10-000858GM Diane C. Brown vs. Bay County And Department Of Community Affairs Status: Closed Recommended Order on Thursday, June 30, 2011.

Summary: EAR-based amendments found to be responsive to recommended changes in the EAR and otherwise in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANE C. BROWN , )

)

Petitioner , )

)

vs. ) Case No . 10 - 0858 GM

)

DEPARTMENT OF COMMUNITY )

AFFAIRS and BAY COUNTY, )

)

Respondent s . )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Div ision of Administrative Hearings by its assigned

Administrative Law Judge, D . R. Alexander, on November 8 and 9,

2010, in Panama City, Florida , and by videoconferencing on

November 20, 2010 .

APPEARANCES

For Petitioner: Diane C. Brown, pro se

241 Twin Lakes Drive

Laguna Beach, Florida 32413 - 1413

For Respondent : Matthew G. Davis, Esquire

(Department) Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

For Respondent : Terrell K. Arline , Esquire

(C ounty) Bay County Attorney

840 West 11th Street

Panama City, Florida 32401 - 2336

STATEMENT OF THE ISSUE

The issue is whether the E valuation and Appraisal Report

(EAR) amendments for the Bay County (County) Comprehensive Plan

(Plan) are in compliance.

PRELIMINARY STATEMENT

On October 20, 2009, the County adopted its EAR - based

amendments by Ordinance No. 09 - 3 6 . On December 15, 2009,

Respondent, Department of Community Affairs (Department), found

the amendments to be in compliance.

On February 5, 2010, Petitioner, Diane C. Brown, filed with

the Department her Petition for Administrative Hearing

contending n umerous amendments were not in compliance . She

later filed an Amended Petition on March 22 , 2010. By agreement

of the parties, by Order dated October 15, 2010, jurisdiction

over those amendments not subject to challenge was relinquished

to the Department so that they could become effective

immediately . One change to Conservation Element policy

6.11.3(3) was addressed in Case No. 10 - 0859GM.

Separate pre - hearing statements were filed by Respondents

and Petitioner on November 5 and 8 , 2010 , respectively . A t the

final hearing , Petitioner presented the testimony of Dr. Ronald

H. Saff, an allergy and asthma physician and accepted as an

expert; Martin J. Jacobson, County Director of Planning and

Zoning; Richard Todd Kincaid, a geologist with GeoHydros, LLC,

and accepted as an expert; Marilyn Shanholtzer, a former member

of the County Planning Commission; Ian Crelling, a County

Principal Planner; and Dan iel K. Shaw , Assistant County Manager.

Also, she offered Petitioner's Exhibits 3, 5, 7A, 7B, 8A, 8B,

22, 22B, 22C, 23A , 23B , 27B, 28B , and 28D. All were received

except 8B. Exhibit 22C is the deposition of Susan Poplin,

Regional Planning Administrator for the Department, while

Exhibit 27 B is the deposition of K. Marlene Conaway, a

professional planner and accept ed as an expert. The County

presented the testimony of Martin J. Jacobson, who was accepted

as an expert; Jennifer Bowes, County Transportation Planner and

accepted as an expert; Ian Crelling, who was accepted as an

expert; and Dr. Steven J. Peene, an env ironmental consultant and

vice - president of Applied Technologies and Management , Inc., who

was accepted as an expert. Also, it offered County Exhibits 1A -

G, 4, 17, 22, 29, 35A, and 35B, which were received in evidence. 1

Exhibit 17 is the deposition of Da niel W. Garlick, a wetland

scientist with Garlick Environmental Associates, Inc., and

accepted as an expert. The Department did not present any

evidence. Finally, the County's request to officially recognize

Florida Administrative Code chapter 62 - 346 , an d the documents

incorporated by reference into that chapter, was granted.

The Transcript ( three volumes) of the hearing was filed on

May 11, 2011. At the request of Petitioner, the time for filing

p roposed f indings of f act and c onclusions of l aw w as ext ended to

June 6, 2011. Petitioner and Respondents timely submitted their

post - hearing submissions, and they have been considered in the

preparation of the Recommended Order.

FINDINGS OF FACT

A . The P arties

1. Diane C. Brown resides and owns property w ithin the

County, and she submitted written and oral comments to the

County during the adoption process of Ordinance No. 09 - 36.

2. The County is a local government that administers its

Plan and adopted the Ordinance which approve d the change s being

cont ested here.

3 . The Department is the state land planning agency

charged with the responsibility for reviewing plan amendments of

local governments, such as the C ounty .

B. The EAR Process

4. The County's first Plan was adopted in 1990 and then

amended t hrough the EAR process in 1999. As required by law, o n

September 5, 2006, the County adopted an other EAR and in 2007 a

Supplement to the EAR . See County Ex. 1C and 1 D . The EAR and

Supplement were found to be sufficient by the Department on

December 21, 2007. See County Ex. 1E. After the EAR - based

amendments were adopted by the County and transmitted to the

Department for its review, the Department issued its Objections,

Recommendations and Comments (ORC) report.

5. After making revisions to the amendm ents in response to

the ORC, o n October 20, 2009, the County enacted Ordinance No.

09 - 36, which adopted the final version of the EAR - based

amendments known as "Charting Our Course to 2020 . " See County

Ex. 1 B . On December 15, 2009, t he Department issued i ts notice

of intent determining that the EAR - based amendments were in

compliance. See County Ex. 1F. Notice of this determination

was published in the Panama City News Herald the following day.

See County Ex. 1G.

6. The EAR is a large document compri sed of five sections:

Overview Special Topics; Issues; Element Reviews; Recommended

Changes; and a series of Maps . Section 163.3191(10), Florida

Statutes, requires that the County amend its comprehensive plan

" based " on the reco mmendations in the report ; subsection (2)

also requires that the County update the comprehensive plan

based on the components of that subsection .

7. The EAR - based amendments are extensive in nature, and

include amendments to all 13 chapters in the Plan. However,

many provisions i n the 1999 version of the Plan were left

unchanged , while many revisions wer e simply a renumbering of a

provision, a transfer of a provision to another element, a

change in the format, or an otherwise minor and non - substantive

change.

8. Although the EAR discusses a number of issues and

concerns in the first three sections of the report , the EAR -

based amendments must only be based on the recommended changes.

See § 163.3191(10), Fla. Stat. Therefore, it was unnecessary

for the County to react through the amendment process to the

discussions in the Issues and Element Review s portions of the

EAR . For example, the EAR discusses air quality and mercury but

made no specific recommendations to amend the Plan to address

either subject. Also, nothing in chapter 163 or Department

rules requires that the County implement changes to the Plan

that parrot each specific recommendation to the letter . So long

as the revisions are "based" on an area of concern in the

recommendations , the statutory requirement has been s atisfied.

9. Section Four of the EAR contains the "Recommended EAR -

Based Actions and Corrective Measures Section 163.3191(2)(i)."

See County Ex. 1C, § 4, pp. 1 - 9. Paragraph (2)(i) of the

statute requires that the EAR include "[t]he identification of

an y actions or corrective measures, including whether plan

amendments are anticipated to address the major issues

identified and analyzed in the report." Section Four indicates

that it was intended to respond to the requirements of this

paragraph. Id. at p . 1.

10. Finally, the only issue in this proceeding is whether

the EAR - based amendments are in compliance. Therefore,

criticisms regarding the level of detail in the EAR and

Supplement , and whether the County adequately addressed a

particular issue in th ose document s , are not relevant. A

determination that the EAR was sufficient in all respects was

made by the Department on December 21, 2007.

11 . In her Amended Petition, Petitioner raise s numerous

allegations regarding the EAR - based amendments . They can be

generally summarized as allegations that various text

amendments , including entire elements or sub - elements, are

inconsistent with statut ory and rule provisions or are

internally inconsistent with other Plan p rovisions, and that the

County failed to properly react to changes recommended in the

EAR . Because this is a challenge to an in - compliance

determination by the Department, Petitioner must show that even

though there is evidence to support the propriety of these

amendments, no reasonable person would agree that the amendments

are in compliance. See Conclusion of Law 90 , infra .

C. Objections

(a) Administrative Procedures - Chapter 1

12. Petitioner contends that new policy 1.4.1(4) is

inconsistent with sections 163.3181 and 187.201(25)(a) and

(b)6., which generally require or encourage effective citizen

participation, and rule 9J - 5.004, which requires a local

government to adopt procedures for public participation. She

also contends the County should not have deleted policy 1.4.2,

which requir ed the County to provide notices (by mail and sign

postings) beyond those required by chapter 163.

13. The new policy simply provides that notice of public

hearings be provided for in accordance with chapter 163. There

is no statutory or rule requireme nt that more stringent notice

requirements be incorporated into a plan. The new notice

requirements are consistent with the above statutes and rule.

It is fairly debatable that the changes to the Administrative

Procedures part of the Plan are in complian ce.

(b) Future Land Use Element (FLUE) - Chapter 3

14. Petitioner has challenged (a) one policy that creates

a new planning area ; (b) the County's failure to adopt new

energy standards in the FLUE ; and (c) the adoption of new

development standards for t wo land use categories in Table 3A of

the FLUE. Table 3A describes each land use category in the

Plan, including its purpose, service area, designation criteria,

allowable uses, density, intensity, and development

restrictions. See County Ex. 1A, Ch. 3, pp. 3 - 5 through 3 - 17.

These contentions are discussed separately below.

i. Southport Neighborhood Planning Area

1 5 . New FLUE policy 3.4.8 creates the Southport

Neighborhood Planning Area (Southport), a self - sustaining

community with a functional mix of uses . See County Ex. 1A, Ch.

3, pp. 3 - 20 and 21. The effect of the amendment is simply to

identify Southport as a potential planning area that includes a

mixture of uses. This follows the EAR recommendation s to create

"new areas where residents are allo wed to work, shop, live, and

recreate within one relatively compact area while preserving the

rural and low density land uses in the area[,]" and to create

"higher density rural development." County Ex. 1C, § 4, p. 2.

Southport is located north of the gr eater Panama City area in an

unincorporated part of the County near or adjacent to the

proposed new intersection of County Road 388 and State Road 77.

Southport is also identified in new policy 3.2.5(8) as a Special

Treatment Zone (STZ) that is designated as an overlay on the

Future Land Use Map Series. Id. at p. 3 - 5. (There are seven

STZs in the Plan that act as overlay districts on the FLUM.

Overlays do not convey development rights. ) Peti tioner contends

that policy 3.4.8 is inconsistent with section s 163.3177(6)(a)

and (d), (8), and (9)(b) and (e), and rules 9J - 5.005(2), (5),

and (7), 9J - 5.006(5), and 9J - 5.013. More precisely, Petitioner

generally contends that the amendment will encourage urban

sprawl ; that there is no need for the additional devel opment ;

that there are no central water and wastewater facilities

available to serve that area ; that there is no mechanism for

monitoring, evaluating, and appraising implementation of the

policy ; that it will impact nearby natural resources ; that it

allows increased density standards in the area ; and that it is

not supported by adequate data and analysis .

1 6 . M ost of the data and analysis that support the

establishment of the new planning area are in the EAR . They are

found in the Introduction and Overvie w portion of Section One

and the FLUE portion of Section 3 of the Element Reviews. The

County Director of Planning also indicated that the County

relied upon other data as well.

1 7 . Although the new policy allows an increase in maximum

residential densit y from five to 15 dwelling units per acre,

paragraph (b) of the policy specifically requires that "all new

development [be] served by central water and sewer."

1 8 . Petitioner's expert opined that the new community will

create urban sprawl . However , Sou thport is located within the

suburban service area of the County , which already allows

densities of up to five dwelling units per acre; it is currently

developed with low - density residential uses ; and it is becoming

more urban in nature. Given these consi derations, it is fairly

debatable that Southport will not encourage urban sprawl.

1 9 . The new STZ specifically excludes the Deer Point

Reservoir Protection Zone. Therefore, concerns that the new

policy will potentially threaten the water quantity and qua lity

in that reservoir are not credited. In addition, there are

other provisions within the Plan that are designed to protect

the reservoir.

20 . Petitioner criticized the County's failure to perform

a suitability analysis before adopting the amendment . However,

a suitability study is performed when a land use change is

proposed. Policy 3.4.8 is not an amendment to the FLUM. In

fact, the Plan notes that "[n]othing in this policy shall be

interpreted as changing the land use category of any parcel of

the [FLUM]." County Ex. 1A, Ch. 3, p. 3 - 21.

2 1 . In determining the need for this amendment, the County

took into consideration the fact that except for the Beaches

S TZ, the EAR - based amendments delete residential uses as an

allowed use in commercially - des ignated lands. The number of

potential residential units removed from the commercial land use

category far exceed s the potential number of residential units

that could be developed at Southport. Th us, th e new amendment

will not result in an increase in r esidential units.

2 2 . Petitioner also contends that the County should have

based its needs analysis using Bureau of Economic and Business

Research (BEBR) estimates. The County's population projections

are found in the Introduction portion of the EAR and while they

make reference to BEBR estimates, they are not based exclusively

on th ose data. See County Ex. 1C, § 1, pp. 2 and 3. However,

there was no evidence that the estimates used by the County are

not professionally acceptable. Where there are two a cceptable

methodologies used by the parties, t he Department is not

required to evaluate whether one is better than the other. See

§ 163.3177(10)(e), Fla. Stat. ("the Department shall not

evaluate whether one accepted methodology is better than

another"). The County's estimates are professionally acceptable

for determining need .

23. The other objections to the amendment have been

considered and found to be without merit. Therefore, it is at

least fairly debatable that the amendment is in compliance.

ii. Neighborhood Commercial - Table 3A

2 4 . The purpose of this commercial category is to "provide

areas for the convenience of residential neighborhoods so as to

generate a functional mix of land uses and reduce traffic

congestion." County Ex. 1A, Ch. 3, p. 3 - 15. Allowable uses

include, among others, supermarket centers, restaurants, public

facilities, and other similar uses. The County amended the

intensity standard for th is category by allowing development

that is "[n]o more than 50 - feet in height." Id. Petitioner

asserts that the new 50 - foot height limitation for commercial

buildings results in the amendment being inconsistent with rule

9J - 5.006 because it is not based on adequate data and analysis .

Petitioner further argues that the standard is inter nally

inconsistent with FLUE objective 3.9 and policy 3.9.1 and

Housing Element objective 8.5, which relate to compatibility.

Finally, Petitioner alleges that it will cause unsustainable

density in the category and create new demands for public

services.

2 5 . The EAR contains a section that analyzes data

regarding residential development in commercial land use

categories. See County Ex. 1C, § 2. There is, then, data and

analysis that support the amendment. The 50 - foot height

limitation actually limits the intensity that would normally be

allowed under current Land Development Regulations (LDRs) if

this limitation were not in the Plan. Therefore, it will not

increase the intensity of development within this district .

Because the Plan specifically provi des that the category is for

"areas [with] low - intensity commercial uses that will be

compatible with adjacent or surrounding residential uses," and

such uses must be located "outside subdivisions . . . unless

intended to be included in the subdivisions," compatibility

issues with adjacent residential areas should not arise.

Petitioner failed to establish beyond fair debate that the

amendment is not in compliance.

iii. Seasonal/Resort - Table 3A

2 6 . This land use category is designed for transient

occup ancy ( temporary seasonal visitors and tourists) under

chapter 509, rather than permanent residents . It is limited to

areas with concentrations of accommodations and businesses that

are used in the tourist trade. See County Ex. 1A, Ch. 3, p. 3 -

12. The ca tegory includes a new intensity standard for

buildings of "[n]o more than 230 - feet in height." Id.

Petitioner contends that this intensity standard is inconsistent

with section 163.3177(6)(d), (8), and (9) and rules 9J - 5.005(2)

and (5), 9J - 5.006, and 9J - 5.013 . Th e se provisions require that

an amendment protect natural resources, that it be based on the

best available data and analysis, and that it be internal ly

consisten t with other Plan provisions. Petitioner also points

out that the land use category is located in or adjacent to the

Coastal High Hazard Area, that the amendment allows an increase

in density, and this results in an inconsistency with statutes

and rules pertaining to hurricane evacuation zones.

2 7 . Prior to the adoption of the EAR - based amendments,

there was no intensity standard in the Plan for this land use

category and all development was governed by LDRs . Pursuant to

a recommendation by the Department in its ORC, the new standard

was incorporated into the Plan. Before making a deci sion on the

specific height limitation, the County considered existing

condominium construction on the beach, current LDR standard s for

the district, and whether the new standard would create an

internal inconsisten cy with other Plan provisions. Therefore ,

it is fair to find that adequate data were considered and

analyzed.

2 8 . The new height limitation is the same as the maximum

height restriction found in the Seasonal Resort zoning district,

which now applies to new construction in the district. Becaus e

condominiums and hotels that do not exceed 230 feet in height

are now allowed within the district, and may actually exceed

that height if approved by the County, the amendment is not

expected to increase density or otherwise affect hurricane

evacuation p lanning. Historically, transient visitors/tourists

are the first to leave the area if a hurricane threatens the

coast. Petitioner also contends that the amendment will create

compatibility problems between existing one - or two - story

residential dwellings in the district and high - rise

condominiums, and that the County failed to adequately consider

that issue. However, before a condominium or other similar

structure may be built, the County requires that the developer

provide a statement of compatibility. It is fairly debatable

that the new intensity standard is in compliance.

iv. Energy Issues

2 9 . Petitioner allege s that the new amendments do not

adequately address energy issues, as required by section

163.3177(6)(a). That statute requires, among many other things,

that the FLUE be based upon "energy - efficient land use patterns

accounting for existing and future electric power generation and

transmission systems; [and] greenhouse gas reduction

strategies." However, amendments to objective 3.11 and pol icy

3.11.5 , which relate to energy - efficient land use patterns,

adequately respond to these concerns. See County Ex. 1A, Ch. 3,

pp. 3 - 27 and 3 - 28. In addition, new Transportation Element

policy 4.10.3 will result in energy savings and reduce

greenhouse g ases by reducing idle times of vehicular traffic .

See County Ex. 1A, C h. 4, p. 4 - 12. It is fairly debatable that

the energy portions of the Plan are in compliance, and they

promote energy efficient land use patterns and reduce greenhouse

gas emissions, a s required by the statute.

(c) Transportation Element - Chapter 4

30 . The EAR contains 14 recommended changes for this

element. See County Ex. 1C, § 4, pp. 2 - 4. Item 2 recommend s

generally that bike paths be installed in or next to certain

areas and roadways. Id. at p. 2. Petitioner contends that this

recommendation was not implemented because it is not included in

the Recreation and Open Space Element. However, one section of

the Transportation Element is devoted to Bicycle and Pedestrian

Ways and includes objectives 4.14 and 4.15 and policies 4.14.1

and 4.15.1 , which respond to the recommendation. See County Ex.

1A, Ch. 4, pp. 4 - 14 and 4 - 15. In addition, the General Strategy

portion of the element requires the County to install

alternative trans portation systems where a demonstrated need

exists. Id. at p. 4 - 1. Petitioner contends that by limiting

bike paths only to where there is a demonstrated need , the

County has not fully responded to the recommendation. This

argument is illogical and has b een rejected. It is fairly

debatable that the above amendments are in compliance.

(d) Groundwater Aquifer Recharge - Chapter 5F

3 1 . As required by section 163.3177(6)(c) , the County has

adopted a natural groundwater aquifer recharge element. See

County Ex. 1A, Ch. 5F. The goal of this sub - element, as

amended, is to "[s]afeguard the functions of the natural

groundwater recharge areas within the County to protect the

water quality and quantity in the Floridan Aquifer." County Ex.

1A, Ch. 5, p. 5F - 1. Th e EAR contains three recommended changes

for this part of the Plan : that the County update its data and

analysis to identify areas of high and/or critical recharge for

the Floridan aquifer; that it include in the data and analysis

an examination of existi ng LDRs which affect land uses and

development activities in high recharge areas and note any gaps

that could be filled through the LDRs; and that it include

within the data and analysis a study of potential impacts of

increased development in high recharg e areas, including

reasonable development standards for those areas. See County

Ex. 1C, §4, pp. 4 - 5.

3 2 . Petitioner contends that "the objectives and policies

pertaining to protecting water recharge areas" are inconsistent

with sections 163.3177(6)(d) an d 187.201(7) and rules 9J - 5.5.011

and 9J - 5.013, which require that the Plan protect groundwater;

that they violate section 163.3177(8) and rule 9J - 5.005(7),

which require measurable objectives for monitoring, evaluating,

and appraising implementation; and that the County violated

section 163.3191(10) by failing to respond to the recommended

changes in the EAR.

3 3 . In response to the EAR, in July 2009, the County

prepared a watershed report entitled "Deer Point Lake Hydrologic

Analysis - Deer Point Lake W atershed ," which was based on a

watershed management model used by County expert witness Peene.

See County Ex. 4. The model used for that report is the same

model used by the Department of Environmental Protection (DEP)

and the United States Army Corps o f Engineers. The study was

also based on data and analysis prepared by the Northwest

Florida Water Management District. The purpose of the analysis

was to look at potential future land use changes in the Deer

Point watershed and assess their ultimate imp act upon the Deer

Point Reservoir, which is the primary public water supply for

the County. The model examined the entire Deer Point watershed,

which is a much larger area than the Deer Point Lake Protection

Zone, and it assumed various flows from rain, s prings, and other

sources coming into the Deer Point Reservoir. The study was in

direct response to a recommendation in the EAR that the County

undertake a study to determine if additional standards were

needed to better protect the County's drinking wate r supply and

the St. Andrews estuary. See County Ex. 1C, § 4, p. 5. Another

recommendation was that the study be incorporated by reference

into the data and analysis of the Plan and be used as a basis

for any amendments to the Plan that might be necessar y. Id. at

p. 6. Pursuant to that recommendation, the report was

incorporated by reference into Objective 5F.1. See County Ex.

1A, Ch. 5, p. 5F - 1. The evidence supports a finding that the

report is based on a professionally accepted methodolog y and is

r esponsive to the EAR .

3 4 . The model evaluated certain future land use scenarios

and predicted the level of pollutants that would run off of

different land uses into the Deer Point Reservoir.

3 5 . Based on this analysis, Dr. Peene recommended that the

Coun ty adopt certain measures to protect the groundwater in the

basin from fertilizers, stormwater, and pesticides. He also

recommended that best management practices be used, that septic

tanks be replaced, and that any new growth be on a centralized

wastewat er treatment plant.

3 6 . Petitioner's expert criticized the report as not

sufficiently delineating the karst features or the karst plain

within the basin. However, the report address es that issue.

See County Ex. 4, p. 2 - 36. Also, Map 13 in the EAR ident ifies

the Karst Regions in the County. See County Ex. 1C, § 5, Map

13.

3 7 . One of the recommendations in the EAR was to amend all

goals, policies, and objectives in the Plan "to better protect

the Deer Point watershed in areas not included within the D eer

Point Reservoir Special Treatment Zone, and [to] consider

expanding the zone to include additional areas important to

preserving the quantity and quality of water entering the

reservoir." County Ex. 1C, § 4, p. 6. Besides amending the

sub - element's g oal, see Finding of Fact 3 1 , supra , the County

amended objective 5F.1 to read as follows:

By 2010 protect groundwater resources by

identifying and mapping all Areas of High

Aquifer Recharge Potential to the Floridan

Aquifer in Bay County by using the data and

analysis contained in the Deer Point Lake

Hydrologic Analysis - Deer Point Watershed,

prepared by Applied Technology and

Management, Inc., dated July 2009.

3 8 . In addition, policy 5F - 1.1 requires that the County

use "the map of High Aquifer Recharge Areas to establish an

Ecosystem Management overlay in the Conservation Element where

specific land use regulations pertaining to aquifer water

quality and quantity shall apply." Also, policy 5F - 1.2 requires

the identification of the Dougherty Karst Region . Finally, the

EAR and Map 13A were incorporated by reference into the Plan by

policy 1.1.4.4. These amendments sufficiently respond to the

recommendations in the EAR.

3 9 . While Petitioner's expert criticized the sufficiency

of the EAR, and he did not b elieve the report adequately

addressed the issue of karsts, the expert did not establish that

the study was professionally unacceptable or otherwise flawed.

His criticism of the County's deletion of language in the vision

statement of the sub - element that would restrict development

density and intensity in areas known to have high groundwater

aquifer potential is misplaced. An amendment to a vision

statement is not a compliance issue, and nothing in the EAR,

chapter 163, or chapter 9J - 5 requires the Count y to limit

"density and intensity" in high aquifer recharge areas. On this

issue, the EAR recommended that the County's drinking water

supply be protected by using "scientifically defensible

development standards." County Ex. 1C, § 4, p. 5. The

amendmen ts accomplish this result.

40 . Petitioner also contends that while new policy 5F.3

and related policies are "good," the County should have

collected additional data and analysis on the existence of

swallets, which are places where streams flow underground .

Again, n othing in chapter 163 or chapter 9J - 5 requires the

County to consider swallets. Also, a contention that policy

5F3.2 allows solid waste disposal facilities in high recharge

areas is without merit. The policy requires that the County

continue t o follow chapter 62 - 7 regulations (implemented by DEP)

to protect water quality of the aquifers. In addition, a

moratorium on construction and d emolition landfills has been

adopted, and current LDRs prohibit landfills within the Deer

Point Reservoir Prote ction Zone.

4 1 . Petitioner also criticized the sufficiency of policy

5F.4, which requires the implementation of LDRs t hat limit land

uses around high aquifer recharge areas. The evidence

establishes that the new policy is sufficient to achieve this

purpo se.

4 2 . It is at least fairly debatable that the new

amendments protect the natural resources, are based on the best

available data and analysis, include measurable objectives for

overseeing the amendments, and respond to the recommended

changes in the EAR.

(e) Conservation Element - Chapter 6

4 3 . The purpose of this element is to conserve the natural

resources of the County. Petitioner contends that " many of the

amendments [ to this chapter ] are not consistent with applicable

rules and statutes, and t hat a number of recommendations in the

EAR pertaining to the Conservation Element were not implemented

as required by Section 163.3191(10)." These contentions are

discussed below.

i. Air pollution

4 4 . While the EAR discusses air pollution, there were no

specific recommendations to amend the plan to address air

quality. See County Ex. 1C, Element Reviews, Ch. 6, pp. 1 and

2. Petitioner contends, however, that current Plan objective

6.3 , which was not amended, is not protecting air quality and

should hav e been revised to correct major air quality problems

in the County, including "the deposition of atmospheric mercury

caused by fossil fuel burning power plants and incinerators."

4 5 . Objective 6.3 requires the County to maintain or

improve air quality l evels, while related policies 6.3.1 and

6.3.2 require that the County's facilities will be constructed

and operated in accordance with state and federal standards .

The policies also require that the County work through state and

federal agencies to elimin ate unlawful sources of air pollution.

Notably, the County does not regulate emissions or air

pollution, as that responsibility lies within the jurisdiction

of other state and federal agencies. It is fairly debatable

that the County reacted to the EAR in an appropriate manner.

ii . Policies and Objectives in Chapter 6

4 6 . Petitioner contends that policy 6.1.1 is inconsistent

with section 163.3177(8) and rule 9J - 5.005(2) because : it is not

supported by adequate data and analysis; it does not implement

the EAR recommendations , as required by section 163.3191(10) ; it

is inconsistent with section 163.3177(9)(b) and (f) because it

results in "inconsistent application of policies intended to

guide local land use decision[s]"; it is inconsistent with

sections 16 3.3177(6)(d) and 187.201(9) and (10) and rule 9J -

5.013 because it fails to adequately protect natural resources,

including isolated wetlands; and it is internally inconsistent

with other Plan provisions.

4 7 . Policy 6.1.1 provides that as a subdivision o f the

State, the County "will, to the maximum extent practicable, rely

upon state laws and regulations to meet the conservation goals

and objectives of this Plan." Item 9 in the recommended changes

recommends that the County should resolve the ambiguities and

inconsistencies between various policies and objectives which

rely on the jurisdiction of state laws and regulation on the one

hand, and objective 6.11 and implementing policies , which appear

to extend wetland jurisdiction to all wetlands , including

i solated wetlands not regulated by the Northwest Florida Water

Management District. See County Ex. 1C, § 4, p. 6.

4 8 . The real issue involves isolated wetlands, which at

the time of the EAR were not regulated by the Northwest Florida

Water Management Di strict. The EAR did not recommend a specific

solution, but only to resolve any apparent "ambiguity."

4 9 . Through amendments to policy 6.11.3, which implements

objective 6.11, the County reacted to the recommendation. These

amendments clarify the Plan an d provide that wetlands in the

County will be subject to the Plan if they are also regulated by

state and federal agencies. Any ambiguity as to the Plan's

application to isolated wetlands was resolved by the adoption of

new rules by the Northwest Florida Water Management District,

which extend that entity's jurisdiction to isolated wetlands.

See Fla. Admin. Code Ch. 62 - 346. This was confirmed by County

witness Garlick, who explained that the Plan now defers to the

wetland regulations of state and federal agencies. Therefore,

any inconsistencies or ambiguities have been resolved.

50 . Petitioner contends that objective 6.2 and

implementing policy 6.2.1 are inconsistent with statutes and a

rule which require protection of natural resources because they

foc us on "significant" natural resources, and not all natural

resources. With the exception of one minor change to the

policy, the objective and policy were not amended, and the EAR

did not recommend that either be revised. Also, testimony

established that existing regulations are applied uniformly

throughout the County, and not to selected habitat. Finally,

t he existing objective and related policies already protect rare

and endangered species in the County.

5 1 . Objective 6.3 requires that the County "m aintain or

improve air quality levels." For the reasons cited in Finding

of Fact 45, the objective is in compliance.

5 2 . Objective 6.5 requires the County to maintain or

improve estuarine water quality consistent with state water

quality standards, while policy 6.5.1 delineates the measures

that the County will take to achieve that objective. See County

Ex. 1A, Ch. 6, pp. 6 - 4 and 6 - 5. Except for one minor change to

paragraph (3) of the policy (which is not in issue ) , neither

provision was revised. Also , the EAR did not recommend any

changes to either provision. Notwithstanding Petitioner's

contention to the contrary, the County was not required to

revise the objective or policy.

5 3 . Policy 6.5.2 requires that the County "protect

seagrass beds in those areas under County jurisdiction" by

implementing certain enforcement measures. County Ex. 1A, Ch.

6, p. 6 - 5. The policy was only amended in minor respects during

the EAR process. Petitioner contends that the County failed to

amend the policy, as requir ed by the EAR , and this failure

results in no protection to natural resources . However, the EAR

only discusses the policy in the Issues section. See County Ex.

1C, § 2, p. 7. While the EAR emphasizes the importance of

seagrass beds to marine and estuari ne productivity, it has no

recommended changes to the objective or policy. Even so, the

County amended policy 6.5.2(5) by requiring the initiation of a

seagrass monitoring program using Geographic Information System

( GIS ) mapping by 2012. See County Ex. 1A, Ch. 6, p. 6 - 6. It is

at least fairly debatable that the objective and policy are in

compliance.

54. Objective 6.6 requires the County to "protect,

conserve and appropriately use Outstanding Florida Waters, Class

I waters and Class II waters." County Ex. 1A, Ch. 6, p. 6 - 6.

Its purpose is to ensure the quality and safety of the County's

primary drinking water supply. Id. The objective was not

amended and remains unchanged since 1999. Except for a

recommendation that the County give a land use desig nation to

water bodies, there were n o recommended changes for this

objective or related policies in the EAR. Because land use

designations are for land, and not water, the County logically

did not assign a land use to any water bodies.

55. Petitioner con tends that the objective and related

policies are not based on the best available data and analysis

and are not measurable , and that they fail to protect Lake

Powell, an Outstanding Florida Water, whose quality has been

declining over the years . Because n o changes were recommended,

it was unnecessary to amend the objective and policies.

Therefore, Petitioner's objections are misplaced. Notably, the

Plan already contains provisions specifically directed to

protecting Lake Powell. See , e.g. , policy 6.6.1( 1), which

requires the County to specifically enforce LDRs for Lake

Powell, and objective 6.21, which requires the County to

"[m]aintain or improve water quality and bio - diversity in the

Lake Powell Outstanding Florida Water (OFW)." County Ex. 1A,

Ch. 6, pp. 6 - 6 and 6 - 24. Petitioner's expert also criticized

the objective and related policies on the ground the County did

not adequately identify karst areas in the region. However,

nothing in the EAR, chapter 163, or chapter 9J - 5 requires the

County to coll ect new data on the existence of karst areas.

56. Petitioner also points out that objective 6.6 and

policy 6.6.1 are designed to protect Deer Point Lake but were

not amended, as required by the EAR, and they fail to adequately

protect that water body. Fo r the reasons expressed in Finding

of Fact 55, this contention has been rejected.

57. Objective 6.7, which was not amended, provides that

the County "[c]onserve and manage natural resources on a

systemwide basis rather than piecemeal." County Ex. 1A, Ch. 6,

p. 6 - 8. Related policies, which were not amended except in one

minor respect, require that the County implement programs in

"Ecosystem Management Areas." These areas are illustrated on

Map 6.1 of chapter 6. Petitioner contends that even though they

were not amended, the objective and policies are not supported

by adequate data and analysis , they fail to contain measurable

standards, and they are not responsive to a recommendation in

the EAR. Because no changes were made to these provisions, and

the EAR does not recommend any specific changes, the contentions

are rejected.

58. The 17 water bodies comprising the Sand Hill Lakes are

identified in policy 6.9.1. Policy 6.9.3 , which also implements

objective 6.9, continues the practice of prohibiting d evelopment

with a density of greater than one unit per ten acres on land

immediately adjacent to any of the Sand Hills Lakes outside

designated Rural Communities. See County Ex. 1A, Ch. 6, p. 6 -

13. ( The three Rural Communities in the County have been

des ignated as a STZ and are described in FLUE policy 3.4.4.)

The policy has been amended by adding new language providing

that "[p]roposed developments not immediately adjacent to, but

within 1320 feet of a Sand Hill Lake, and outside of a

designated Rural C ommunity, will provide, prior to approval, an

analysis indicating that the development will not be too dense

or intense to sustain the lake." Id. Other related policies

are unchanged. The amendment was in response to a

recommendation in the EAR that all goals, objectives, and

policies be amended to more clearly define the area around the

Sand Hill Lakes within which densities and intensities of land

must be limited to ensure protection of the lakes. See County

Ex. 1C, § 4, p. 6. Petitioner contends tha t the amended policy

is inconsistent with various statutes and rules because it

contains no specific standards for site suitability assessment

and does not restrict density bordering on the lake; it does not

implement the EAR; it is not based on EAR data a nd analysis; and

it does not contain procedures for monitoring and evaluating the

implementation of all policies.

59. Policy 6.9.3 applies to agricultural areas outside of

rural communities where the maximum density is now one dwelling

unit per ten acres, and to properties that are designated as

agriculture timber, which allows one dwelling unit per 20 acres.

Contrary to Petitioner's assertion, it does not change the

established densities on those land use categories. Before a

property owner can convert a land use affected by the policy,

the ap plicant will be required to provide an analysis that the

new development will not be too intense or dense to sustain the

lake. It is at least fairly debatable that the amendment

responds to the EAR recommendation, that it will not increase

density, that it is based on sufficient data and analysis in the

EAR, and that adequate standards are contained in the policies

to ensure proper implementation.

60. Objective 6.11 requires the County to "[p]rotect and

conserve wetlands and the natural functions of wetlands."

County Ex. 1A, Ch. 6, p. 6 - 14. A challenge to an amendment to

policy 6.11.3(3), which relates to setbacks or buffers for

wetlands, has already been addressed in Case No. 10 - 0859GM.

Policy 6.11.3 provides that in order "[t]o protect and ensure an

overall no net loss of wetlands," the County will employ the

measures described in paragraphs (1) through (6) of the policy.

Petitioner contends that by using the standards employed by

state and federal agencies f or wetlands in paragraph (2) , the

County has abdicated its responsibility to protect natural

resources. However, as previously discussed, the recent

assumption of jurisdiction over isolated wetlands by the

Northwest Florida Water Management District allow s the County to

extend these measures to all wetlands in the County .

61. Petitioner also contend s that the term "no net loss"

in policy 6.11.3 is not measurable. Through its GIS system,

though, the County can monitor any loss of wetlands. This was

con firmed by County witness Garlick. In addition, the County

will know at the development order phase whether any federal or

state agency requires mitigation to offset impacts to wetlands.

It is at least fairly debatable that the amendments to policy

6.11.3 will protect all wetlands , including isolated wetlands .

62. Objective 6.12 requires that by the year 2012, the

County will "develop a GIS layer that provides baseline

information on the County's existing wetlands. This database

will be predicated on t he USFWS [United States Fish and Wildlife

Service] National Wetlands Inventory (Cowardin et al 1979)

hierarchy of coastal and inland (wetlands) represented in Nort h

Florida. This inventory shall be developed through a

comprehensive planning process which includes consideration of

the types, values, functions, sizes, conditions and locations of

wetlands." County Ex. 1A, Ch. 6, p. 6 - 15. Related policies

6.12.1, 6.12.2, and 6.12.3 require that the County (a) use the

GIS database to identify, classify, and m onitor wetlands; (b)

adopt LDRs which further the objective and policies; and (c)

track in the GIS database the dredge and fill permits issued by

DEP. Id.

63. Petitioner criticizes the County's decision to wait

until 2012 to develop a GIS layer ; conten ds that policy 6.12.2

improperly defers to LDRs; asserts that the policy lacks

meaningful standards; and contends it is not responsive to the

EAR. The evidence presented on these issues supports a finding

that it is at least fairly debatable that the amen dments are in

compliance .

64. The EAR - based amendments deleted objective 6.13 ,

together with the underlying policies , which related to

floodplains , and created new provisions on that subject in the

Stormwater Management Sub - Element in Chapter 5E. This change

was made because the County concluded that floodplain issues

should more appropriately be located in the stormwater chapter.

The natural resource values of floodplains are still protected

by objective 5E - 9 and related policies, which require that s tate

water quality standards are maintained or improved through the

County's stormwater management programs. See County Ex. 1A, Ch.

5E, p. 5E - 7. Also, "flood zones" are retained as a listed

"significant natural resource" in Conservation Element policy

6. 2.1. See County Ex. 1A, Ch. 6, p. 6 - 3. It is at least fairly

debatable that the transfer of the floodplain provisions to a

new element do es not diminish protection of that resource.

65. Finally, Objective 6.21 (formerly numbered as 6.23)

requires the Co unty to "[m]aintain or improve water quality and

bio - diversity in the Lake Powell Outstanding Florida Water

(OFW)." Except for renumbering this objective , this provision

was not amended, and there is no specific recommendation in the

EAR that it be revise d. Therefore, the contentions that the

existing policy are not in compliance are not credited.

(f) Coastal Management Element - Chapter 7

66 . The recommended changes for this element of the Plan

are found on pages 7 and 8 of Section 4 of the EAR. In h er

Proposed Recommended Order, Petitioner contends that the entire

element is inconsistent with section 163.3191(10) because the

County did not follow the recommendations in items 1, 2, and 4.

Those items generally recommended that the County update the

d ata and analysis supporting the element to reflect current

conditions for, among other things, impaired waters. This was

done by the County. Accordingly, the County adequately

responded to the recommendations.

67. Petitioner also contends that policy 7. 1.1 improperly

deferred protection of coastal resources to the LDRs. The

policy reads as follows:

7.1.1: Comply with development provisions

established in the [LDRs] for The Coastal

Planning Area (Chapter 10, Section 1003.2 of

the Bay County [LDRs] adopt ed September 21,

2004) which is hereby defined as all land

and water seaward of the landward section

line of those sections of land and water

areas seaward of the hurricane evacuation

zone.

68. County witness Crelling established, however, that

there are numerous other policies in the element that govern the

protection of natural resources.

69. Petitioner contends that no changes were made to

provide additional guidance in policy 7.2.1 (formerly numbered

as 7.3.1) to improve estuarine water quality eve n though

multiple water bodies are listed as impaired. Except for a few

clarifying changes, no revisions were made to the policy.

70. P olicy 7.2.1 does not reduce the protection for

impaired waters. The minor rewording of the policy makes clear

that the protective measures enumerated in the policy "will be

taken" by the County to maintain or improve estuarine water

quality. It is fairly debatable that the element and new

objectives and policies are in compliance.

71. Petitioner contends that amended ob jective 7.2

(formerly numbered as 7.3) will lead to less protection of water

quality. Th e objective requires the County to "[m]aintain or

improve estuarine water quality by regulating such sources of

pollution and constructing capital improvements to redu ce or

eliminate known pollutants." County Ex. 1A, Ch. 7, p. 7 - 2. Its

purpose is to regulate all known potential sources of estuarine

pollution. The evidence fails to establish that the amended

objective will reduce the protection of water quality.

7 2. P olicy 7.3.1 was amended to delete the requirement

that areas with significant dunes be identified and mapped and

to provide instead that the County may impose special conditions

on development in dune areas as a part of the development

approval process. See County Ex. 1A, Ch. 7, p. 7 - 4. This

change was made because the EAR recommended that a requirement

to map and identify dune systems be deleted due to the

"extremely dynamic nature of beach and dune systems." County

Ex. 1C, § 4, p. 7. A similar provis ion in the Conservation

Element was transferred to the Coastal Management Element to

respond to the recommended change. The County adequately

responded to the recommendation.

7 3 . Petitioner contends that amended policy 7.3.2

(formerly numbered as 7.4.1) d oes not include sufficient

standards to protect significant dunes. The amended policy

requires that where damage to dunes is unavoidable, the

significant dunes must be restored and revegetated to at least

predevelopment conditions. It is at least fairly debatable that

the standards in the policy are sufficient to protect dunes.

7 4 . In summary, t he evidence does not establish beyond

fair debate that the revisions to chapter 7 are not in

compliance.

(g) Housing Element - Chapter 8

7 5. Petitioner conte nds the entire element is inconsistent

with section 163.3191(10) because the County failed to react to

recommendations in the EAR; and that new objective 8.16 and

related policies 8.16.1, 8.16.2, and 8.16.3 are inconsistent

with section 163.3177(9)(e) and rules 9J - 5.005(6) and (7)

because they fail to identify how the provisions will be

implemented and thus lack specific measurable objectives and

procedures for monitoring, evaluating, and appraising

implementation.

7 6. Petitioner focused on item 4 in the R ecommended

Changes for the Housing Element. That recommendation reads as

follows:

4. The revised data and analysis should

also include a detailed analysis and

recommendations regarding what constitutes

affordable housing, the various state and

federal pr ograms available to assist in

providing it; where it should be located to

maximize utilization of existing schools,

medical facilities, other supporting

infrastructure, and employment centers

taking into consideration the costs of real

property; and what t he likely demand will be

through the planning horizon. The

objectives and policies should then be

revised consistent with the recommendation

of the analysis, including the creation of

additional incentives, identification on the

Future Land Use Map of are as suited for

affordable housing, and, possibly amending

the County Land Development Regulations to

require the provision of affordable housing

if no other alternatives exist.

County Ex. 1C, § 4, p. 8.

7 7. Item 1 of the Recommended Changes states that "[t]he

County should implement those policies within the Housing

Element which proactively address affordable housing, and in

particular Policy 8.15.1 outlining density bonuses, reduced

fees, and streamlined permitting, to provide incentives for the

devel opment of affordable housing." Id. Policy 8.15.1 was

amended to conform to this recommendation.

7 8. The new objective and policies address incentives for

the development of affordable housing. While item 4 is not

specifically addressed, the new objecti ve and policies address

the County's housing concern as a whole, as described in the

Recommended Changes. Also, t he new objective and policies

contain sufficient specificity to provide guidance to a user of

the Plan. It is fairly debatable that the eleme nt as a whole,

and the new objective and policies, are in compliance.

(h) Intergovernmental Coordination Element - Chapter 10

7 9. Although discussed in the Element Reviews portion of

the EAR, there are no recommend ed changes for this element. See

County Ex. 1C, § 3, pp. 1 - 5.

8 0. Petitioner contends that because the County deleted

o bjective 10.5, the entire element conflicts with the EAR

recommendations, and it is inconsistent with two goals in the

state comprehensive plan, sections 163.3177(6)(h)1. and (9)(b)

and (h), and rules 9J - 5.015 and 9J - 5.013(2)(b)8. The deleted

provision require d the County to "establish countywide resource

protection standards for the conservation of locally significant

environmental resources." Besides deleting this objective , the

County also deleted objective 10.1, which provided that the

County "will take the lead role toward the creation of an

'intergovernmental forum' as a means to promote coordination

between various jurisdictions and agencies." County Ex. 1A, Ch.

10, p. 10 - 1.

81. To support her argument, Petitioner relies upon a

concern in the Issues part of the EAR that states that

"countywide resource protection standards have not been

established" and that "consistency of regulation between

jurisdictions" must be obs erved. See County Ex. 1C, § 2, p. 45.

8 2 . Mr. Jacobson, the County Planning and Zoning Director,

pointed out that the County currently has numerous interlocal

agreements with various municipalities and does not require

authorization from the Plan to ad opt these agreements.

Objective 10.5 was deleted because the County cannot implement

its regulations in the various municipalities, and protection of

natural resources is addressed in other portions of the Plan.

He also noted that the "intergovernmental forum" discussed in

deleted o bjective 10 - 1 is not required by any statute or rule.

8 3 . It is at least fairly debatable that the element is in

compliance and does not violate any statute or rule.

( i ) Capital Improvements Element - Chapter 11

8 4 . Petition er contends that the County failed to

implement three recommend ed changes in the EAR and therefore the

entire element is in violation of section 163.3191(10). Those

recommendations include an updating of information on the

County's current revenue streams , debts, commitments and

contingencies, and other financial matters; a revision of policy

11.6.1 to be consistent with Recreation and Open Space Element

policy 9.71 with regard to recreational levels of service (LOS);

and the development of a five - year sch edule of capital

improvements. See County Ex. 1, § 4, p.9.

8 5 . Policy 11.6.1 has been substantially revised through

the EAR process. Table 11.1 in the policy establishes n ew LOSs ,

including one for local parks, regional parks, and beach access

points. The County has also adopted an updated five - year

Capital Improvement Plan. See County Ex. 36. That exhibit

includes a LOS Analysis for recreational services. The same

exhibit contains a breakdown of financial matters related to

capital improvements. It is fairly debatable that the element

is in compliance.

8 6 . Petitioner also contends that objective 11.1 and

policy 11.1.1 are not in compliance. Both provisions remain

unchanged from the 1999 Plan , and the EAR did not recommend that

either provision b e amended . The contention is therefore

rejected.

D . Other Issues

8 7 . All other issues not specifically addressed herein

have been considered and found to be without merit, contrary to

the more persuasive evidence, or not subject to a challenge in

this p roceeding.

CONCLUSIONS OF LAW

8 8 . On June 2, 2011, House Bill 7207 was signed by the

Governor and became effective immediately. See Ch. 2011 - 139,

Laws of Fla. Among other things, it repealed chapter 9J - 5 and

moved some, but not all, of its requirements into chapter 163.

The compliance criteria in chapter 163 have also been

substantially revised. Because these changes are substantive in

nature, they cannot be given retroactive application.

Therefore, the compliance criteria in effect prior to the

enact ment of House Bill 7207 have been used to adjudicate this

dispute .

89. In order to have standing to challenge a plan

amendment, a challenger must be an affected person as defined in

s ection 163.3184(1)(a). The parties agree that Petitioner owns

propert y and resides within the C ounty and she su bmitted oral or

written comments to the C ounty during the adoption process.

Therefore, she is an affected person and has standing to

participate in this matter.

90. Once the Department renders a notice of intent to find

a plan amendment in compliance, as it did here, th at plan

provision "shall be determined to be in compliance if the local

government's determination of compliance is fairly debatable."

§ 163.3184(9)(a), Fla. Stat. Therefore, Petitioner bears the

burden of proving beyond fair debate that the challenged plan

amendment s are not in compliance. This means that "if

reasonable persons could differ as to its propriety," a plan

amendment must be upheld. Martin Cnty . v. Yusem , 690 So. 2d

1288, 1295 (Fla. 1997). W here there is "evidence in support of

both sides of a comprehensive plan amendment, it is difficult to

determine that the County's decision was anything but 'fairly

debatable.'" Martin C n ty . v. Section 28 Partnership, Ltd. , 772

So. 2d 616, 621 ( Fla. 4th DCA 2000).

91 . For the reasons given in the Findings of Fact,

Petitioner has failed to establish beyond fair debate that the

amendment s are not in compliance. Therefore, the challenged

EAR - based amendments adopted by Ordinance No. 09 - 36 are in

c ompliance.

9 2 . Finally, on June 22, 2011, Petitioner filed a Motion

to Disqualify Secretary Buzzett from making a final decision in

this matter. Because that motion must be filed with, and

addressed by, the Secretary, no ruling on the motion has been

ma de.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Community Affairs enter

a final order determining that the EAR - based amendments adopted

by Ordinance No. 09 - 36 are in compliance.

DO NE AND ENTERED this 30th day of June , 201 1 , in

Tallahassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florid a 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of June, 2011.

ENDNOTE

1/ Although reference was made by the County at the commencement

of the h earing to Joint Exhibits 1 - 7, those exhibits were marked

as County Exhibits 1A - G, and they have been referred to in that

manner in this Recommended Order.

COPIES FURNISHED:

William A. Buzzett, Secretary

Department of Community Affairs

2555 Shumard Oak B oulevard

Tallahassee, Florida 32399 - 2100

Deborah K. Kearney , General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Diane C. Brown

241 Twin Lakes Drive

Laguna Beach, Florida 32413 - 1413

Lynette Norr , Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

Terrell K. Arline, Esquire

Bay County Attorney

840 West 11th Street

Panama City, Florida 32401 - 2336

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Al l parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

render a final order in this matter.