11-004502GM Gulf Trust Development, Llc And Robinson Farms, Inc. vs. Manatee County Status: Closed Recommended Order on Friday, March 2, 2012.

Summary: Petitioners failed to prove beyond fair debate that the challenged plan amendments are not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GULF TRUST DEVELOPMENT, LLC AND )

ROBINSON FARMS, INC. , )

)

Petitioners , )

)

vs. ) Case No. 11 - 4502GM

)

MANATEE COUNTY , )

)

Respondent . )

)

RECOMMENDE D ORDER

The final hearing in this case was held on November 17,

2011, by video teleconference at sites in Sarasota and

Tallahassee, Florida, before Bram D. E. Canter, Administrative

Law Judge of the Division of Administrative Hearings ("DOAH").

A PPEARANCE S

For Petitioner Gulf Trust Development, LLC., and Robinson

Farms, Inc . :

Edward Vogler, II, Esquire

Vogler Ashton, PLLC

2411 - A Manatee Avenue West

Bradenton, Florida 34205 - 4948

For Respondent Manatee County :

James A. Minix, Esquire

Sarah A. Schenk, Esquire

Manatee County Attorney's Office

Post Office Box 1000

1112 Manatee Avenue West, Suite 969

Bradenton, Florida 34205 - 4948

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether the

amendments to the Manatee Co unty Comprehensive Plan adopted

through Ordinance No. 11 - 01 (ÐPlan AmendmentsÑ), are "in

compliance" as that term is defined in section 163.3184(1)(b),

Florida Statutes (2011). 1/

PRELIMINARY STATEMENT

On August 4, 2011, Manatee County adopted Ordinance N o.

11 - 01, which amended the Manatee County Comprehensive Plan

("Manatee Plan") to make map amendments and text amendments

regarding the Coastal High Hazard Area and the Coastal Evacuation

Area. On September 9, 2011, the Department of Economic

Opportunit y issued a letter stating that it had identified no

provision that necessitated a challenge to Ordinance No. 11 - 01.

On September 2, 2011, Petitioners filed a petition for an

administrative hearing at DOAH to challenge the Plan Amendments.

Katie Pierola an d Greg Geraldson filed a petition to intervene,

which was granted. However, following a telephone hearing on a

motion to dismiss for lack of standing, the petition to intervene

was dismissed.

At the final hearing, Petitioners presented the testimony of

W illiam C. Robinson, John Neal, Kathleen Thompson, Sharon Tarman,

Laurie Feagans, Betti Johnson, Steven Simpson, and John Osborne.

Manatee County presented testimony from the same witnesses.

Joint Exhibits 1 - 15; Petitioners' Exhibits 4, 5A through 5G, 8

t hrough 11, and 12; and Manatee County Exhibit 16. Petitioners'

Exhibit 4 was admitted for a limited purposes as discussed in the

record.

F INDINGS OF FACT

The Parties

1. Gulf Trust Development, LLC (ÐGulf TrustÑ) is a Florida

corporation doing business in Manatee County. Gulf Trust is the

contract vendee of property owned by Robinson Farms, Inc.

2. Robinson Farms, Inc., is a Florida corporation doing

business in Manatee County and owning real property in the

County.

3. Manatee County is a political subdivision of the State

of Florida and has adopted a comprehensive plan that it amends

from time to time pursuant to section 163.3184.

Standing

4. John Neal, the owner and manager of Gulf Trust appeared

and spoke at the May 5, 2011, transmittal hearing for the Plan

Amendments and at a later work session of the Board of County

Commissioners on the Plan Amendment s . Neal testified that, on

these occasions, he was speaking for Gulf Trust and for Robinson

Farms. William Robinson, the president of Robinson Farms,

confirmed that Neal was authorized in advance to represent

Robinson Farms at the public meetings on the Plan Amendments.

5. The County contends that there is no evidence that Neal

represented any entity other than himself, but the testimony of

Nea l and Robinson constitutes evidence.

The Plan Amendment

6. All coastal communities must have a coastal management

element of their comprehensive plans that, among other things,

designates the coastal high - hazard area ("CHHA"). See

§ 163.3178( 2)(h), Fla. Stat. The CHHA is defined in the statute

as "the area below the elevation of the category 1 storm surge

line as established by the Sea, Lake, and Overland Surges from

Hurricanes (SLOSH) computerized storm surge model." The CHHA

must be mapped in the comprehensive plan. See § 163.3178(9)(c),

Fla. Stat.

7. The Manatee County planning staff proposed the Plan

Amendments as a response to the publication of the 2010 Statewide

Regional Evacuation Study for the Tampa Bay Region ("Storm Tide

Atlas") by the Tampa Bay Regional Planning Council.

8. The Storm Tide Atlas is a public safety planning tool

used to assist local governments with hurricane evacuation

planning in a four - county region in the Tampa Bay Area, which

includes Manatee County. It in corporates the SLOSH model to

predict storm surge heights during hurricanes and includes storm

tide zone maps depicting the landward extent of anticipated storm

surge for the five categories of storms.

9. The 2010 Storm Tide Atlas made use of a new mappi ng

technique known as LIDAR, a remote - sensing laser terrain mapping

system, which is more accurate than past technology used for

topographic mapping.

10. The Plan Amendments include an amendment to the

definition of the CHHA, which brings the definition in line with

the statutory definition. That change is not opposed by

Petitioners. Petitioners' opposition focuses on the amended

definition of Coastal Evacuation Area ("CEA") and the new maps of

the CEA.

11. The CEA is not a term used in chapter 163. The CEA is

now defined in the Introduction and D efinitions section of the

Manatee Plan as follows:

The evacuation for a Category 1 hurricane as

established in the regional hurricane

evacuation study applicable to Manatee County

pursuant to Ch. [sic] 163.31 78(2)(h), F.S. as

updated on a periodic basis.

12. The CEA is a tool for emergency management. It

identifies the area where people must evacuate in the event of a

category 1 hurricane. The purpose of the CEA is described in

Policy 2.2.2.4.2 as follows :

a) To limit population in the Category 1

hurricane evacuation area requiring

evacuation during storm events.

b) To limit the amount of infrastructure,

both private and public, within the CEA

Overlay District and thereby limit magnitude

of public loss and involvement in mitigating

for loss of private infrastructure to Manatee

County residents.

c) To, through exercise of the police power,

increase the degree of protection to public

and private property, and to protect the

lives of residents within the CEA, and reduce

the risk of exposing lives or property to

storm damage.

d) To accomplish shoreline stabilization

along coastal areas by limiting development

activity which may adversely impact shoreline

stability.

e) To protect coastal water quality by

reducing impervious surface along coastal

areas, thereby reducing the risk of

incomplete treatment of stormwater runoff

before discharge into coastal waters.

f) To encourage, establish and maintain

vegetative and spatial buffer zones, in order

to mainta in the capacity of natural

vegetative communities in mitigating the

negative effects of storm surge and tidal

velocity, and the erosive effect of wave

action.

13. Policy 2.2.2.4.5 prohibits any amendment to the Future

Land Use Map that would increase al lowable residential density on

lands within the CEA.

Whether the CEA and the CHHA are the Same

14. The Plan Amendments would change the definition of the

CEA to remove the reference to section 163.31878(2)(h):

Coastal Evacuation Area (CEA) - The

evacuat ion Level A for a Category 1 hurricane

as established in the hurricane evacuation

study applicable to Manatee County, as

updated on a periodic basis.

Petitioners claim that the current definition of the CEA , cited

in paragraph 11, above, makes the CEA ide ntical to the CHHA and

that by removing the reference to section 163.3178(2)(h), the CEA

and the CHHA would be different for the first time.

15. Although the definition of the CEA refers to section

163.3178(2)(h) where the CHHA is defined, the definition of the

CEA does not express the proposition urged by Petitioners -- that

the CEA and the CHHA are identical. As explained below, in order

to map the CEA, the County begins with the map of the CHHA and

then makes adjustments to it. Therefore, it is not i llogical for

the definition of the CEA to refer to section 163.3178(2)(h) .

The reference to the statute does not compel an interpretation

that the CEA was intended to be identical to the CHHA.

16. Another definition of the CEA appears in Policy

2.2.2.4. 1 of the Future Land Use Element ("FLUE"). There, the

CEA is defined as "the geographic area which lies within the

evacuation area for a Category 1 hurricane." This definition of

the CEA does not refer to section 163.3178(2)(h).

17. Some of the testimo ny from County employees about the

relationship between the CEA and the CHHA was ambiguous, but the

ambiguity can be attributed to the way the witnesses were

examined by Petitioners. Three County planners were each asked

to admit that, because the definit ion of the CEA (in the

definitions section of the Manatee Plan) refers to section

163.3178(2)(h), the CEA and the CHHA must be the same thing. The

questions confused the witnesses.

18. Kathleen Thompson, the Planning Manager, did not think

th e CHHA and the CEA are the same, Sharon Tarman, a planner, said

they are. John Osborne, the Planning and Zoning Official, said

the definition of the CEA "implied" that the CEA and CHHA are the

same.

19. A quick glance at the existing maps of the CHHA and the

CEA i n the Manatee Plan is sufficient to reveal that that the

CHHA and the CEA are not the same. See Manatee County Exhibit 1,

pages 232 - 234. The CHHA has irregular boundaries. The CEA is

larger and has many regular (straight line) boundaries.

20. Consider ing the two definition of the CEA, the

ambiguous testimony of the County planners , and the CHHA and CEA

maps , it is found that one definition of the CEA is ambiguous,

but the County intended the CEA and the CHHA to be different and,

as implemented, the CEA and the CHHA are different.

21. The proposed change to the definition of the CEA in the

definitions section to remove the reference to section

163.3178(2)(h) eliminates the ambiguity in the definition and

makes it conform to the definition in FLUE Polic y 2.2.2.4.1. It

is not a substantive change.

22. The CHHA is the area below a category 1 storm surge

line as produced by a computer model. In contrast, the CEA is an

evacuation zone. The Storm Tide Atlas states that emergency

management officials use several factors in determining

evacuation zones, not just storm surge data:

[I]t is important to note that the storm tide

boundaries are not the only data used in this

determination. Local officials use their

knowledge of the area and other data such as:

areas of repetitive loss, surge depth,

freshwater flooding, isolation issues and

debris hazards, and typically choose known

landmarks to identify boundaries for public

warning and information.

23. In Manatee County, emergency management officials

started with the CHHA line, and then adjusted the boundaries to

follow streets, natural geographical features, and parcel

boundaries so that the resulting CEA provided a better tool for

emergency management and public information. That is why the

CHHA has irregu lar boundaries, but the CEA has many regular

(straight line) boundaries.

24. The proposed CEA includes 10,690 fewer acres than the

existing CEA because of the substantial changes that resulted

from using the newest generation of the SLOSH model and the n ew

LIDAR technology.

25. The proposed CEA includes 8,365 more acres than are

within the proposed CHHA as a result of the adjustment of the

CHHA line to coincide with nearby streets and other geographic

features, and with parcel boundaries.

26. Petition ers argue that the effect of the change in the

definition of the CEA is to add 8,365 acres to the area which is

subject to the prohibition in Policy 2.2.2.4.5 against increases

in allowable residential density. However, because the change in

the definitio n of the CEA is not substantive, the real effect of

the new mapping of the CEA is to reduce the lands subject to the

prohibition by 10,690 acres.

Public Notice

27. Petitioners contend that public notice requirements

were not met for the public hearings fo r the Plan Amendments.

That contention is based on the claim that the Plan Amendments

cause 8,365 acres of land to be added to the area subject to the

prohibition against future increases in allowable residential

density. Because that claim is rejected, Petitioners public

notice issues are also rejected. Furthermore, as discussed in

the Conclusions of Law, allegations of inadequate public notice

are irrelevant in a compliance determination.

Data and Analysis

28. Petitioners argue that the Plan Amendme nts are not

based on relevant and appropriate data and analysis. The

argument is based in large part on Petitioners' contention that

the CEA and the CHHA used to be co - extensive, which is rejected

above.

29. Petitioners claim that the County failed to c onsider

flooding, wave height, and other factors when mapping the CEA.

The CEA boundaries were placed at streets and other physical

landmarks as well as parcel boundaries, in order to make the area

subject to evacuation clearer for emergency management of ficials

and the public. 2/ This is a sufficient basis to explain the

boundaries of the CEA. The relevant data for such a purpose

would be the location of the CHHA in relationship to nearby

streets, other physical landmarks, and parcel boundaries.

Petition ers did not show that any particular CEA boundary was

illogical or inappropriate.

Mitigation

30. Petitioners contend that the Plan Amendments do not

include the mitigation measures referred to in section

163.3178(9)(a). The statute states that a propos ed amendment

shall be found in compliance with the state coastal high - hazard

provisions if:

1. The adopted level of service for out - of -

county hurricane evacuation is maintained for

a Category 5 storm event as measured on the

Saffir - Simpson scale; or

2. A twelve hour evacuation time to shelter

is maintained for a Category 5 storm event as

measured on the Saffir - Simpson scale and

shelter space reasonably expected to

accommodate the residents of the development

contemplated by a proposed comprehensive plan

amendment is available; or

3. Appropriate mitigation is provided that

will satisfy Subparagraph 1 or Subparagraph 2

above. Appropriate mitigation shall include,

without limitation, payment of money,

contribution of land and construction of

hurricane she lters and transportation

facilities. Required mitigation may not

exceed the amount required for a developer to

accommodate impacts reasonably attributable

to development. A local government and a

developer shall enter into a binding

agreement to memorial ize the mitigation plan.

31. These provisions are stated as alternatives. The

mitigation measures referred to in subparagraph 3. are only

applicable if the criteria stated in subparagraph 1. or 2. are

not met. Petitioners did not prove that the County does not meet

the standard described in subparagraph 2. Furthermore, as

discussed in the Conclusions of Law, section 163.3178(9) does not

require that the mitigation measures described in subparagraph 3.

must be included in a comprehensive plan.

CONCLUSI ONS OF LAW

Standing

32. To have standing to challenge 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

go vernment, and who made timely comments to the local government

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

33. There is no express language in section 163.3184 that

would deny a corporation standing as an affected person if the

corporation 's representative makes timely comments, but does not

identify the name of the corporation at the time the comments are

made. It is academic whether the statute should require such

identification at the time the comments are made. The statute

does not r equire it.

34. In this case, the evidence is sufficient to show that

Mr. Neal made his comments on behalf of Petitioners. Therefore,

Petitioners have standing as affected persons.

The Ultimate Issue

35. A person challenging a plan amendment must sho w 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.

36. The statutes listed in section 163.3184(1)(b) do not

include the provisions of chapter 163 that impose public notice

requirements. Therefore, a plan amendment cannot be determined

to be not in compliance because of a failure to comply with

public noti ce requirements.

The Burden and Standard of Proof

37. As the challengers, Petitioners have the bu rden of

proof. Manatee CountyÓs determination that the Plan Amendments

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

sustained if the CountyÓs determination of compliance is fairly

debatable. See § 163.3184(5)(c), Fla. Stat.

38. The term " fairly debatable" is not defined in chapter

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 reaso nable persons could differ as to its

propriety." Id. at 1295.

39. 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

40. Section 163.3177(1)(f) requires that all p lan

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 and to the extent

necessary indicated by the data available on

that part icular subject at the time of

adoption of the plan or plan amendment at

issue.

41. 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 an d in

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

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

Cmty. Affairs Final Order, June 22, 1993), affÓd , 642 So. 2d 1367

(Fla. 1st DCA 1994).

42. Relevant analyses 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 analyzed through the time

of the administrative hearing. Id.

43. D ata supporting an amendment must be taken from

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

Stat. However, local governments are not required to collect

o riginal data. Id.

44. The methodology used in data collection must be

professionally acceptable, but the question of whether one

professionally accep table methodology is better than another

cannot be evaluated. Id.

45. Petitioners failed to prove that the Plan Amendments

are not based on relevant and appropriate data and analysis.

Mitigation

46. Section 163.3178(9)(a) requires mitigation measures to

be used if a local government does not comply with the adopted

level of service for out - of - county hurricane evacuation or a

twelve - hour evacuation time "to shelter" for a category 5 storm

event. The statute does not require that any such mitigation

me asures be made a part of a local go vernment's comprehensive

plan.

47. Petitioners failed to show that the Plan Amendments are

not consistent with section 163.3178(9).

Summary

48. In summary, Petitioners failed to prove beyond fair

debate that the Plan Amendments are not in compliance.

RECOMMENDATION

Based on 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 Amendments adopted

by Manatee County O rdinance No. 11 - 01 are in compliance.

DONE AND ENTERED this 2nd day of March, 2012 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildi ng

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 2nd day of March, 2012 .

ENDNOTES

1/ All references to the Flo rida Statutes are to the 2011

codification.

2/ It is much easier to understand, for example, that everyone

who resides east of Pine Street must evacuate, rather than

everyone who resides on property lying below elevation 2.4 feet

mean sea level.

COPIES FURNISHED:

Edward Vogler, II, Esquire

Vogler Ashton, PLLC

2411 - A Manatee Avenue West

Bradenton, Florida 34205 - 4948

[e-mail]

James A. Minix, Esquire

Manatee County Attorney's Office

Post Office Box 1000

1112 Manatee Avenue West, Suite 9 69

Bradenton, Florida 34205

[e-mail]

Cynthia R. Lorenzo, Interim Exec utive Director

Department of Economic Opportu n ity

107 East Madison Street

Caldwell B uilding

Tallahassee, Florida 32399 - 4128

Rosa McNaughton, Interim Gen eral Counsel

Dep artment of Economic Opportunity

107 East Madison Street

Caldwell B uilding , 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 Recomme nded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.