10-002988GM Cemex Construction Materials Florida, Llc, Old Corkscrew Plantation, Llc, Old Corkscrew Plantation V, Llc, Troyer Brothers Florida, Inc., And Ffd Land Company, Inc. vs. Lee County Status: Closed Recommended Order on Tuesday, February 21, 2012.

Summary: Petitioners failed to prove beyond fair debate that the plan amendments adopted by Lee County are not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CEMEX CONSTRUCTION MATERIALS )

FLORIDA, LLC, OLD CORKSCREW )

PLANTATION, LLC, OL D CORKSCREW )

PLANTATION V, LLC, TROYER )

BROTHERS FLORIDA, INC., AND FFD )

LAND COMPANY, INC., )

)

Petitioners, )

)

vs. ) Case No. 10 - 2988GM

)

LEE COUNTY, )

)

Respondent , )

)

and )

)

FLORIDA WILDLIFE FEDE RATION , )

COLLIER COUNTY AUDUBON SOCIETY , )

CONSERVANCY OF SOUTHWEST )

FLORIDA, INC., ESTERO COUNCIL )

OF COMMUNITY LEADERS, INC., AND )

NICK BATOS, )

)

Intervenors. )

________________________________)

RECOMMENDED ORDER

The final hearing in this case was held on October 26

through October 28, 2011 , in Fort Myers, Florida, before Bram D.

E. Canter, Administrative Law Judge of the Division of

Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner CEMEX Construction:

Roger W. Sims, Esquire

Jason D. Boffey, Esquire

Holland & Knight, LLP

200 South Orange Ave, Suite 2600

Orlando, Florida 32801

Susan L. Stephens, Esquire

Hopping Green & Sams

119 South Monroe Street, Suite 300

Tallahassee, Florida 32301

For Petitioner Old Corkscrew:

Neale E. Montgomery, Esquire

Charles G. Mann, Esquire

1833 Hendry Street

Fort Myers, Florida 33907

For Petitioner Troyer Brothers:

Michael Taficante, Esquire

Grant, Fridkin, Pearson, Athan & Crown, P.A.

5551 Ridgewood Drive, Suite 501

Naples, Florida 34108

For Petitioner FFD Land :

Russell P. Schropp, Esquire

Henderson, Franklin , Starnes & Holt, P.A.

1715 Monroe Street

Fort Myers, Florida 33901

For Respondent Lee County:

Harry F. Chiles, Esquire

Gregory T. Stewart, Esquire

Nabors, Giblin and Nickerson, P.A.

1500 Mahan Drive, Suite 200

Tallahassee, Florida 32 3 08

F or Intervenors Florida Wildlife and Collier County

Audubon:

Thomas E. Reese, Esquire

2951 61st Avenue South

St. Pete r sburg, Florida 33712

For Intervenors Conservancy of SW Florida, Estero Council

and Nick Batos:

Ralf G. Brooks, Esquire

1217 East Cape Coral Parkway, S uite 107

Cape Coral, Florida 33904

STATEMENT OF THE ISSUE S

The issue s to be determined in this case are whether the

amendments to the Lee County C omprehensive P lan that were

adopted through Ordinance Nos. 10 - 19, 10 - 20, 10 - 21 and Remedial

Ordinance No. 10 - 43 ( " Plan Amendments " ) are " in compliance, " as

that term is defined in section 163.3184(1)(b), Florida Statutes

(2011). 1/

PRELIMINARY STATEMENT

On March 3, 2010, Lee County adopted comprehensive plan

amendment s relating to resource extraction (limerock mining) in

the D ensity Reduction /G roundwater Resource ("DR/GR") area of

southeast Lee County through the adoption of Ordinance N os. 10 -

19, 10 - 20 and 10 - 21 . On May 11, 2010, t he D epartment of

Community Affairs ("D CA") issued a notice of its i ntent to find

some of the amendments not in compliance with the Local

Government Comprehensive Planning and Land Development

Regulation Act, c hapter 163, p art II, Florida Statutes (the

" Act " ). DCA then filed a petition with DO AH to challenge these

amendments. Petitions to intervene were granted for Cemex

Construction Materials Florida, LLC, Old Corkscrew Plantation,

LLC, Old Corkscrew Plantation V, LLC, Troyer Brothers Florida,

Inc., Alico Land Development, Inc., Old Corkscrew Golf Club,

Inc., FFD Land Company, Inc., Florida Wildlife Federation,

Collier County Audubon Society, Conservancy of Southwest

Florida, Inc., Estero Council of Community Leaders, Inc., and

Nick Batos .

Lee County, DCA, and some of the I nterven ors entered into a

settlement agreement, which required Lee County to adopt certain

remedial comprehensive plan amendments. On November 1, 2010,

Lee County adopted the remedial amendments through Ordinance

Number 10 - 43. On December 12, 2010, DCA issued its Cumulative

Notice of Intent, determining t hat the remedial amendments were

in compliance with the Act.

After the remedial amendments were adopted, Alico Land

Development, Inc. , and Old Corkscrew Golf Club, LLC , fil ed

notices of voluntary dismissal . The r emedial amendments did not

resolve all of the issues raised by the current Petitioners and

t hey filed a Joint Amended Petition to challeng e the revised

amendments . The parties were then realigned.

O n August 30, 2011, Petitioners amended their p etition

again to reduce the scope of their challenge . J urisdiction was

relinquish ed to the DCA to take final action on the amendments

that were no longer being challenged.

Based on the changes to the Act brought about by the

passage of c hapter 2011 - 139, Laws of Florida, DCA moved to have

itself dismiss ed as a party to the proceeding and the motion was

granted . T he Administrative Law Judge rul ed that c hapter 163,

as revised by c hapter 2011 - 139, Laws of Florida, would govern

the case . The Florida Wildlife Federation and Collier County

Audubon Society, Inc. , filed a motion in limine to exclude the

application of revised chapter 163, which was denied .

At the final hearing, PetitionersÓ Exhibits 3 - 5, 10, 13,

17, 19 - 35 , 37 - 39, 46 - 47, 53 - 55, 5 9, 62 - 65, 69, 74 - 75, 84 - 85, and

102 were admitted into evidence. Petitioners presented the

expert testimony of Denis Roza (civil engineering and mining) ,

David DePew (planning and comprehensive planning) , and Alan

MacVicar (mining development and permitti ng). RespondentÓs

Exhibits 1 - 46 were admitted into evidence. Respondent presented

the expert testimony of Paul OÓConnor (planning), William

Spikowski (planning), and Kevin Erwin (ecolog y ). Intervenors

Conservancy of Southwest Florida, Inc., Estero Counc il of

Community Leaders, Inc. , and Nick Batos presented the testimony

of Nicole Ryan Johnson , Don Eslick and Nick Batos . Batos '

E xhibits 1 - 9 were admitted into evidence . Intervenors Florida

Wildlife Federation ("FWF") and Collier County Audubon Society

p resented the testimony of Nancy Payton , Brad Cornell , David

On or ato , Darrell Land (panther expert ), and Jason Lauritsen

(woodstork expert ) . FWF 's Exhibits 1 - 5 were admitted into

evidence. FWF presented t he deposition of Mike McDaniels of the

Department of Economic Opportunity in lieu of his live

testimony .

The five - volume Transcript of the final hearing was filed

with DOAH. The parties submitted p roposed r ecommended o rders

that were carefully considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

The Parties

1. Lee County is a political subdivision of the State of

Florida and has adopted a comprehensive plan (the "Lee Plan")

that it amends from time to time pursuant to c hapter 163, p art

II.

2. Petitioner Cemex Construction Materials Florida, LLC

( " Cemex " ) is a Florida limited liability company operating a

business in Lee County. Cemex submitted written comments to Lee

C ounty during the period of time beginning with the transmittal

hearing for the Plan Amendment s and ending with their adoption .

3. Petitioner Troyer Brothers Florida, Inc. ( " Troyer " ) is

a Florida corporation that owns real property in Lee County on

which it conducts agricultural operationsoyer submitted

written comments to Lee County during the period of time

beginning with the transmittal hearing for the Plan Amendments

and ending with their adoption .

4. TroyerÓs property is shown on Lee County p lanning maps

as a " potential mining area. "

5. Petitioners Old Corkscrew Plantation LLC and Old

Corkscrew Plantation V, LLC (collectively " OCP " ) are Florida

limited liability companies that own real property in Lee

County. OCP submitted written comments to Lee County during the

period of time beginnin g with the transmittal hearing for the

Plan Amendments and ending with their adoption .

6. OCPÓs property is shown on Lee County p lanning maps as

a " potential mining area. "

7. Petitioner FFD Land Company, Inc. ( " FFD " ) is a Florida

corporation that owns real property in Lee County on which it

conducts agricultural operations. FFD submitted written

comments to Lee County during the period of time beginning with

the transmittal hearing for the Plan Amendments and ending with

their adoption .

8 . Florida Wildlife Federation ("FWF") is a not - for - profit

corporation in Florida. The corporate objectives of the FWF are

to promote wildlife, wildlife habitat, and the use and enjoyment

of FloridaÓs natural resources. The FWF is involved in

activities to protect endangered and threatened species,

including the endangered Florida panther.

9 . FWF timely submitted objections, recommendations and

comments to Lee County during the period of time beginning with

the transmittal hearing for the Plan Amendment s and ending with

their adoption .

1 0 . FWF has over 25 members who reside in Lee County. FWF

members use the public lands in the southeast portion of the

County for enjoyment of natural resources.

1 1 . Collier County Audubon Society (" CCAS ") is a not - fo r -

profit Florida corporation . C CAS runs programs, field trips,

education for children, and advocates the conservation of

wildlife. CCAS members and staff work with the staff at the

Corkscrew Swamp Sanctuary , which is located partially in

southeast Lee County.

1 2 . CCAS submitted objections, recommendations and

comments to Lee County during the period of time beginning with

the transmittal hearing for the Plan Amendments and ending with

their adoption .

1 3 . Conservan cy of Southwest Florida Inc. ( " CSWF " ) is a

not - for - profit Florida corporation with over 5,000 members,

about 400 of whom own property or reside in Lee County. CSWFÓs

purpose and mission is to protect natural resources and the

quality of life for CSWF memb ers in Southwest Florida.

14. CSWF owns real property in Lee County. CSWF pays

local taxes to operate a business in Lee County.

1 5 . CSWF subm itted written comments to Lee County during

the period of time beginning with the transmittal hearing for

the Plan Amendments and ending with their adoption .

1 6 . Nick Batos owns and resides on property in Lee County

near the DR/GR. He made comments to Lee County during the

period of time beginning with the transmittal hearing for the

Plan Amendments and ending with their adoption .

1 7 . Nick Batos uses the DR / GR for recreational activities,

including golf . He is affected by the truck traffic on

Corkscrew Road.

1 8 . Estero Council of Community Leaders, Inc. ( " ECCL " ) is

a Florida not - for - profit corporation with representatives of 35

to 40 communities and organizations as members. The DR/GR is

located immediately east and south of ECCL member communities

Stonybrook, Wildcat Run, and Bella Terra.

1 9 . ECCL is involved in growth management issues affecting

its member communities, particularly truck traffic on Corkscrew

Road and mining impacts to the creeks, streams, and wetland s

that its member communities share with the DR/GR. ECCL pays

local taxes to operate a business i n Lee County.

20 . A substantial number of ECCL members use the wildlife,

recreational, and water resources of the DR/GR. A substantial

number of its members are affected by truck traffic on Corkscrew

Road.

2 1 . ECCL made oral or written comments to Lee County

during the period of time beginning with the transmittal hearing

for the Plan Amendments and ending with their adoption .

The DR/GR

2 2 . There are two areas designated DR/GR in the Lee County

Comprehensive Plan . These areas were established primarily to

reduce residential density and to protect groundwater resources.

The DR/GR area at issue in this case is in the southeastern

portion of the County and consists of approximately 83,000

acres.

2 3 . The land within the DR/GR is relatively flat and has a

high water table. It is an environmentally diverse area wh ich

contains wetlands and other habitat used by t he endangered

Florida panther and wood stork , and the threatened black bear,

Big Cypress fox squirrel , and bald eagle .

2 4 . The DR/GR includes potable water wellfield s which

currently provide about 40 percent of water delivered by the

County 's potable water utility.

2 5 . The other land uses within the DR/GR are agricultural

(row crops, pasture and citrus), low - density resi dential ( one

dwelling unit per 10 acres), and mining .

Limerock Mining

2 6 . The Legislature has designated limerock as a critical

and strategically important state resource, the adequate supply

of which will affect local, regional, and state transportation

facilities. See § 337.0261(2), F la . S tat .

2 7 . The mining activity in the DR/GR is primarily the

extraction of construction aggregate materials ( l imerock). 2 /

Limerock is excavated and used primarily for road base and road

surfaces, concrete and asphalt, and construction material s .

2 8 . The DR/GR is one of only a few areas in Florida that

contain significant deposits of high - quality limerock

(relatively harder rock with fewer impurities ) , which is

required for road surfaces and for making asphalt and concrete.

Limerock for these purposes must meet certification criteria

established by the Florida Department of Transportation

( " FDOT " ).

2 9 . The mines in the DR/GR supply most of the l imerock in

Southwest Florida. T he other sources are mines in Collier

County and Charlotte Count y and l imerock imported from the

Yucatan and shipped to the Port of Tampa.

30 . The seven - county region of Collier, Lee, Charlotte,

G lades, Hendry, Manatee, and Sarasota Counties constitutes the

primary market for limerock from the DR/GR.

Land Use Planning in the DR/GR

3 1 . After Lee County creat ed the DR/GR, concerns arose

regarding the compatibility of existing and future land uses

within the area. Th ese concerns were generated in part by the

increase in applications to expand limerock mining along

Corkscrew Road.

3 2 . Limerock mining adversely affects wildlife by

replacing habitat with open pits. Limerock mining adversely

affects residential uses because of the noise and vibrations

associated with blasting, by the truck traffic, and by the

replac ement of more natura l landscapes with industrial

landscapes.

3 3 . Residential and conservation uses adversely impact

limerock mining by impeding production of the resource.

3 4 . The Board of County Commissioners of Lee County

appointed an ad hoc committee to look at the DR/ GR land use

issues and to make recommendations to the Board. Public

meetings were held to obtain public input on the issues. The

County undertook a review of the past studies of the area and

commissioned new studies to determine how to better manage the

conflicting land uses.

3 5 . T he County hired a c onsultant , Dover Kohl & Partners

( " Dover Kohl " ) , to conduct a comprehensive new evaluation of the

southeastern portion of the County, including the DR/GR. The

Dover Kohl " team " included experts in town planning,

comprehensive planning, ecological planning, transportation

planning, environmental planning, and surface and groundwater

modeling. The team did not include an expert in limerock mining

or the limerock market.

3 6 . Dov er Kohl produced several reports of findings and

recommendations for the DR/GR. These studies included the

" Ecological Memorandum of the Density Reduction/Groundwater

Resource Area " (which analyzed and ranked lands for

restoration), the " Lee County Truck Impact Analysis " (which

evaluated mining truck impacts), a " Comprehensive Hydrological

Study ", a document entitled " Natural Resources Strategies for

Southeast Lee County Planning for the Density Reduction

Groundwater Resource Area " , and a document entitled " Prospects

for Southeast Lee County " (the " Prospects Report " ).

3 7 . Appendix B to the Prospects Report , entitled " Limerock

Production and Demand , " was prepared by William Spikowski, a

planner . A ppendix B describe s the results of Spikowski's

analysis of limerock supply and demand through the 2030 planning

period.

3 8 . The County's p lanning for future limerock mining in

the DR/GR included the objective of cluster ing future mining

close to areas that are already disturbed in order to protect

natural resour ces , wildlife habitat , groundwater recharge areas,

a nd residential uses .

The Plan Amendments

39 . Petitioners' principal objections are with Lee Plan

Map 14, entitled "Future Limerock Mining Overlay" ("Map 14"),

Table 1(b), entitled "Year 2030 Allocations," and new Goal 33

and its associated objectives and policies .

40. Map 14 depict s an area of about 9,000 acres where

limerock mining is allowed to occur in the DR/GR . T here are

lands with limerock "reserves" that lie outside of the area

designated for future mining on Map 14, but these lands are not

currently being mined and are not currently designated for

mining uses .

4 1 . Table 1(b ) of the Future Land Use Element , entitled

"Year 2030 Allocations," shows the total acreage allocated for

Industrial land uses for Southeast Lee County as 7,246 acres.

Mining is an industrial use. This acreage figure includes old

mines, current mines, and approved new mines.

42. New Go al 33 and its policies provide:

GOAL 33: SOUTHEAST LEE COUNTY. To protect

natural resources in accordance with the

County's 1990 designation of Southeast Lee

County as a groundwater resource area,

augmented through a comprehensive planning

process that c ulminated in the 2008 report,

Prospects for Southeast Lee County . To

achieve this goal, it is necessary to

address the inherent conflict between

retaining shallow aquifers for long - term

water storage and extracting the aquifer's

limestone for processing i nto construction

aggregate. The best overall balance between

these demands will be achieved through a

pair of complementary strategies:

consolidating future mining in the

traditional Alico Road industrial corridor

while initiating a long - term restoration

program to the east and south to benefit

water resources and protect natural habitat.

Residential and commercial development will

not be significantly increased except where

development rights are being explicitly

concentrated by this plan. Agriculture u ses

may continue, and environmental restoration

may begin. This goal and subsequent

objectives and policies apply to Southeast

Lee County as depicted on Map 1, Page 2.

OBJECTIVE 33.1: LIMEROCK MINING . Designate

on a Future Land Use Map overlay sufficient

land near the traditional Alico Road

industrial corridor for continued limerock

mining to meet regional demands through this

plan's horizon (currently 2030).

P olicy 33.1.1: Limerock mining is a high -

disturbance activity whose effects on the

s urrounding area cannot be completely

mitigated. To minimize the impacts of

mining on valuable water resources, natural

systems, residential areas, and the road

system, Map 14 identifies Future Limerock

Mining areas that will concentrate limerock

mining ac tivity in the traditional Alico

Road industrial corridor east of I - 75. By

formally identifying such areas in this plan

and allowing rezonings for new and expanded

limerock mines only in the areas identified

in Map 14, limerock resources in or near

existin g disturbed areas will be more fully

utilized and the spread of limerock mining

impacts into less disturbed environments

will be precluded until such time as there

is a clear necessity to do so (and Map 14 is

amended accordingly). Inclusion of land on

Map 14 does not restrict the rights of

landowners to use their land for other

allowable purposes.

Policy 33.1. 2 : Most land identified on Map

14 is in the Density R eduction/Groundwater

Resource land use category (see Policy

1.4.5) and will also be subject to those

special requirements. Future Limerock

Mining land outside the DR/GR area will also

be subject to requirements of the

appropriate designation on Map 14. Goal 10

and its objectives and policies contain

additional guidance on mining. The Land

Develo pment Code will continue to provide

additional details on mining approvals and

operations.

Policy 33.1.3: Concurrent with the update

of Map 14 in 2010, the Lee Plan was amended

to improve the ability to efficiently mine

in Future Limerock Mining areas. An

exception was made to the requirement in

Policy 1.4.5 that DR/GR land uses must

demonstrate compatibility with maintaining

surface and groundwater levels at their

historic levels. Under this exception, land

in Future Limerock Mining areas may be

rezone d for mining when the impacts to

natural resources including water levels and

wetlands a re offset through appropriate

mitigation within Southeast Lee County. The

Land Development Code will be amended and

maintained to include provisions for

assessing and mitigating mining impacts and

for transferring residential development

rights from land zoned for limerock mining

pits. Appropriate mitigation for water

levels will be based upon site - specific data

and modeling acceptable to the Division of

Natural Resour ces. Appropriate wetland

mitigation may be provided by preservation

of high quality indigenous habitat,

restoration or reconnection of historic

flowways, connectivity to public

conservation lands, restoration of historic

ecosystems or other mitigation mea sures as

deemed sufficient by the Division of

Environmental Sciences. It is recommended

that, whenever possible, wetland mitigation

be located within Southeast Lee County. The

Land Development Code will be revised to

include provisions to implement this policy.

Policy 33.1.4: Table 1(b) contains

industrial acreage in Southeast Lee County

that reflects the acreage of limerock mining

pits needed to meet local and regional

demand through the year 2030. The parcel -

based database shall be of existing land

uses described in Policy 1.7.6 will be

updated at least every seven years to

reflect additional dat a about limerock

mining in Southeast Lee County, including

mining acreage zoned (project acres and

mining pit acreage), pit acreage with active

mine operatio ns permits, acreage actually

mined, and acreage remaining to be mined.

Current totals are based on data compiled in

Prospects for Southeast Lee County for the

year 2006. Future amendments will reflect

any additional data that becomes available

through ro utine monitoring reports and

bathmetric surveys or other credible

sources. The industrial acreage totals for

Southeast Lee County that are found in Table

1(b) for Planning Community #18 will be used

for the following purposes:

1. In accordance with Poli cies 1.1.1 and

1.7.6, new mine development orders and mine

development order amendments may be issued

provided that the industrial acreage totals

in Table 1(b) are not exceeded. For

purposes of this computation, the proposed

additional limerock pit acreag e, when added

to the acreage of limerock pits already dug,

cannot exceed the acreage limitation

established in Table 1(b) for Planning

Community #18.

2. By monitoring the remaining acreage of

land rezoned for mining but not yet mined,

Lee County will hav e critical information to

use in determining whether and to what

extent the Future Limerock Mining areas in

Map 14 may need to be expanded in the future

to meet local and regional demands.

Data and Analysis

4 3 . The County's planning consultant, Spikowski, undertook

the task of estimat ing the acreage of future limerock mining

lands that would be sufficient to meet the future regional

demand for limerock through 2030 . Spikowski has no specialized

training in geology, engineering, or the mining industry.

4 4 . Much of the information about limerock reserves and

production in the DR/GR is proprietary and un available to the

public . Mining data in the public record s of Lee County and

regulatory agencies is limite d. The County cannot be fairly

criticized for failing to use data that were unavailable and

which are still unavailable.

45. There is little public in formation about the quality

and extent of limerock deposits in the DR/GR , which vary

substantially. It is difficult to predict the uses that will be

made of the rock , which is dependent on its qualit y and other

market factors .

46 . The volume of extract ed and extract able l imerock must

be estimated from indirect and incomplete information in permit

applica tions, such as requested mining depths, core samples, and

post - mining bathymetric data.

47 . Spikowski analyzed future limerock demand within the

market region using two approaches. For the first approach h e

used the per capita rate of 9 tons , 3/ which he found in the Rawl

Report. The authors of the Rawl Report obtained the 9 ton s per

capita figure from the Florida Limerock and Aggregate Institute

("FLAI") .

48 . The Rawl Report is marked "Draft For Peer Review . " N o

final report was ever issued.

49 . Petitioners contend that the mining industry in

Florida prefers 10.7 tons per capita as a n estimate of limerock

demand. This figure appears in a 2002 United States Geological

Survey ("USGS") report entitled "Sociocultural Dimensions of

Supply and D emand for Natural Aggregate -- Examples from the

Mid - Atlantic Region, United States," which states that "per

capita demand for aggregate in the United States has grown to

about 10.7 tons per person per year. "

5 0 . The 2008 report of the Strategic Aggregates Review

Task Force , commissioned by the Florida Legislature, states that

in 2004 it was determined that Florida needed 7 or 8 tons of

aggregate per capita per year . The report also states that 2004

was on the "steep slope of the upward trend of the housing boom"

and that "[t]he economic slowdown will actually cause a reversal

of the generally upward trend of consumption."

5 1 . Spikowski's use of 9 tons per capita is supported by

relevant data and analysis.

5 2 . Spikowski estimated population growth in the seven -

county market region , using medium population projections that

he obtained from the University of Florida Bureau of Economic

Business and Research ("BEBR") . Multiplying the regional

population projecti ons by 9 (tons per capita ), Spikowski got the

total tons of limerock needed to meet future demand in the

region.

5 3 . Spikowski then reduced this number by 2 0 percent,

based on his estimate that 2 0 percent of the limerock demand in

the seven - county region has been historically supplied b y mines

outside the DR/GR. Petitioners attacked the figure of 20

percent , but did not establish in the record a percentage that

is more reliable .

5 4 . Spikowski then determined how many acres of mines in

the DR/GR were able to meet the regional demand fr om 1980 to

2006. Using th is same ratio of acres mined to tons of limerock

produced, Spikowski estimated that 6,259 acres of mining land

would be needed to meet the regional demand through 2030.

5 5 . Petitione rs claim that Spikowski overestimated the

amount of limerock produced per acre from the DR/GR . However,

if that is true, then it would follow that the demand for

limerock from the DR/GR was proportionately smaller.

5 6 . Spikowski used a second analytical approach based on a

comparison between new construction activity , measured by

housing starts, and total limerock production. He first de rived

the ratio between past limerock production and past housing

starts . Using this ratio, he determine d h ow much limerock would

correspond to the number of projected future housing starts in

the region. Converting the future tons needed into acres in the

manner discussed above, Spikowski determined that 3,761

additional acres of mining lands would be required to meet the

future demand.

5 7 . Spikowski then weight ed his two analytical approaches

to arrive at a final estimate of mining acreage needed to meet

the future demand , which resulted in a final allocation of 4,397

acres.

5 8 . Petitioners argue that Spikowski 's weighting was in

error because he should have added the demand created by new

construction activity to the demand created to maintain existing

structures . That critique is not material. Both of Spikowski 's

approaches yielded estimates of total future demand, but were

far apart. His weigh t ing was to account for their relative

reliability. Petitioners urged the use of a per capita

approach, which is consistent with Spikowski's heavier weighting

for his own per capita approach.

59 . Petitioners contend that S pikowski used inappropriate

and unreliable data and employed methodologies that were not

professionally accepted in calculating the DR/GR limerock

production, supply , regional demand , and mining acreage needed

to meet future demand . Spikowski 's approaches to developing

estimates of local supply and regional demand were necessary

because much of th e data had not been developed, compiled, or

analyzed by anyone else. His approaches were logical and he

used relevant and appropriate data. Spikowski's analys is was

professionally acceptable as a planning function.

6 0 . Petitioners attacked Spikowski's data and analysis,

but Petitioners offered no comparable alternative analyses of

past production in the DR/GR, past demand, future demand, and

future mining acreage needed, other than to cite the national

per capita figure of 10.7 tons from the 2002 USGS report.

Petitioners did not produce the data to show that 10.7 tons per

capita is accurate for Florida or for the seven - county region.

6 1 . T he data and analysis in the public reports in the

record which Petitioners consider reliable, taken as a whole, do

not prove that Spikowski underestimated the future mining

acreage needed to meet the regional demand through 2030 .

Internal Consistency

6 2 . Spikowski determined that the total acreage of mines

that are permitted or likely to permitted during the planning

period is 5,807 acres, which are included on Map 14 . That

represents a surplus of 1,410 acres over his projected demand of

4 , 397 acres.

6 3 . Petitioners contend that Map 14 is inconsistent with

Objective 3 3.1 to " [ d ] esignate on a Future Land Use Map overlay

sufficient land . . . for continued limerock mining to meet

regional demands through this plan's horizon (currently 2030) . "

Ba sed on the findings made above, Map 14 designate s sufficient

mining lands and, therefore, is consistent with Objective 33.1 .

6 4 . Petitioners contend that Table 1(b) also fails to

allocate sufficient mining acreage . The future mining area on

Map 14 and the industrial acreage listed in Table 1(b) do not

match because at the adoption hearing for the Plan Amendments,

the County amended Map 14 to add property owned by Florida Rock .

For reasons that were not made clear in the record, Lee County

did not amend Table 1(b) to add the Florida Rock acreage .

6 5 . Policy 1.7.6 states that Table 1(b) is intended to

depict the extent of land uses needed through the year 2030. It

also states that no new development orders may be issued that

would cause the acreage totals in Table 1(b) to be exceeded.

Polic y 33.1.4 applies this prohibition to mining approvals.

Policies 1.7.6 and 33.1.4 plainly indicate that the acreage on

Table 1(b) controls future mining through 2030 and cannot be

exceeded even if there is more mining acreage depicted on Map

14. T able 1(b) would have to be amended to allow the stated

industrial acreage to be exceeded .

6 6 . However, t h e acreages in Table 1(b) include the 4,397

mining acres determined by Spikowski to be sufficient to meet

the regional demand , which was found to be supported by relevant

and appropriate data . Therefore, a lthough Map 14 includes

additional acreage for futu re mining, no inconsistency is

created because both Table 1(b) and Map 14 c an be fairly

described as designating sufficient acreage to meet the regional

demand through 2030.

6 7 . Petitioners contend that the Plan Amendments are

inconsistent with Policies 158.1.10, 158.3.5 and 158.6.1 of the

Economic Element of the Lee Plan.

6 8 . Policy 158.1.10 provides:

Evaluate the current land development

regulatory and fiscal structure to identify

and remove, where appropriate, the unwanted

impediments to ensuring development is

fiscally beneficial.

Petitioners did not establish what the evaluation required by

this policy must entail. Lee County's extensive investigation

of land use issues in the DR/GR reason ably qualifies as an

evaluation for the purposes of the policy .

69 . Policy 158.3.5 provides:

Lee County will ensure that adequate land is

allocated in the comprehensive plan to meet

future commercial, industrial, agricultural,

residential, and recreation al needs .

As found above , the County's allocation of future mining lands

is sufficient and, therefore, the Plan Amendments are consistent

with this policy .

7 0 . Policy 158.6.1 p rovides:

Before adopting any new regulation which

potentially imposes new costs to taxpayer

and private business, Lee County first will

generally assess the impact of that

regulation upon the local economy and will

adopt such regulations only in cases of

compelling public need.

Objective 158.6 refers to "a system of development regulations"

to implement economic goals, objectives, and policies , which

strongly suggests that the assessment required by Policy 158.6.1

is directed to land development regulations and not to plan

amendments. P etitioners did not show what criteria a "g eneral

economic assessment" must meet. The general assessment of local

economic impact and compelling public need is i nherent in the

C ounty's study of conflicting land uses in the DR/GR , and then

the County's balancing of the conflicting uses by al locat ing

sufficient mining lands to meet regional limerock demand through

the planning period , but clustering and otherwise restricting

future mining to protect , among other things, rare wildlife

resources .

7 1 . Petitioners contend that the Plan Amendments are

inconsistent with Goal 10 which acknowledges that limerock is a

natural resource and requires the County to protect natural

resource areas from incompatible urban development. The Plan

Amendments reflect the balance struck by the County between

mining and other competing land uses in the DR/GR . Goal 10 and

Goal 33 both indicate that the balance is to be achieved by

designating sufficient mining land s to meet the regional demand

through 2030 . Because it is found that this objective is

achieved through Map 14 and Table 1(b) , the Plan Amendments are

consistent with Goal 10.

7 2 . Petitioners argue that Table 1(b) is internally

inconsistent because the County uses BEBR medium population

projections to allocat e every land use in Table 1(b) except

mining, wh ich is expressly linked to Policy 33.1.4 and Appendix

B of the Dover Kohl Report. As discussed in the Conclusions of

Law , the County is not required to use BEBR population

projections to allocate lands to meet regional needs.

Meaningful and Predictable Standards

7 3 . Policy 33.1.1 states that " the spread of limerock

mining impacts into less disturbed environments will be

precluded until such time as there is a clear necessity to do so

(and Map 14 is amended accordingly). "

7 4 . The parties dispute d whether a showing of clear

necessity was also required to amend Table 1(b). The County 's

interpretation of the Plan Amendments as not requiring a showing

of clear necessity to amend Table 1(b) is a reasonable

interpretation.

7 5 . T he term " clear necessi ty " is not defined in the Plan

Amendments and is not a planning term. However, both the words

"clear" and "necessity" have common meanings and contextual

meanings that are relatively straightforward.

7 6 . The word "clear" has the common meaning of plain and

free from ambiguity. See Webster's New Collegiate Dictionary ,

205 (1979).

7 7 . The meaning of the t erm "necessity" is plain from the

context: a necessity to designate more mining lands because the

existing amount is insufficient to meet the regional demand for

limerock through the planning horizon.

7 8 . Petitioners assert that substantial time is required

for planning and permitting a new mine and that w ithout a " pre -

determination " of clear necessity , a mining company would be at

risk of wasting substantial time and money. However, all

businesses face uncertainty when they want to use land in a way

th at is impossible without a comprehensive plan amendment.

79 . Petitioners also c omplain about the use of the terms

" significant adverse impact, " " adaptive resource management , "

and " corrective measures . " The terms " signicant adverse impact "

and " corrective measures " are common regulatory terms. All

three term s are used in the Plan Amendments in reference to

future zoning and development orders. It is in such orders that

the particular application of these terms would be detailed.

Adequate Choices

8 0 . Section 163.3177(6)(a)4. states that the amount of

land designated for future planned uses " should allow the

operation of real estate markets to provide adequate choices for

permanent and seasonal residents and businesses and may not be

limited solely by the projected population. " Peti tioners

contend that the Plan Amendments will not allow adequate choices

related to the real estate market for min ing lands.

8 1 . Petitioners ' evidence was insufficient to establish

what the term "adequate choices" means for the real estate

market related to limerock mining. The testimony that the Plan

Amendments will cause there to be only one mining company by

2030 was speculative and not persuasive. Petitioners failed to

prove that the Plan Amendments will prevent a dequate choices .

Suitability

8 2 . Petitioners argued that Lee County failed to consider

the suitability of the mining lands it designated on Map 14 with

regar d to the character of the soils and natural resources. The

record shows that consideration of the suitability of the

affected lands was a central part of the planning effort.

CONCLUSIONS OF LAW

Applicable Law

8 3 . In general, t he law in effect at the time final agency

action is taken is the appropriate law to apply , absent vested

or similar rights . See Bruner v. B d. of Real Estate , 399 So. 2d

4 (Fla. 5th DCA 1981) . If a new law becomes effect ive after

preliminary agency action, but before final action, applying the

new law to the final action is not a retroactive application of

the new law. See Lavernia v. Dep 't of Prof . Reg . , 616 So. 2d 53

(Fla. 1st DCA 1993) , rev. den. , 624 So. 2d 267 (Fla. 1993).

84. Under chapter 163, a plan amendment cannot take effect

until a final administrative order is issued. See

§ 163.3184(3)(c)(4), Fla. Stat. T he refore, t h is case is

governed by the provisions of chapter 163, Florida Statutes, as

revised by chapter 2011 - 139 , Laws of Florida. See also

§ 163.3161(12), Fla. Stat. ( " any new amendments must comply with

the requirements of this part " ).

Standing

8 5 . To have standing to c hallenge a comprehensive plan

amendment, a person must be an " affected person, " which is

defined as a person owning property, residing, or owning or

operating a business within the boundaries of the local

government, and who made timely comments to the local government

regarding the a mendment. See § 163.3184(1)(a) , Fla. Stat.

8 6 . Petitioners and Intervenor Batos have standing as

" affected p ersons" under section 163.3184(1)(a), Florida

Statutes.

8 7 . In general, an association has standing to sue on

behalf of its members when a substantial number of them would

have standing to sue in their own right and the interests that

the association seeks to protect are ge rmane to its purposes.

See Fla. Builders AssÓn v. Dep't of Labor and Emp't Sec . , 412

So. 2d 351 (Fla. 1982).

8 8 . Florida Wildlife Federation, Collier County Audubon

Society, Conservancy of Southwest Florida, and Estero Council of

Community Leaders, Inc. , all have standing as affected persons

because a substantial number of the ir members would have

standing to sue i n their own right and the interests that the

association s seek to protect are ge rmane to their purposes.

The Ultimate Issue

89 . A person challenging a plan amendment must show that

it is not " in compliance " as that term is defined in section

163.3184(1) (b):

" In compliance " means consistent with the

requirements of ss. 163.3177, 163.3178,

163.3180, 163.3191, 163.3245, and 163.3248,

with the appropriate strategic regional

policy plan, and with the principles for

guiding development in designated areas of

critical state concern and with part III of

chapter 369, where applicable.

9 0 . Among other reasons, Petitioners contend that the Plan

Amendment s are not in compliance because they are inconsistent

with section 337.0261(3) , which provides :

No local government shall approve or deny a

proposed land use zoning change,

comprehensive plan amendment, land use

permit, ordinance, or order regarding

construction aggregate materials without

considering any information provided by the

Department of Transportati on regarding the

effect of such change, amendment, permit

decision, ordinance, or order would have on

the availability, transportation, and

potential extraction of construction

aggregate materials on the local area, the

region, and the state.

9 1 . This c ontention must fail because section 337.0261(3)

is not included in the list of statutes with which an amendment

must b e consistent. T he Legislature chose not to make

consistency with section 337.0261(3) a compliance criterion.

Like the requirements in ch apter 163 regarding public notice,

which are also not listed in section 163.3184(1)(b), the remedy

for a violation of section 337.0261(3) must be sought elsewhere.

9 2 . Even if consistency with section 337.0261(3) were part

of the compliance determination, Petitioners failed to prove

that Lee County adopted the Plan Amendments without considering

information provided to the County by the FDOT. It is noted

that no evidence indicated FDOT's opposition to the Plan

Amendments .

9 3 . L ikewise, Petitioners ' conten tion that the Plan

Amendments are inconsistent with section 163.3161(10) , regard ing

private property rights , must fail because that statute is not

mentioned as a compliance criterion in section 163.3184(1)(b).

The Burden and Standard of Proof

9 4 . As the challengers, Petitioners have the burden of

proof. Lee CountyÓs determination that the Plan Amendment s are

" in compliance " is presumed to be correct and shall be sustained

if Lee CountyÓs determination of compliance is fairl y debatable.

See § 163.3184(5)(c), Fla. Stat.

9 5 . The term " fairly debatable " is not defined in c hapter

163. The Florida Supreme Court held in Martin County v. Yusem ,

690 So. 2d. 1288 (Fla. 1997) that " [t]he fairly debatable

standard is a highly deferential standard requiring approval of

a planning action if reasonable persons could differ as to its

propriety. " Id. at 1295.

9 6 . The standard of proof to establish a finding of fact

is preponderance of the evidence. See § 120.57(1)(j), Fla.

Stat.

Data and Analysis

9 7 . Section 163.3177 (1) ( f) requires that all plan

amendments be based on relevant and appropriate data and an

analysis by the local government. The statute explains:

To be based on data means to react to it in

an appropriate way a nd to the extent

necessary indicated by the data available on

that particular subject at the time of

adoption of the plan or plan amendment at

issue.

98 . The data which may be relied upon in this proceeding

is not limited to the data identified or used by the local

government . All data available to the local government and in

existence at the time of adoption of the Plan Amendments may be

presented . See Z emel v. Lee Cnty . , 15 F.A.L.R. 2735 (Dep ' t of

C m ty . Affairs Final Order, June 22, 1993), affÓd , 642 So. 2d

1367 (Fla. 1 st DCA 1994).

99 . R elevant analys e s of data need not have been in

existence at the time of adoption of a plan amendment. Data

existing at the time of adoption may be analy zed through the

time of the administrative hearing. Id .

10 0 . D ata supporting an amendment must be taken from

professionally accepted sources. See § 163.3177(1)(f)2., Fla.

Stat. However, local governments are not required to collect

o riginal data. Id.

10 1 . The m ethodology used in data collection must be

professionally acceptable , but the question of whether one

professionally acceptable methodology is better than another

cannot be evaluated. Id.

10 2 . Petitioners argue that because t he Rawl Report did

not undergo p eer r eview , it is not professionally acceptable.

T here is no ev identiary presumption that the statements

contained in a technical report which has not undergone peer

review are false, inaccurate, or otherwise unreliable . Many

t echnical reports do not undergo peer review , but are regularly

accepted into evidence. The issue is a matter of the weight to

be given the report.

10 3 . T he record contains numerous reports whose authors

did not appear as witnesses. When reports are introduced to

defend against a claim that a plan amendment is not supported by

data and ana lysis, the reports can be admitted , not for the

truth of the matters asserted in the reports, but to show that

the plan amendment is supported by data and analysis . For that

purpose, the reports are not hearsay.

10 4 . Hearsay statements may also be admit ted to supplement

or explain non - hearsay evidence or evidence which is exempt from

the rule excluding hearsay. See § 120. 57(1)(c), Fla. Stat.

10 5 . Petitioners failed to prove that the Plan Amendments

are not based on relevant and appropriate data and analysis .

In ternal C onsistency

10 6 . The elements of a local comprehensive plan must be

coordinated and consistent. See § 163.3177(2), Fla. Stat.

1 07 . Petitioners failed to prove beyond fair debate that

the Plan Amendments cause the Lee Plan to be internally

inconsistent.

Meaningful and Predictable Standards

1 08 . Comprehensive plans must provide " meaningful and

predictable standards for the use and development of land and

provide meaningful guidelines for the content of more detailed

land development and use regulations. " § 163.3177(1), F la .

S tat .

1 09 . Both the words "clear" and "necessity" have common

meanings and contextual meanings that are reasonably meaningful

and predictable.

11 0 . The standard of "clear and convincing" proof is

regularly used in the law, where it is understood to mean

evidence of such weight that it produces in the mind of the

trier of fact a firm belief without hesitancy. See Evans

Packing Co. v. Dep ' t of Agric . and Consumer Serv . , 550 So. 2d

112, 116 (Fla. 1st DCA 1989). This standard of proof can be met

when there is contrary evidence if the evidence supporting a

fact is , itself, unambiguous. See Westinghouse Elec. Corp. ,

Inc. v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA

1991) .

11 1 . Whether the requirement to demonstrate a clear

necessity is the best approach to accomplish the County's

purposes is irrelevant in this compliance determination.

P etitioners failed to prove that the Plan Amendments do not

provide meaningful and predictabl e standards for the use and

development of land .

Minimum Amount of Land

11 2 . S ection 163.3177 (1)(f)3. require s comprehensive plan s

to be " based on permanent and seasonal population estimates and

projections " and " based on at least the minimum amount of land

required to accommodate the medium p rojections of the University

of Florida's Bureau of Economic and Business research for at

least a 10 - year planning period . "

11 3 . Some of the parties argued that this section was not

intended to require the use of BEBR population projections for

mining or other industrial land uses. That argument does not

need to be addressed because the more obvious point is that

s ection 163.3177 (1)(a)(f)3. does not require local governments

to designate lands needed to serve regional needs based on

regional population projections. The statute is addressing

local needs based a projection of the local government's own

population.

11 4 . It is academic whether the Act should require local

governments to designate sufficient lands to meet regional

needs, in general, or to meet the regional need for mining

lands, in particular. The Act does not require it. The

Legislature has only gone so far as to require local governments

to consider any input from the FDOT when adopting an amendment

that affects limerock mining. See § 337.0261(3) , Fla. Stat.

1 15 . Petitioners complained about the "cap" on mining

lands created by the Plan Amendments. E very future land use

designation on a future land use map creates a cap on the land

use because there cannot be an expansion of the use without a

comprehensive plan amendment. The Act does not prohibit these

kinds of cap s . In fact, it requires them. See

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

designate the " extent " of various land uses).

116. Petitioners failed to prove that the Plan Amendments

do not accommodate BEBR medium population p rojections for at

least a 10 - year planning per iod .

Adequate Choices

1 17 . Section 163.3177(6)(a) 4. p rovides that the amount of

land designated for future land uses "should" allow for the

operation of real estate markets to provide "adequate choices"

for business.

1 18 . Petitioners failed to prove that th e Plan A mendments

do not designate a sufficient amount of land to allow for the

operation of real estate markets to provide adequate choices for

business.

Suitability f or Proposed Use

1 19 . Section 163.3177(6)(a)8 ., applicable to future land

use map amendments, requires that such amendments be based on an

analysis of the suitability of the plan amendment for its

proposed use, considering soils, topography, and natural

resources.

1 20 . Petitioners failed to prove that t he Plan Amendments

are not b ased on an analysis of the suitability of the affected

lands for their proposed uses.

SUMMARY

1 2 1 . In summary, Petitioners failed to prove beyond fair

debate that the Plan Amendments are not in compliance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Economic Opportunity

enter a final order determining that the Plan Amendment s adopted

through Lee County Ordinance Nos. 10 - 19, 10 - 20 and 10 - 21, and as

modified by Remedial Ordinance No. 10 - 43, are in compliance.

DONE AND ENTERED this 21st day of February, 2012 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administra tive Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 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 21st day of February, 2012 .

ENDNOTE S

1/ All references to the Florida Statutes are to those in

effect in 2011.

2 / " Construction aggregate materials " is defined in section

337.0261(1), Florida Statutes, as " rushed stone, limestone,

dolomite, limerock, shell rock, cemented coquina, sand for use

as a component of mortars, concrete, bituminous mixtures, or

underdrain filters, and other mined resources providing the

basic material for concrete, asphalt, and road base. "

3 / This and all other references to tons is in "short tons,"

rathe r than metric tons.

COPIES FURNISHED :

Thomas W. Reese, Esquire

2951 61st Avenue South

St. Petersburg, Florida 33712 - 4539

[e-mail]

Kenneth G. Oertel, Esquire

Oertel, Fernandez, Bryant and Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

[e-mail]

Roger W. Sims, Esquire

Holland and Knight, LLP

200 South Orange Avenue, Suite 2600

Orlando, Florida 32801

[e-mail]

Neale E. Montgomery, Esquire

Pavese Law Firm

1833 Hendry Street

Fort Myers, Florida 33901

[e-mail]

Ralf G. Brookes, Esquire

1217 East Cape Coral Parkway, Suite 107

Cape Coral, Florida 33904

[e-mail]

Susan L. Stephens, Esquire

Hopping Green and Sams

119 South Monroe Street, Suite 300

Tallahassee, Flori da 32301

[e-mail]

Michael Taficante, Esquire

Grant, Fridkin, Pearson, Athan & Crown, P.A.

5551 Ridgewood Drive, Suite 501

Naples, Florida 34108 - 2719

Susan Marley Henderson, Esquire

Lee County Attorney's Office

2115 2nd Street

Post Office Box 398

Fort Myers, Florida 33902

[e-mail]

Harry F. Chiles, Esquire

Nabors, Giblin and Nickerson, P.A.

Post Office Box 11008

1500 Mahan Drive, Suite 200

Tallahassee, Florida 32308

[e-mail]

David L. Jordan, Esquire

Department of E conomic Opportunity

107 East Madison Street, MSC 110

Tallahassee, Florida 32399 - 4128

[e-mail]

Amanda L. Brock, Esquire

Henderson, Franklin, Starnes, and Holt

Post Office Box 280

Fort Myers, Florida 33902

[e-mail]

Doug Darling, Executive Director

Department of Economic Opportunity

107 East Madison Street

Caldwell Bldg.

Tallahassee, Florida 32399 - 4128

Deborah Kearney, General Counsel

Department of Economic Opportunity

107 East Madison Street

Caldwell Bldg., MSC 110

Tallahassee, Florida 32399 - 4128

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the age ncy that

will issue the Final Order in this case.