08-002473GM Department Of Community Affairs vs. Town Of Yankeetown
 Status: Closed
Recommended Order on Friday, October 30, 2009.


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8IZAAK WALTON INVESTORS, LLC, )

13)

14Petitioner, )

16)

17vs. ) Case Nos. 08-2451GM

22) 08-2473GM

24TOWN OF YANKEETOWN and )

29DEPARTMENT OF COMMUNITY )

33AFFAIRS, )

35)

36Respondents. )

38)

39RECOMMENDED ORDER

41On August 10-12, 2009, an administrative hearing was held in

51Inglis, Florida, before J. Lawrence Johnston, Administrative Law

59Judge, Division of Administrative Hearings (DOAH).

65APPEARANCES

66For Petitioner Izaak Walton Investors, LLC:

72Thomas C. Jennings, III, Esquire

77Repka & Jennings, P.A.

81711 Pinellas Street

84Clearwater, Florida 33756-3426

87For Respondent Department of Community Affairs:

93David L. Jordan, Esquire

97Department of Community Affairs

1012555 Shumard Oak Boulevard

105Tallahassee, Florida 32399-2100

108For Respondent Town of Yankeetown:

113Ralf G. Brookes, Esquire

117Town of Yankeetown

120Post Office Box 280

124Yankeetown, Florida 34498

127STATEMENT OF THE ISSUE

131The issue in this case is whether Town of Yankeetown (Town)

142plan amendment 08-01 (adopted by Ordinance 2007-10) and plan

151amendment 08-CIE1 (adopted by Ordinance 2008-03), as modified by

160remedial amendment 09-R1 (adopted by Ordinance 2009-02)

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

177Comprehensive Plan), are "in compliance" as defined in Section

186163.3184(1)(b), Florida Statutes (2009). 1

191PRELIMINARY STATEMENT

193On February 28, 2008, the Town enacted Ordinance 08-03,

202adopting plan amendment 08-CIE1 (amending the Capital

209Improvements Element, Chapter 8 of the Comprehensive Plan). On

218March 10, 2008, the Town enacted Ordinance 2007-10, adopting plan

228amendment 08-01 (amending other elements of the Comprehensive

236Plan).

237On April 28, 2008, the Department of Community Affairs (DCA

247or Department) issued a Notice of Intent to find plan amendment

25808-CIE1 not "in compliance"; and on May 1, 2008, DCA issued a

270Notice of Intent to find plan amendment 08-01 not "in

280compliance."

281The two notices of intent were referred to DOAH and

291consolidated. Izaak Walton Investors, LLC (IWI or Petitioner),

299was granted leave to intervene, and the case was placed in

310abeyance while the parties attempted to settle.

317DCA and the Town entered into a Compliance Agreement which

327was filed with DOAH on January 27, 2009, and contained additional

338supporting data and analysis and an agreed remedial plan

347amendment.

348On March 23, 2009, the Town enacted Ordinance 2009-02,

357adopting the remedial amendment 09-R1.

362On April 27, 2009, DCA published a Cumulative Notice of

372Intent to find amendment 08-CIE1 and 08-01, as modified by

382remedial amendment 09-R1, "in compliance."

387The Cumulative Notice of Intent was filed with DOAH on

397May 29, 2009, and the parties were realigned as reflected in the

409caption above. The case was scheduled for a final hearing in

420Yankeetown on July 6-7, 2009, and re-scheduled for a final

430hearing in Inglis on August 10-14, 2009. The parties filed a

441Prehearing Stipulation on August 5, 2009.

447At the final hearing, the parties had Joint Exhibits 1-7

457admitted in evidence. 2 Petitioner called four witnesses:

465James Sherwood, its managing member; Henry H. Fishkind, Ph.D., an

475expert in econometrics and urban and regional economics;

483Gail Easely, an expert in urban and regional planning; and

493Randall L. Armstrong, an expert in water quality, septic systems,

503stormwater, and dredge and fill. The Town called seven

512witnesses: K. Marlene Conaway, an expert in comprehensive

520planning; Norman E. Shannahan, a Town Council member;

528Rebecca Jetton, an expert in comprehensive planning and land

537development regulations and their implementation; Chris Fineout,

544the Town's zoning official; Mark Hooks, an expert in onsite

554treatment and disposal systems and water quality; James Nicholas,

563Ph.D., an expert in urban and regional economics and planning and

574land and development economics; and Lawrence E. Feldhusen, a Town

584Council member. Petitioner recalled Gail Easely in rebuttal.

592After presentation of evidence, Petitioner requested a

599Transcript of the final hearing, and agreed requests to extend

609the time for filing proposed recommended orders (PROs) until

618October 12, 2009, were granted. The Petitioner's PRO (which

627actually summarizes the testimony) and the Joint PRO filed by the

638Department and the Town have been fully considered.

646FINDINGS OF FACT

6491. The Town is located in the southwest corner of Levy

660County. The Town is bounded on the east by the Town of Inglis,

673on the north by unincorporated Levy County, on the west by the

685Gulf of Mexico, and on the south by the Withlacoochee River.

6962. The Town has significant planning challenges due to its

706geographic location. The maximum elevation in the Town is 10

716feet, and the entire Town is located in the 100-year floodplain

727and Coastal High Hazard Area (CHHA). The Town is located in a

739rural area north of the banks of the Withlacoochee River and is

751surrounded by wetlands and environmentally-sensitive land. The

758Town is located at the end of County Road 40, and is separated

771from the nearest intersection of major roads (State/County Road

78040 and U.S. 19) by the Town of Inglis.

7893. The Plan Amendments are a community-generated plan that

798incorporates the results of an extensive community visioning

806survey conducted by the Town and numerous public meetings that

816exceeded the public participation requirements for plan

823amendments contained in Florida Administrative Code Rule Chapter

8319J-5 3 and Chapter 163, Florida Statutes. The Plan Amendments

841resulted in a Revised Comprehensive Plan for the Town.

8504. IWI is a legal entity that owns land within the Town and

863submitted oral or written comments on the Plan Amendments during

873the period of time beginning with the transmittal hearing for the

884Plan Amendments and ending with the adoption of the Plan

894Amendments. IWI contends that the Plan Amendments are not "in

904compliance" for several reasons.

908Population Projections and Need

9125. In its pleadings, IWI contended that "[t]here is

921inadequate data regarding projected population growth and the

929infrastructure needed to support the projected population growth

937for both the short term (five years) and the long term (horizon

949of the plan)"; "[t]he Plan Amendment is not in compliance with

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

968future land use categories that are based on need"; and "[t]he

979Plan Amendment is not in compliance with the requirements of 9J-

9905.006, Florida Administrative Code, demonstrating that future

997land use is based on need." Prehearing Stipulation § 2.H., U.,

1008and GG. However, its expert planning witness, Gail Easely,

1017conceded that the data and analysis submitted by the Town was

1028adequate to demonstrate that the residential land uses in the

1038Revised Comprehensive Plan are based on need. IWI limited its

1048contention on this point to the alleged inadequacy of the data

1059and analysis to support the Revised Comprehensive Plan's new

1068Light Industrial land use and revised commercial land use

1077designations.

10786. The Revised Comprehensive Plan designates the same areas

1087for commercial as the currently effective Comprehensive Plan,

1095with the exception of one parcel that was changed from commercial

1106to Light Industrial.

11097. The Revised Comprehensive Plan designates the commercial

1117parcels near the Withlacoochee River as Commercial Water

1125Dependent and the other commercial parcels as Commercial

1133Neighborhood, totaling approximately 51 acres. Of the 51 acres

1142of commercially-designated land, approximately 26 acres are

1149currently developed and 25 acres are vacant and undeveloped. Of

1159the 26 developed commercial acres, 19 parcels are currently

1168developed and utilized as residential. There is no shortage of

1178land available for commercial development in the Town.

11868. Inglis, a town located adjacent and to the east of

1197Yankeetown, and Levy County near Yankeetown provide "more than

1206adequate" existing commercial buildings on the market to serve

1215the residents of Yankeetown and surplus vacant commercially-

1223designated land to serve the future needs of Yankeetown. There

1233is no shortage of commercial potential near the Town.

12429. The evidence was that it is acceptable for a local

1253government to plan for the future need for the availability of

1264commercial and industrial lands by maintaining the existing

1272proportionate of availability of land use categories.

1279Alternatively, it is acceptable to plan to mimic the proportions

1289found to exist in other communities. This is essentially how the

1300Town planned its allocation of commercial and industrial lands in

1310its Revised Comprehensive Plan.

131410. IWI also contended that the intensity standards for

1323commercial and industrial land uses in the Revised Comprehensive

1332Plan unduly restrict commercial development.

133711. The existing Comprehensive Plan did not have explicit

1346intensity standards and criteria for commercial land uses. After

1355extensive debate at numerous public hearings, the Revised

1363Comprehensive Plan established a floor/area ration (FAR) of 0.07,

1372which limits the size for each single structure to a maximum of

13843,000 square feet. It also allows for multiple 3,000 square foot

1397structures on larger parcels in a "campus style" development.

140612. These standards and criteria reflect the existing,

1414built environment of the Town and the Town's vision of itself.

1425Existing commercial buildings run from 960 square feet to 3,600

1436square feet. Although the existing Comprehensive Plan did not

1445have an FAR ratio, other standards--such as setbacks, square

1454footage required for on-site septic tanks, drainfields, and

1462parking, a 50 percent open space ratio, and a building height

1473restriction of 35 feet--restricted commercial development in a

1481manner similar to the Revised Comprehensive Plan.

148813. Petitioner's expert economist, Dr. Fishkind, testified

1495that the restrictions on intensity of commercial land uses are

1505not financially feasible because not enough revenue can be

1514generated to make a profit, given the cost of land in Yankeetown.

1526His testimony was refuted by his University of Florida colleague,

1536Dr. James Nicholas, who was called as an expert economist for the

1548Town. Dr. Nicholas pointed out that there was some commercial

1558use in the Town and that economics would lower the cost of land

1571in the Town if it is too expensive to allow the kind of commerce

1585desired by the Town to make a reasonable profit. Businesses

1595requiring more space to make sufficient revenue could locate

1604outside the Town but close enough in Inglis or Levy County to

1616serve Yankeetown as well.

162014. The character of the Town, its limited projected

1629population growth, and the availability of commercial development

1637nearby in Inglis and in Levy County all support the Town's

1648decision to limit the intensity of commercial land use, and to

1659maintain the existing amount of land available for commercial and

1669light industrial uses.

167215. Rules 9J-5.006(1)(a)(3) and 9J-5.006 (4)(a)(3) require

1679the designation of some industrial lands, and the Revised

1688Comprehensive Plan changes the designation of six acres of land

1698located to the west of the intersection of County Roads 40 and

171040-A from "Commercial" to "Light Industrial." Since industrial

1718uses are generally not compatible with residential uses, the

1727Light Industrial parcel is separated from residential parcels by

1736commercial. The Light Industrial parcel is allocated for more

1745intense commercial uses (such as fishing trap and boat storage)

1755or reserved for economic development of light industrial uses

1764that may wish to locate in Yankeetown, such as aquaculture.

177416. The existing ratio of residential to commercial land is

1784adequate to supply the existing need as reflected by the existing

1795surplus, vacant, and unused commercial lands. The Plan

1803Amendments maintain residential lands and commercial lands in

1811their general designations with refinements to the categories.

1819The existing ratio and availability of vacant commercial land

1828indicate that there is no deficit in any category, and

1838maintaining the existing residential/commercial ratio preserves

1844the existing character of the Town.

1850Urban Service Area versus Urban Service Boundary

185717. IWI contends that "[t]he Plan Amendment is not in

1867compliance with [Section] 163.3177(14), Florida Statutes, by

1874failing to ensure that the urban service boundary was

1883appropriately adopted and based on demonstrated need." This

1891contention has no merit.

189518. Section 163.3177(14), Florida Statutes, encourages a

1902local government to adopt an "urban service boundary." If one is

1913adopted, there must be a demonstration "that the amount of land

1924within the urban service boundary does not exceed the amount of

1935land needed to accommodate the projected population growth at

1944densities consistent with the adopted comprehensive plan within

1952the 10-year planning timeframe." If a local government chooses

1961to adopt an "urban service boundary" under Section 163.3177(14)

1970and a community vision under Section 163.3177(13), Florida

1978Statutes, it may adopt plan amendments within the urban service

1988boundary without state or regional agency review. See

1996§ 163.3184(17), Fla. Stat.

200019. The Revised Comprehensive Plan does not use the term

"2010urban service boundary," and the Town did not intend to adopt

2021one under Section 163.3177(14), Florida Statutes, nor did it seek

2031to avoid state and regional agency review of plan amendments

2041under Section 163.3184(17), Florida Statutes. Instead, as

2048explained on page 6 of the Revised Comprehensive Plan, it uses

2059the term "urban area" to designate an area allowed to receive

2070development rights from the sending area, namely the Residential

2079Environmentally Sensitive (formerly Conservation) land use

2085district.

208620. The Revised Comprehensive Plan uses the term urban

2095service "area" (rather than "boundary") as the area located

2105generally between County Roads 40 and 40-A that can receive

2115development rights transferred from the Residential

2121Environmentally Sensitive land use district. This area is

2129depicted as "Urban Service Area Overlay Zones" Map 2008-02 of the

2140Future Land Use Map (FLUM) series to more clearly designate the

2151area on a larger scale than the FLUM map of the entire Town (Map

21652008-05). The existing FLUM series also used the term "urban

2175area" to depict the transfer of development rights receiving

2184area.

2185Financial Feasibility and Capital Improvements

219021. IWI’s expert, Dr. Henry Fishkind, testified that he ran

2200his Fiscal Impact Analysis Model for the Town and concluded that

2211the Revised Comprehensive Plan is not financially feasible

2219because the Town cannot generate sufficient operating revenue to

2228cover its operating costs without increasing property tax rates.

2237Dr. Fishkind was not asked to explain how his computer model

2248works, give any specific modeling results, or explain how he

2258reached his conclusion.

226122. The Town's expert, Dr. James Nicholas, refuted his

2270University of Florida colleague's testimony on this point as

2279well. Essentially, Dr. Nicholas testified that a small and

2288unique community like Yankeetown can choose to limit its

2297operating costs by relying on volunteers and part-time employees.

2306In this way, it can operate on a bare-bones budget that would

2318starve a more typical and larger community. It also could choose

2329to increase property tax rates, if necessary.

233623. Recent amendments to Chapter 163, Florida Statutes, in

2345Senate Bill 360, the "Community Renewal Act," which became

2354effective June 1, 2009, postponed and extended until December 1,

23642011, the statutory requirement to maintain the financial

2372feasibility of the five-year capital improvements schedule (CIS)

2380for potable water, wastewater, drainage, parks, solid waste,

2388public schools, and water supply. However, the Town concurred

2397with Petitioner in requesting findings of fact and conclusions of

2407law on this issue in case Senate Bill 360 is struck down in a

2421pending constitutional challenge.

242424. The Plan Amendments include a CIE (Chapter 8) with a

2435five-year CIS and a table to identify sources of revenue and

2446capital projects sufficient to achieve and maintain the adopted

2455levels of service, supported by data and analysis submitted with

2465the Remedial Amendments.

246825. The Town's CIS five-year lists projects to achieve and

2478maintain the adopted level of service (LOS) standards and

2487identifies funding sources to pay for those projects. It

2496describes the projects and conservatively projects costs and

2504revenue sources. The CIS identifies revenue sources and capital

2513projects for which there are committed funds in the first three

2524years and identifies capital projects for which funds have not

2534yet been committed in year four or year five. CIS is adequate to

2547achieve and maintain the adopted level of service and is

2557financially feasible.

2559Stormwater and Drainage

256226. A drainage LOS is adopted in Revised Comprehensive Plan

2572Policy 4.1.2.1, which states: "All new development and expansion

2581of existing residential development greater than 300 square feet

2590of additional impervious coverage shall meet requirements under

2598Chapter 62-25, F.A.C. for Outstanding Florida Waters." The

2606exemption of minor residential improvements of 300 square feet or

2616less is reasonable and does not violate Rule Chapter 9J-5 or

2627Chapter 163, Florida Statutes.

263127. The Department's ability to require retrofitting for

2639existing drainage problems is limited by Rule Chapter 9J-

26485.011(2)(c)5.b.i., which states that the Rule "shall not be

2657interpreted or applied to [m]andate that local governments

2665require existing facilities to be retrofitted to meet stormwater

2674discharge water quality standards or stormwater management level

2682of service standards." Nonetheless, the Town agreed in the

2691Compliance Agreement to adopt appropriate policies and provide

2699additional data and analysis on this issue.

270628. Policy 4.1.2.13 requires that the "Established Storm

2714Water Drainage Committee shall monitor storm water facilities in

2723[the] town, oversee maintenance functions, and evaluate and

2731recommend capital improvements projects and funding sources." To

2739pay for stormwater capital improvement projects, Policy 4.1.2.14

2747in the Plan Amendments states: "Yankeetown shall adopt a storm

2757water utility fee ordinance and establish storm water utility

2766fees by December 31, 2009 to provide necessary funding for

2776capital improvements to the Town's storm water drainage

2784facilities and maintenance of storm water drainage facilities."

279229. In accordance with the Compliance Agreement, the Town

2801modified CIS Table 1 by adding $120,000 to FY 2011-2012 (Year 5)

2814for the stormwater drainage improvement project and adding Note 5

2824to Table 1, which states: "Anticipated to be funded by a 75%/25%

2836matching grant from SWFWMD, DEP or DCA. The matching (town)

2846funds will be obtained from the proposed stormwater improvement

2855fund. If no grants can be obtained and the stormwater

2865improvement fund is not approved[,] the project will be funded

2876from the general fund reserves and long term loans." Because the

2887stormwater utility fee ordinance must still be adopted, and these

2897funds are not technically committed at the time of adoption of

2908the Plan Amendments, the stormwater capital improvement project

2916was placed in year 5 (2011-1012) of the CIS. As funding becomes

2928available and committed, the project may be moved to an earlier

2939year in required annual updates to the CIS.

294730. Drainage also is addressed in new Objective 4.3.2 and

2957in new Policies 4.3.2.1. through 4.3.2.5. The Town has addressed

2967stormwater and drainage appropriately in the Revised

2974Comprehensive Plan.

2976Proportionate Share and Concurrency Management

298131. Policy 4.1.2.6 in the Public Facilities Element states:

"2990The Town shall consider, and adopt as appropriate, a means to

3001ensure that new development shares proportionate responsibilities

3008in the provision of facilities and services to meet the needs of

3020that development and maintain adopted level of service

3028standards." Policy 8.1.3.4 in the CIE of the Revised

3037Comprehensive Plan states:

3040The Town shall consider, and adopt as

3047appropriate, a means to ensure that new

3054development shares a proportionate cost on a

3061pro rata basis in the provision of facilities

3069and services necessitated by that development

3075in order to maintain the Town’s adopted level

3083of service standards. Proportionate costs

3088shall be based upon, but not limited to:

30961. Cost for extension of water

3102mains, including connection fees.

31062. Costs for all circulation and

3112right-of-way related improvements

3115to accommodate the development for

3120local roads not maintained by Levy

3126County. Costs to maintain County

3131Road 40 and 40[-]A and any other

3138road within the town that are

3144maintained by Levy County shall be

3150governed by the Levy County

3155Proportionate Share Ordinance and

3159Yankeetown will continue to adopt

3164and ensure the level of service is

3171maintained [through] coordination

3174mechanisms between the two planning

3179departments.

31803. Costs for drainage

3184improvements.

31854. Costs for recreational

3189facilities, open space provision,

3193fire protection, police services,

3197and stormwater management.

320032. Although the Town does not have any public facility

3210deficiencies, Rule Chapter 9J-5 requires that the CIE address

"3219[t]he extent to which future development will bear a

3228proportionate cost of facility improvements necessitated by the

3236development in order to adequately maintain adopted level of

3245service standards"; and include a policy that addresses programs

3254and activities for "[a]ssessing new developments a pro rata share

3264of the costs necessary to finance public facility improvements

3273necessitated by development in order to adequately maintain

3281adopted level of service standards . . . ." Fla. Admin. Code R.

32949J-5.016(3)(b)4. and (c)8. Policy 8.1.3.4 meets this

3301requirement.

330233. The statute forming the basis of IWI’s contentions

3311regarding proportionate fair share is Section 163.3180(16)(a),

3318Florida Statutes, which requires local governments "to adopt by

3327ordinance a methodology for assessing proportionate fair-share

3334mitigation options." The evidence was that the requirements of

3343this statute will be met by the Town's Proportionate Fair Share

3354Concurrency Management Ordinance, which had been drafted and

3362scheduled for adoption hearings at the time of the final hearing,

3373and which will implement Policy 8.1.3.4.

337934. IWI did not present any evidence regarding the alleged

3389lack of a concurrency management system in the Revised

3398Comprehensive Plan and did not prove that the Revised

3407Comprehensive Plan fails to meet the requirements of Rule 9J-

34175.055 for concurrency management.

342135. The Town is exempt from maintaining school concurrency

3430requirements. Objective 8.1.3 and Policies 8.1.3.1 through

34378.1.3.6 of the Revised Comprehensive Plan meet the requirements

3446of Rule 9J-5.055 for concurrency management.

345236. Policy 8.1.3.6 states: "The Town shall evaluate public

3461facility demands by new development or redevelopment on a project

3471by project basis to assure that capital facilities are provided

3481concurrent with development."

348437. Policy 8.1.3.3 states: "The Yankeetown Land

3491Development Code shall contain provisions to ensure that

3499development orders are not issued for development activities

3507which degrade the level of service below the adopted standard as

3518identified in each comprehensive plan element. Such provisions

3526may allow for provision of facilities and services in phases, so

3537long as such facilities and services are provided concurrent with

3547the impacts of development."

355138. The Town has a checklist system to track the specific

3562impact of each development order on LOS concurrent with

3571development. As indicated, a Proportionate Fair Share and

3579Concurrency Management Ordinance had been drafted and scheduled

3587for adoption hearings.

3590Wastewater Treatment and Water Quality

359539. The Town is located entirely within the 100-year

3604floodplain and coastal high hazard area. See Finding 2, supra .

3615This presents challenges for wastewater treatment. The adoption

3623of the Revised Comprehensive Plan followed public meetings and

3632workshops held with representatives of DCA, including

3639Richard Deadman, and expert Mark Hooks, formerly with the State

3649of Florida Department of Health and Rehabilitative Services and

3658now with the State of Florida Department of Health.

366740. The Plan Amendments include Policy 8.1.3.1.1, which

3675states in part:

3678Due to the location of the town within the

3687100 year flood plain and within the Coastal

3695High Hazard Area (CHHA), there are no plans

3703to provide central wastewater treatment until

3709a regional system can be developed in

3716conjunction with the neighboring town of

3722Inglis and Levy County, and constructed

3728outside the Coastal High Hazard Area east of

3736U.S. Highway 19. In the interim period

3743before a regional central wastewater system

3749is available, the Town shall require in all

3757land use districts: a. Yankeetown shall

3763develop a strategy to participate in water

3770quality monitoring of the Withlacoochee

3775River; b. develop an educational program to

3782encourage inspection (and pump-out if needed)

3788of existing septic tanks; c. all new and

3796replacement septic tanks shall meet

3801performance based standards (10mg/l

3805nitrogen).

380641. The Town's approach to wastewater treatment under the

3815circumstances is sound both economically and from planning

3823perspective and is sufficient to protect natural and coastal

3832resources, including water quality, and meet the minimum

3840requirements of Rule Chapter 9J-5 and Chapter 163, Florida

3849Statutes.

385042. There is direction in the State Comprehensive Plan to:

"3860Avoid the expenditure of state funds that subsidize development

3869in high-hazard coastal areas." § 187.201(8)(b)3., Fla. Stat.

3877This direction is also found in Chapter 163.3178(1), Florida

3886Statutes, and in Rule 9J-5.012(3)(b)5., which require local

3894governments to limit public expenditures that would subsidize

3902development in the CHHA. It also is impractical for the Town,

3913with a population of 760 people, to fund and operate a central

3925wastewater system. It is logical and economical to do this in

3936partnership with the adjoining Town of Inglis and Levy County,

3946which could share in the costs and provide a site for a regional

3959wastewater facility located nearby but outside of the CHHA. In

3969contrast, this approach was not a viable option for the entirety

3980of the Florida Keys.

398443. The Town already has begun water quality testing under

3994Policy 8.1.3.1.1.a. The Town will be required to prepare

4003educational programs to encourage inspection of existing septic

4011tanks (and pump-out, if needed) under Policy 8.1.3.1.1.b. and

4020under new Policy 4.3.1.2. In the short-term, while the Town

4030pursues a regional treatment facility located outside the CHHA,

4039Policy 8.1.3.1.c. in the Revised Comprehensive Plan will be

4048implemented by new Policy 4.1.2.1.IV.B., which states:

4055Yankeetown shall require that all new or

4062replacement sanitary sewage systems in all

4068land use districts meet the following

4074requirements:

4075a) All new or replacement sanitary

4081sewage systems shall be designed

4086and constructed to minimize or

4091eliminate infiltration of

4094floodwaters into the system and

4099discharge from the system into

4104floodwaters. Joints between sewer

4108drain components shall be sealed

4113with caulking, plastic or rubber

4118gaskets. Backflow preventers are

4122required.

4123b) All new or replacement sanitary

4129sewage systems shall be located and

4135constructed to minimize or

4139eliminate damage to them and

4144contamination from them during

4148flooding.

4149c) The DCA has objected and

4155recommended, and Yankeetown has

4159concurred that all new and

4164replacement septic systems are to

4169be performance-based certified to

4173provide secondary treatment

4176equivalent to 10 milligrams per

4181liter maximum Nitrogen.

418444. Performance-based treatment systems that are accepted

4191as achieving the 10 mg/l nitrogen standard have already been

4201tested by the National Sanitation Foundation and approved by the

4211State of Florida Department of Health. Performance-based systems

4219achieving the 10 mg/l nitrogen standard have been certified and

4229approved for use in Florida and are now available on the market

"4241in the $7,200 range" for a typical two- or three-bedroom home,

4253and there are systems that would meet the 10mg/l nitrogen

4263standard for commercial and multi-family buildings.

426945. Compliance with the performance-based 10 mg/l nitrogen

4277standard is measured at the treatment system, not in the

4287receiving water, and additional nutrient removal and treatment

4295occurs in the drainfield soils.

430046. Performance-based treatment systems also require an

4307operating permit and routine inspection and maintenance, unlike

4315conventional septic tanks.

431847. The United States Environmental Protection Agency

4325stated in its 1997 report to Congress: "Adequately managed

4334decentralized wastewater systems are a cost-effective and long-

4342term option for meeting public health and water quality goals."

435248. The existing Comprehensive Plan addresses wastewater in

4360Chapter 4, Policy 13-2, which states: "Prohibit the construction

4369of new publicly funded facilities or facilities offered for

4378maintenance in the coastal high hazard area (including roads,

4387water, sewer, or other infrastructure)." It also is addressed in

4397the existing Comprehensive Plan in: Chapter 1, Policies 3-1 and

44073-2 (Vol. II p. 11); and Chapter 4, Policies 1-2-1 and 1-2-7

4419(Vol. II, pp. 32, 34). A more in-depth analysis of the Town's

4431previous approach to wastewater treatment is found in Volume III,

4441Infrastructure Element, pp. 107-109 ("Facility Capacity Analysis,

4449Sanitary Sewer"), which expresses similar long-term and interim

4458approaches to wastewater treatment. The Revised Comprehensive

4465Plan removes confusing and out-of-date references to "class I or

4475other DOH-approved aerobic systems" used in the existing

4483Comprehensive Plan.

448549. The Plan Amendments contemplate that the Town will

4494pursue a long-term solution of a regional wastewater facility

4503with the Town of Inglis and Levy County to be located outside the

4516CHHA. The Revised Comprehensive Plan is adequate to protect the

4526natural resources in Yankeetown and includes a short-term

4534requirement that all new and replacement septic tanks meet the

454410 mg/l nitrogen standard measured at the performance-based

4552treatment system, together with a long-term requirement that the

4561Town pursue a regional wastewater treatment plant to be located

4571outside the CHHA.

457450. The Plan Amendments include: Objective 4.1.3; Policies

45824.1.3.1 through 4.1.3.3 and 4.1.2.8 through 4.1.2.11; Policy

45905.1.4.4; Policy 7.1.22.6; Policy 8.1.3.1; Policy 10.1.2.1; and

4598Policy 10.1.2.3. These provisions move the Town in the direction

4608of a regional central wastewater treatment located outside the

4617CHHA and establish appropriate interim standards.

462351. Petitioner contended that the Town has allocated money

4632for a new park when it needed a new central wastewater treatment

4644facility. But the evidence was that the money for the new park

4656came from a grant and could not be used for a new central

4669wastewater treatment facility.

4672Protection of Natural Resources and Internal Consistency

467952. The Future Land Use Element (FLUE) and the FLUM in the

4691Revised Comprehensive Plan contain "Resource Protection" and

"4698Residential Environmentally Sensitive" land use designations.

4704In the existing Comprehensive Plan, these lands are designated

4713Public Use Resource Protection and Conservation, respectively.

472053. The Plan Amendments reduce density in the Residential

4729Environmentally Sensitive land use district, which contains a

4737number of islands, to a maximum gross density of one dwelling

4748unit per ten gross acres and maximum net density of one dwelling

4760unit per five acres of uplands. Policy 1.1.2.1 in the Plan

4771Amendments would allow development rights to be transferred from

4780the Residential Environmentally Sensitive land to the development

4788rights area receiving zone located between County Roads 40 and

479840-A, as shown in Map 2008-02.

480454. The current Conservation designation for those lands

4812sets a "maximum density of 1 unit per 5 acres"; and Policy 1-2 in

4826the existing Comprehensive Plan allows the transfer of

4834development rights within the Conservation district "as long as

4843gross density does not exceed 1 dwelling unit per 5 acres."

485455. Under Policy 1-2 of the existing Comprehensive Plan, a

4864minimum of "two (2) acres of uplands" is required for a

4875development in the Conservation land use district. Likewise,

4883under Policy 1.1.2.1.2 of the Plan Amendments, a minimum of "two

4894(2) contiguous natural pre-development upland acres" is required

4902in the Residential Environmentally Sensitive land use district.

491056. Although allowed, few if any transfers of development

4919rights actually occurred under the existing Comprehensive Plan.

4927To provide additional incentive to transfer development out of

4936the "Residential Environmentally Sensitive" land use district and

4944into the urban receiving area, Policy 1.1.2.7.F. of the Plan

4954Amendments would allow the land owner to retain private ownership

4964and passive recreational use on the "sending" parcel, including

4973one boat dock. All other development rights on the sending

4983parcel would be extinguished.

498757. Besides facilitating the transfer of development

4994rights, it is expected that use of boat docks on the islands will

5007decrease environmental damage from boats now grounding to obtain

5016access to the islands.

502058. Although the policies for Environmentally Sensitive

5027Residential and Conservation Lands are slightly different, the

5035minor differences do not fail to protect natural or coastal

5045resources or fail to meet the minimum criteria set forth in Rule

5057Chapter 9J-5 and Chapter 163, Florida Statutes.

506459. Numerous policies in the Plan Amendments establish

5072standards and criteria to protect natural and coastal resources,

5081including: Policy 1.1.2.1.7(i), restricting dredging; Policies

50871.1.1.2.10, 5.1.5.7, and 5.1.6.10, restricting the filling of

5095wetlands; Policy 5.1.6.7, establishing wetlands setback buffers;

5102Policy 5.1.6.4, establishing nutrient buffers; Policy 5.1.5.1,

5109limiting dredge and fill; Policies 1.1.3.4 and 5.1.5.5,

5117establishing standards and criteria for docks and walkways;

5125Policy 5.1.16.1, protecting certain native habitats as open

5133space; Policy 1.1.1.3, establishing low-impact development

5139practices for enhanced water quality protection; and Policy

51475.1.5.1, protecting listed species, including manatees. These

5154provisions are more protective than the provisions of the

5163existing Comprehensive and are supported by data and analysis.

517260. The Plan Amendments acknowledge and protect private

5180property rights and include Objective 1.1.11 (Determination and

5188Protection of Property Rights), providing for vested rights and

5197beneficial use determinations to address unintended or unforeseen

5205consequences of the application of the Plan Amendments in cases

5215where setbacks cannot be achieved for specific development

5223proposals due to lot size or configuration. FLUE Policy

52321.1.1.2.8 and Conservation and Coastal Management Element Policy

52405.1.6.4 in the Plan Amendments sets out procedures, standards,

5249and criteria (including mitigation) for variances from the 150-

5258foot Nutrient Buffer Setback.

526261. Taken as a whole, the Plan Amendments protect natural

5272and coastal resources within the Town.

5278Internal Consistency

5280Docks, Open Space, and Dredge and Fill

528762. IWI contends that the Plan Amendments are internally

5296inconsistent because policies addressing docks, open space, and

5304dredging requirements use different language and with different

5312meanings in different contexts.

531663. Policies in the Revised Comprehensive Plan establish

5324100 percent open space requirements for certain natural habitats,

5333namely: (a) submerged aquatic vegetation; (b) undisturbed salt

5341marsh wetlands; (c) salt flats and salt ponds; (d) fresh water

5352wetlands; (e) fresh water ponds; and (f) maritime coastal

5361hammock. Pile-supported, non-habitable structures such as boat

5368docks and walkways are allowed if sited on other portions of a

5380site. (Conservation and Coastal Management Element Policies

53875.1.5.7, 5.1.6.7, 5.1.6.10, and 5.1.16.1).

539264. Other policies limit dredging to maintenance dredging.

5400Policy 5.1.5.1 states that the Town will:

5407Prohibit all new dredge and fill activities,

5414including construction of new canals, along

5420the river and coastal areas. Maintenance

5426dredging of existing canals, previously

5431dredged channels, existing previously dredged

5436marinas, and commercial and public boat

5442launch ramps shall be allowed to depths

5449previously dredged only when the applicant

5455demonstrates that dredging activity will not

5461contribute to water pollution or saltwater

5467intrusion of the potable water supply.

5473Applicant must also demonstrate that

5478development activities shall not negatively

5483impact water quality or manatee habitat.

5489Maintenance dredging is prohibited within

5494areas vegetated with established submerged

5499grass beds except for maintenance dredging in

5506public navigation channels.

5509This prohibition does not preclude the minor dredging necessary

5518to construct "pile supported structures such as docks and

5527walkways that do not exceed 4’ in width and constructed in

5538accordance with OFW and Aquatic Preserve regulations," which are

5547specifically exempted and allowed by Policy 5.1.5.7 of the Plan

5557Amendments. Additional dredging and filling activities (beyond

5564installation of pile supports) would not be required for docks

5574sited where adequate water depth exists. Docks and walkways

5583allowed under Policy 5.1.5.7 are not counted as open space.

559365. The policies concerning docks and walkways can be

5602reconciled and do not render the Plan Amendments internally

5611inconsistent.

5612Low-Impact Development Policies

561566. IWI also contends that policies in the Plan Amendments

5625requiring and encouraging low-impact development (LID) practices

5632(which are not required or mandated under minimum requirements of

5642Rule Chapter 9J-5 F.A.C. and Chapter 163, Florida Statutes, but

5652adopted for additional water quality protection) are internally

5660inconsistent.

566167. The Plan Amendments require LID practices for some new

5671uses (new subdivisions, planned unit developments, and commercial

5679development) and encourage them for existing uses. The Plan

5688Amendments require or encourage these practices in different land

5697use districts, which address different commercial or residential

5705uses, and also discuss these practices in different elements of

5715the Revised Comprehensive Plan, which addresses different

5722purposes and concerns, including the FLUE (Chapter 1), the Public

5732Infrastructure Element (Chapter 4), and the Coastal Management

5740Element (Chapter 5).

574368. FLUE Policy 1.1.1.3 states that:

5749In addition to complying with Outstanding

5755Florida Water (OFW) standards, all new

5761subdivisions, planned unit developments, and

5766commercial development in all land use

5772districts shall utilize "low impact"

5777development practices appropriate for such

5782use including:

5784(a) Landscaped biofiltration swales;

5788(b) Use native plants adapted to soil, water

5796and rainfall conditions;

5799(c) Minimize use of fertilizers and

5805pesticides;

5806(d) Grease traps for restaurants;

5811(e) Recycle storm water by using pond water

5819for irrigation of landscaping;

5823(f) Dry wells to capture runoff from roofs;

5831(g) Porous pavements;

5834(h) Maintain ponds to avoid exotic species

5841invasions;

5842(i) Aerate tree root systems (for example,

5849WANE systems);

5851(j) Vegetate onsite floodplain areas with

5857native and/or Florida-friendly plants to

5862provide habitat and wildlife corridors;

5867(k) Rain barrels and green roofs where

5874feasible; and

5876(l) Use connected Best Management Practices

5882(BMPs) (treatment trains flowing from one BMP

5889into the next BMP) to increase nutrient

5896removal.

5897Existing development shall be encouraged, but

5903not required to use the above recommendations

5910and shall not be considered nonconforming if

5917they do not.

592069. In the Residential Low Density land use district, FLUE

5930Policy 1.1.2.2.5 states: "All (a) new planned unit residential

5939developments or (b) new platted subdivisions of 2 or more units

5950(construction of 1 single family dwelling unit or duplex is

5960exempt) shall utilize 'low impact' development practices for

5968storm water management. Individual dwelling units and duplexes

5976are encouraged to utilize those 'low impact' development

5984practices that may be required or recommended in the Land

5994Development Regulations."

599670. In the Residential Highest Density land use district,

6005FLUE Policy 1.1.2.3.3 states: "Existing platted parcels are

6013encouraged to utilize site suitable storm water management such

6022as connecting to swales where available. All (a) new planned

6032unit residential developments or (b) new platted subdivisions of

60412 or more units (construction of 1 single family dwelling unit or

6053duplex is exempt) shall utilize 'low impact' development

6061practices for storm water management. Individual dwelling units

6069and duplexes are encouraged to utilize those 'low impact'

6078practices that may be required or recommended in the Land

6088Development Regulations."

609071. In the Resource Protection and Public Use land use

6100districts, FLUE Policies 1.1.2.5 and 1.1.2.6. require LID

6108practices for all development.

611272. In the Neighborhood Commercial land use district, FLUE

6121Policy 1.1.2.7.6 requires LID practices for "all development."

612973. In the Commercial Water-Dependent land use districts,

6137FLUE Policy 1.1.2.8.9 requires LID practices for "all new

6146commercial development."

614874. In the Light Industrial land use district, FLUE Policy

61581.1.2.9.2 requires LID practices for "all development."

616575. These policies can be reconciled. The use of slightly

6175different language in a particular district, or creation of an

6185exemption for existing uses, does not render the policies

6194internally inconsistent.

619676. Policy 4.2.2.2 of the Public Infrastructure Element

6204(Chapter 4) of the Plan Amendments requires the adoption of land

6215development regulations (LDRs) establishing minimum design and

6222construction standards for new subdivisions, planned unit

6229developments, and commercial development that will ensure that

6237post development runoff rates do not exceed predevelopment runoff

6246rates and encourage the same LID practices set out in FLUE Policy

62581.1.1.3.

625977. IWI also contends that the inclusion of the phrase "as

6270appropriate for such use" in the LID policies is internally

6280inconsistent. To the contrary, it acknowledges that some of the

6290listed practices may not be appropriate for a proposed specific

6300use. For example, subsection (d) on "grease traps for

6309restaurants" would not be appropriate if no restaurant is

6318proposed.

631978. Under Section 163.3202, Florida Statutes, the Town has

6328a year to adopt implementing LDRs providing further details,

6337standards, and criteria for low-impact development BMPs for

6345specific uses and within specific districts. The use of the

6355phrase "as appropriate for such use" in the low-impact

6364development policies allows for the exercise of engineering

6372discretion in formulating LDRs. It does not render the policies

6382internally inconsistent.

6384Setbacks and Variances

638779. IWI also contends that the Plan Amendments are

6396internally inconsistent because buffers contain different setback

6403distances and allow for a variance to the setback buffers.

641380. The policies addressing setbacks can be read together

6422and reconciled. The Plan Amendments include two types of setback

6432buffers adopted for different purposes: (1) for structures, a

644150-foot setback from the river and wetlands in Policies 1.1.1.2.7

6451and 5.1.6.7; (2) for sources of nutrient pollution other than

6461septic systems (such as fertilized and landscaped areas and

6470livestock sources), a 150-foot nutrient buffer setback from the

6479river in Policies 1.1.1.2.8 and 5.1.6.4; and (3) for septic

6489systems, special setbacks in Policy 1.1.1.2.11 (which is referred

6498to in the nutrient buffer setback policies). These different

6507setback policies were adopted for different purposes and are not

6517internally inconsistent. Data and analysis supporting the

6524establishment of these different setbacks further explains the

6532different purposes of the different types of setbacks adopted in

6542the Revised Comprehensive Plan.

654681. The availability of variances to the 150-foot nutrient

6555buffer setback allows some use on a parcel to ensure protection

6566of private property rights in the event of an unforeseen taking

6577of all use on a specific parcel where an applicant cannot meet

6589the setback but can meet the listed criteria for a variance and

6601provide the mitigation required for impacts. Protection of

6609private property rights is a competing concern that must be

6619addressed under Chapter 163, Florida Statutes, and Rule Chapter

66289J-5.

662982. The Plan Amendments need not address every possible or

6639potential set of facts and circumstances. Additional detail can

6648be provided in implementing LDRs adopted under Section 163.3202,

6657Florida Statutes. Specific implementation and interpretation of

6664policies and LDRs applicable to any particular development

6672proposal will be made by the Town during application review

6682process. Seemingly inconsistent policies can be reconciled by

6690applying the most stringent policy. Seemingly inconsistent

6697policies also could be reconciled by application of a specific

6707exemption, variance, or beneficial use determination.

671383. Site-specific application and interpretation of

6719policies and LDRs in development orders, and issues as to their

6730consistency with the goals, objectives, and policies of the

6739Revised Comprehensive Plan, can be addressed under Section

6747163.3215, Florida Statutes.

6750Small Local Governments

675384. IWI contends that the Town was not held to the same

6765data and analysis standards under Section 163.3177(10)(i),

6772Florida Statutes, as larger local governments.

677885. Under that statute and Rule 9J-5.002(2), the Department

6787can consider the small size of the Town, as well as other

6799factors, in determining the "detail of data, analyses, and the

6809content of the goals, objectives, policies, and other graphic or

6819textual standards required . . . ."

682686. Prior to adoption of the remedial amendments, the Town

6836was unable to utilize GIS mapping. However, for the remedial

6846amendments, GIS mapping was provided with the assistance of the

6856Regional Planning Council.

685987. IWI did not prove beyond fair debate that the Town's

6870data and analyses were insufficient under Chapter 163, Florida

6879Statutes, and Rule Chapter 9J-5.

6884State and Regional Plans

688888. IWI also contends, for essentially the same reasons

6897addressed previously, that the Plan Amendments are inconsistent

6905with State Comprehensive Plan provisions on water resources,

6913natural systems, and public facilities and Withlacoochee

6920Strategic Regional Policy Plan provisions on natural resources,

6928fisheries, and water quality.

693289. A plan is consistent with the State Comprehensive Plan

6942and regional policy plan if, considered as a whole, it is

"6953compatible with" and "furthers" those plans. "Compatible with"

6961means "not in conflict with" and "furthers" means "to take action

6972in the direction of realizing goals or policies of the state or

6984regional plan." § 163.3177(10)(a), Fla. Stat.

699090. Using those definitions, IWI failed to prove beyond

6999fair debate that the Revised Comprehensive Plan, as a whole, is

7010inconsistent with the State Comprehensive Plan or the

7018Withlacoochee Strategic Regional Policy Plan.

7023CONCLUSIONS OF LAW

702691. IWI owns land within the boundaries of the Town and

7037submitted oral or written comments, recommendations, or

7044objections during the period of time beginning with the

7053transmittal hearing for the Plan Amendments and ending with the

7063adoption of the Plan Amendments. IWI is an affected person with

7074standing to challenge the Plan Amendments under Section

7082163.3184(1)(a), Florida Statutes.

708592. Most administrative proceedings initiated after

7091preliminary agency review and notice of the agency's intent to

7101take final action are de novo proceedings under Sections 120.569

7111and 120.57(1), Florida Statutes, designed to "formulate final

7119agency action, not to review action taken earlier and

7128preliminarily." McDonald v Florida Department of Banking and

7136Finance , 346 So. 2d 81 (Fla. 1st DCA 1977). However, the

7147Legislature has chosen to treat administrative review of

7155comprehensive plans and plan amendments cases differently. In

7163proceedings under Section 163.3184(9)(a), Florida Statutes, a

7170different standard of review is established: "In this

7178proceeding, the local plan or plan amendment shall be determined

7188to be in compliance if the local government's determination of

7198compliance is fairly debatable."

720293. The phrase “fairly debatable” is not defined in the Act

7213or in Rule Chapter 9J-5. The Supreme Court of Florida has stated

7225that the fairly debatable standard under Chapter 163, Florida

7234Statutes, is the same as the common law "fairly debatable"

7244standard applicable to decisions of local governments acting in a

7254legislative capacity. In Martin County v. Yusem , 690 So. 2d

72641288, 1295 (Fla. 1997), the Court stated that the fairly

7274debatable standard is deferential and requires "approval of a

7283planning action if reasonable persons could differ as to its

7293propriety." Quoting from City of Miami Beach v. Lachman , 71

7303So. 2d 148, 152 (Fla. 1953), the Court stated further: "An

7314ordinance may be said to be fairly debatable when for any reason

7326it is open to dispute or controversy on grounds that make sense

7338or point to a logical deduction that in no way involves its

7350constitutional validity."

735294. Under Section 163.3184(1)(b), Florida Statutes: "'In

7359compliance' means consistent with the requirements of 163.3177,

7367163.3178, 163.3180, 163.3191, and 163.3245, with the state

7375comprehensive plan, with the appropriate strategic regional

7382policy plan, and with chapter 9J-5, Florida Administrative Code,

7391where such rule is not inconsistent with this part and with the

7403principles for guiding development in designated areas of

7411critical state concern and with part III of chapter 369, where

7422applicable."

742395. IWI failed to prove beyond fair debate that the Plan

7434Amendments are not "in compliance."

743996. Petitioner contends that Section 163.3177(3)(a),

7445Florida Statutes, required the Town to correct previously

7453identified deficiencies in its water quality treatment facilities

7461by planning and building within its boundaries its own new

7471central wastewater treatment facility (and modifying its vision

7479for the Town as necessary in order to pay for the new facility.)

7492Actually, the statute requires a component in the CIE that

"7502outlines principles for correcting existing public facility

7509deficiencies, which are necessary to implement the comprehensive

7517plan." The Revised Comprehensive Plan meets that requirement.

752597. In arguing that the Town is compelled by statute and

7536rule to plan for and construct its own new central wastewater

7547treatment facility within its boundaries, Petitioner points out

7555that, strictly speaking, Sections 163.3177(6)(g)1.g. and

7561163.3178, Florida Statutes, and Rule 9J-5.012(3)(b)5 and 6 do not

7571prohibit the construction of public infrastructure in the CHHA;

7580rather, they discourage public investment in infrastructure

7587designed to serve increased population concentrations in the

7595CHHA. However, it is logical that public infrastructure

7603constructed in the CHHA would serve increased population

7611concentrations primarily in the CHHA. In addition, it is logical

7621to avoid investment of public infrastructure that would be

7630vulnerable to destruction or damage from coastal storms.

7638RECOMMENDATION

7639Based upon the foregoing Findings of Fact and Conclusions of

7649Law, it is

7652RECOMMENDED that the Department of Community Affairs enter a

7661final order finding the Plan Amendments to be "in compliance."

7671DONE AND ENTERED this 30th day of October, 2009, in

7681Tallahassee, Leon County, Florida.

7685S

7686J. LAWRENCE JOHNSTON

7689Administrative Law Judge

7692Division of Administrative Hearings

7696The DeSoto Building

76991230 Apalachee Parkway

7702Tallahassee, Florida 32399-3060

7705(850) 488-9675

7707Fax Filing (850) 921-6847

7711www.doah.state.fl.us

7712Filed with the Clerk of the

7718Division of Administrative Hearings

7722this 30th day of October, 2009.

7728ENDNOTES

77291/ Unless otherwise noted, all statutory references are to the

77392009 version of the Florida Statutes.

77452/ The Joint Exhibits were: 1. the Town's existing

7754Comprehensive Plan with data and analysis; 2. the Plan Amendments

7764and Remedial Amendment, with data and analysis; 3. Bureau of

7774Economic and Business Research population estimate tables; 4.

7782Visioning Survey dated February 14, 2007, and Results dated

7791March 5, 2007; 5. Evaluation and Appraisal Report Survey

7800Compilation Spread Sheet; 6. School Concurrency Exemption Letter

7808dated May 24, 2007; and 7. Insurance Services Office Fire

7818Classification Survey(s) and Results prior to March 2008.

78263/ All rule references are to the version of the Florida

7837Administrative Code in effect at the time of the final hearing.

7848COPIES FURNISHED:

7850Ralf G. Brookes, Esquire

78541217 East Cape Coral Parkway, Suite 107

7861Cape Coral, Florida 33904-9604

7865Ralf Brookes, Esquire

7868Town of Yankeetown

7871Post Office Box 280

7875Yankeetown, Florida 34498-0280

7878Thomas C. Jennings, III, Esquire

7883Repka & Jennings, P.A.

7887711 Pinellas Street

7890Clearwater, Florida 33756-3426

7893David L. Jordan, Esquire

7897Department of Community Affairs

79012555 Shumard Oak Boulevard

7905Tallahassee, Florida 32399-2100

7908Thomas G. Pelham, Secretary

7912Department of Community Affairs

79162555 Shumard Oak Boulevard, Suite 100

7922Tallahassee, Florida 32399-2100

7925Shaw P. Stiller, General Counsel

7930Department of Community Affairs

79342555 Shumard Oak Boulevard, Suite 325

7940Tallahassee, Florida 32399-2105

7943NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

7949All parties have the right to submit written exceptions within 15

7960days from the date of this Recommended Order. Any exceptions to

7971this Recommended Order should be filed with the agency that will

7982issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/02/2010
Proceedings: Notice of Appeal of Final Order filed.
PDF:
Date: 03/09/2010
Proceedings: Agency Final Order
PDF:
Date: 03/09/2010
Proceedings: Agency Final Order filed.
PDF:
Date: 11/16/2009
Proceedings: Exceptions to Recommended Order filed.
PDF:
Date: 10/30/2009
Proceedings: Recommended Order
PDF:
Date: 10/30/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 10/30/2009
Proceedings: Recommended Order (hearing held August 10-12, 2009). CASE CLOSED.
PDF:
Date: 10/12/2009
Proceedings: Respondents' Joint Proposed Recommended Order filed.
PDF:
Date: 10/12/2009
Proceedings: RESPONDENTs' JOINT PROPOSED RECOMMENDED ORDER filed.
PDF:
Date: 10/12/2009
Proceedings: Respondents' Joint Recommended Order filed.
PDF:
Date: 10/12/2009
Proceedings: Petitioner's Written Closing Argument filed.
PDF:
Date: 10/12/2009
Proceedings: Petitioner's Notice of Filing Proposed Order filed.
PDF:
Date: 10/12/2009
Proceedings: Proposed Recommended Order of Petitioner Izaak Walton Investments, LLC., filed.
PDF:
Date: 09/24/2009
Proceedings: Order Granting Extension of Time (proposed recommended orders to be filed by October 12, 2009).
PDF:
Date: 09/23/2009
Proceedings: Agreed Joint Motion for Extension of Date for Filing Proposed Recommended Orders filed.
PDF:
Date: 09/09/2009
Proceedings: Notice of Filing Transcript filed.
Date: 09/09/2009
Proceedings: Transcript of Proceedings (Volumes I-IV) filed.
PDF:
Date: 08/11/2009
Proceedings: Order on Motions to Dismiss or Strike Amended Petition.
Date: 08/10/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 08/07/2009
Proceedings: Amended Notice of Hearing (hearing set for August 10 through 14, 2009; 12:30 p.m.; Inglis, FL; amended as to time of hearing).
PDF:
Date: 08/07/2009
Proceedings: Izaak Walton Investors, LLC's Response in Opposition to Town of Yankeetown Amended Motion to View filed.
PDF:
Date: 08/05/2009
Proceedings: Town of Yankeetown's Amended Motion for View filed.
PDF:
Date: 08/05/2009
Proceedings: Prehearing Stipulation filed.
PDF:
Date: 08/05/2009
Proceedings: Town of Yankeetown's Motion for View filed.
PDF:
Date: 08/03/2009
Proceedings: Notice of Possible Ex-Parte Communication.
PDF:
Date: 08/03/2009
Proceedings: Notice of Taking Deposition (of M. Conaway) filed.
PDF:
Date: 07/31/2009
Proceedings: Izaak Walton Investors, LLC's Response in Opposition to Town of Yankeetownn and Department's Motions to Strike or Dismiss Portions of Amended Petition for Formal Administrative Hearing and Reqauest for Hearing filed.
PDF:
Date: 07/30/2009
Proceedings: Letter to Judge Johnston from C. Mazzuca enclosing correspondence sent to public officials filed.
PDF:
Date: 07/30/2009
Proceedings: Order Granting Extension of Time (Pre-hearing Stipulation to be filed by August 5, 2009).
PDF:
Date: 07/29/2009
Proceedings: Joint Motion to Extend Date for Filing Pre-hearing Stipulation filed.
PDF:
Date: 07/27/2009
Proceedings: Mediation Report filed.
PDF:
Date: 07/20/2009
Proceedings: Town of Yankeetown's Interrogatories to Petitioner filed.
PDF:
Date: 07/20/2009
Proceedings: Izaak Walton's Notice of Filing Answers to Interrogatories filed.
PDF:
Date: 07/16/2009
Proceedings: Order Granting Extension of Time (Izaak`s response to be filed by July 31, 2009).
PDF:
Date: 07/16/2009
Proceedings: Izaak Walton Investors, LLC's Motion for Additional Time to Respond to Deparment's Motion to Dismiss or Strike and Town's Motion to Strike (unopposed) filed.
PDF:
Date: 07/14/2009
Proceedings: Town of Yankeetown's Certification of Good Faith filed.
PDF:
Date: 07/14/2009
Proceedings: Town of Yankeetown's Motion to Strike Amended Petition filed.
PDF:
Date: 07/14/2009
Proceedings: Order Compelling Interrogatory Answers.
PDF:
Date: 07/14/2009
Proceedings: Motion to Dismiss or Strike Positions of the Amended Petition for Formal Administrative Hearing Filed by Izaak Walton Investors, LLC filed.
PDF:
Date: 07/06/2009
Proceedings: Town of Yankeetown's Motion to Compel Answers to Fact Witness Interrogatories filed.
PDF:
Date: 07/06/2009
Proceedings: Town of Yankeetown's Motion to Compel Answers to Expert Witness Interrogatories filed.
PDF:
Date: 07/02/2009
Proceedings: Izaak Walton's Amended Petition for Formal Administrative Hearing filed.
PDF:
Date: 07/02/2009
Proceedings: Izaak Walton Investors LLC's Answer to Interrogatories (exhibit attached) filed.
PDF:
Date: 07/02/2009
Proceedings: Izaak Walton Investors, LLC's Answers to Interrogatories (no exhibit attached) filed.
PDF:
Date: 06/26/2009
Proceedings: (Town of Yankeetown) Amended Answer to Interrogatories filed.
PDF:
Date: 06/26/2009
Proceedings: Answers to Izaak Walton Investors, LLC's Interrogatories to Department of Community Affairs filed.
PDF:
Date: 06/23/2009
Proceedings: Izaak Walton Investors, LLC's Witness Disclosure filed.
PDF:
Date: 06/22/2009
Proceedings: Order Granting Motion to Strike with Leave to Amend.
PDF:
Date: 06/16/2009
Proceedings: Joint Response to Paragraph 1, Amended Initial Order- Resolution Session filed.
PDF:
Date: 06/12/2009
Proceedings: Town of Yankeetown's Interrogatories to Petitioner filed.
PDF:
Date: 06/12/2009
Proceedings: Izaak Walton Investors, LLC's Response in Opposition to Department's to Motion to Strike or Dismiss Portions of Petition for Formal Administrative Hearing filed.
PDF:
Date: 06/12/2009
Proceedings: Izaak Walton Investors LLC' Interrogatories to Town of Department of Community Affairs filed.
PDF:
Date: 06/12/2009
Proceedings: Izaak Walton Investors LLC' Interrogatories to Town of Yankeetown filed.
PDF:
Date: 06/11/2009
Proceedings: Second Amended Notice of Hearing (hearing set for August 10 through 14, 2009; 10:00 a.m.; Inglis, FL; amended as to location of hearing).
PDF:
Date: 06/10/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/10/2009
Proceedings: Amended Notice of Hearing (hearing set for August 10 through 14, 2009; 10:00 a.m.; Yankeetown, FL; amended as to dates of hearing).
Date: 06/10/2009
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 06/09/2009
Proceedings: Izaak Walton Investors, LLC's Proposed Locations for Hearing/Mediation filed.
PDF:
Date: 06/08/2009
Proceedings: Department of Community Affairs' Motion to Dismiss or Strike Portions of the Petition for Formal Administrative Hearing Filed by Izaak Walton Investors, LLC filed.
PDF:
Date: 06/05/2009
Proceedings: Izaak Walton Investors, LLC's Notice of Counsel and Witness Unavailability on July 6 and July 7 filed.
PDF:
Date: 06/05/2009
Proceedings: Izaak Walton Investors, LLC's Demand for Mediation filed.
PDF:
Date: 06/05/2009
Proceedings: Izaak Walton Investors, LLC's Response to Location for Hearing/Mediation Proposed by Town of Yankeetown filed.
PDF:
Date: 06/05/2009
Proceedings: Amendment to Response to Order Realigning Parties and Requiring Suggested Hearing Dates filed.
PDF:
Date: 06/05/2009
Proceedings: Yankeetown's Notice of Witness and Counsel Availability for Hearing on July 6 and 7 filed.
PDF:
Date: 06/04/2009
Proceedings: Notice of Hearing Room Availability filed.
PDF:
Date: 06/04/2009
Proceedings: Response to Order Realigning Parties and Requiring Suggested Hearing Dates filed.
PDF:
Date: 06/04/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/04/2009
Proceedings: Notice of Hearing (hearing set for July 6 and 7, 2009; 10:00 a.m.; Yankeetown, FL).
PDF:
Date: 06/03/2009
Proceedings: Town of Yankeetown's Response to Demand for Mediation filed.
PDF:
Date: 06/03/2009
Proceedings: Town of Yankeetown's Motion for Expedited Hearing filed.
PDF:
Date: 06/01/2009
Proceedings: Order Realigning Parties and Requiring Suggested Hearing Dates.
PDF:
Date: 05/29/2009
Proceedings: Status Report, Notice of Filing Cumlative NOI and Petition, and Motion to Realign the Parties filed.
PDF:
Date: 05/11/2009
Proceedings: Notice of Substitution of Counsel for Department of Community Affairs filed.
PDF:
Date: 05/04/2009
Proceedings: Notice of Appearance for Izaak Walton (of T. Jennings) filed.
PDF:
Date: 04/30/2009
Proceedings: Notice of Appearance (of T. Jennings) filed.
PDF:
Date: 04/23/2009
Proceedings: Order Continuing Case in Abeyance (parties to advise status by May 29, 2009).
PDF:
Date: 04/23/2009
Proceedings: Status Report and Renewed Request for Stay of Proceedings filed.
PDF:
Date: 04/15/2009
Proceedings: Notice of Substitution of Counsel and Notice of Appearance of Co-counsel (of R. Shine) filed.
PDF:
Date: 04/02/2009
Proceedings: Order Granting Leave to Withdraw.
PDF:
Date: 03/23/2009
Proceedings: Motion to Withdraw as Counsel filed.
PDF:
Date: 01/28/2009
Proceedings: Order Continuing Case in Abeyance (parties to advise status by April 30, 2009).
PDF:
Date: 01/27/2009
Proceedings: Stipulated Settlement Agreement filed.
PDF:
Date: 01/27/2009
Proceedings: Status Report, Notice of Filing Compliance Agreement, and Request for Stay of Proceedings filed.
PDF:
Date: 01/13/2009
Proceedings: Joint Motion to Continue to Hold Case in Abeyance filed.
PDF:
Date: 12/02/2008
Proceedings: Order Continuing Case in Abeyance (parties to advise status by January 26, 2009).
PDF:
Date: 11/25/2008
Proceedings: Status Report filed.
PDF:
Date: 09/29/2008
Proceedings: Order Continuing Case in Abeyance (parties to advise status by November 25, 2008).
PDF:
Date: 09/26/2008
Proceedings: Status Report filed.
PDF:
Date: 08/28/2008
Proceedings: Answers to Interrogatorries filed.
PDF:
Date: 08/28/2008
Proceedings: Response to Request for Production filed.
PDF:
Date: 08/01/2008
Proceedings: Izaak Walton Investors, LLC`s First Request to Produce to Respondent Town of Yankeetown filed.
PDF:
Date: 08/01/2008
Proceedings: Notice of Service of Interrogatories filed.
PDF:
Date: 07/29/2008
Proceedings: Order Continuing Case in Abeyance (parties to advise status by September 26, 2008).
PDF:
Date: 07/29/2008
Proceedings: Town of Yankeetown Status Report filed.
PDF:
Date: 07/28/2008
Proceedings: Status Report filed.
PDF:
Date: 06/18/2008
Proceedings: Order on Motions to Dismiss and Strike All or Part of Petitions to Intervene.
PDF:
Date: 06/17/2008
Proceedings: Izaak Walton Investors, LLC`s Available Dates for Motion Hearings filed.
PDF:
Date: 06/16/2008
Proceedings: Unopposed Motion for a Telephonic Hearing on the Motion to Dismiss and Responses filed.
PDF:
Date: 06/16/2008
Proceedings: Notice of Unavailability filed.
PDF:
Date: 06/16/2008
Proceedings: Town of Yankeetown's Available Dates for Motion Hearings filed.
PDF:
Date: 06/10/2008
Proceedings: Intervenor Izaak Walton Investors, LLC`s Response to Department of Community Affairs` Motion to Dismiss filed.
PDF:
Date: 06/04/2008
Proceedings: Intervenor Izaak Walton Investors, LLC`s Motion to Strike and Response to Town of Yankeetown`s Amended Motion to Dismiss and Motion for More Definite Statement filed.
PDF:
Date: 06/02/2008
Proceedings: Motion to Dismiss the Petitions to Intervene Filed by Izaak Walton Investors, LLC filed.
PDF:
Date: 05/28/2008
Proceedings: Order Placing Case in Abeyance (parties to advise status by July 28, 2008).
PDF:
Date: 05/28/2008
Proceedings: (Amended) Town of Yankeetown's Motion to Dismiss and Motion for More Definite Statementon Intervenors Petition to Intervene filed.
PDF:
Date: 05/28/2008
Proceedings: Town of Yankeetown's Motion to Dismiss and Motion for More Definite Statement on Intervenors Petition to Intervene filed.
PDF:
Date: 05/28/2008
Proceedings: Order of Consolidation (DOAH Case Nos. 08-2451GM and 08-2473GM).
PDF:
Date: 05/27/2008
Proceedings: Order Granting Leave to Intervene (Izaak Walton Investors, LLC).
PDF:
Date: 05/22/2008
Proceedings: Initial Order.
PDF:
Date: 05/22/2008
Proceedings: Izaak Walton Investors, LLC`s Petition to Intervene filed.
PDF:
Date: 05/21/2008
Proceedings: Notice of Intent to Find the Town of Yankeetown Comprehensive Plan Not in Compliance filed.
PDF:
Date: 05/21/2008
Proceedings: Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance filed.
PDF:
Date: 05/21/2008
Proceedings: Department of Community Affairs` Petition for Formal Administrative Hearing filed.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
05/21/2008
Date Assignment:
05/22/2008
Last Docket Entry:
04/02/2010
Location:
Inglis, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
Suffix:
GM
 

Counsels

Related Florida Statute(s) (9):

Related Florida Rule(s) (2):