19-003848GM Sakata Seed Corporation, Sakata America Holdings, Inc., And Linda S. Nelson vs. Lee County, Florida, A Political Subdivision Of The State Of Florida Status: Closed Recommended Order on Friday, June 19, 2020.

Summary: Petitioners did not prove beyond fair debate that the 2019 Plan Amendments were not in compliance as that term is defined in section 163.3184(1)(b), Florida Statutes.

For Respondent: Mark A. Trank, Esquire

Michael D. Jacob, Esquire

Lee County Attorney’s Office

Post Office Box 398

2115 Second Street, 6th Floor

Fort Myers, Florida 33902 - 0398

For Intervenor : Russell P. Schropp, Esquire

Richard B. Akin, Esquire

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

Post Office Box 280

Fort Myers, Florida 33901

S TATEMENT OF THE I SSUE

Whether amendments to Respondent, Lee County 's (County),

c omprehensive p lan , CPA2 018 - 10014, adopted by ordinance on June 19,

2019, are " in compliance " as that term is defined in s ection 163.3184(1)(b),

Florida Statutes.

P RELIMINARY S TATEMENT

On July 18, 2019, Petitioners , Sakata Seed Corporation, Sakata America

Holdings, Inc., and Linda S. Nelson, filed with DOAH a p etition challenging

portions of CPA2018 - 10014 adopted by Lee County on June 19, 2019 (2019

Plan Amendments). Among other changes not challenged in this proceeding,

the 2019 Plan Amendments amended the policies and maps in the Lee

County Comprehensive Plan (Lee Plan) that addressed limerock mining in

the Density Reduction/Groundwater Resour ce (DR / GR) area of southeast Lee

County. The final heari ng was scheduled for October 22 and 23, 2019, in Fort

Myers, Florida. MCIN Bell, LLC, was granted leave to intervene on

September 11, 2019.

The County filed a motion to dismiss on July 2 4, 2019, which was denied.

On October 4, 2019, the County and Intervenor filed a J oint M otion in L imine

to exclude certain evidence, to which Petitioners filed a r esponse in

opposition . The m otion was denied by Order dated October 15, 2019. A

request for o fficial recognition filed by Petitioners on October 3, 2019, was

granted.

The parties jointly submitted the Joint Pre hearing S tipulation on October

11 , 2019, and the hearing convened as scheduled on October 22 and 23, 2019.

The final day of the hearing was continued until December 16, 2019.

At the final hearing, Petitioners presented the testimony of William

Spikowski and Greg Stuart, both of whom were accepted as experts in land

use planning. Petitioners' Exhibits 1 through 10 , and 12 were admitted in t o

evidence. The County presented the testimony of Brandon Dunn, principal

planner, who was accepted as an expert in land use planning. The County's E xhibits 15 and 26 were admitted in to evidence . Intervenor presented t he

testimony of Tina Ekblad, who was accepted as an expert in land use

planning, and Ronald E. Inge, a fact witness. Intervenor' s E xhibits 18, 22, 27

through 29, and 41 were admitted in to evidence. Joint Exhibits 14, 31, 32,

and 34 were also admitted in to evidence.

The five - volume T ranscript of the hearing was filed with DOAH on

January 2, 2020. The parties timely filed their proposed recommended orders

that were considered in the preparation of this Recommended Order.

All references to the Florida Statutes are to the 2019 version, unless

otherwise indicated .

F INDINGS OF F ACT

The Parties

1. Petitioners own and operate a business and own real property within

the County, and each submitted oral and written comments to the County

concerning the challenged 2019 Pl an Amendments during the period

beginning with the transmittal hearing and ending with the adoption of the

2019 Plan Amendments by the County.

2. T he County is a political subdivision of the s tate of Florida with the

duty and responsibility to adopt and ma intain a comprehensive plan under

the Community Planning Act, s ections 163.3161 et seq. , Florida Statutes (the

Act).

3. Intervenor owns property and operates a business in the County , and

provided oral comments to the County during the period beginning wit h the

transmittal hearing and ending with the adoption of the 2019 Plan Amendments.

L imerock Mining in Lee County

4. Limerock mining has occurred in the County on a large scale since at

least the 1970 ' s. A significant deposit of this natural resource was found in

the southeast portion of the County. Th e deposit of limerock was the largest

mineable deposit in the s tate between the Lake Belt region of Dade County

and the Brooksville area , and supplie d the seven - county s outhwest Florida

region with high - quali ty, DOT - grade limerock.

5. Three large limerock mines and several smaller mines were approved

by the County throughout the years , and were currently operating. These

mines exist ed and operate d exclusively in the Southeast Lee County planning

community.

6. The Southeast Lee County planning community was geographically

shown on Map 16 of the Lee Plan, and was one of 22 planning communities

identified in the Lee Plan. In addition to being shown on Map 16 of the Lee

Plan, the Southeast Lee County planning co mmunity was subject to a series

of goals, objectives, and policies under Goal 33 of the Lee Plan . L imerock

mining was specifically addressed under Objective 33.1 a nd policies

thereunder.

7. Limerock mining in the County supplie d a geographical area greater

than the County itself, encompassing all or parts of seven counties in

Southwest Florida . The area s were determined by the location of the mine

and the costs associated with transport of material to job sites , as compared

to other mines in Dade County and the Brooksville area.

8. While the approval of a limerock mine may encompass several thousand

acres, m ining generally occurred in smaller phases consisting of five to

twenty acres over an extended period of time. In a typical year, a limerock

mine w ould excavate 20 - 25 acres. Land within an approved mine that was

not in active mining was generally held as vacant or agricultural land. L and

that has been mined transition ed to an open water body, often with vacant

land around it to facilitate future use s such as residential or conservation.

9. T he extraction of this natural resource within a mining operation was a

temporary use as the land went through a normal progression of vacant or

agricultural use, then active excavation, then to an open water body, and

potentially to some other use such as residential or conservation. The only

permanent industrial use and activity at the mine was the roc k crushing and

processing area.

The Original Lee Plan

10. The County adopted its initial comprehensive plan under the 1 989

version of the Act . The plan was found "not in compliance" by the state land

planning agency at the time (DCA) and was referred to a hearing before

DOAH. Prior to the hearing, the County, DCA, and numerous intervenors

entered into a stipulated settlement agreement in 19 89 that required the

County to adopt various remedial plan amendments.

11. T ho se remedial amendments included t he adoption of a new w ater

r esources land use classification to be applied to the southeast area of the

C ounty , which would have a maximum density of one dwelling unit per ten

acres (1du / 10 ac) and other uses limited to agriculture, mining, and

conservation. As ultimately adopted, the name of the future land use (FLU)

classification was changed to DR / GR, and it was applied to uplands in the

southeast area of the County. As previously noted, limerock mining was

specifically identified as a permitted use throughout the DR / GR and remains

a permitted use in the DR / GR to the present.

12. The remedial amendments included t he adoption of a generalized map

of c urrent lime rock mining areas in the County that became known as Map

14 in the Lee Plan. Map 14 reflected mines already approved as of the date of

its adoption.

13. The remedial amendments also included the adoption of a series of 125

subdistrict maps as part of the future land use map (FLUM) series that

would identify the allowable acreage in each subdistrict for the proposed

distribution, location, and extent of generalized land uses based upon

population p rojections for the year 2010. T his map series became known as

the Year 2010 Overlay.

14. The stipulated settlement agreement also required the adoption of a

policy that prohibited any development approvals for any FLU category that

would cause the acreage total for any land use to be exceeded in any of the 125 subdistricts. U nder the Year 2010 Overlay, limerock mining was not a

specifically identified land use category, but acreage for mining was included

under the " active agriculture " category while the pr ocessing facilities

associated with the mines were identified under the industrial category .

15. Th e remedial amendments were adopted by the County in 1990 and

ultimately found " in compliance " with the Act.

16. Between 1990 and 2010, the remedial amendments remained in the

Lee Plan, although some changes were made to the Year 2010 Overlay that

were relevant for the present case. Specifically, the Year 2010 Overlay proved

to be cumbersome with its 125 subdistricts . In 1 998, the map series for the

125 subdistricts was eliminated and replaced with a table, referred to as Table 1(b), that allocated acreages for various land uses to 22 " planning

communities " identified by a separate map in the Lee Plan. Limerock mining

remained under the active agriculture designation and allocations. T hese

amendments were also found " in compliance " under the Act. Map 14

continued as originally adopted and showed mines that had already been

approved in Lee County.

17. The Le e Plan established 30 different land u se categories in the FLU

Element and FLUM. Of the 30 land use categories, 17 allow residential

development, 22 allow commercial development, 12 allow industrial

development, but only the DR/GR category allows limerock mining.

18. Of the 22 planning communities identified in the Lee Plan, the DR / GR

land use classification primarily exists in the Southeast Lee County planning

community. O ther planning communities that contain the DR / GR

classification have policies that preclude approval of limerock min ing.

19. Thus, t he Lee Plan only permits limerock mining in the DR / GR land

use category in the Southeast Lee County planning community. In general ,

n atural resource extraction , i.e., limerock mining, has always been a

permitted use in the DR / GR land use ca tegory of the Lee Plan, and it

remained so under the 2019 Plan Amendments at issue in this proceeding.

20. The Lee Plan also contained an i ndustrial land use category. Natural

resource extraction is not permitted under the i ndustrial land use category of

t he Lee Plan. Industrial land uses were addressed in Goal 7 of the Lee Plan ,

while natural resource extraction was addressed in Goal 10 of the Lee Plan.

21. As discus sed above, the Lee Plan contained an appendix known as

Table 1(b). Uses other than residential were allocated under Table 1 (b) into

generic groupings by planning community, including commercial, industrial,

passive and active agricultural, public, conservation, and vacant land.

22. The County use d Table 1(b) a t the development order stage to ensure

that there were adequate acres available for a particular project under the

acreage allocations. The 2019 Plan Amendments d id not change that process

for limerock mines.

2010 Plan Amendments

23. In 2010, the County adopted a series of plan amendments (2010

Amendments) that altered the Lee Plan ' s treatment of the Southeast Lee

County planning community in general , and limerock mining in particular.

24. T he 2010 Amendments a mended Table 1(b) by removing the limerock

mining acreage from active agriculture and placing it in industrial. The 2010

Amendments amended Map 14 so that it was no longer the " generalized map

of current limestone mining " required by the 19 89 stip ulated settlement

agreement, but instead was a " Futu re Limerock Mining Overlay " that

identified lands available for future limerock mining. However, all of the area

shown on the map as available was already approved for mining. There was

no land contained on the map that was not already associated with a pr eviously approved mine . In addition, several mines were left off Map 14,

including the Intervenor ' s.

25. The 2010 Amendments a dopted or amended policies i n the Lee Plan

that : (1) allow ed rezonings for new and expanded limerock mines only in the

areas identified on Map 14 , and require d a comprehensive plan amendment

to add land to Map 14; (2) provide d that new or expanded limerock mine

development orders could not be approved if such appro val caused the

acreage allocations for " industr ial" in Table 1(b) to be exceeded; (3) describe d

the location for new and expanded mines shown on Map 14 as concentrated

within the " traditional Alico Road industrial corridor " ; (4) require d a

demonstration of " clear necessity " before allowing additional limerock mines

in "less disturbed environments " ; and (5) require d the County to do a supply

and demand analysis for limerock that addressed regional demand for the

Southwes t Florida region and the County' s supp ly of limerock to meet t hat

regional demand.

2 6. The 2010 Amendments did not alter the land use category in which

limerock mining could be approved . Under the 2010 Amendments, limerock

mining was not permitted under the Industrial FLU category, but remained a

permitted use only in the DR / GR category.

27. Mr. Spikowski, the Petitioners ' expert witness who served as the

primary drafter of the 2010 Amendments pertaining to limerock mining ,

testified that much of the language contained in the 2010 Amendm ents was

intentionally vague and ambiguous to allow " elected officials to use judgment

under changed circumstances. "

Changes to the Lee Plan and Southeast Lee County Since 2010

2 8 . In 2015, the County amended the Lee Plan with regard to the DR / GR

i n the Southeas t Lee County planning community. Specifically, the County

adopted the Environmental Enhancement and Preservation Communities

(EEPC) Overlay, which allowed landowners within the DR / GR in Southeast

Lee County to request greater density than 1du / 10 a c , if done as a planned

development that incorporated certain preservation and enhancement strategies to facilitate the County ' s objective of restoring flow ways, habitat,

and other environmental features in the DR / GR.

29. Since adoption of the EEPC Overlay, several projects were approved

by the County t hat have, or shortly will, convert large tracts of vacant and

agricultural land to residential and conservation uses, thereby permanently

removing these tracts from possible consider ation for limerock mining.

30. In addition, since the 2010 Amendments, the County acquired several

large tracts of land in the Southeast Lee County planning community , which

has taken additional lands "out of play" for future limerock mining. Two of

these acquisitions were the result of lawsuit settlements between landowners

and the County over mining rights after the adoption of the 2010

Amendments . A third lawsuit over mining rights affected by the 2010

Amendments remain ed pending against the County .

31. Another large land acquisition of approximately 3,900 acres, known as

Edison Farms, was made by the County in 2017 for public us e and

conservation purposes.

32. C hange s in development and conservation patterns in the Southeast

Lee County planning com munity since 2010 represent significant changes

that h ave r educed the amount of land available for limerock mining. Many of

the changes in the development and conservation of lands in the affected area were the result of the County ' s permitting decisions u nder the EEPC

Overlay , and its acquisition of several large tracts of land . The land currently

available for potential mining was confined to several large t racts all located

within the DR / GR area o f the Southeast Lee County planning community.

County Staff Implementation of the 2010 Amendments

3 3 . Since the adoption of the 2010 Amendments, County staff encountered

significant issues in applying these amendments in actual practice. Brandon

Dunn, the County's principal planner , testified that ther e were practical

difficulties applying the language of the 2010 Amendments to a landowner's

application to amend Map 14 . The landowner's 2016 application was the first

time County staff had occasion to apply the 2010 Amendments .

3 4 . Mr. Dunn explained that the County experienced a number of

problems interpreting the 2010 Amendments and reconciling the 2010 Amendments with other portions of the Lee Plan , as well with the Lee

County Land Development Code (LDC). Ultimately, County staff concluded

that portions of the 2010 Amendments were vague and ambiguous , a

conclusion that is supported by the testimony of Mr. Spikowski who drafted

the language.

3 5 . Specifically, Mr. Dunn testified that County staff experienced the

following problems interpreting and implementing various provisions of the

2010 Amendments:

a. T he meaning of the terms " more disturbed " and " less disturbed " lands;

b. T he meaning and intended location of the " traditional Alico Road

industrial corridor " ;

c. T he meaning of the term " regional demand " ; and

d. T he meaning of the term " clear necessity ."

3 6 . County s taff concluded that these ambiguities and their experience

showed that the clear and reasonable application of the 2010 Amendments

was difficult , if not impossible .

3 7 . County staff consulted the data and analysis generated for the 2010

Amendments seeking guidance to interpret and apply the ambiguous

portions of the 2010 Amendments and found none. Furthermore, th at data

and analysis was now 10 to 20 years old , and considered " dated " i n light of

other changes that County staff was aware had occurred in Southeast Lee

County in the intervening time period.

38 . Accordingly, County staff identified the need to either amend portions

of the 2010 Amendments or delete them. Based on policy direction from the

Board of County Commissioners , and their experience , C ounty s taff proposed

to delete portions of th e 2010 Amendments .

39 . The reasons identified for deletion of portions of the 2010

Amendments were: (1) the County ' s LDC for mining was significantly

strengthened , which resulted in a more rigorous and detailed review of

mining applications ; (2) since 2010, significant changes in land use patterns

in the Southeast Lee County planning community reduced the land available

for limerock mining ; and (3) the addition of t he EEPC Overlay to the Lee

Plan committed large areas of land to residential and conservation uses .

40 . In addition, the County' s first attempt to update the supply and

demand analysis required every seven years under the 2010 Amendments

demonstrated how the 2010 Amendments could be interpreted in different

ways. A subsequent study by Stuart and a " peer review " analysis by

Spikowski of all of the supply and demand analyses ultimately showed a lack

of consistent me thodology and results in the studies.

The 2019 Plan Amendm ents

4 1 . On June 19, 2019, the County adopted the 2019 Plan Amendments

that were the subject of this proceeding. Among other changes, the 2019 Plan

Amendments rescinded or modified several provisions adopted by the 2010

Amendments . The changes:

a. Eliminat ed Map 14, the Future Limerock Mining Overlay;

b. Revis ed Table 1(b) by moving the acres identified for mining from the

" industrial " allocation back to the " active agriculture " allocation w here they

were prior to the 2010 Amendments . T he land identified for the industrial

uses of a limerock mining operation , i.e., the rock crushing and processing

facilities , was kept in the industrial grouping;

c. Eliminat ed policies that tied allowable mining acreage to Table 1(b);

d. Eliminat ed policies that tied new and expanded mines to the

" traditional Alico Road industrial corridor " ;

e. Eliminat ed the requirement that the County perform a supply and

regional demand analysis every seven years; and

f. Eliminat ed the requirement to apply for a comprehensive plan

amendment to amend Map 14 and to demonstrate a " clear necessity " to do so.

42 . I n addition to the da ta and analysis described above , County staff

reviewed the following data and analysis to prepar e the 2019 Plan

Amendments:

a. T he 2008 Dover Kohl Study, which included The Proposed Lee Plan

Amendments for Southeast Lee County; P rospects for Southeast Lee County

Planning for t he Density Reduction/Groundwater Resource Area ; Ecological

Memorandum of the Density Reduction/Groundwater Resource Area ; and

Natural Resource Strategies for Southeast Lee County;

b. T he 1993 Henigar & Ray Study;

c. T he 2016 Waldrop Mining Study ;

d. T he 1989 Stipulated Settlement Agreement;

e. Chapter 12 of the County' s L DC regulations; and

f. Florida Statutes.

43. Petitioners argue d that this change caused the Lee Plan not to comply

with the Act. However, the facts adduced at hearing do not support this

contention. Neither Mr. Spikowski nor Mr. Stuart could cite any provi sion of

s ection 163.3177 that require d limerock mining to be identified or regulated

as industrial , or that prohibit ed the treatment of portions of limerock mines

as active agriculture .

44. In addition, the evidence adduced at hearing showed that at any given

time a limerock mine comprised multiple non - industrial land uses including

agriculture, vacant land, conservation, open water bodies, and excavation .

Only the small portion of a mine that contain ed the processing facilities and

batch plants was devot ed to industrial use throughout the life of the mine.

Therefore, classifying portions of limerock mining acreage as active

agriculture rather than industrial in Table 1(b) was reasonable, particularly

when th e small portion of the mine that contain ed the p rocessing facilities

and batch plants was classified and regulated as an industrial use under

Table 1(b). T he retention of those industrial acres in Table 1(b) in the 2019

Plan Amendments fulfill ed the statutory requirement to show the

distribution, location, and extent of indu strial uses under the Lee Plan.

45. Petitioner s also argued t hat moving the limerock mining acres to the

active agriculture grouping cause d limerock mining to escape regulation. This

argument was not persuasive since u nder the 2 019 Plan Amend ments,

limerock mining continued to be regulated by the Lee Plan .

4 6 . FLU Element Policy 1.4.5 of the Lee Plan , which is now more

stringent following th e 2019 Plan Amendments , required groundwater

modeling to occur at the time of zoning for a new limerock mine in order to

ensure consistency with those requirements. The DR/GR classification

established under Policy 1.4.5 d id not allow industrial uses other than those

associated with mini ng .

4 7 . FLU Element Goal 10 of the Lee Plan was specific to natural resource

extraction including limerock mining regardless of the grouping in Table 1(b).

48 . Table 1(b) was still used by the County at the development order stage

to ensure that there were adequate acres available for industrial land uses

associated with a limerock min e . The 2019 Plan Amendments d id not chang e

that process. FLU Element P olicy 1.7.6 of the Lee Plan still required that

" [n]o development orders . . . will be issued or approved by Lee County that

would allow the acreage totals for residential, commercial or industrial uses

contained in Table 1(b) to b e exceeded." The industrial uses in a mine would

continue to be subject to this requirement.

4 9 . Chapter 12 of the LDC ext ensively regulate d limerock mining even

after the 2019 Plan Amendments. Chapter 12 of the LDC require d

monitoring of limerock mining even after the 2019 Plan Amendments.

50. The Lee Plan never classified limerock mining as either an industrial

or agr iculture land use. Instead, it was identified as a specific activity

separate from industrial , which was permitted only in the DR/GR category in

the Southeast Lee County planning community.

51. Mr. Dunn testified that the industrial acres allocated under T able 1(b)

for other planning communities were generally available for more traditional

industrial uses such as manufacturing or warehousing . He testified that

l eaving the limerock mining acres under industrial uses in Table 1(b) " can

give the impression th at those types of uses might be allowed within

Southeast Lee County, which would create an [internal] inconsistency with

the future land use category. The future land use categories out there [ in

Southeast Lee County] are primarily wetlands and DR/GR, and the

industrial uses are not allowed wit hin either of those categories."

See Tr. p. 601 .

52. After adoption of the 2019 Plan Amendments, the Lee Plan remain ed

based on the approved population projection for Le e County , and provided at

least the minimum amount of land required to accommodate the medium population projections published by the Office of Economic and Demographic Research through the year 2030 .

53. No internal inconsistencies were created in the Lee Plan by the 2019

Plan Amendments. N o internal inconsistency occurred by the County ' s

removal of the requirement to conduct a supply and demand analysis for

limerock every seven years. No other land use was required by the Lee Plan

to undergo such an analysis.

54. N o internal i nconsistency was created by the County’s elimination of

the tie to the " traditional Alico Road industrial corridor ," or to the

requirement of " clear necessity " in order to place additional land on Map 14.

55. No internal inconsistency was created by the County ' s reallocation of

mining acres in Table 1(b) to the " active agriculture " category.

56. Petitioners ' expert Mr. Stuart pointed to several provisions of the Lee

Plan that he believed were now internally inconsistent because of the 2019

Plan Amendment s. However, his testimony did not demonstrate actual

conflict with any of the cited provisions.

57. After deletion of Map 14 and changes to Table 1(b), the Lee Plan would

continue to show the general distribution, location, and extent of limerock mining f or the 2030 P lan horizon .

5 8 . Further, the changes in the Southeast Lee County planning

community over time, as well as the policy decisions by the County to

incentivize conservation have limited the land available for limerock mining

to certain identifiable tracts within Southeast Lee County.

59 . Map 14 was not required by the Act or the Lee Plan. T here were

numerous other provisions of the Lee Plan that a new mine would have to

comply with in order to obtain approval . All these provisions allo wed the

County to properly monitor and regulate min ing activities.

Ultimate Findings

60 . Petitioner s did not prove beyond fair debate that the 2019 Plan

Amendments were not in compliance.

61 . The C ounty's determination that the 2019 Plan Amendments were in

compliance was fairly debatable.

C ONCLUSIONS OF L AW

Standing and Scope of Review

62 . To have standing to challenge a comprehensive plan amendment, a

person must be an " affected person " as defined in section 163.3184(1)(a).

Petitioner s are affected person s and ha ve standing to challenge the 2019 Plan

Amendments .

63 . An affected person challenging a plan amendment must show that the

amendment is not " in compliance " as defined in section 163.3184(1)(b). " In

compliance " means consistent with the require ments of sections 163.3177,

163.3178, 163.3180, 163.3191, 163.3245, and 163.3248.

Burden and Standard of Proof

64 . As the part ies challenging the 2019 Plan Amendments, the Petitioner s

ha d the burden of proof.

65 . The County's determination that the 2019 Pl an Amendments are " in

compliance " is presumed to be correct and must be sustained if the County's

d etermination of compliance is fairly debatable. See § 163.3184(5)(c)1., Fla.

Stat.

66 . The term "fairly debatable" is not defined in chapter 163. In Martin

County v. Yusem , 690 So. 2d 1288, 1295 (Fla. 1997), the Florida Supreme

Court explained " [t]he fairly debatable standard is a highly deferential

standard requiring approval of a planning action if a reasonable person could

differ as to its propriety. " The Court further explained, " [a]n ordinance may

be said to be fairly debatable when for any reason it is open to dispute or

controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity. " Id. Put an other way, where

there is " evidence in support of both sides of a comprehensive plan

amendment, it is difficult to determine that the County 's decision was

anything but ' fairly debatable. '" Martin Cty. v. Section 28 P’ship, Ltd. , 772 So.

2d 616 (Fla. 4th D CA 2000).

67 . Moreover, " a compliance determination is not a determination of

whether a comprehensive plan amendment is the best approach available to

the local government for achieving its purpose. " Martin Cnty. Land Co. v.

Martin C ty. , Case No. 1 5 - 0300GM RO at ¶ 149 (Fla. DOAH Sept. 1, 2015;

Fla. DEO Dec. 30, 2015).

68 . The standard of proof for findings of fact is a preponderance of the

evidence. See § 120.57(1)(j), Fla. Stat.

D ata and Analysis

69 . 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 and to the extent necessary indicated by the data available on that particul ar subject at the time of adoption of the plan or plan amendment at

issue. " § 163.3177(1)(f), Fla. Stat. The evaluation, however, " may not include

whether one accepted methodology is better than another. " § 163.3177(1)(f)2.,

Fla. Stat.

70 . The data which m ay 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 2019 Plan

Amendments may be presented. See Zemel v. Lee C ty ., 15 F.A.L.R. 2735

(Dep’t of Cmty. Affairs 1993), aff’d , 642 So. 2d 1367 (Fla. 1st DCA 1994).

71 . 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 analyze d through the time of the administrative hearing. Id.

72 . Data 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 original data. Id .

73 . The methodology 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 .

74 . Sections 163.3177(1)(f)3 . , and 163.3177(6)(a)4 . , require th e

comprehensive plan to be based on and accommodate "the minimum amount of land" required to "accommodate the medium" population projection

through " at least a 10 - year planning period. " Section 163.3177(6)(a)4. also

provides that the " amount of land design ated for future land uses should

allow the operation of real estate markets to provide adequate choices for . . .

business and may not be limited solely by the projected population. " Section

163.3177(6)(a)8.c. further provides that " future land use map ame ndments

shall be based upon . . . an analysis of the minimum amount of land needed to

achieve the goals and requirements of this section. " Taken together, these

statutory provisions require the plan to meet the minimum amount of land

required for mining through at least the 10 - year planning period, but do not

prohibit the County from providing more than the minimum. Nor do they

require the County to regulate the amount of land available so that it is more

limited than required by statute .

75 . The testimon y and evidence adduced at the hearing clearly

demonstrated that sufficient land was available for limerock mining through at least a 10 - year planning period. Further, Petitioners did not prove that the

2019 Plan Amendments were not based on studies and dat a of the amount of

land required to accommodate anticipated growth.

76 . While each of the studies reviewed by the County came to different

conclusions about the amount of land necessary to accommodate future

growth, they all concluded that the Lee Plan designated at least the

minimum amount of land necessary for limerock mining to accommodate future growth through the Plan ' s horizon. Petitioners ' expert Mr. Stuart

acknowledged that his own study concluded there was enough land designated for limerock min ing to meet the demand through the Lee Plan' s

2030 horizon.

77 . Petitioners asserted that the 2019 Plan Amendments were adopted in

complete disregard for the data and analysis that were produced for the 2010

Amendments, and that this constitute d a violation of s ection 163.3177(1)(f)

because the 2019 Plan Amendments were not an appropriate response to the

2010 data and analysis.

78 . T he issue in this proceeding was not whether the 2019 Plan

A mendments were an appropriate reaction to the 2010 data and analysis.

Rather, the issue was whether the 2019 Plan Amendments were an

appropriate reaction to the 2019 data and analysis.

79 . Petitioners ' approach would mean that a local government could not

amend or repeal its prior legislative acts , even if newer data and analysis ,

and public policy considerations provided a reasonable basis for doing so .

This would be contrary to the statutory provision that "[l] ocal governments

are encouraged to comprehensively evaluate and, as necessary, update comprehensive pla ns to reflect changes in local conditions. " § 163.3191(3),

Fla. Stat.

80 . The data and analysis that the County relied on to adopt the 2019

Plan Amendments and detailed in the Findings of Fact , w ere both relevant

and appropriate.

81 . Petitioners argued that deleting portions of the 2010 Amendments was

not required and that amending the plan to clarify certain vague and ambiguous provisions may have been a preferred reaction. However, this

proceeding was about the amendments actually proposed and not abou t

amendments that could have been proposed. A compliance determination is

not a determination of wh at is the best approach available to the local

government for achieving its purpose s . See Ma rtin C ty. Land Co. v. Martin

C ty. , Case No. 15 - 0300GM RO at ¶ 149 (Fla. DOAH Sept. 1, 2015; Fla. DEO

Dec. 30, 2015).

82 . Section 163.3177(1)(f) provides that the data and analysis used by the

local government " may include, but not be limited to, surveys, studies . . .."

T he language does not require a particular type of data, but simply provides

that it may be one of those listed types or some other type.

83 . Comprehensive plan amendments that represent a policy or

directional change do not require the degree of data and analyses that other

amendments may require. See I ndian Trail Imp. Dist. v. Dep't of Cmty.

Affairs , 946 So. 2d 640, 64 2 (Fla. 4th DCA 2007) (reflecting that some matters

of policy are obviously not susceptible to numerical computation , but instead

must be informed by huma n judgment of elected officials).

84 . Petitioners failed to demonstrate beyond debate that the 2019 Plan

Amendments were not supported by appropriate data and anal ysis in

accordance with s ection 163.3177(1)(f). Petitioners failed to show that the

2019 Plan Amendments did not react to the 2 019 data and analysis in an

appropriate manner or to the extent necessary as indicated by the data and

analysis.

85 . The 2019 Plan Amendments are in compl iance with the requirements

of s ections 163. 3177(1) ( f ) , 163.3177(1)(f)3 . , and 163.3177(6)(a)2.a., as well as

s ections 163.3177(6)(a)4. and 163.3177(6)(a)8.c.

Internal Consistency

8 6 . Section 163.3177(2) requires the elements of a comprehensive plan to

be internally consistent. Petitioners assert ed that the 2019 Plan

Amendments cause d an internal inconsist ency within the Lee Plan .

87 . Specifically , Petitioners contended that the 2019 Plan A mendments

create d inconsistency with Policy 1.7.6 of the Lee Plan, which prohibits

development orders that would allow the acreage totals for residential,

commercial, or industrial uses contained in Table 1(b) to be exceeded.

Petitioners further contended that the reallocation of mining acres from

" industrial " to " active agriculture " under Table 1(b) caused this inconsistency,

contending that all land within an approved mine should be considered

industrial.

88 . However, the hearing testimony established that a limerock mine was

actually comprised of multiple land uses at any given time, including vacant

or agricultural use, conservation, open water bodies, active excavat ion, and

the industrial uses comprised of rock crushing, processing, and batch plants.

T he allocation of 65 acres as " industrial " under Table 1(b) was consistent

with the requirement of Policy 1.7.6 to limit development orders for these

industrial uses.

89 . At the hearing, Petitioners’ expert Mr. Stuart testified that the 2019

Plan Amendments created other internal inconsistencies with the Lee Plan .

All of the provisions identified by Mr. Stuart remained part of the Lee Plan,

and any new application for a l imerock mine must demonstrate consistency

with each of those provisions, ev en after the 2019 Plan Amendments.

90 . Petitioner s did not prove beyond fair debate that the 2019 Plan

Amendments created any internal inconsistencies in the Lee Plan.

Summary

9 1 . The County's determination that the 2019 Plan Amendments were in

compliance was fairly debatable.

92 . Petitioner s did not prove beyond fair debate that the 2019 Plan

Amendments were not in compliance.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the D epartment of Economic Opportunity issue a final

order determi ning that the 2019 Plan Amendments adopted by the County on

June 19, 2019, are in compliance.

D ONE A ND E NTERED this 16th day of June , 2020 , in Tallahassee, Leon

County, Florida.

F RANCINE M. F FOLKES

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.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of June , 2020 .

C OPIES F URNISHED :

Matthew Donald Uhle, Esquire

Law Office of Matthew D. Uhle, LLC

1617 Hendry Street , Suite 411

Fort Myers, Florida 33901

(eServed)

Richard W. Wesch, Esquire

Lee County Attorney's Office 2115 Second Street, 6th Floor

Post Office Box 398

Fort Myers, Florida 33902 - 0398

Mark A. Trank, Esquire

Lee County Attorney's Office

2115 Second Street, 6th Floor

Post Office Box 398

Fort Myers, Florida 33902 - 0398

(eServed)

Richard Barton Akin, Esquire

Henderson Franklin Starnes & Holt, P.A.

Post Office Box 280

Fort Myers, Florida 33902

(eServed)

Michael D. Jacob, Esquire

Lee County Attorney's Office 2115 Second Street, 6th Floor

Post Office Box 398

Fort Myers, Florida 33902 - 0398

(eServed)

Mark Buckles, Interim General Counsel

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Ken Lawson, Executive Director Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Janay Lovett, Agency Clerk

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 agency that will issue the Final Order in this

case.