10-000859GM St. Andrew Bay Resource Management Association vs. Bay County And Department Of Community Affairs Status: Closed Recommended Order on Tuesday, May 31, 2011.

Summary: Plan amendment to change buffer distance on wetlands consistent with recommendation in EAR and otherwise in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. ANDREW BAY RESOURCE )

MANAGEMENT ASSOCIATION, INC. , )

AND DIANE C. BROWN, )

)

Petitioner s, )

)

vs . ) Case No . 10 - 085 9 GM

)

DEPARTMENT OF COMMUNITY )

AFFAIRS AND BAY COUNTY, )

)

Respondent s . )

______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, D . R. Alexander, on August 30 , 2010,

in Panama City, Florida.

APPEARANCES

For Petitioner: Diane C. Brown, pro se

(Brown) 241 Twin Lakes Drive

Laguna Beach, Florida 32413 - 1413

For Petitioner: Alfred E. Beauchemin

( RMA) Qualified Representative

705 Beachcomber Drive

Lynn Haven, Florida 32444 - 3419

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 an amendment to Conse rvation Element

p olicy 6.11.3(3) adopted by Respondent, Bay County (County), by

Ordinance No. 09 - 3 6 on October 20, 2009, is in compliance.

PRELIMINARY STATEMENT

On October 20, 2009, the County adopted its E valuation and

Appraisal Report (EAR) amendments, w hich included an amendment

to Conservation Element policy 6.11.3(3). On December 15, 20 09 ,

Respondent, Department of Community Affairs (Department), found

the amendments to be in compliance.

On February 4 , 2010, Petitioner, St. Andrew Bay Resource

Manag ement Association, Inc. (RMA), filed with the Department

its Petition for Administrative Hearing challenging p olicy

6.11.3(3). On February 5 , 2010, Petitioner, Diane C. Brown,

filed her Petition for Ad ministrative Hearing with the

Department contending nu merous EAR - based amendments , including

p olicy 6.11.3(3), were not in compliance . The two Petition s

w ere referred by the Department to the Division of

Administrative Hearings on February 17, 2010, with a request

that a formal hearing be conducted . The Bro wn pleading was

assigned DOAH Case No. 10 - 0858GM , while the RMA pleading was

assigned Case No. 10 - 0859GM . At the request of the Department,

t he two cases were consolidated by Order dated March 25, 2010.

By agreement of the parties, however, the proceedin g was then

bifurcated , and policy 6.11.3(3) was heard separately from the

other EAR - based amendments in Case No. 10 - 0859GM .

Separate pre - hearing statements were filed by Petitioners

and Respondents on August 27, 2010. A final hearing was

conducted on Au gust 30, 2010. At the hearing, Petitioners

jointly presented the testimony of Martin J. Jacobson, County

Director of Planning and Zoning; K. Marlene Conaway, a land use

planner and accepted as an expert; Dr. Raymond D. Semlitsch,

Curators ' Professor of Bi ological Sciences at the University of

Missouri and accepted as an expert; and Dr. John M. Foster,

Linda M. Fitzhugh, and Patric e Couch, members and/or employees

of RMA. Also, they offered Petitioners' Exhibits 6, 11, 12, 14 -

18, 22, 26, 29, and 35, which were received in evidence. The

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

accepted as an expert; and Daniel W. Garlick, a professional

wetland scientist with Garlick Environmental Associates, Inc.,

and accepted as an expert. Also, it o ffered County Exhibits 1,

2, 7 - 10, 14, 15, and 17, which were received in evidence. The

Department did not present any witnesses.

The Transcript of the hearing was filed on March 17, 201 1 .

At the request of Petitioner Brown , the time for filing p ropose d

f indings of f act and c onclusions of l aw w as extended to May 13 ,

2011. They were timely filed by Petitioners and Respondents and

have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

A . The P arties

1. Diane C. Brown resi des and owns property within the

County, and she submitted written and oral comments to the

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

2. RMA is a non - profit association with approximately 100

members whose mission is "to ensure that fut ure growth [in the

County] is properly managed to maintain the quality and

productivity of the local estuarine system." See Petitioners'

Ex . 6. The parties have stipulated to the facts necessary to

establish that RMA is an affected person.

3 . The County is a local government that administers its

Co mprehensive Plan (Plan) . Th e County adopted the Ordinance

that approve d the text amendment being c hallenged here.

4. The Department is the state land planning agency

charged with the responsibility for revie wing plan amendments of

local governments, such as the C ounty .

B. History and Purpose of the Amendment

5. The County adopted its current Plan in December 1999.

S ection 163.3191 (1) , Florida Statutes, requires that every seven

years each local government adopt an EAR to "respond to changes

in state, regional, and local policies on planning and growth

management and changing conditions and trends, to ensure

effective intergovernmental coordination, and to identify

major issues regarding the community's ac hievement of its

goals." In the spring of 2006, the County began the process of

preparing an EAR. On October 17, 2006, it submi tted a n EAR and

Supplement to the Department. On December 21, 2007, the

Department found the EAR and Supplement to be sufficie nt

pursuant to s ection 163.3191(2) . See County Ex. 7.

6. After approval of the EAR, s ection 163.3191(10)

requires that the local government "amend its comprehensive plan

based on the recommendations in the report." Item 15 in the

Recommended Changes por tion of the EAR recommended that the

Conservation Element be amended in the following respect: "The

wetland and surface water buffer requirements should be

restructured to recognize site - specific conditions such that

pristine systems are afforded greater protection than impacted

systems." Petitioners' Ex. 35 . A similar recommendation is

found in the Issues section of the EAR. Id. To implement th ese

recommendation s , the County added a second sentence to

subsection (3) of Conservation Element policy 6.11 .3. As

amended, the subsection now reads as follows:

(3) Wetland setbacks will be required as

specified in Policy 6.7.4 for development on

lots or parcels created after the effective

date of this policy. Alternate project

design and construction may be permitted in

lieu of a required buffer when it can be

demonstrated that such alternate design

provides equal or greater protections to the

wetland or its habitat value.

7. On April 16, 2009, the Local Planning Agency conducted

a public hearing and recomm ended approval of the EAR - based

amendments. On May 19, 2009, the Board of County Commissioners

(Board) voted to transmit the EAR - based amendments to the

Department for its review and comments. On July 31, 2009, the

Department issued its Objections, Rec om mendations, and Comments

Report.

8. On October 20, 2009, the Board enacted Ordinance No.

09 - 36, which adopted the EAR - based amendments, including the

amendment to policy 6.11.3(3). See County Ex. 2. On

December 15, 2009, the Department issued its N otice of Intent to

find the amendments in compliance. See County Ex. 8. Notice of

this action was published in the Panama City News - Herald on

December 16, 2009. See County Ex. 9.

9 . Although section 163.3177(6)(d) requires that the

conservation elem ent in a comprehensive plan protect wetlands,

n othing in chapter 163 or Department rules require s a local

government to adopt buffers . Even so, a 30 - foot buffer has been

in place since the County adopted its first Plan in 1990.

10. Before it was amende d, policy 6.11.3 (3) provided that

"[w]etland setbacks will be required as specified in Policy

6.7.4 for development on lots or parcels created after the

effective date of this policy." Thus, it incorporated by

reference the buffer zone requirements establ ished in sub section

(6) of policy 6.7.4. That provision read s as follows :

(6) No building or structure can be located

closer than thirty (30) feet from any DEP

wetland jurisdiction line, mean high water

line, or ordinary high water line except for

piers, docks or similar structures and an

attendant ten (10) foot wide cleared path

through the wetland for purposes of

providing access to such structure, or wet -

land crossings required to connect dry,

upland parcels. All native vegetation, if

any exists, will be preserved within the 30 -

foot setback area. This requirement,

including possible alternatives, may be

further addressed in the Land Use Code.

In short, th is provision (a) requires a 30 - foot buffer setback

area between structures and DEP jurisdiction al wetlands and mean

or high water lines ; (b) requires the preservation of native

vegetation in the setback area ; and (c) authorizes a 10 - foot

wide area to be cleared across the setback area to access the

water or a dock. However, pursuant to provisions a ddressed in

the Land Use Code (now renamed the Land Development Regulation s

(LDRs) ), alternative project design and construction may be used

in lieu of the required buffers. Except for changing the words

"Land Use Code" to "Land Development Regulations," policy

6.7.4(6) was not amended in the EAR process. Therefore, all of

its requirements remain in place.

1 1 . To address other " alternatives " to the buffer

requirements, in September 2004 the County amended section

1909.3.h of the LDRs to allow alternative project design and

construction "in lieu of the required buffer when it can be

demonstrated that such alternative method provides protection to

the wetland or its habitat value that is equal or greater than

the vegetated buffer." Petitioners' Ex. 14, p. 19 - 11. This

regul ation authorizes the County Planning Commission , on a case -

by - case basis through the site plan and variance process, and

subject to final approval by the Board , to reduce the 30 - foot

buffer provided that the reduced buffer is mitigated ba sed upon

site - specific circumstances. The processing of t hese requests

ha s provided the County with experience in approving buffer

modifications through the use of alternative methods that

provide "equal or greater" environmental benefits.

1 2 . A small number of variance s have been authorized by

the County under this process since the adoption of the

regulation. See County Ex . 10 and 11 ; Petitioners' Ex. 15 - 18 .

In those cases, the County has granted a variance where , for

example, the applicant has chos e n to cluster wetland access

points, elevate walkways in the buffer, enhance the buffer with

vegetation or turf, reduce existing stormwater impacts, use

swales, or employ other required mitigation to offset the

reduction in the buffer. On the other hand, "numerous" other

property owners were advised that, absent "special

circumstances," a variance would not be granted because the

applicant could not demonstrate that there would be an enhanced

environmental benefit by reducing the buffer. Under current

Pla n provisions, a variance is the only way to modify the buffer

requirement.

1 3 . The amendment does not eliminate the minimum 30 - foot

buffer required by policy 6.7.4(6) . See Finding of Fact 10,

supra . It does , however, provide the County with greater

flex ibility in approving requests to modify the required buffers

and to consider factors that the current Plan does not address.

Even though the function and value of wetlands may vary widely,

the current Plan makes no distinction between pristine or

impacted wetlands , and it does not allow the County to require a

larger buffer for a pristine wetland. Under the new policy , t he

County may establish buffers based on site - specific conditions

that consider factors such as location, wetland quality,

surrounding la nd uses, site habitat, and the presence or absence

of listed species. Th is will enable the County , through

alternative design and construction techniques , to preserve

higher quality wetlands or vegetation with larger buffers while

at the same time reducin g the buffer size for impacted wetlands

in return for mitigation by the owner. The County will also

have the flexibility to establish buffers in non - urban settings

based on factors other than just erosion poten tial.

1 4 . The specific process for approvi ng changes in buffer

setbacks under the new policy will be established in the LDRs.

However, all LDRs must meet the standard in the policy that the

alternative design provide s "equal or greater protection to the

wetland or its habitat value." Under the p rocess envisioned by

the County, when a request is made for a buffer reduction under

the new policy, the County w ill require that an analysis be

performed by a qualified professional to justify the need for a

buffer reduction. If no alternative to a buffe r reduction

exists, the owner w ill be required to have a biotic study

prepared indicating the extent to which the encroachment would

occur, along with justification for the encroachment. Assuming

that justification can be shown, the County w ill then requi re

some form of mitigation by the owner.

15. The effectiveness of the new policy wil l be monitored,

evaluated, and appraised t hrough the use of geographical

information system overlay maps. Finally, m embers of the

public, including Petitioners, will be given access to the

process through existing notice requirements for development

order s .

C. Petitioners' Objections

1 6 . Petitioner s contend that policy 6.11.3(3) is

internally inconsistent with Conservation Element objectives 6.7

and 6.11; that it is in consistent with sections 163.3177(6)(d),

(8), and (9)(b), 163.3191(10), and 187.201(9); and that it is

inconsistent with Florida Administrative Code rules 9J - 5.005(2)

and (5) and 9J - 5.013(1). The essence of the arguments is that

the new policy decreases p rotection for wetlands , that it

conflicts with the specific recommendations in the EAR , and that

buffers should be based on studies pertaining to wetland

setbacks rather than alternative design and construction. To

prevail on these contentions , Petitioner s must show that even if

there is evidence supporting the propriety of the amendment, no

reasonable person would agree that the amendment is in

compliance. See Conclusion of Law 2 8 , infra .

a. Data and analysis

1 7 . Petitioners contend that the amendme nt is not

supported by adequate and appropriate data and analysis , that

the County did not react appropriately to the data and analyses

in the EAR, and that the amendment is th erefore inconsistent

with rule s 9J - 5.005(2) and 9J - 5.013(1) and section 163.3177 ( 8) .

1 8 . The data and analysis in the EAR and Supplement ,

including the Deer Point Reservoir H ydrologic S tudy, are

incorporated by reference into the Plan. See County Ex. 1,

Ch. 1, policy 1.1.4.4. As recommended by the EAR, the County

reviewed curre nt published scientific literature relating to

wetland and surface water buffers. It also conducted a survey

of buffer regulations and setbacks in various jurisdictions in

the County and throughout the State.

1 9 . As summarized in the EAR, t h e data and analysis

describe the limitations of wetland buffers, including the

existing 30 - foot buffer ; however , they do not suggest that a

larger buffer is necessary . Rather, they support the necessity

for flexibility in the application of the existing buffer in

or der to provide equal or greater protection to pristine

wetlands, which is the purpose of the new amendment.

Petitioners contend that based on current published literature,

the County should have reacted to the data and analysis by

adopting a series of spe cific buffer distances up to 300 meters,

depending on the type of habitat and wildlife around the

wetlands and streams . While the establishment of larger wetland

buffers in the Plan is possible, they are not required by state

law or Department rules, and section 163.3184(6)(c) provides

that a local government does not have to duplicate or exceed a

state agency's permitting program. It is at least fairly

debatable that the County reacted to the data and analysis in an

appropriate manner by adopting a polic y that requires th at any

request for a deviation from the minimum 30 - foot buffer be

accompanied by a demonstration that the alternative design will

provide at least equal or greater protection to wetlands and

their habitat values .

b. Internal Inconsiste ncy with Conservation Element

20 . Petitioners next contend that policy 6.11.3 (3)

violates section 163.3177(9)(b) and rule 9J - 5.005(5) because it

is i nternally inconsistent with objectives 6.7 and 6.11. The

t wo objectives were not amended during the EAR p rocess.

2 1 . Petitioner s contend that the new policy is internally

inconsistent with objective 6.7, which requires that the County

"[c]onserve and manage natural resources on a systemwide basis

rather than piecemeal." Petitioners ' evidence does not

e stablish beyond fair debate that the new policy is internally

inconsistent with this objective.

2 2 . Petitioners also contend that the policy is internally

inconsistent with objective 6.11, which requires the County to

"[p]rotect and conserve wetlands and the natural functions of

wetlands."

2 3 . W etlands vary widely in function and value, and the

current one - size - fits - all standard does not adequately address

the different values and functions. The new policy provides the

County with the flexibility to co nsider numerous site - specific

factors and , when warranted, to establish buffers that vary from

the 30 - foot standard . The evidence shows that the new policy

can also assist with the restoration of degraded natural systems

to a functional condition. It is at least fairly debatable that

the new policy protects and conserves wetlands and their natural

functions. Similarly, the policy does not conflict with rule

9J - 5.013 and section 187.201(9), which require or encourage that

wetlands and other natural fun cti ons of wetlands be preserved,

as alleged by Petitioners.

c. Consistency with section 163.3191(10)

2 4 . Petitioners contend that the new policy is

inconsistent with section 163.3191(10) because the County failed

to "amend its comprehensive plan based on th e recommendations in

the [EAR] report." As a part of this argument, they also assert

that, contrary to recommendations in the EAR, the new policy

does not give adequate direction for the LDRs ; that it contains

none of the recommended site - specific criteri a needed to

evaluate the alternative design ; that it fails to include a

defined setback size ; and that it does not allow the County to

increase the size of a buffer. These arguments are based upon

i tem 15 of the Recommend ed Changes portion of the EAR , whi ch

recommend s that the County "restructure" the wetland and surface

water buffer requirements "to recognize site - specific conditions

such that pristine systems are afforded greater protection than

impacted systems." Petitioners' Ex. 35.

2 5 . The new pol icy does not eliminate the 30 - foot buffer .

See policy 6.7.4(6)("no building or structure can be located

closer than thirty (30) feet from any DEP wetland jurisdiction

line, mean high water line, or ordinary high water line").

While the policy allows the required buffer to be modified, an

applicant must first demonstrate that the alternative design

provides equal or greater protection to the wetland or its

habitat value. The policy also provides direction for

implementing LDRs by requiring that any adopte d LDR adhere to

th e above standard. Notably, through alternative design, the

County may require larger buffer s for pristine wetlands, while

reducing the buffers for those of lower quality in return for

mitigation . This is consistent with the EAR recommen dation that

the County afford pristine systems greater protection than

impacted systems.

2 6 . Petitioners further point out that the new policy is

flawed because it does not include every site - specific condition

mentioned in the EAR . However, t here is n o requirement for this

level of detail in the Plan, so long as the policy achieves the

overall recommendation in the EAR, and it provides adequate

standards for implementing LDRs. It is at least fairly

debatable that the amendment co mplies with the requir ements of

the statute.

CONCLUSIONS OF LAW

2 7 . 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 have stipulated to facts

that support a conclusion that bot h Petitioners are affected

persons and have standing to participate in this proceeding.

2 8 . 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 complianc e 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 is not in compliance. This means that "if reasonable

persons could differ as to its propriety," a plan amendment must

be upheld. Martin C nty. 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 deter mine that

the County's decision was anything but 'fairly debatable.'"

Martin C nty. v. Section 28 Partnership, Ltd. , 772 So. 2d 616,

621 (Fla. 4th DCA 2000).

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

Petitioner s have failed to establish beyond fa ir debate that the

amendment is not in compliance. Therefore, that portion of

Ordinance No. 09 - 36 which amends Conservation Element policy

6.11.3(3) is in compliance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

R ECOMMENDED that the Department of Community Affairs enter

a final order determining that the amendment to poli cy 6.11.3(3)

adopted by the County by Ordinance No. 09 - 36 is in compliance.

DONE AND ENTERED this 31st day of May , 201 1 , in

Tallahassee, Leon C ounty, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.st ate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of May , 20 1 1 .

COPIES FURNISHED:

William A. Buzzett, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard

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

Alfred E. Beauchemin

705 Beachcomber Drive

Lynn Haven, Florida 3 2444 - 3419

Lynette Noor , 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

All 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.