08-002451GM Izaak Walton Investors, Llc vs. Town Of Yankeetown And Department Of Community Affairs Status: Closed Recommended Order on Friday, October 30, 2009.

Summary: Landowner failed to prove beyond fair debate that the Revised Yankeetown Comprehensive Plan was not "in compliance."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IZAAK WALTON INVESTORS, LLC, )

)

Petitioner, )

)

vs. ) Case Nos. 08-2451GM

) 08-2473GM

TOWN OF YANKEETOWN and )

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondents. )

)

RECOMMENDED ORDER

On August 10-12, 2009, an administrative hearing was held in

Inglis, Florida, before J. Lawrence Johnston, Administrative Law

Judge, Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner Izaak Walton Investors, LLC:

Thomas C. Jennings, III, Esquire

Repka & Jennings, P.A.

711 Pinellas Street

Clearwater, Florida 33756-3426

For Respondent Department of Community Affairs:

David L. Jordan, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Respondent Town of Yankeetown:

Ralf G. Brookes, Esquire

Town of Yankeetown

Post Office Box 280

Yankeetown, Florida 34498

STATEMENT OF THE ISSUE

The issue in this case is whether Town of Yankeetown (Town)

plan amendment 08-01 (adopted by Ordinance 2007-10) and plan

amendment 08-CIE1 (adopted by Ordinance 2008-03), as modified by

remedial amendment 09-R1 (adopted by Ordinance 2009-02)

(together, referred to as the Plan Amendments or the Revised

Comprehensive Plan), are "in compliance" as defined in Section

163.3184(1)(b), Florida Statutes (2009). 1

PRELIMINARY STATEMENT

On February 28, 2008, the Town enacted Ordinance 08-03,

adopting plan amendment 08-CIE1 (amending the Capital

Improvements Element, Chapter 8 of the Comprehensive Plan). On

March 10, 2008, the Town enacted Ordinance 2007-10, adopting plan

amendment 08-01 (amending other elements of the Comprehensive

Plan).

On April 28, 2008, the Department of Community Affairs (DCA

or Department) issued a Notice of Intent to find plan amendment

08-CIE1 not "in compliance"; and on May 1, 2008, DCA issued a

Notice of Intent to find plan amendment 08-01 not "in

compliance."

The two notices of intent were referred to DOAH and

consolidated. Izaak Walton Investors, LLC (IWI or Petitioner),

was granted leave to intervene, and the case was placed in

abeyance while the parties attempted to settle.

DCA and the Town entered into a Compliance Agreement which

was filed with DOAH on January 27, 2009, and contained additional

supporting data and analysis and an agreed remedial plan

amendment.

On March 23, 2009, the Town enacted Ordinance 2009-02,

adopting the remedial amendment 09-R1.

On April 27, 2009, DCA published a Cumulative Notice of

Intent to find amendment 08-CIE1 and 08-01, as modified by

remedial amendment 09-R1, "in compliance."

The Cumulative Notice of Intent was filed with DOAH on

May 29, 2009, and the parties were realigned as reflected in the

caption above. The case was scheduled for a final hearing in

Yankeetown on July 6-7, 2009, and re-scheduled for a final

hearing in Inglis on August 10-14, 2009. The parties filed a

Prehearing Stipulation on August 5, 2009.

At the final hearing, the parties had Joint Exhibits 1-7

admitted in evidence. 2 Petitioner called four witnesses:

James Sherwood, its managing member; Henry H. Fishkind, Ph.D., an

expert in econometrics and urban and regional economics;

Gail Easely, an expert in urban and regional planning; and

Randall L. Armstrong, an expert in water quality, septic systems,

stormwater, and dredge and fill. The Town called seven

witnesses: K. Marlene Conaway, an expert in comprehensive

planning; Norman E. Shannahan, a Town Council member;

Rebecca Jetton, an expert in comprehensive planning and land

development regulations and their implementation; Chris Fineout,

the Town's zoning official; Mark Hooks, an expert in onsite

treatment and disposal systems and water quality; James Nicholas,

Ph.D., an expert in urban and regional economics and planning and

land and development economics; and Lawrence E. Feldhusen, a Town

Council member. Petitioner recalled Gail Easely in rebuttal.

After presentation of evidence, Petitioner requested a

Transcript of the final hearing, and agreed requests to extend

the time for filing proposed recommended orders (PROs) until

October 12, 2009, were granted. The Petitioner's PRO (which

actually summarizes the testimony) and the Joint PRO filed by the

Department and the Town have been fully considered.

FINDINGS OF FACT

1. The Town is located in the southwest corner of Levy

County. The Town is bounded on the east by the Town of Inglis,

on the north by unincorporated Levy County, on the west by the

Gulf of Mexico, and on the south by the Withlacoochee River.

2. The Town has significant planning challenges due to its

geographic location. The maximum elevation in the Town is 10

feet, and the entire Town is located in the 100-year floodplain

and Coastal High Hazard Area (CHHA). The Town is located in a

rural area north of the banks of the Withlacoochee River and is

surrounded by wetlands and environmentally-sensitive land. The

Town is located at the end of County Road 40, and is separated

from the nearest intersection of major roads (State/County Road

40 and U.S. 19) by the Town of Inglis.

3. The Plan Amendments are a community-generated plan that

incorporates the results of an extensive community visioning

survey conducted by the Town and numerous public meetings that

exceeded the public participation requirements for plan

amendments contained in Florida Administrative Code Rule Chapter

9J-5 3 and Chapter 163, Florida Statutes. The Plan Amendments

resulted in a Revised Comprehensive Plan for the Town.

4. IWI is a legal entity that owns land within the Town and

submitted oral or written comments on the Plan Amendments during

the period of time beginning with the transmittal hearing for the

Plan Amendments and ending with the adoption of the Plan

Amendments. IWI contends that the Plan Amendments are not "in

compliance" for several reasons.

Population Projections and Need

5. In its pleadings, IWI contended that "[t]here is

inadequate data regarding projected population growth and the

infrastructure needed to support the projected population growth

for both the short term (five years) and the long term (horizon

of the plan)"; "[t]he Plan Amendment is not in compliance with

[Section] 163.3177(6)(a) Florida Statutes, by failing to provide

future land use categories that are based on need"; and "[t]he

Plan Amendment is not in compliance with the requirements of 9J-

5.006, Florida Administrative Code, demonstrating that future

land use is based on need." Prehearing Stipulation § 2.H., U.,

and GG. However, its expert planning witness, Gail Easely,

conceded that the data and analysis submitted by the Town was

adequate to demonstrate that the residential land uses in the

Revised Comprehensive Plan are based on need. IWI limited its

contention on this point to the alleged inadequacy of the data

and analysis to support the Revised Comprehensive Plan's new

Light Industrial land use and revised commercial land use

designations.

6. The Revised Comprehensive Plan designates the same areas

for commercial as the currently effective Comprehensive Plan,

with the exception of one parcel that was changed from commercial

to Light Industrial.

7. The Revised Comprehensive Plan designates the commercial

parcels near the Withlacoochee River as Commercial Water

Dependent and the other commercial parcels as Commercial

Neighborhood, totaling approximately 51 acres. Of the 51 acres

of commercially-designated land, approximately 26 acres are

currently developed and 25 acres are vacant and undeveloped. Of

the 26 developed commercial acres, 19 parcels are currently

developed and utilized as residential. There is no shortage of

land available for commercial development in the Town.

8. Inglis, a town located adjacent and to the east of

Yankeetown, and Levy County near Yankeetown provide "more than

adequate" existing commercial buildings on the market to serve

the residents of Yankeetown and surplus vacant commercially-

designated land to serve the future needs of Yankeetown. There

is no shortage of commercial potential near the Town.

9. The evidence was that it is acceptable for a local

government to plan for the future need for the availability of

commercial and industrial lands by maintaining the existing

proportionate of availability of land use categories.

Alternatively, it is acceptable to plan to mimic the proportions

found to exist in other communities. This is essentially how the

Town planned its allocation of commercial and industrial lands in

its Revised Comprehensive Plan.

10. IWI also contended that the intensity standards for

commercial and industrial land uses in the Revised Comprehensive

Plan unduly restrict commercial development.

11. The existing Comprehensive Plan did not have explicit

intensity standards and criteria for commercial land uses. After

extensive debate at numerous public hearings, the Revised

Comprehensive Plan established a floor/area ration (FAR) of 0.07,

which limits the size for each single structure to a maximum of

3,000 square feet. It also allows for multiple 3,000 square foot

structures on larger parcels in a "campus style" development.

12. These standards and criteria reflect the existing,

built environment of the Town and the Town's vision of itself.

Existing commercial buildings run from 960 square feet to 3,600

square feet. Although the existing Comprehensive Plan did not

have an FAR ratio, other standards--such as setbacks, square

footage required for on-site septic tanks, drainfields, and

parking, a 50 percent open space ratio, and a building height

restriction of 35 feet--restricted commercial development in a

manner similar to the Revised Comprehensive Plan.

13. Petitioner's expert economist, Dr. Fishkind, testified

that the restrictions on intensity of commercial land uses are

not financially feasible because not enough revenue can be

generated to make a profit, given the cost of land in Yankeetown.

His testimony was refuted by his University of Florida colleague,

Dr. James Nicholas, who was called as an expert economist for the

Town. Dr. Nicholas pointed out that there was some commercial

use in the Town and that economics would lower the cost of land

in the Town if it is too expensive to allow the kind of commerce

desired by the Town to make a reasonable profit. Businesses

requiring more space to make sufficient revenue could locate

outside the Town but close enough in Inglis or Levy County to

serve Yankeetown as well.

14. The character of the Town, its limited projected

population growth, and the availability of commercial development

nearby in Inglis and in Levy County all support the Town's

decision to limit the intensity of commercial land use, and to

maintain the existing amount of land available for commercial and

light industrial uses.

15. Rules 9J-5.006(1)(a)(3) and 9J-5.006 (4)(a)(3) require

the designation of some industrial lands, and the Revised

Comprehensive Plan changes the designation of six acres of land

located to the west of the intersection of County Roads 40 and

40-A from "Commercial" to "Light Industrial." Since industrial

uses are generally not compatible with residential uses, the

Light Industrial parcel is separated from residential parcels by

commercial. The Light Industrial parcel is allocated for more

intense commercial uses (such as fishing trap and boat storage)

or reserved for economic development of light industrial uses

that may wish to locate in Yankeetown, such as aquaculture.

16. The existing ratio of residential to commercial land is

adequate to supply the existing need as reflected by the existing

surplus, vacant, and unused commercial lands. The Plan

Amendments maintain residential lands and commercial lands in

their general designations with refinements to the categories.

The existing ratio and availability of vacant commercial land

indicate that there is no deficit in any category, and

maintaining the existing residential/commercial ratio preserves

the existing character of the Town.

Urban Service Area versus Urban Service Boundary

17. IWI contends that "[t]he Plan Amendment is not in

compliance with [Section] 163.3177(14), Florida Statutes, by

failing to ensure that the urban service boundary was

appropriately adopted and based on demonstrated need." This

contention has no merit.

18. Section 163.3177(14), Florida Statutes, encourages a

local government to adopt an "urban service boundary." If one is

adopted, there must be a demonstration "that the amount of land

within the urban service boundary does not exceed the amount of

land needed to accommodate the projected population growth at

densities consistent with the adopted comprehensive plan within

the 10-year planning timeframe." If a local government chooses

to adopt an "urban service boundary" under Section 163.3177(14)

and a community vision under Section 163.3177(13), Florida

Statutes, it may adopt plan amendments within the urban service

boundary without state or regional agency review. See

§ 163.3184(17), Fla. Stat.

19. The Revised Comprehensive Plan does not use the term

"urban service boundary," and the Town did not intend to adopt

one under Section 163.3177(14), Florida Statutes, nor did it seek

to avoid state and regional agency review of plan amendments

under Section 163.3184(17), Florida Statutes. Instead, as

explained on page 6 of the Revised Comprehensive Plan, it uses

the term "urban area" to designate an area allowed to receive

development rights from the sending area, namely the Residential

Environmentally Sensitive (formerly Conservation) land use

district.

20. The Revised Comprehensive Plan uses the term urban

service "area" (rather than "boundary") as the area located

generally between County Roads 40 and 40-A that can receive

development rights transferred from the Residential

Environmentally Sensitive land use district. This area is

depicted as "Urban Service Area Overlay Zones" Map 2008-02 of the

Future Land Use Map (FLUM) series to more clearly designate the

area on a larger scale than the FLUM map of the entire Town (Map

2008-05). The existing FLUM series also used the term "urban

area" to depict the transfer of development rights receiving

area.

Financial Feasibility and Capital Improvements

21. IWI’s expert, Dr. Henry Fishkind, testified that he ran

his Fiscal Impact Analysis Model for the Town and concluded that

the Revised Comprehensive Plan is not financially feasible

because the Town cannot generate sufficient operating revenue to

cover its operating costs without increasing property tax rates.

Dr. Fishkind was not asked to explain how his computer model

works, give any specific modeling results, or explain how he

reached his conclusion.

22. The Town's expert, Dr. James Nicholas, refuted his

University of Florida colleague's testimony on this point as

well. Essentially, Dr. Nicholas testified that a small and

unique community like Yankeetown can choose to limit its

operating costs by relying on volunteers and part-time employees.

In this way, it can operate on a bare-bones budget that would

starve a more typical and larger community. It also could choose

to increase property tax rates, if necessary.

23. Recent amendments to Chapter 163, Florida Statutes, in

Senate Bill 360, the "Community Renewal Act," which became

effective June 1, 2009, postponed and extended until December 1,

2011, the statutory requirement to maintain the financial

feasibility of the five-year capital improvements schedule (CIS)

for potable water, wastewater, drainage, parks, solid waste,

public schools, and water supply. However, the Town concurred

with Petitioner in requesting findings of fact and conclusions of

law on this issue in case Senate Bill 360 is struck down in a

pending constitutional challenge.

24. The Plan Amendments include a CIE (Chapter 8) with a

five-year CIS and a table to identify sources of revenue and

capital projects sufficient to achieve and maintain the adopted

levels of service, supported by data and analysis submitted with

the Remedial Amendments.

25. The Town's CIS five-year lists projects to achieve and

maintain the adopted level of service (LOS) standards and

identifies funding sources to pay for those projects. It

describes the projects and conservatively projects costs and

revenue sources. The CIS identifies revenue sources and capital

projects for which there are committed funds in the first three

years and identifies capital projects for which funds have not

yet been committed in year four or year five. CIS is adequate to

achieve and maintain the adopted level of service and is

financially feasible.

Stormwater and Drainage

26. A drainage LOS is adopted in Revised Comprehensive Plan

Policy 4.1.2.1, which states: "All new development and expansion

of existing residential development greater than 300 square feet

of additional impervious coverage shall meet requirements under

Chapter 62-25, F.A.C. for Outstanding Florida Waters." The

exemption of minor residential improvements of 300 square feet or

less is reasonable and does not violate Rule Chapter 9J-5 or

Chapter 163, Florida Statutes.

27. The Department's ability to require retrofitting for

existing drainage problems is limited by Rule Chapter 9J-

5.011(2)(c)5.b.i., which states that the Rule "shall not be

interpreted or applied to [m]andate that local governments

require existing facilities to be retrofitted to meet stormwater

discharge water quality standards or stormwater management level

of service standards." Nonetheless, the Town agreed in the

Compliance Agreement to adopt appropriate policies and provide

additional data and analysis on this issue.

28. Policy 4.1.2.13 requires that the "Established Storm

Water Drainage Committee shall monitor storm water facilities in

[the] town, oversee maintenance functions, and evaluate and

recommend capital improvements projects and funding sources." To

pay for stormwater capital improvement projects, Policy 4.1.2.14

in the Plan Amendments states: "Yankeetown shall adopt a storm

water utility fee ordinance and establish storm water utility

fees by December 31, 2009 to provide necessary funding for

capital improvements to the Town's storm water drainage

facilities and maintenance of storm water drainage facilities."

29. In accordance with the Compliance Agreement, the Town

modified CIS Table 1 by adding $120,000 to FY 2011-2012 (Year 5)

for the stormwater drainage improvement project and adding Note 5

to Table 1, which states: "Anticipated to be funded by a 75%/25%

matching grant from SWFWMD, DEP or DCA. The matching (town)

funds will be obtained from the proposed stormwater improvement

fund. If no grants can be obtained and the stormwater

improvement fund is not approved[,] the project will be funded

from the general fund reserves and long term loans." Because the

stormwater utility fee ordinance must still be adopted, and these

funds are not technically committed at the time of adoption of

the Plan Amendments, the stormwater capital improvement project

was placed in year 5 (2011-1012) of the CIS. As funding becomes

available and committed, the project may be moved to an earlier

year in required annual updates to the CIS.

30. Drainage also is addressed in new Objective 4.3.2 and

in new Policies 4.3.2.1. through 4.3.2.5. The Town has addressed

stormwater and drainage appropriately in the Revised

Comprehensive Plan.

Proportionate Share and Concurrency Management

31. Policy 4.1.2.6 in the Public Facilities Element states:

"The Town shall consider, and adopt as appropriate, a means to

ensure that new development shares proportionate responsibilities

in the provision of facilities and services to meet the needs of

that development and maintain adopted level of service

standards." Policy 8.1.3.4 in the CIE of the Revised

Comprehensive Plan states:

The Town shall consider, and adopt as

appropriate, a means to ensure that new

development shares a proportionate cost on a

pro rata basis in the provision of facilities

and services necessitated by that development

in order to maintain the Town’s adopted level

of service standards. Proportionate costs

shall be based upon, but not limited to:

1. Cost for extension of water

mains, including connection fees.

2. Costs for all circulation and

right-of-way related improvements

to accommodate the development for

local roads not maintained by Levy

County. Costs to maintain County

Road 40 and 40[-]A and any other

road within the town that are

maintained by Levy County shall be

governed by the Levy County

Proportionate Share Ordinance and

Yankeetown will continue to adopt

and ensure the level of service is

maintained [through] coordination

mechanisms between the two planning

departments.

3. Costs for drainage

improvements.

4. Costs for recreational

facilities, open space provision,

fire protection, police services,

and stormwater management.

32. Although the Town does not have any public facility

deficiencies, Rule Chapter 9J-5 requires that the CIE address

"[t]he extent to which future development will bear a

proportionate cost of facility improvements necessitated by the

development in order to adequately maintain adopted level of

service standards"; and include a policy that addresses programs

and activities for "[a]ssessing new developments a pro rata share

of the costs necessary to finance public facility improvements

necessitated by development in order to adequately maintain

adopted level of service standards . . . ." Fla. Admin. Code R.

9J-5.016(3)(b)4. and (c)8. Policy 8.1.3.4 meets this

requirement.

33. The statute forming the basis of IWI’s contentions

regarding proportionate fair share is Section 163.3180(16)(a),

Florida Statutes, which requires local governments "to adopt by

ordinance a methodology for assessing proportionate fair-share

mitigation options." The evidence was that the requirements of

this statute will be met by the Town's Proportionate Fair Share

Concurrency Management Ordinance, which had been drafted and

scheduled for adoption hearings at the time of the final hearing,

and which will implement Policy 8.1.3.4.

34. IWI did not present any evidence regarding the alleged

lack of a concurrency management system in the Revised

Comprehensive Plan and did not prove that the Revised

Comprehensive Plan fails to meet the requirements of Rule 9J-

5.055 for concurrency management.

35. The Town is exempt from maintaining school concurrency

requirements. Objective 8.1.3 and Policies 8.1.3.1 through

8.1.3.6 of the Revised Comprehensive Plan meet the requirements

of Rule 9J-5.055 for concurrency management.

36. Policy 8.1.3.6 states: "The Town shall evaluate public

facility demands by new development or redevelopment on a project

by project basis to assure that capital facilities are provided

concurrent with development."

37. Policy 8.1.3.3 states: "The Yankeetown Land

Development Code shall contain provisions to ensure that

development orders are not issued for development activities

which degrade the level of service below the adopted standard as

identified in each comprehensive plan element. Such provisions

may allow for provision of facilities and services in phases, so

long as such facilities and services are provided concurrent with

the impacts of development."

38. The Town has a checklist system to track the specific

impact of each development order on LOS concurrent with

development. As indicated, a Proportionate Fair Share and

Concurrency Management Ordinance had been drafted and scheduled

for adoption hearings.

Wastewater Treatment and Water Quality

39. The Town is located entirely within the 100-year

floodplain and coastal high hazard area. See Finding 2, supra .

This presents challenges for wastewater treatment. The adoption

of the Revised Comprehensive Plan followed public meetings and

workshops held with representatives of DCA, including

Richard Deadman, and expert Mark Hooks, formerly with the State

of Florida Department of Health and Rehabilitative Services and

now with the State of Florida Department of Health.

40. The Plan Amendments include Policy 8.1.3.1.1, which

states in part:

Due to the location of the town within the

100 year flood plain and within the Coastal

High Hazard Area (CHHA), there are no plans

to provide central wastewater treatment until

a regional system can be developed in

conjunction with the neighboring town of

Inglis and Levy County, and constructed

outside the Coastal High Hazard Area east of

U.S. Highway 19. In the interim period

before a regional central wastewater system

is available, the Town shall require in all

land use districts: a. Yankeetown shall

develop a strategy to participate in water

quality monitoring of the Withlacoochee

River; b. develop an educational program to

encourage inspection (and pump-out if needed)

of existing septic tanks; c. all new and

replacement septic tanks shall meet

performance based standards (10mg/l

nitrogen).

41. The Town's approach to wastewater treatment under the

circumstances is sound both economically and from planning

perspective and is sufficient to protect natural and coastal

resources, including water quality, and meet the minimum

requirements of Rule Chapter 9J-5 and Chapter 163, Florida

Statutes.

42. There is direction in the State Comprehensive Plan to:

"Avoid the expenditure of state funds that subsidize development

in high-hazard coastal areas." § 187.201(8)(b)3., Fla. Stat.

This direction is also found in Chapter 163.3178(1), Florida

Statutes, and in Rule 9J-5.012(3)(b)5., which require local

governments to limit public expenditures that would subsidize

development in the CHHA. It also is impractical for the Town,

with a population of 760 people, to fund and operate a central

wastewater system. It is logical and economical to do this in

partnership with the adjoining Town of Inglis and Levy County,

which could share in the costs and provide a site for a regional

wastewater facility located nearby but outside of the CHHA. In

contrast, this approach was not a viable option for the entirety

of the Florida Keys.

43. The Town already has begun water quality testing under

Policy 8.1.3.1.1.a. The Town will be required to prepare

educational programs to encourage inspection of existing septic

tanks (and pump-out, if needed) under Policy 8.1.3.1.1.b. and

under new Policy 4.3.1.2. In the short-term, while the Town

pursues a regional treatment facility located outside the CHHA,

Policy 8.1.3.1.c. in the Revised Comprehensive Plan will be

implemented by new Policy 4.1.2.1.IV.B., which states:

Yankeetown shall require that all new or

replacement sanitary sewage systems in all

land use districts meet the following

requirements:

a) All new or replacement sanitary

sewage systems shall be designed

and constructed to minimize or

eliminate infiltration of

floodwaters into the system and

discharge from the system into

floodwaters. Joints between sewer

drain components shall be sealed

with caulking, plastic or rubber

gaskets. Backflow preventers are

required.

b) All new or replacement sanitary

sewage systems shall be located and

constructed to minimize or

eliminate damage to them and

contamination from them during

flooding.

c) The DCA has objected and

recommended, and Yankeetown has

concurred that all new and

replacement septic systems are to

be performance-based certified to

provide secondary treatment

equivalent to 10 milligrams per

liter maximum Nitrogen.

44. Performance-based treatment systems that are accepted

as achieving the 10 mg/l nitrogen standard have already been

tested by the National Sanitation Foundation and approved by the

State of Florida Department of Health. Performance-based systems

achieving the 10 mg/l nitrogen standard have been certified and

approved for use in Florida and are now available on the market

"in the $7,200 range" for a typical two- or three-bedroom home,

and there are systems that would meet the 10mg/l nitrogen

standard for commercial and multi-family buildings.

45. Compliance with the performance-based 10 mg/l nitrogen

standard is measured at the treatment system, not in the

receiving water, and additional nutrient removal and treatment

occurs in the drainfield soils.

46. Performance-based treatment systems also require an

operating permit and routine inspection and maintenance, unlike

conventional septic tanks.

47. The United States Environmental Protection Agency

stated in its 1997 report to Congress: "Adequately managed

decentralized wastewater systems are a cost-effective and long-

term option for meeting public health and water quality goals."

48. The existing Comprehensive Plan addresses wastewater in

Chapter 4, Policy 13-2, which states: "Prohibit the construction

of new publicly funded facilities or facilities offered for

maintenance in the coastal high hazard area (including roads,

water, sewer, or other infrastructure)." It also is addressed in

the existing Comprehensive Plan in: Chapter 1, Policies 3-1 and

3-2 (Vol. II p. 11); and Chapter 4, Policies 1-2-1 and 1-2-7

(Vol. II, pp. 32, 34). A more in-depth analysis of the Town's

previous approach to wastewater treatment is found in Volume III,

Infrastructure Element, pp. 107-109 ("Facility Capacity Analysis,

Sanitary Sewer"), which expresses similar long-term and interim

approaches to wastewater treatment. The Revised Comprehensive

Plan removes confusing and out-of-date references to "class I or

other DOH-approved aerobic systems" used in the existing

Comprehensive Plan.

49. The Plan Amendments contemplate that the Town will

pursue a long-term solution of a regional wastewater facility

with the Town of Inglis and Levy County to be located outside the

CHHA. The Revised Comprehensive Plan is adequate to protect the

natural resources in Yankeetown and includes a short-term

requirement that all new and replacement septic tanks meet the

10 mg/l nitrogen standard measured at the performance-based

treatment system, together with a long-term requirement that the

Town pursue a regional wastewater treatment plant to be located

outside the CHHA.

50. The Plan Amendments include: Objective 4.1.3; Policies

4.1.3.1 through 4.1.3.3 and 4.1.2.8 through 4.1.2.11; Policy

5.1.4.4; Policy 7.1.22.6; Policy 8.1.3.1; Policy 10.1.2.1; and

Policy 10.1.2.3. These provisions move the Town in the direction

of a regional central wastewater treatment located outside the

CHHA and establish appropriate interim standards.

51. Petitioner contended that the Town has allocated money

for a new park when it needed a new central wastewater treatment

facility. But the evidence was that the money for the new park

came from a grant and could not be used for a new central

wastewater treatment facility.

Protection of Natural Resources and Internal Consistency

52. The Future Land Use Element (FLUE) and the FLUM in the

Revised Comprehensive Plan contain "Resource Protection" and

"Residential Environmentally Sensitive" land use designations.

In the existing Comprehensive Plan, these lands are designated

Public Use Resource Protection and Conservation, respectively.

53. The Plan Amendments reduce density in the Residential

Environmentally Sensitive land use district, which contains a

number of islands, to a maximum gross density of one dwelling

unit per ten gross acres and maximum net density of one dwelling

unit per five acres of uplands. Policy 1.1.2.1 in the Plan

Amendments would allow development rights to be transferred from

the Residential Environmentally Sensitive land to the development

rights area receiving zone located between County Roads 40 and

40-A, as shown in Map 2008-02.

54. The current Conservation designation for those lands

sets a "maximum density of 1 unit per 5 acres"; and Policy 1-2 in

the existing Comprehensive Plan allows the transfer of

development rights within the Conservation district "as long as

gross density does not exceed 1 dwelling unit per 5 acres."

55. Under Policy 1-2 of the existing Comprehensive Plan, a

minimum of "two (2) acres of uplands" is required for a

development in the Conservation land use district. Likewise,

under Policy 1.1.2.1.2 of the Plan Amendments, a minimum of "two

(2) contiguous natural pre-development upland acres" is required

in the Residential Environmentally Sensitive land use district.

56. Although allowed, few if any transfers of development

rights actually occurred under the existing Comprehensive Plan.

To provide additional incentive to transfer development out of

the "Residential Environmentally Sensitive" land use district and

into the urban receiving area, Policy 1.1.2.7.F. of the Plan

Amendments would allow the land owner to retain private ownership

and passive recreational use on the "sending" parcel, including

one boat dock. All other development rights on the sending

parcel would be extinguished.

57. Besides facilitating the transfer of development

rights, it is expected that use of boat docks on the islands will

decrease environmental damage from boats now grounding to obtain

access to the islands.

58. Although the policies for Environmentally Sensitive

Residential and Conservation Lands are slightly different, the

minor differences do not fail to protect natural or coastal

resources or fail to meet the minimum criteria set forth in Rule

Chapter 9J-5 and Chapter 163, Florida Statutes.

59. Numerous policies in the Plan Amendments establish

standards and criteria to protect natural and coastal resources,

including: Policy 1.1.2.1.7(i), restricting dredging; Policies

1.1.1.2.10, 5.1.5.7, and 5.1.6.10, restricting the filling of

wetlands; Policy 5.1.6.7, establishing wetlands setback buffers;

Policy 5.1.6.4, establishing nutrient buffers; Policy 5.1.5.1,

limiting dredge and fill; Policies 1.1.3.4 and 5.1.5.5,

establishing standards and criteria for docks and walkways;

Policy 5.1.16.1, protecting certain native habitats as open

space; Policy 1.1.1.3, establishing low-impact development

practices for enhanced water quality protection; and Policy

5.1.5.1, protecting listed species, including manatees. These

provisions are more protective than the provisions of the

existing Comprehensive and are supported by data and analysis.

60. The Plan Amendments acknowledge and protect private

property rights and include Objective 1.1.11 (Determination and

Protection of Property Rights), providing for vested rights and

beneficial use determinations to address unintended or unforeseen

consequences of the application of the Plan Amendments in cases

where setbacks cannot be achieved for specific development

proposals due to lot size or configuration. FLUE Policy

1.1.1.2.8 and Conservation and Coastal Management Element Policy

5.1.6.4 in the Plan Amendments sets out procedures, standards,

and criteria (including mitigation) for variances from the 150-

foot Nutrient Buffer Setback.

61. Taken as a whole, the Plan Amendments protect natural

and coastal resources within the Town.

Internal Consistency

Docks, Open Space, and Dredge and Fill

62. IWI contends that the Plan Amendments are internally

inconsistent because policies addressing docks, open space, and

dredging requirements use different language and with different

meanings in different contexts.

63. Policies in the Revised Comprehensive Plan establish

100 percent open space requirements for certain natural habitats,

namely: (a) submerged aquatic vegetation; (b) undisturbed salt

marsh wetlands; (c) salt flats and salt ponds; (d) fresh water

wetlands; (e) fresh water ponds; and (f) maritime coastal

hammock. Pile-supported, non-habitable structures such as boat

docks and walkways are allowed if sited on other portions of a

site. (Conservation and Coastal Management Element Policies

5.1.5.7, 5.1.6.7, 5.1.6.10, and 5.1.16.1).

64. Other policies limit dredging to maintenance dredging.

Policy 5.1.5.1 states that the Town will:

Prohibit all new dredge and fill activities,

including construction of new canals, along

the river and coastal areas. Maintenance

dredging of existing canals, previously

dredged channels, existing previously dredged

marinas, and commercial and public boat

launch ramps shall be allowed to depths

previously dredged only when the applicant

demonstrates that dredging activity will not

contribute to water pollution or saltwater

intrusion of the potable water supply.

Applicant must also demonstrate that

development activities shall not negatively

impact water quality or manatee habitat.

Maintenance dredging is prohibited within

areas vegetated with established submerged

grass beds except for maintenance dredging in

public navigation channels.

This prohibition does not preclude the minor dredging necessary

to construct "pile supported structures such as docks and

walkways that do not exceed 4’ in width and constructed in

accordance with OFW and Aquatic Preserve regulations," which are

specifically exempted and allowed by Policy 5.1.5.7 of the Plan

Amendments. Additional dredging and filling activities (beyond

installation of pile supports) would not be required for docks

sited where adequate water depth exists. Docks and walkways

allowed under Policy 5.1.5.7 are not counted as open space.

65. The policies concerning docks and walkways can be

reconciled and do not render the Plan Amendments internally

inconsistent.

Low-Impact Development Policies

66. IWI also contends that policies in the Plan Amendments

requiring and encouraging low-impact development (LID) practices

(which are not required or mandated under minimum requirements of

Rule Chapter 9J-5 F.A.C. and Chapter 163, Florida Statutes, but

adopted for additional water quality protection) are internally

inconsistent.

67. The Plan Amendments require LID practices for some new

uses (new subdivisions, planned unit developments, and commercial

development) and encourage them for existing uses. The Plan

Amendments require or encourage these practices in different land

use districts, which address different commercial or residential

uses, and also discuss these practices in different elements of

the Revised Comprehensive Plan, which addresses different

purposes and concerns, including the FLUE (Chapter 1), the Public

Infrastructure Element (Chapter 4), and the Coastal Management

Element (Chapter 5).

68. FLUE Policy 1.1.1.3 states that:

In addition to complying with Outstanding

Florida Water (OFW) standards, all new

subdivisions, planned unit developments, and

commercial development in all land use

districts shall utilize "low impact"

development practices appropriate for such

use including:

(a) Landscaped biofiltration swales;

(b) Use native plants adapted to soil, water

and rainfall conditions;

(c) Minimize use of fertilizers and

pesticides;

(d) Grease traps for restaurants;

(e) Recycle storm water by using pond water

for irrigation of landscaping;

(f) Dry wells to capture runoff from roofs;

(g) Porous pavements;

(h) Maintain ponds to avoid exotic species

invasions;

(i) Aerate tree root systems (for example,

WANE systems);

(j) Vegetate onsite floodplain areas with

native and/or Florida-friendly plants to

provide habitat and wildlife corridors;

(k) Rain barrels and green roofs where

feasible; and

(l) Use connected Best Management Practices

(BMPs) (treatment trains flowing from one BMP

into the next BMP) to increase nutrient

removal.

Existing development shall be encouraged, but

not required to use the above recommendations

and shall not be considered nonconforming if

they do not.

69. In the Residential Low Density land use district, FLUE

Policy 1.1.2.2.5 states: "All (a) new planned unit residential

developments or (b) new platted subdivisions of 2 or more units

(construction of 1 single family dwelling unit or duplex is

exempt) shall utilize 'low impact' development practices for

storm water management. Individual dwelling units and duplexes

are encouraged to utilize those 'low impact' development

practices that may be required or recommended in the Land

Development Regulations."

70. In the Residential Highest Density land use district,

FLUE Policy 1.1.2.3.3 states: "Existing platted parcels are

encouraged to utilize site suitable storm water management such

as connecting to swales where available. All (a) new planned

unit residential developments or (b) new platted subdivisions of

2 or more units (construction of 1 single family dwelling unit or

duplex is exempt) shall utilize 'low impact' development

practices for storm water management. Individual dwelling units

and duplexes are encouraged to utilize those 'low impact'

practices that may be required or recommended in the Land

Development Regulations."

71. In the Resource Protection and Public Use land use

districts, FLUE Policies 1.1.2.5 and 1.1.2.6. require LID

practices for all development.

72. In the Neighborhood Commercial land use district, FLUE

Policy 1.1.2.7.6 requires LID practices for "all development."

73. In the Commercial Water-Dependent land use districts,

FLUE Policy 1.1.2.8.9 requires LID practices for "all new

commercial development."

74. In the Light Industrial land use district, FLUE Policy

1.1.2.9.2 requires LID practices for "all development."

75. These policies can be reconciled. The use of slightly

different language in a particular district, or creation of an

exemption for existing uses, does not render the policies

internally inconsistent.

76. Policy 4.2.2.2 of the Public Infrastructure Element

(Chapter 4) of the Plan Amendments requires the adoption of land

development regulations (LDRs) establishing minimum design and

construction standards for new subdivisions, planned unit

developments, and commercial development that will ensure that

post development runoff rates do not exceed predevelopment runoff

rates and encourage the same LID practices set out in FLUE Policy

1.1.1.3.

77. IWI also contends that the inclusion of the phrase "as

appropriate for such use" in the LID policies is internally

inconsistent. To the contrary, it acknowledges that some of the

listed practices may not be appropriate for a proposed specific

use. For example, subsection (d) on "grease traps for

restaurants" would not be appropriate if no restaurant is

proposed.

78. Under Section 163.3202, Florida Statutes, the Town has

a year to adopt implementing LDRs providing further details,

standards, and criteria for low-impact development BMPs for

specific uses and within specific districts. The use of the

phrase "as appropriate for such use" in the low-impact

development policies allows for the exercise of engineering

discretion in formulating LDRs. It does not render the policies

internally inconsistent.

Setbacks and Variances

79. IWI also contends that the Plan Amendments are

internally inconsistent because buffers contain different setback

distances and allow for a variance to the setback buffers.

80. The policies addressing setbacks can be read together

and reconciled. The Plan Amendments include two types of setback

buffers adopted for different purposes: (1) for structures, a

50-foot setback from the river and wetlands in Policies 1.1.1.2.7

and 5.1.6.7; (2) for sources of nutrient pollution other than

septic systems (such as fertilized and landscaped areas and

livestock sources), a 150-foot nutrient buffer setback from the

river in Policies 1.1.1.2.8 and 5.1.6.4; and (3) for septic

systems, special setbacks in Policy 1.1.1.2.11 (which is referred

to in the nutrient buffer setback policies). These different

setback policies were adopted for different purposes and are not

internally inconsistent. Data and analysis supporting the

establishment of these different setbacks further explains the

different purposes of the different types of setbacks adopted in

the Revised Comprehensive Plan.

81. The availability of variances to the 150-foot nutrient

buffer setback allows some use on a parcel to ensure protection

of private property rights in the event of an unforeseen taking

of all use on a specific parcel where an applicant cannot meet

the setback but can meet the listed criteria for a variance and

provide the mitigation required for impacts. Protection of

private property rights is a competing concern that must be

addressed under Chapter 163, Florida Statutes, and Rule Chapter

9J-5.

82. The Plan Amendments need not address every possible or

potential set of facts and circumstances. Additional detail can

be provided in implementing LDRs adopted under Section 163.3202,

Florida Statutes. Specific implementation and interpretation of

policies and LDRs applicable to any particular development

proposal will be made by the Town during application review

process. Seemingly inconsistent policies can be reconciled by

applying the most stringent policy. Seemingly inconsistent

policies also could be reconciled by application of a specific

exemption, variance, or beneficial use determination.

83. Site-specific application and interpretation of

policies and LDRs in development orders, and issues as to their

consistency with the goals, objectives, and policies of the

Revised Comprehensive Plan, can be addressed under Section

163.3215, Florida Statutes.

Small Local Governments

84. IWI contends that the Town was not held to the same

data and analysis standards under Section 163.3177(10)(i),

Florida Statutes, as larger local governments.

85. Under that statute and Rule 9J-5.002(2), the Department

can consider the small size of the Town, as well as other

factors, in determining the "detail of data, analyses, and the

content of the goals, objectives, policies, and other graphic or

textual standards required . . . ."

86. Prior to adoption of the remedial amendments, the Town

was unable to utilize GIS mapping. However, for the remedial

amendments, GIS mapping was provided with the assistance of the

Regional Planning Council.

87. IWI did not prove beyond fair debate that the Town's

data and analyses were insufficient under Chapter 163, Florida

Statutes, and Rule Chapter 9J-5.

State and Regional Plans

88. IWI also contends, for essentially the same reasons

addressed previously, that the Plan Amendments are inconsistent

with State Comprehensive Plan provisions on water resources,

natural systems, and public facilities and Withlacoochee

Strategic Regional Policy Plan provisions on natural resources,

fisheries, and water quality.

89. A plan is consistent with the State Comprehensive Plan

and regional policy plan if, considered as a whole, it is

"compatible with" and "furthers" those plans. "Compatible with"

means "not in conflict with" and "furthers" means "to take action

in the direction of realizing goals or policies of the state or

regional plan." § 163.3177(10)(a), Fla. Stat.

90. Using those definitions, IWI failed to prove beyond

fair debate that the Revised Comprehensive Plan, as a whole, is

inconsistent with the State Comprehensive Plan or the

Withlacoochee Strategic Regional Policy Plan.

CONCLUSIONS OF LAW

91. IWI owns land within the boundaries of the Town and

submitted oral or written comments, recommendations, or

objections during the period of time beginning with the

transmittal hearing for the Plan Amendments and ending with the

adoption of the Plan Amendments. IWI is an affected person with

standing to challenge the Plan Amendments under Section

163.3184(1)(a), Florida Statutes.

92. Most administrative proceedings initiated after

preliminary agency review and notice of the agency's intent to

take final action are de novo proceedings under Sections 120.569

and 120.57(1), Florida Statutes, designed to "formulate final

agency action, not to review action taken earlier and

preliminarily." McDonald v Florida Department of Banking and

Finance , 346 So. 2d 81 (Fla. 1st DCA 1977). However, the

Legislature has chosen to treat administrative review of

comprehensive plans and plan amendments cases differently. In

proceedings under Section 163.3184(9)(a), Florida Statutes, a

different standard of review is established: "In this

proceeding, the local plan or plan amendment shall be determined

to be in compliance if the local government's determination of

compliance is fairly debatable."

93. The phrase “fairly debatable” is not defined in the Act

or in Rule Chapter 9J-5. The Supreme Court of Florida has stated

that the fairly debatable standard under Chapter 163, Florida

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

standard applicable to decisions of local governments acting in a

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

1288, 1295 (Fla. 1997), the Court stated that the fairly

debatable standard is deferential and requires "approval of a

planning action if reasonable persons could differ as to its

propriety." Quoting from City of Miami Beach v. Lachman , 71

So. 2d 148, 152 (Fla. 1953), the Court stated further: "An

ordinance may be said to be fairly debatable when for any reason

it is open to dispute or controversy on grounds that make sense

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

constitutional validity."

94. Under Section 163.3184(1)(b), Florida Statutes: "'In

compliance' means consistent with the requirements of 163.3177,

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."

95. IWI failed to prove beyond fair debate that the Plan

Amendments are not "in compliance."

96. Petitioner contends that Section 163.3177(3)(a),

Florida Statutes, required the Town to correct previously

identified deficiencies in its water quality treatment facilities

by planning and building within its boundaries its own new

central wastewater treatment facility (and modifying its vision

for the Town as necessary in order to pay for the new facility.)

Actually, the statute requires a component in the CIE that

"outlines principles for correcting existing public facility

deficiencies, which are necessary to implement the comprehensive

plan." The Revised Comprehensive Plan meets that requirement.

97. In arguing that the Town is compelled by statute and

rule to plan for and construct its own new central wastewater

treatment facility within its boundaries, Petitioner points out

that, strictly speaking, Sections 163.3177(6)(g)1.g. and

163.3178, Florida Statutes, and Rule 9J-5.012(3)(b)5 and 6 do not

prohibit the construction of public infrastructure in the CHHA;

rather, they discourage public investment in infrastructure

designed to serve increased population concentrations in the

CHHA. However, it is logical that public infrastructure

constructed in the CHHA would serve increased population

concentrations primarily in the CHHA. In addition, it is logical

to avoid investment of public infrastructure that would be

vulnerable to destruction or damage from coastal storms.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Community Affairs enter a

final order finding the Plan Amendments to be "in compliance."

DONE AND ENTERED this 30th day of October, 2009, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of October, 2009.

ENDNOTES

1/ Unless otherwise noted, all statutory references are to the

2009 version of the Florida Statutes.

2/ The Joint Exhibits were: 1. the Town's existing

Comprehensive Plan with data and analysis; 2. the Plan Amendments

and Remedial Amendment, with data and analysis; 3. Bureau of

Economic and Business Research population estimate tables; 4.

Visioning Survey dated February 14, 2007, and Results dated

March 5, 2007; 5. Evaluation and Appraisal Report Survey

Compilation Spread Sheet; 6. School Concurrency Exemption Letter

dated May 24, 2007; and 7. Insurance Services Office Fire

Classification Survey(s) and Results prior to March 2008.

3/ All rule references are to the version of the Florida

Administrative Code in effect at the time of the final hearing.

COPIES FURNISHED:

Ralf G. Brookes, Esquire

1217 East Cape Coral Parkway, Suite 107

Cape Coral, Florida 33904-9604

Ralf Brookes, Esquire

Town of Yankeetown

Post Office Box 280

Yankeetown, Florida 34498-0280

Thomas C. Jennings, III, Esquire

Repka & Jennings, P.A.

711 Pinellas Street

Clearwater, Florida 33756-3426

David L. Jordan, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Thomas G. Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2105

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.