standard requiring approval of a planning action if reasonable

persons could differ as to its propriety." Martin v. Yusem , 690

So. 2d 1288, 1295 (Fla. 1997). If the internal consistency of

an amendment with other provisions within a comprehensive plan

is open to dispute on logical grounds, the County’s

determination that the amendment does not create an internal

inconsistency within the comprehensive plan must prevail.

See Hussey, et al. v. Collier County, et al. , DOAH Case Nos. 02-

3795GM and 02-3796GM, Recommended Order, 2003 Fla. Div. Adm.

Hear. LEXIS 304, at *56 (DCA Jul. 22, 2003; DOAH Apr. 29, 2003),

quoting Yusem at 1295. See also Martin County v. Section 28

Partnership Ltd. , 772 So. 2d 616, 621 (Fla. 4th DCA 2000) (if

there is "evidence in support of both sides of a comprehensive

plan amendment, it is difficult to determine that the County’s

decision was anything but ‘fairly debatable"). Also, the

creation of an exemption or waiver of a general rule within a

comprehensive plan generally does not create an internal

inconsistency. Melzer , supra , 2003 Fla. EV LEXIS 149, at *94.

A plan amendment creates an internal inconsistency only when it

conflicts with other provisions in the comprehensive plan.

Internal Consistency

89. As found, other provisions in the Plan that are

designed to protect natural resources both in the Lake Jackson

basin and more generally throughout the County remain in effect

and can be implemented without conflicting with other provisions

as a result of the Plan Amendments at issue here. For that

reason, it was not proven beyond fair debate that the Plan

Amendments create internal inconsistencies.

Data and Analysis

90. On the other hand, as found, DCA and the Kowal

Intervenors were able to prove by a preponderance of the

evidence that the Plan Amendments are not supported by “relevant

and appropriate data.” This is not because data was not

submitted to DCA or considered at the time of adoption, neither

of which is required, so long as the data was available to the

County at the time of adoption. See Runyan, et al. v. Dept. of

Community Affairs, et al. , DOAH Case No. 07-2239GM, Recommended

Order, 2007 Fla. Div. Adm. Hear. LEXIS 547, at *24-25 (DOAH

Oct. 5, 2007), citing Zemel v. Lee County, et al. , DOAH Case No.

90-7793GM, 1992 Fla. Div. Adm. Hear. LEXIS 5927, at *71-76 (DCA

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

also is not because the County did not collect enough data.

Both Section 163.3177(10)(e) and Rule 9J-5.005(2)(b) expressly

state that Chapter 9J-5 cannot "be construed to require original

data collection by local governments . . . ." In addition, Rule

9J-5.005(2)(c) provides that, unless a local government elects

to collect new data, the data relied upon in support of a plan

amendment must be “the best available existing data . . . ."

Rather, it is because the Plan Amendments do not react

appropriately to the best data available at the time of adoption

and to the analyses of the data presented through the time of

the final hearing. See Fla. Admin. Code R. 9J-5.005(2)(a). See

also Zemel , supra .

Other Compliance Criteria

91. DCA and the Kowal Intervenors also alleged that the

amendment was not in compliance with Section 163.3177(6)(d),

Florida Statutes, and a number of provisions in Rule Chapter 9J-

5. As found, DCA and Kowal proved, by a preponderance of the

evidence, that the Plan Amendments are not consistent with the

statute and several of these provisions because the data and

analysis were insufficient to determine that the Plan, as

amended, would adequately protect Lake Jackson, notwithstanding

other provisions in the Conservation Element of the County's

Plan that provide protection for Lake Jackson, because the Plan

Amendments may eliminate necessary protections for the lake.

(Contrary to the contention of the Kowal Intervenors, the Plan

Amendments are not inconsistent with the definition of

"stormwater" set forth in Rule 9J-5.003(123).

92. DCA and the Kowal Intervenors also asserted that the

Plan Amendments are inconsistent with both the State

Comprehensive Plan and the applicable regional policy plan. For

purposes of determining consistency between a comprehensive plan

and both the state and regional plans, Section 163.3177(10)(a)

provides the following guidance:

[F]or the purpose of determining whether

local comprehensive plans are consistent

with the state comprehensive plan and the

appropriate regional policy plan, a local

plan shall be consistent with such plans if

the local plan is "compatible with" and

"furthers" such plans. The term "compatible

with" means that the local plan is not in

conflict with the state comprehensive plan

or appropriate regional policy plan. The

term "furthers" means to take action in the

direction of realizing goals or policies of

the state or regional plan. For the

purposes of determining consistency of the

local plan with the state comprehensive plan

or the appropriate regional policy plan, the

state or regional plan shall be construed as

a whole and no specific goal and policy

shall be construed or applied in isolation

from the other goals and policies.

93. Both the State Comprehensive Plan and regional policy

plans establish general goals and policy rather than the type of

minimum criteria that are set forth in Chapter 9J-5. As a

consequence, before a comprehensive plan amendment could be

found inconsistent with either the State or a regional plan,

careful consideration would have to be given to the entirety of

those more general plans, as well as to the entirety of the

local comprehensive plan. See Recommended Order, DCA v. City of

Groveland, et al. , DOAH Case No. 04-3651GM (DOAH Nov. 25,

2005)(DCA petition dismissed after Recommended Order), at 39.

In addition, many of the provisions of the

State Comprehensive Plan and its agencies

apply to the State of Florida and its

agencies in planning on the state level, as

opposed to local governments. Rarely, if

ever, will a local plan violate the State

Comprehensive Plan if it does not also

violate the applicable Rule Chapter 9J-5

"minimum criteria."

Id. As found and concluded, the Plan Amendments are

inconsistent with Section 163.3177(6)(d), Florida Statutes, and

some Rule Chapter 9J-5 provisions. Based on those findings and

conclusions, it is concluded that the Plan Amendments also are

inconsistent with Section 187.201(9)(a) and (b)1. and 7.,

Florida Statutes. The evidence did not prove inconsistency with

the Strategic Regional Policy Plan.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Administration Commission find

the Plan Amendments to be not "in compliance."

DONE AND RECOMMENDED this 13th day of March, 2008, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of March, 2008.

ENDNOTES

1 / Unless otherwise indicated, all statute citations are to the

2007 Florida Statutes.

2 / The Notice of Intent also gave notice of DCA's intent to find

not in compliance a plan amendment jointly adopted by the County

and the City of Tallahassee relating to the five-year schedule

of capital improvements. By Order dated November 19, 2007, that

portion of the case was severed, and the hearing proceeded

solely on the sufficiency of Plan Amendment 2007-1-T-015.

3 / Although DCA Exhibits 25 and 26 are in evidence, consistency

with the 1991 Stipulated Settlement Agreement is not a

compliance criterion under Section 163.3184(1)(b), Florida

Statutes.

4 / NAVD stands for the North American Vertical Datum of 1988.

It standardized vertical data on the North American continent by

accounting for differences in mean sea level in different

locations, unlike vertical data using the former National

Geodetic Vertical Datum of 1929 (NGVD). The adjustment for NGVD

data at Lake Jackson is 0.37 feet-- i.e. , 0.37 feet are

subtracted from NGVD data at Lake Jackson to convert to NAVD.

5 / This policy was revised in 1995, and the evidence is not

clear precisely what the 1995 revision was.

6 / The Kowal Intervenors added the allegations regarding natural

resources, which were not alleged by DCA.

7 / Rule citations are to the current version of the Florida

Administrative Code, unless otherwise indicated.

8 / The County identified the Lakeside development, located

directly north of the Summerfield site, as having a closed basin

for purposes of the Lake Jackson SDZs. It is not clear how the

County made this determination. In any event, the entirety of

the Lakeside development actually was developed within the

development limitations set out in the Lake Jackson SDZs.

COPIES FURNISHED :

Barbara Leighty, Clerk

Growth Management & Strategic

Planning

The Capitol, Room 1801

Tallahassee, Florida 32399-0001

Jason Gonzalez, General Counsel

Office of the Governor

The Capitol, Suite 209

Tallahassee, Florida 32399-0001

James R. English, Esquire

City of Tallahassee

300 South Adams Street, Suite A5

Tallahassee, Florida 32301-1731

Herbert W. A. Thiele, Esquire

Leon County Attorney's Office

301 South Monroe Street, Room 202

Tallahassee, Florida 32301-1803

Martha Harrell Chumbler, Esquire

Carlton Fields, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302-0190

Terrell K. Arline, Esquire

525 Bunkers Cove Road

Panama City, Florida 32401-3915

William B. Graham, Esquire

Carr Allison

305 South Gadsden Street

Tallahassee, Florida 32301-1811

Lynette Norr, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.